IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION. TESTAMENTARY AND INTESTATE JURISDICTION. TESTAMENTARY AND INTESTATE JURISDICTION. TESTAMENTARY SUIT No. 48 of 1996. TESTAMENTARY SUIT No. 48 of 1996. TESTAMENTARY SUIT No. 48 of 1996. IN IN IN TESTAMENTARY PETITION No. 601 of 1995. TESTAMENTARY PETITION No. 601 of 1995. TESTAMENTARY PETITION No. 601 of 1995. Gunvantrai S. Gupta of Bombay, Indian Inhabitant, residing at "Shiv-Krupa", 18/20, St Mary Road, Mazgaon, Bombay-400 010. ..Plaintiff. ..Plaintiff. ..Plaintiff. VERSUS. VERSUS. VERSUS. 1. Gaurang Gunvantrai Gupta, Indian Inhabitant residing at 2nd Floor, "Shiv-Krupa" 18/20 St Mary’s Road, Mazgaon, Mumbai 400 010. 2. Miss Snehlata Chhotalal Mody. 3. Miss Nurupama Chhotalal Mody Both residing at A/32 Eeshita Apartment, Navrangpura Ahmedabad 380 009. 4. Miss Nita Hasmukhlal Mody 5. Miss Rupa Hasmukhlal Mody Both residing at 102/4 Shreyas, Sewree Wadala Scheme Road No.7, Wadala, Mumbai- 400 031. ..Defendants. ..Defendants. ..Defendants. CORAM: V.C.DAGA,J. CORAM: V.C.DAGA,J. CORAM: V.C.DAGA,J. DATED: DATED: DATED: 22.07.2008. 22.07.2008. 22.07.2008. Mr D.C. Shah i/b Indu D. Shah for the Petitioner-Plaintiff. Mr S. J. Shobhavat, Advocate for Respondent No.1. Mr S.C.Mody, Advocate for Respondent Nos. 2 to 5. JUDGMENT:- JUDGMENT:- JUDGMENT:- --------- --------- --------- 1. In this Testamentary Petition, the Plaintiff-propounder of the Will is praying for probate with the Will annexed thereto of the properties owned by Late Narendra Shivlal Gupta together with the credits held by him in business establishment. FACTUAL MATRIX: FACTUAL MATRIX: FACTUAL MATRIX: --------------- --------------- --------------- 2. One Narendra S/o Shivlal Gupta died on 12.12.1993 in Kambala Hill Hospital in Mumbai after having undergone major surgery since he was a cancer patient. He is said to have executed his alleged last Will and testament on 27.11.1993 at about 2.00 a.m. (midnight) before being admitted to the hospital for acute abdominal pain. His brother Shri Hemantrai s/o Shivlal Gupta (hereinafter called the "Petitioner/Plaintiff/Propounder") has filed Testamentary Petition on 28.7.1995 ( 3 ) to seek probate of the alleged Will dated 27.11.1993 alleged to have been executed by his brother Late Narendra Gupta. 3. On being served with the citation, widow of the deceased Narendra Gupta had filed a caveat on 3.8.1998 alongwith affidavit in support thereof denying execution of the alleged Will by her husband and alleged fraud on the part of the propounder of the Will and contended that her husband was not mentally fit to execute the alleged Will at the relevant time and on the date mentioned and that the alleged Will is not genuine, valid and legal. In view of the contest, the Testamentary Petition became contentious as such registered as Testamentary Suit. The affidavit filed in support of the caveat was treated as written statement. PLAINT ALLEGATIONS PLAINT ALLEGATIONS PLAINT ALLEGATIONS: ------------------- ------------------- ------------------- 4. The petitioner-plaintiff, Guvantrai Gupta, has stated in the petition/plaint that ( 4 ) his brother Late Narendra Shivlal Gupta died in Mumbai on 12.12.1993 ("the said deceased" for short). At the time of his death, his fixed place of abode was Mumbai. The properties left by him are situate within the jurisdiction of Greater Mumbai in the State of Maharashtra. The petitioner has further stated that the deceased left the writing as his last Will and Testament and that he is appointed as executor of the Will. The description of the property left by the deceased is to be found in the Schedule-I marked as Exhibit B. The expenses incurred are shown in Exhibit C. The beneficial interest held by the deceased is described in Exhibit D annexed to the plaint. The assets of the deceased are valued at Rs.62,83,452.46. The name of Mrs Lalitadevi N. Gupta is disclosed as next of kin and kith, according to Hindu Law. The prayer is made to grant probate with Will annexed thereto in respect of the properties and credits to which the deceased was entitled during his life time. DEFENCE PLEA: DEFENCE PLEA: DEFENCE PLEA: ------------- ------------- ------------- 5. The Caveator ("the defendant" for short) ( 5 ) Mrs Lalitadevi (since deceased) had filed her caveat alongwith affidavit cum-written statement stating therein that she was the widow of Late Shri Narendra Shivlal Gupta of Mumbai entitled to succeed to the estate left behind by her husband Late Narendra Gupta. 6. The defendant had also stated in defence that to the best of her knowledge and belief, her husband Late Narendra Gupta did not make any Will or testament and that her husband died intestate; that she came to know about the alleged Will for the first time, when a Subpoena dated 1.3.1996 was served on her through the Sheriff of Bombay. 