1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Testamentary Suit No.21 of 2004 IN Probate Petition No.336 of 2004 Petition for Probate of the last Will and Testament of Dr.Rashmi Kanji Mayur. ... Deceased Dr.(Ms.) Kumudini Mayur & anr. .. .. Plaintiffs/ Petitioners V/s. Smt.Meena Rashmi Mayur .. .. Defendant / Respondent WITH Testamentary Suit No.60 of 2005 IN Probate Petition No.465 of 2005 Petition for Probate of the last Will and Testament of Dr.Rashmi Kanji Mayur. ... Deceased Smt.Meena Rashmi Mayur .. Plaintiff/ Petitioner V/s. Dr.(Ms.) Kumud, wife of Raghuvir Goel. .. Defendant / Respondent 2 Mr.Y.K. Tiwari with Ms.S.A. Madgud for Petitioners. Mr.Shailesh Shah with Ms.A Castilino and Mr.H.V. Gala for Respondents. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 11 th August, 2008 JUDGMENT : 1. One Rashmi Mayur expired on 10.2.2004. The Petitioners in the aforesaid two Suits are the sister (Kumudini) with her brother and a lady (Meena) claiming to be the wife of the deceased. Both of them have filed separate Probate Petitions in respect of two separate Wills produced by them. The sister Kumudini claims under the Will dated 28.2.2003. Meena claims under the Will dated 8.12.2003. 2. The main estate left by the deceased is a flat being Flat No.181, Rewa Apartments, Bhulabhai Desai Road, Haji Ali, Mumbai. The flat admittedly belonged to and was in the name of the deceased during his lifetime. There have been previous disputes between the deceased and Meena with regard to the flat which led to the filing of the Suit being Suit No.5315 of 1983 in the Bombay City Civil Court by the deceased and which culminated in certain Consent Terms dated 4.2.1984 between the deceased and Meena. 3. The deceased admittedly lived with Meena in the said flat for 3 a period of years. Under the Consent Terms, the deceased gave Meena another flat in Mulund. She was to vacate the flat in Rewa Apartments upon receiving the flat at Mulund. She did not vacate that flat and continued living therein. She was continuously living in that flat even after the filing of this Petition and at present along with Kumudini, the sister of the deceased. 4. After the deceased and Meena had certain disputes between themselves and agreed under the Consent Terms to part in 1984, the deceased is shown to have nominated his sister Kumudini in respect of the flat in May 1990. Kumudini has applied for being joined as an associate member in June 1990. 5. It is the case of Meena that despite the Consent Terms, she continued to live with the deceased in the flat at Rewa Apartments and the parties had reconciled their disputes and thereafter even remarried. She thereafter continued to live with the deceased as his wife. 6. The deceased was rather peripatetic. He was issued several passports from time to time and had visited various countries, including the U.S. where Kumudini resided after her marriage. The deceased was seriously ill for more than a 4 year prior to his death. He is stated to have was taken seriously ill in South Africa and was in New York, U.S.A. and brought to India by Kumudini from New York, U.S.A. She is stated to have taken care of the deceased at that time. Thereafter during the last year, the deceased continued to live in his flat in Rewa Apartments. Meena continued to live therein though she had agreed to vacate that flat. 7. The Will sought to be propounded by Kumudini dated 28.2.2003 is after the deceased took seriously ill and was brought to India. The Will propounded by Meena dated 8.12.2003 is couple of months prior to the death of the deceased when also he was seriously ill. 8. Kumudini claims under the Will dated 28.2.2003 and claims that Meena was not married to the deceased and hence is not an heir of the deceased. Meena claims to be the sole surviving heir of the deceased as his lawfully wedded wife and claims under the Will dated 8.12.2003. Upon such claims Justice Vazifdar framed the following 13 issues on 25.1.2006, which are answered as follows:- (1) Whether the Plaintiffs prove that Dr.Rashmi Mayur (the deceased) left a writing dated 28.02.2003, purporting to be his last Will and Testament as alleged by the Plaintiffs in 5 paragraph 3 of the Plaint. - NO. (2) Whether the Plaintiffs prove that the writing referred to in issue No.1 is a Will validly executed by the deceased. - NO (3) If answer to issue No.2 is in the affirmative, whether the Plaintiffs prove that they are the Executrix and Executor named under the said Will of the deceased as alleged by them in paragraph 5 of the Plaint. - NO. (4) Whether