1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO. 976 OF 2001 APPEAL NO. 976 OF 2001 APPEAL NO. 976 OF 2001 IN TESTAMENTARY SUIT NO. 49 OF 1989 IN TESTAMENTARY PETITION NO. 209 OF 1989 RAMCHARAN, son of GANESHILAL AGARWAL ) sole Legatee named in the Last Will ) and Testament of the deceased abovenamed) of bombay, Hindu Inhabitant,residing ) at 19, Neelam, 80 Marine Drive, ) Mumbai 400 002. )..Appellant (Org. Plaintiff) Versus RAMGOPAL GANESHILAL MITTAL AGARWAL ) of Delhi, Indian Inhabitant, ) residing at 1287, Sultan Singh Gate, ) Kashmiri Gate, Delhi 110 006. )..Respondent (Org. Defendant) Ms. Rajni Iyer, Senior Advocate, i/b. Ms. Bhadra Dalal, Advocate for the appellant. Mr. P.V.Sathe, Advocate, i/b. U.L.Shah,Advocate, for the respondent. CORAM: D.K.DESHMUKH & CORAM: D.K.DESHMUKH & CORAM: D.K.DESHMUKH & J.H.BHATIA,JJ. J.H.BHATIA,JJ. J.H.BHATIA,JJ. JUDGMENT RESERVED ON: 12.09.2007 JUDGMENT RESERVED ON: 12.09.2007 JUDGMENT RESERVED ON: 12.09.2007 2 PRONOUNCED ON : 08.10.2007 PRONOUNCED ON : 08.10.2007 PRONOUNCED ON : 08.10.2007 JUDGMENT (PER J.H.BHATIA,J.) JUDGMENT (PER J.H.BHATIA,J.) JUDGMENT (PER J.H.BHATIA,J.) 1. Being aggrieved by the Judgment and Order dated 23rd August, 2001 passed by the learned Single Judge of this Court whereby the Testamentary Suit No.49 of 1989 in Testamentary Petition No. 209 of 1989 seeking Letter of Administration came to be dismissed, the original plaintiff/petitioner has preferred this Appeal. 2. To state in brief, it is an admitted fact that deceased, Ganeshilal Agrawal, had two sons who are the plaintiff and the defendant respectively and five daughters who were all married. Ganeshilal Pyarelal Agrawal was the resident of Hathras in U.P. His elder son Ramcharan, who is the plaintiff, is residing at Mumbai, while younger son Ramgopal, who is the defendant, is residing at Delhi. Ganekshilal and his two sons were carrying on business in partnership in the name and style of "M/s. Laljimal Tikaram" at three places i.e. Hathras, Mumbai and Delhi and each of them held 1/3rd share in the same and some other property. Ganeshilal had come to Mumbai on 24.9.1981. On 9.10.1981, he died at Mumbai. His body was taken to Hathras for funeral. His wife had died in the year 1969. The plaintiff filed the Testamentary Petition No.209 of 1989 in this High Court claiming Letter of 3 Administration of the property of the deceased on the basis of a Will allegedly executed by deceased Ganeshilal on 5.10.1981 bequeathing all his property exclusively to the plaintiff. Admittedly, in the year 1958, Ganeshilal had executed one Will bequeathing all his property to the plaintiff and the defendant equally, however, by the last Will dated 5.10.1981, he bequeathed all his property to the plaintiff alone. The defendant/caveator appeared and contested the petitioon and, therefore, it came to be registered as Testamentary Suit No.49 of 1989. 3. The defendant denied that his father Ganeshilal had executed any Will on 5.10.1981. According to him, the Will propounded by the plaintiff is a suspicious and fabricated document. The attesting witnesses, Vijaykumar Agarwal and Ramgopal Agarwal are son-inlaw and brother-in-law respectively of the plaintiff and they are interested in favour of the plaintiff. According to him, in earlier arbitration proceedings, the plaintiff had alleged that there was oral Will and in Suit No.737/1984 filed by the defendant in the Delhi High Court, the plaintiff had contended that there was another Will, but it was not available. According to the defendant, this Will has been propounded eight years after the death of father in suspicious circumstances and, therefore, no Letters of Administration can be 4 granted in favour of the plaintiff. 4. The learned Single Judge framed certain issues and after hearing the oral and documentary evidence produced by the party, held that the plaintiff had failed to prove that deceased Ganeshilal had executed the Will on 5.10.1981. In the result, the suit came to be dismissed. 5. In the Appeal, it is contended that the learned Single Judge failed to appreciate the oral and documentary evidence while coming to the conclusion that the Will was not executed by deceased Ganeshilal. It is contended that the learned Single Judge, after a minute scrutiny and discussion of the evidence, had come to the conclusion that the relations between the deceased and the defendant were very much strained, that the deceased was displeased with the defendant and he wanted to change his earlier Will as he did not wish to give any share in the properties to the defendant; that the deceased wanted to give whole of his property to the plaintiff and for that purpose, he wanted to make a fresh Will cancelling the earlier one, that the deceased was, at the relevant time, in a sound and disposing state of mind and that the Will Exhibit "G" bears signature of the deceased himself. Plaintiff contends that inspite of these findings, the learned Single 5 Judge, without any justification and without any material before him, came to the conclusion that the Will was prepared by the plaintiff on the old blank paper bearing signatures