7. She had further stated, in defence, that as per Rule 397 of the Bombay High Court Original Side Rules (O.S.Rules) the petitioner was bound to give her advance notice about filing of the Probate Petition in this Court. According to her, the petitioner had deliberately kept her in dark about filing of the present Probate Petition and did not give her any notice of the Petition with sole intention to obtain Probate in a surreptitious ( 6 ) manner. Thus, breach of Rule 397 on the part of the Petitioner is alleged. 8. The defendant had further stated in defence that the Plaintiff did not comply with Rule 374 of the Original Side Rules and failed to file the alleged Original Will with the office of Prothonotary and Senior Master of this Court at the time of the presentation of this Suit/Petition; that he had deliberately made false statement in para 3 of the suit/petition with regard to the filing of the alleged Original Will in the office of the Prothonotary and Senior Master of this Court and also challenged the bonafides of the petitioner. 9. The defendant had further challenged the order allowing the amendment sought by the Petitioner to the plaint/petition and has further asserted, in para 5, of her counter affidavit that she had sent a reply dated 3.4.1996, within eight days from the date of receipt of the Subpoena, addressed to the Prothonotary and Senior Master of this Court and informed this Court that the Original Will ( 7 ) alleged to have been executed by her late husband on 27.11.1993 was not in her possession, power or control as alleged by the Petitioner; that she was neither aware of the execution of the alleged Will dated 27-11-1993 nor had any knowledge about it; that the Petitioner has falsely alleged that the alleged Will was and is in her possession; that the said allegations are made with ulterior motive of creating false evidence to show that the original Will was in existence so as to avoid the responsibility for the production of the original Will alleged to have been executed by her late husband on 27.11.1993. 10. The defendant did produce copy of the letter addressed to the Prothonotary and Senior Master of this Court on 3.4.1996. She had also stated that the said letter was received by the office of the Prothonotary and Senior Master of this Court and that she was holding postal acknowledgement and certificate evidencing posting of the letter dated 3.4.1996 and undertook to produce the same. ( 8 ) 11. The defendant had also stated that the petitioner deliberately did not give notice of filing of the probate petition. She had further asserted that the Will propounded by the petitioner was non existent and that the photo copy of the Will was not a genuine but fabricated by the Petitioner. That the petitioner had adopted dubious method in filing Testamentary Petition. 12. The defendant had further reiterated that her husband had not made any Will at any point of time during his life time, and more particularly, on 27.11.1993 as alleged by the petitioner. That during the last three weeks prior to the death of her husband i.e. on 27.11.1993, he was not keeping good health and she had at all times remained by the side of her Late husband. She had never left her husband alone at any time during his illness, especially, during the period from 22.11.1993 to 12.12.1993. She has further stated that her husband was suffering from cancer which was detected when her husband had undergone major surgery in the month of April, 1992 and that the health of her husband was ( 9 ) deteriorating day by day and that he was mentally depressed and physically weak and handicapped. As such he was not a normal person. 13. The defendant had further stated that the petitioner had tried to obtain signature of her husband through Dr. Gangal, brother-in-law of her husband (sister’s husband), who had specially come down to Bombay from Hubli to see her husband. That, at the instance of the petitioner, Dr. Gangal had given some papers to her husband for his signature in her presence. After scanning those papers, her husband had returned those papers to Dr. Gangal without putting his signature, who in turn returned them to the Petitioner. After Dr Gangal had left the Nursing Home, her husband had told her that the paper which Dr.Gangal had given to him was the Will which was prepared by the petitioner and had given to Dr Gangal to obtain his signature. She has further stated that after the papers were returned by Dr.Gangal to the petitioner, there was heated discussion between the petitioner and her Late husband ( 10 ) and the petitioner had become very angry with her husband and started shouting at her husband for having refused to sign the papers. On hearing the shouts of the petitioner, Dr Antia, who was attending her husband immediately came to her husband’s room and scolded the petitioner for shouting and misbehaving with the patient, who had undergone major surgery. 