the Plaintiffs prove that the particulars in Exhibits “C” and “D” and in the Schedule II annexed to the Plaint are true as alleged in paragraphs 6, 7, and 8 of the Plaint. - DOES NOT ARISE FOR CONSIDERATION. (5) Whether the Plaintiffs prove that the persons named in paragraph 9 of the Plaint are the only heirs and next of kin of the deceased. - DOES NOT ARISE FOR CONSIDERATION (6) Whether the Defendant proves that the deceased, died leaving him surviving her (Defendant) as his sole legal heir and that she is entitled to the Estate of the deceased, as his sole surviving class I heir as alleged by her in paragraph 3 of the Defendant's Affidavit dated 07.06.2004 made in support of the Caveat dated 01.06.2004. - - DOES NOT ARISE FOR 6 CONSIDERATION. (7) Whether the Plaintiffs sought the probate fraudulently, as alleged in paragraph 9 of the affidavit in support of the Caveat dated 1st June, 2004. - DOES NOT ARISE FOR CONSIDERATION. (8) Whether the Will dated 28 th February, 2003 is fabricated as alleged in paragraph 9 of the affidavit. - DOES NOT ARISE FOR CONSIDERATION. (9) Whether the Will dated 28 th February, 2003 was obtained by coercion and undue influence practised upon the deceased, as alleged in paragraph 9 of the affidavit in support of the caveat dated 1.6.2004. - DOES NOT ARISE FOR CONSIDERATION. (10) Whether the Defendant proves that the deceased made a subsequent Will dated 8.12.2003 and thereby revoked his alleged previous Will dated 28.2.2003. - YES (11) If answer to issue No.8 is in the affirmative, whether the Defendant proves that the deceased appointed her as the Sole Executrix of his said last Will dated 8.12.2003 and bequeathed all his properties in her additional Affidavit 7 dated 1.10.2005 in support of her Caveat. - YES (12) Whether the Plaintiffs prove that the Will dated 8.12.2003 made by the deceased is a fake, forged, bogus or fabricated document, as alleged by them in paragraph 4 of their Affidavit dated 11.11.2005 in Reply to the Defendant's Affidavit dated 1.10.2005. - NO (13) What order ? - AS PER FINAL ORDER. The aforesaid issues, though of common nature, were framed in Suit No.21 of 2004. They must be taken to be common issues in both the Suits. The expression “the Plaintiffs” in the issues shall be taken as “Kumudini”. The expression “the Defendant” in the issues shall be taken as “Meena”. It can be seen that if Meena proves the Will dated 8.12.2003 under issue No.10, Issue No.11 would follow issue No.10. Issue Nos.1, 2, 3 and 12 would require to be decided together with Issue Nos.10 and 11. The order under issue No.13 would go accordingly. 9. The parties have allowed the documentary evidence produced in both the aforesaid Suits by both of them to be marked in evidence. They have sought to interpret the documents and/or challenge the contents thereof. 8 10. The parties have filed the Affidavits of examination- in- chief and have been cross- examined before a Court Commissioner. Exceedingly lengthy, verbose cross- examination has been recorded by both the parties. Admissibility of the documents relied upon by the parties had not been considered by the Court before the parties were cross- examined before the Commissioner. The documents relied upon by them were used in the cross- examination and marked Exhibits by the Court Commissioner. Neither of the parties have strictly challenged the Exhibits which have been marked. Both of them have argued upon the documents produced by themselves and the other party. 11. Both of them have examined themselves and one attesting witness of their respective Wills. The attesting witness of Meena is a family friend before whom the Will was executed in the absence of Meena and kept secret even from her for a period of about two years after which it was sought to be sent by the attesting witness to Meena who in turn forwarded a copy thereof to Kumudini. This was after Meena and Kumudini had disputes with regard to the flat at Rewa Apartments. 12. The attesting witness of the Will propounded by 9 Kumudini is an Advocate in whose presence that Will was sought to be executed. 13. The parties have wisely and advisedly brought before the Court in both the aforesaid Petitions their entire oral case supported by the plethora of documentary evidence. In essence, the parties' oral evidence can be considered upon seeing the documentary evidence produced by both of them and upon which both of them have been extensively cross- examined. 