of the deceased to give effect to the desire of the deceased to make a bequest in his favour. It is also contended that the learned Single Judge committed error in coming to the conclusion that to explain the inordinate delay in surfacing of the Will Exhibit "G", a theory of late discovery of the Will has been put forward. It is also contended that the learned Single Judge committed error in holding that the old punch marked papers used for preparation of the Will, insertion of unwanted description of Kothi therein and the fluent signature of the deceased thereon speak for its manipulation. It is contended that the learned Single Judge also committed error in holding that the non-disclosure of the making of the Will by the deceased to the plaintiff is the most suspicious circumstance. It is contended that if the plaintiff wanted to forge the Will, he could have done it immediately after death of his father, but the record reveals that plaintiff was not showing any interest in making of Will of his father bequeathing whole of his property to him. It is contended that merely because the attesting witnesses are close relatives of the plaintiff, the document cannot be suspicious nor evidence of P.W.4 - Vijaykumar Agarwal, who is one of the attesting witnesses, can be 6 rejected on that ground particularly when in the cross-examination no material has come on record to disbelieve him. It is contended that this witness was not cross-examined on the point of punch marks or old thin nature of the papers used for the purpose of preparing the Will or about the other contents. It is contended that initially, the defendant had taken a plea that the signature on the Will is not of his father, but later on, an attempt was made to contend that the signature was genuine but the Will was prepared on the old blank paper bearing signature of his father. 6. Heard learned Counsel for the parties. The learned Counsel for the Plaintiff/appellant vehemently contended that Vijaykumar Agarwal had no reason to believe that Ganeshilal had not disclosed execution of the Will to the plaintiff and he, being son-in-law did not feel it necessary to speak about the Will to him or to other members of the family, including his wife. It is vehemently contended by the learned Counsel for the plaintiff that in 1981, the plaintiff was not aware about the execution of the Will, but he was aware that his father wanted to make a Will in his favour and he had also produced a note Ex.N prepared by his father, wherein he had expressed his desire to change the Will and to make a fresh Will bequeathing whole of his property to the plaintiff. After the suit was filed by 7 the defendant in the Delhi High Court, the plaintiff was required to visit Delhi frequently and, therefore, one day when the plaintiff had occasion to meet his son-in-law Vijaykumar, the latter asked him about the frequent visits. When he was told about the nature of the litigation, Vijaykumar disclosed that deceased Ganeshilal had executed a Will. On the basis of that the plaintiff took a stand before the Delhi High Court about execution of the Will, but as the Will was not available at that time, he also pleaded that the Will was not available. It is contended that the Will was traced out in the year 1989 from health file of the deceased which he himself used to maintain and then the Will was propounded and this petition for Letters of Administration was filed. This explains the delay of about 8 years in propounding the Will. 7. The learned Counsel for the respondent strongly supported the impugned order and the findings of the learned Single Judge. The learned Counsel for the defendant-respondent pointed out the following circumstances and improbabilities while challenging 4he execution of the Will by the deceased. It may be noted that these circumstances were raised before the trial Court and they are referred to in para 10 of the Judgment of the learned Single Judge. 8 "i) The paper of the will is old with a punch mark and a mark of removal of rusted pin. Spacing of lines is different. ii) The description of the property (Kothi) given at the bottom of the document has no relevance to other contents and it is added to fill in the blank space between the last line and the signature of the deceased thereon. iii) No evidence is produced as to who drafted and typed the will. iv) Both the attesting witnesses are closely related to the plaintiff and are interested in him. v) Non disclosure of the execution of the will to the plaintiff: a) by the attesting witnesses for a period of three years and b) by the deceased till his death. vi) The will executed on 5.10.1981 became known in 1984 and was discovered in 1989. Till then it was lying in the Health File of the deceased 9 kept in a cupboard but despite extensive search it could not be located earlier. vii) The deceased was ailing for quite some time before the making of the will and was not having sound and disposing mind. viii) Unnatural disposition of property. Under his first will made in 1958, the deceased had given equal shares to both of his sons in his property. But the will of 1981 dis-inherits the defendant totally and confers all benefits exclusively on the plaintiff without assigning any reason. ix) The plaintiff propounded an oral will of the deceased in other proceedings." 