14. The defendant had also stated in her affidavit that her husband was temperamentally very cool and quiet and that the petitioner is temperamentally very hot and aggressive in nature and always dominated in domestic as well as business matters inspite of the fact that her husband was the elder brother of the petitioner. She had further stated that while her husband was alive and active in business, he used to give her an amount of Rs. 5,000/- every month for her personal expenses and that after the death of her husband, the petitioner continued to maintain the said practice for sometime without asking her for any acknowledgment. However, subsequently, acknowledgement was asked for the purpose of ( 11 ) maintaining account of the estate of her husband and gave her a bunch of receipts which were simple receipts in respect of payment of Rs. 5,000/- which were already scribed. She had thus stated that she had signed those acknowledgments in good faith and later on found out that those vouchers were prepared to establish the genuineness of the Will. She has, thus, stated that her signatures had been fraudulently obtained on these vouchers. 15. The defendant had also given a graphic picture about the health of her husband. On 27.11.1993 he had suffered severe pain in the stomach and abdomen which had increased considerably by midnight. The pain had become absolutely unbearable. Due to severe pain in the stomach and abdomen, her husband had gradually lost consciousness. She was frightened due to sudden deteriorated health of her husband, therefore, she had to request the petitioner, his wife and two sons at 2.00 a.m. on 27.11.1993 to make necessary arrangement for his medical treatment. Dr Godbole, who was attending her husband, was informed of the bad health. He advised to ( 12 ) take her husband immediately to the hospital. Thereafter, her husband was admitted in the hospital. She had, thus, alleged that the allegations made in the petition about execution, custody and possession of the original Will purported to be the last Will of her husband in her possession is patently false to the knowledge of the Plaintiff. She had further asserted that the petitioner did not disclose as to how the original Will purported to be the last Will dated 27.11.1993 came in her possession. She had further stated that it was highly improbable for her husband to execute Will purported to be the last Will as pleaded in the Testamentary Suit. Thus, in her written statement, she had challenged the execution, existence and validity of the Will and went on to allege fraud played by the petitioner. She had also alleged that the Will of which the Probate is sought is a Will manufactured by the Petitioner showing himself and his sons as beneficiaries. The Will is not attested by any independent witnesses. Rival pleadings have given rise to the following issues framed by this Court. ( 13 ) ISSUES:- ISSUES:- ISSUES:- ------- ------- ------- 1. Whether he Plaintiff/Petitioner proves that the deceased Narendra S. Gupta had validly executed the Will being Exhibit A to the Petition? 2. Whether the Defendant Nos. 2 to 5 prove that the deceased Narendra S. Gupta had not executed the Will being Exhibit A to the Petition? 3. Whether the Plaintiff is entitled to grant of Probate of the xerox copy of the Will of deceased Narendra S. Gupta being Exhibit A to the Petition in the absence of the Original Will? 4. What order? 5. Whether the probate could be granted on the basis of xerox copy of the Will without production of the original Will? 6. Whether the xerox copy of the Will ( 14 ) produced by the Plaintiff/Petitioner is a genuine copy of the Will propounded by the Petitioner/Plaintiff? 7. Whether the original of the Will propounded by the Plaintiff/Petitioner was in the possession of the original Caveator/defendant and widow of the deceased Narendra Shivlal Gupta as alleged, keeping in view reply to the subpoena sent by the original Caveator and affidavit dated 6th August, 1996 filed by her in support of the Caveat? 8. Whether the production of the Original Will could be dispensed with by the Hon’ble Court keeping in view of the order dated 13.6.1996 passed by the Hon’ble Court on the application of the Plaintiff/Petitioner? 