14. Though there has been common evidence of the parties recorded in the aforesaid Suits, it can be seen that upon such evidence, the Court must consider first the Will propounded by Meena which is later in point of time. If Meena proves her Will, the Will propounded by Kumudini, which has been executed about 8 months' before the second Will, must be taken to have been revoked by the testator. Only if the Will propounded by Meena cannot be probated, the Will propounded by Kumudini would have to be considered for issuing a probate. The evidence of the parties, which shall be considered presently, has sought to show the execution of the Wills propounded by Meena and Kumudini. Issue Nos.1, 2, 3, 10, 11 & 12 : 10 15. It would be prudent to consider the documentary evidence of the parties first. 16. Meena has produced numerous photographs of herself with the deceased in Rewa Apartments, and of herself with the relatives and friends of the deceased, including Kumudini in Rewa Apartments over a period of years. These photographs are marked Exhibits A, C, D, E, F, G, H and R (collectively) in evidence. It has been the endeavour of Meena to show that she had very cordial relations with the deceased all these years and was remarried and living happily with the deceased even after their initial disputes and differences which led to the deceased filing the Suit against her in the City Civil Court, Bombay. She has even sought to contend that the parties were remarried and she lived as the legally wedded wife of the deceased. The photographs show very cordial relations between the deceased and Meena in the earlier years when both appear to be young in the photographs. Meena is seen as an older woman alone in many photographs of later years. These photographs are admittedly taken in Rewa Apartments showing that she continued to live there. These photographs, however, do not show her with the deceased. There are several photographs showing her performing pooja with the relatives of the deceased during later years. Meena seeks to contend that these photographs show that she was accepted as the wife of 11 the deceased. There are several photographs of Meena performing religious rites and at the condolence meeting after the death of the deceased. Meena seeks to contend that she performed all the rituals and was allowed to so perform those rituals as the legally wedded wife of the deceased. Some of these photographs also show Meena with the father of the deceased by which she seeks to show the complete acceptance of her as the wife of the deceased. 17. Though Meena is shown to have taken numerous photographs over the years singly as well as along with the deceased the photographs along with the deceased are of earlier years alone. There are no photographs of the marriage or remarriage of Meena with the deceased. They are stated to have married in Mahalaxmi Temple. It may be accepted that the photographs could not have been taken in the temple premises. But no photographs of the bride and the groom on the date of the marriage are produced. None of these photographs are shown to be such. 18. We are not concerned in these Testamentary Suits with the marriage of the parties. Whether or not the parties married or remarried , the deceased could have made a bequest in favour of Meena with whom he may have continued to live happily in the suit premises. The real test 12 for acceptance of the Will propounded by Meena is cordial and intimate relations of the deceased with her in his last years. That is not shown by the photographs. Meena has also produced several photographs and condolence letters and the obituary of the death of the father of the deceased in which she is shown as his daughter- in-law. She seeks to contend that that aspect shows her to be the legally wedded wife of the deceased. 19. Meena has produced a number of love letters written by the deceased to her over a period of years. These are all handwritten. They bear various dates of the 1970s. These are marked Exhibits N, Q and S (collectively) in evidence. These letters are not disputed. They show the feelings of the deceased towards Meena whom he called his wife in almost all these years. The letters, Exhibits N, Q and S (collectively) in evidence may be required to see the later handwriting of the deceased in the further letters and notes written by him. 20. Meena has produced a plethora of handwritten notes of the deceased on various pages of writing pads purportedly addressed to various people in the last year of his life. Most of these letters/notes are undated. Several, of course, bear various dates of the year 2003. 