8. On behalf of the plaintiff, four witnesses were examined, while defendant examined himself. Out of the four witnesses examined by the plaintiff, PW-1 Anthony and PW-2 Manohar were officers of the Bank and they were called only to get the specimen signatures of the deceased. It may be noted that initially, it as a plea of the defendant that the signature on the Will is not of the deceased, but has been forged. It may be noted 10 that in the proceeding before the arbitrator in Delhi the signatures on the Will were also referred to one handwriting expert at the instance of the defendant however, the handwriting expert was not examined by the defendant in the present matter. During the cross-examination of the plaintiff, on behalf of the defendant, a theory was propounded that signatures on the Will are genuine, but the Will was prepared on the old blank papers bearing signatures of the deceased. In view of this stand, the evidence of P.W.1 and 2 becomes unnecessary and immaterial and, therefore, the learned Single Judge rightly came to the conclusion that the signatures on the Will are of the deceased. P.W.3 is the plaintiff himself and P.W.4 Vijaykumar is one of the attesting witnesses of the Will. 9. The learned Single Judge referred to several documents particularly the letters written by the deceased himself as well as a letter written by the defendant to his father to come to the conclusion that the relations between the deceased and the defendant were strained for about 3-4 years prior to his death. The learned Single Judge, after referring to the letters, particularly the letter Exhibit "C" dated 7.8.81, Exhibit "D" dated 10.8.81, Exhibit "I" dated 25.2.81, Exhibit "J" dated 28.5.81, Exhibit "L" dated 17.8.81 and Note Exhibit "N" which does not bear any 11 date came to the conclusion that these are the letters and the note in the handwriting of the deceased and the deceased was conversant not only with Hindi, but also English and in his letters, at many places, he had used English words. The learned Single Judge also noted that in the letter Exhibit "AA", written by the defendant to his father, he had used several English words and those English words were written in Roman script, which indicated that his father must be well acquainted with the English language. This discussion was necessary because signature of the deceased Ganeshilal as "Ganeshilal" is written in English on the disputed Will. After referring to the stand taken by the defendant during the evidence and the writings, the learned Single Judge came to the conclusion that the signatures on the Will Exhibit "G" are of deceased Ganeshilal. 10. The learned Single Judge referred to the contents of documents and letters extensively before coming to the conclusion that the relations between the deceased and the defendant were strained for a period of about 3-4 years and, therefore, the deceased had taken decision to dis-inherit the defendant from his property. Therefore he had taken a decision to cancel the earlier Will of 1958 and to make a fresh Will whereby he wanted to bequeath whole of his property to the plaintiff alone. It is not necessary to refer the contents of 12 those letters extensively in this Judgment. However, some examples may be given. In the letter Exhibit "I" dated 25.2.1981, the deceased expressed "I think R.G. (which means Ramgopal the defendant) has changed his mind or there is some mystery since before." The letter Exhibit "F" dated 15.2.81 from the defendant to his father also shows that his father was upset with him and his wife and was not happy about their behaviour. In the letter exhibit "J" dated 18.5.81, the deceased said "Day by day, R.G.’s behaviour is becoming worse." By letter exhibit "C" dated 7.8.81, the deceased warned the plaintiff against the activities of the defendant and to act after properly understanding the deeds of the defendant. In his letter Exhibit "D" dated 10.8.81, the deceased cautioned the plaintiff that the defendant would not bother for Shastra, religion, society, propriety and impropriety, but will go only by law and possession. He also told the plaintiff that they were compelled to prepare themselves for retaliation. By his letter Exhibit "L" dated 17.8.1981, the deceased clearly expressed that without a loss of even a minute the Will should be prepared in such a way that the defendant should not be in a position to challenge the same. In that letter, he also said "Will should be made at this moment and this is an important work which you do not like". In the said letter, he had also said that one Panditji of Giriraj had told him that his death was very 13 near and this was the reason why he was in hurry to make a Will. In the next para of the same letter, he directed the plaintiff to get prepared a draft of the Will and to despatch to him in a packed envelope as the defendant was capable of doing anything. If this letter is carefully