9. Whether the Petition for Probate is entertainable by the Hon’ble Court on the basis of xerox copy of the Will propounded by the Petitioner/Plaintiff? ( 15 ) 10. Whether the Plaintiff/Petitioner is entitled for the Probate of the Will in view of the order passed by the Hon’ble Court on 13.6.1996? 11. Whether the secondary evidence is admissible for the purpose of granting the probate of the Will? 12. Whether the Plaintiff/Petitioner has sufficiently explained and accounted for the non-production of the original Will? 13. Whether the Plaintiff/Petitioner is entitled for the grant of the probate of the Will, keeping in view the suspicious circumstances in which the Petition for probate was filed? 16. Parties were permitted to lead evidence. The plaintiff has examined witnesses namely; Gunvantrai Shivlal Gupta (P.W.1), Gaurang Gupta (P.W.2), Anand Gunvantrai Gupta (P.W.3), Prabhakar Sambhaji Kamble (P.W.4), Dr. Sanjay ( 16 ) Ganesh Godbole (P.W.5), whereas the defendants did not examine anybody. 17. Before considering the matter on its own merits, it is necessary to sketch the rival submissions made before this Court. RIVAL SUBMISSIONS: RIVAL SUBMISSIONS: RIVAL SUBMISSIONS: ----------------- ----------------- ----------------- 18. The learned counsel appearing for the Petitioner/plaintiff submits that the plaintiff has examined himself as P.W.1. The plaintiff has also examined attesting witnesses P.W. Nos. 2 and 3, i.e. his sons. Both the attesting witnesses have affirmed the execution of the Will. The Bank Officer (P.W.4) was examined to prove signature of the deceased put on the Will. Dr Sanjay Ganesh Godbole, ( P.W. 5 ), who had treated the deceased Late Mr N.S. Gupta for number of ailments had testified that the deceased was healthy and in sound state of mind at the time of execution of the subject Will. The plaintiff, thus, submits that the Will has been duly proved as validly executed by the ( 17 ) deceased. The plaintiff claims to have proved photocopy of the Will as the original was not forthcoming. The plaintiff submits that the burden cast on the (plaintiff) propounder of the Will has been discharged and all suspicious circumstances are cleared. In his submission the subject of the Will was opened one month after the death of the deceased i.e. on 21.1.1994 in presence of all family members of the plaintiff as well as one of the relatives of the widow of the deceased one Dr. Hasmukh Mody, i.e. the brother of the widow. According to the plaintiff, the subject Will was read over and, thereafter, two photo copies thereof were prepared, out of which one was handed over to Dr. Hasmukh Mody, brother of the widow of the deceased and the other copy was retained by the plaintiff and that the original Will was handed over to the widow of the deceased for safe custody. 19. The learned counsel for the plaintiff urged that the Will was written by the deceased in his own handwriting. It was signed by him in the presence of two witnesses i.e. sons of the plaintiff Mr Gaurang G. ( 18 ) Gupta (P.W.2) and Anand G. Gupta (P.W.3). He further submits that the Will was written at about 2.00 a.m. on 27.11.1993 by the deceased and, therefore, it is quite obvious that, at that point, independent witnesses could not have been made available to witness the execution of the Will. He submits that both the witnesses have corroborated the said version of the plaintiff. 20. The learned counsel for the plaintiff-propounder submits that to establish handwriting of the deceased as well as his signature on the subject Will (Exh. A), the plaintiff has produced Exh.B to H, i.e. two cheques bearing signatures of the deceased and the passports of the deceased bearing his signature together with driving licence issued by the R.T.O. and power of attorney executed by the deceased. In order to prove handwriting of the deceased, the plaintiff has also examined one more witness, the Manager of the Central Bank of India, (P.W.4), who had issued signature verification certificate and produced two slips bearing specimen signatures of the deceased. He further submits that ( 19 ) though medical evidence is on record to prove good physical health and sound mental condition of the deceased testator, as such the Will has to be taken as proved beyond doubt. He, thus, submits that the plaintiff is entitled for grant of Probate. 21. The learned counsel for the plaintiff placed reliance on the decision of the Apex Court in the case of Mrs Hem Nalini Judha v. Mrs Hem Nalini Judha v. Mrs Hem Nalini Judha v. Mrs Isolyne Sarojbashini A.I.R. 1962 S.C. Mrs Isolyne Sarojbashini A.I.R. 1962 S.C. Mrs Isolyne Sarojbashini A.I.R. 1962 S.C. 1471 1471 1471 in support of his submission. 