13 21. The deceased was indeed a voracious writer. He put his pen to paper for expressing his innermost thoughts by love letters of 1970s and notes of anguish, apprehension, fear and direction of 2003. A reading of the various notes as a whole show that the deceased scribbled and wrote whatever came to his mind until his last days. He wrote on several pages of writing pads, large size as well as small size, and continued also on the cardboard of the writing pad. The notes of the deceased undated or written in 2003 show identical handwriting in each of them. The flow of the writing shows the same author as that of the love letters, Exhibit- S (collectively) albeit older, more feeble. These notes are produced as part of Exhibits K and L (collectively) in evidence. 22. The deceased was extremely ill when he wrote the notes, part of Exhibits K (collectively) and L (collectively). He would write those notes in a supine or reclining position or perhaps whilst sleeping. The flow of handwriting shows this aspect very clearly. Though a large part of the notes remain illegible, those which can be deciphered and read, show certain allegations against the brother Jayant and sister Kumudini of the deceased, the Petitioners herein. The notes are written addressed to some persons or just written without addressing them to any one. In any event, even if 14 they were addressed, they have been kept by the deceased with the deceased and have been produced by Meena as the notes of the deceased. One of the notes shows that Jayant and Kumudini are not his relatives and are just using his name which is not acceptable and that it is plegiarization and deception. It says that if any one uses his name it should be cancelled. Another note shows that Jayant and Kumudini are thieves. They have stolen his things and they cannot enter his house. Another note dated 2nd August, 2003 addressed to Meena shows that “it should be recognized that she is his wife and that Rewa belongs to her and others have no right. Scoundrels are making false claims.” Yet another note of that date is addressed to the Secretary Mr.Patel showing that the flat belongs to him only and a game is played by his brother and sister who are using his name. It is signed after thanking the Society and after which it shows that Apartment 181 is owned by Meena Mayur and other people have signed his name against the law and it should be changed. Yet another note shows that if anybody......... (Mr.Jayant Shah or Miss Kumudini Mayur), please do not accept. It shows that they are not his relatives and it is plegiarization of his name which is not true or acceptable. It shows that his name is R.R. Mayur for last six years and no other name is acceptable and if his name is used, it directs to cancel it. It is signed R.R. Mayur – “real 15 name”. The other Note dated 18 th February 2003 is addressed to the Doorman and Watchman and shows that Jayant Shah and Kumudini Mayur, are thieves. It further states that they have taken many things. They cannot enter my house. It is signed Rashmi Mayur, 181 Rewa. [This note has been written 10 days before the Will propounded by Kumudini.] Another Note of 2nd August 2003 addressed to Meena shows “Let it be recognized that the flat at 181 Rewa belongs to you and your family and no one else.” It further shows that in the last 6 months Meena's father contributed U.S. $ 60,000/- to the deceased. “Others, every one only talked.” It thanks Meena and her family for their kindness. It further records not to see the other scoundrels for their false claim and requests “Please inform all this to the Police.” It is signed Rashmi Mayur, 2nd August 2003. 23. Several other notes are addressed to Mr.Udwadia and to some one addressed only as dear. They appear to be persons in Rewa Apartments Co-operative Housing Society. The note congratulates that person for his election and wishes him all success with a hope that he will carry out his job peacefully. It is signed “Dr.Rashmi Mayur, R.R. Mayur.” The other note on the same page congratulates Udwadia for his success and wishes him good luck. It requests Udwadia to send to the deceased the original certificate which was not 16 received by him so far for Apartment 181, Rewa “where we stay at present.” It again requests - “Please send the certificate to me.” These notes on the single page are dated Monday, 29 th September 2003. A similar note addressed to Udwadia dated 24 th September 2003 shows that the day the deceased met Udwadia he also met his sister Kumudini. It mentions that she had never signed the certificate and that was signed by the deceased and again the same question came up. It further records that since she never signed it why was the same question asked again. It reiterates that, therefore, 181 Rewa Apartment is signed by the deceased, belongs to the deceased and directs - “ Please make a note. Thanks, Sincerely R.R. Mayur Rashmi” The note further shows as a post script - “Please do not give the certificate of his Apartments to Mr.Jayant Shah or Kumudini Mayur since these Apartments belong to me only. Please give them to me only. They have no rights at all without my 17 permission. R.R. Mayur.” 