22. Per contra, at the out set, Mr Mody, learned counsel appearing for the defendants submits that the plaintiff has not come to this Court with clean hands to seek the Probate and tried to set up a false case, as such, the suit is liable to be summarily thrown out. Reliance is placed on the law laid down by the Apex Court in the case of S.P. Chengal Naidu vs. Jagannath, A.I.R. S.P. Chengal Naidu vs. Jagannath, A.I.R. S.P. Chengal Naidu vs. Jagannath, A.I.R. 1994 S.C. 853. 1994 S.C. 853. 1994 S.C. 853. He further submits that the fraudulent conduct of the plaintiff is matter of record, reflected in the form of the order dated 13.6.1996 passed by the learned Single ( 20 ) Judge (Shri K. G. Shah,J as he then was). He submits that this is not a fit case, wherein this Court can grant Probate in favour of the plaintiff, especially, when the probate proceedings are in rem and binds the whole world. He further submits that the probate proceedings of the purported Will filed by the present plaintiff is tainted with bad motive which is quite apparent from the conduct of the plaintiff. He submits that the Original Side Rules lay down various requirements for filing petition for Probate. He submits that every possible attempt was made by the plaintiff to throw dust in the eyes of this Court and he tried to obtain Probate in his favour by playing fraud on this Court. He sought to urge that the Will suffers from various mysterious circumstances and tried to demonstrate the same on the basis of the record of this Suit. 23. Mr Mody drew my attention to the cause title of the petition wherein words "xerox copy of " were inserted and to the statement made in para 3 of the Probate Petition wherein correction is made in title of the petition by ( 21 ) adding word "xerox copy of Will" after filing of the petition. Mr Mody further submits that no service of the citation was made on the widow of the deceased. No notice was given to the widow of the deceased for handing over possession of the alleged original Will prior to filing of the Petition which was necessary if the possession of the alleged Original Will was with the widow of the deceased as alleged in the petition dated 31.1.1996. 24. Mr Mody also tried to demonstrate that the office of this Court had raised an objection with regard to the filing of the photo copy of the Will instead of original one. When the plaintiff was asked to file the original Will he came out with a false story that the original Will was in possession of the widow of the deceased testator and requested Court for issuing subpoena to her. 25. Mr Mody also tried to highlight the circumstances under which the alleged Will was sought to be prepared and also highlighted attempts on the part of the plaintiff to obtain consent order in collusion with his ( 22 ) sons which was, ultimately, set aside by the Appellate Court. 26. Mr Mody submits that an attempt was made not to add defendant Nos. 2 to 5 as the defendants to the Testamentary Suit and every possible attempt was made to seek orders from this Court behind their back. He further submits that the documents filed by the plaintiff are not admissible in evidence for want of foundation in the pleadings. Some of the documents tendered in evidence by the plaintiff were never disclosed in the affidavit of documents. He further submits that large number of isolated vouchers in respect of payments alleged to have been made to the widow were produced without producing books of accounts. No person was examined through whom alleged payments were made. He thus, submits that neither alleged payments were established, nor alleged vouchers were proved in accordance with the provisions of the Evidence Act. He further submits that affidavit of evidence by way of examination-in-chief of one Kantilal Mehta was sought to be filed without producing him for ( 23 ) verification of his affidavit or for his cross-examination. Now he is dead. He submits that the identity of the person, who has prepared alleged vouchers was also not disclosed. The said person was not examined. The actual payments alleged to have been made have also not been proved. He, thus, submits that the said affidavit of Shri Kantilal Mehta cannot be read in evidence. 27. Mr Mody further submits that purported Will dated 27.11.1993 propounded by the plaintiff alleged to have been certified as true copy by the Notary Public on 21.2.1993 has also not produced. He further submits that it was obligatory on the part of the plaintiff to examine Mr N. N. Dalvi, Notary Public who alleged to have notarised true copy of the alleged subject Will and should have been made available for the cross-examination. He thus submits that the notarized copy has neither been produced nor proved. 28. Mr Mody further submits that attesting witnesses who have appeared were interested ( 24 )