24. Further Notes in Exhibit- L (collectively) several of which bear the dates of 2003 and several of which are undated, and similarly addressed to Meena, the Doorman, Watchman, Secretary as well as Udwadia. Presumably, the last note written on the cardboard of the writing pad is addressed to “Dear Manager”. It mentions about Mr.Nair, the Secretary of the deceased. It further shows - “Mr.Jayant Shah is claiming that he lost the certificate of Rewa Apartments. This is totally unacceptable. The original certificate of Rewa Apartments cannot be changed.” It then refers to Secretary Nair of the deceased and states that he should never be allowed to do that because “What he is doing is totally fraud.” It then shows AP 3B 655 River Side Drive is his original Apartment in the name of Meena Mayur and at present 3-B is in his name. It is signed “Rashmi Mayur.” 25. It may be mentioned that some of the notes show that Kumudini ill-treated the deceased. However, we are not 18 concerned with that aspect. The fact remains that the deceased was exposed to Kumudini as well as Meena and was writing a number of notes over a period of time. He has expressed again and again his allegations against Kumudini and his brother Jayant and sought to claim the ownership of the flat in himself and mentioned about his concern for Meena and his disdain and hatred for his sister and brother. Similar such notes of the Watchman, Liftman and such other persons are produced. These documents are proved by identification of the handwriting of the deceased, part of Exhibit- K (collectively) and from Exhibts BB to II. They are unmistakably in the handwriting of the deceased and show affirmation of his thoughts and intent. 26. Such notes have been repeated and need not be reproduced again. These notes have been written by the deceased and signed by the deceased. Several of them are also dated. They show a consistent flow of handwriting. They are one too many to brush aside, ignore or even look upon with suspicion. They show the same handwriting as that in the love letters not challenged by Kumudini. These are, of course, challenged by Kumudini and several questions have been put in the cross- examination of Meena with regard thereto. None of these has disproved the factum of the notes being written or disproved the contents of any of them. These notes written 19 by the deceased and kept by him show that the deceased was constantly thinking, worrying and evaluating the position about his own flat. He sought to keep control of his flat. In such notes he has made it clear that his brother and sister have no right in the flat and cannot do the things that they were seeking to do and that he only had a right in the flat and that Meena had a right thereto. 27. Meena has produced documents showing her possession and occupation of the suit flat during the lifetime of the deceased and thereafter. These are public documents being the Election Identity Card, Ration Cards, Bank Passbook, Electricity Bill, Municipal Bill, Record of Enumeration, allotment of Gas, telephone bills, etc. These documents are part of Exhibit- K (collectively) and the documents from Exhibit- U to Exhibit- Y. The public documents are not seriously disputed since the factum of the occupation of Meena is not disputed. What is contended is that despite assurances of leaving Rewa Apartments, Meena illegally and unauthorisedly continued to occupy it. Be that as it may, it is seen that Meena occupied Rewa Apartments along with the deceased. The deceased was brought to India about a year prior to his death from South Africa & U.S.A. where he fell ill and was treated. Kumudini also came to India to take care of the deceased. Hence, all the three 20 resided in the suit flat. 28. Kumudini has produced two passports of the deceased, Ex. 7,8,11 & 12. The passport do not show Meena as his spouse. They show others who could be contacted in case of his death. One such person is Meena residing in New york, U.S.A. It is seen