read, it also indicates that while the deceased was expecting his death any moment, he wanted to make the Will immediately without loss of a moment. It also indicates that the desire of the deceased to make a fresh Will was not liked by the plaintiff. It shows that the plaintiff was not interested in getting the old Will revoked and in getting new Will made in his favour. Same desire has been expressed by him in letter Ex."K" of August 1981 as well as in the note Exhibit "N" which does not bear any date, but appears to be of the same period. In this note Exhibit "N", he clearly expressed that after his death, his 1/3rd share in business of L.T. (Laljimal Tikaram) will go to plaintiff Ramcharan and defendant Ramgopal will have no right in the same. In view of this documentary evidence from the letters written by the deceased himself, the learned Single Judge came to the following four conclusions :- "i) That the relations between the deceased and the defendant were very much strained. 14 ii) That the deceased was displeased with the defendant and he wanted to change his earlier will as he did not wish to give any share in his properties to the defendant. iii) That the deceased wanted to give his properties to the plaintiff and for that purpose he wanted to make a fresh will cancelling the earlier one. iv) The deceased had at the relevant time sound and disposing mind." After going through the documentary evidence, we fully endorse these conclusions drawn by the learned Single Judge. 11. Having arrived at the above conclusions, the learned Single Judge proceeded to discuss the evidence and contentions of the rival parties to come to conclusion that Exhibit "G" is not the genuine document executed by deceased. The learned Single Judge noted that there was delay of about 8 years in propounding this Will and if the Will was executed by the deceased he would have disclosed this fact to the plaintiff and even the attesting witness, PW-4 Vijaykumar would have informed the plaintiff or at least his own wife. The 15 learned Single Judge also found that the paper used for making the will appears to be very old and had some old punch marks creating suspicion about the same. The learned Single Judge also found that the deceased Ganeshilal was not keeping good health and his handwriting had become shaky. Though the alleged will was executed only 4 days before his death, the signature appears to be fluent. Therefore, the learned Single Judge came to the conclusion that the plaintiff must have used some old blank paper bearing signature of his father to prepare the disputed Will. 12. The learned Single Judge relied upon H. H. H. Venkatachala Iyenger v/s. b. N. Thimma Jamma & Ors. Venkatachala Iyenger v/s. b. N. Thimma Jamma & Ors. Venkatachala Iyenger v/s. b. N. Thimma Jamma & Ors. AIR 1959 SC 443 AIR 1959 SC 443 AIR 1959 SC 443 wherein Their Lordships observed as follows :- "Apart from the suspicious circumstances to which we have just referred in some cases the will propounded discloses another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstances 16 attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence." The learned Single Judge also relied upon Jaswant Kaur Jaswant Kaur Jaswant Kaur V/s. Amrit Kaur AIR 1997 SC 74 V/s. Amrit Kaur AIR 1997 SC 74 V/s. Amrit Kaur AIR 1997 SC 74 wherein Their Lordships observed as follows :- "In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lit between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court’s conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent ad convincing explanation of the suspicious circumstances surrounding the making of the will." There can be no dispute about the legal proposition stated in the above two authorities. The evidence led 17 by the parties and the reasons given by the learned Single Judge for dismissing the suit will have to be minutely considered in the light of the above authorities. 13. The learned Single Judge found that there were punch marks on both the sheets of the Will and the papers were very old and, therefore, there was possibility that the old blank papers bearing signatures of the deceased were used for that purpose. We find that no question was put to the attesting witness Vijaykumar about the condition of the papers or about the punch marks on the same. It needs to be noted that the said Will purports to have been prepared on 5.10.81. The evidence was recorded during the year 1999-2000 and the judgment was pronounced in August 2001. When the learned Single Judge must have perused these documents in the year 2001, the papers were admittedly about 20 years old and, therefore, merely because the papers appear to be old, it was difficult to come to the conclusion that the old papers were used for the preparation of the Will in the year 1981 or thereafter. 14. The learned Counsel for the plaintiff contended that about the dispute before the arbitrator at Delhi,this document was sent to Delhi and was referred to handwriting expert. According to her, there is 18 possibility that when these papers were sent to Delhi in a packet, they must have been punched. That itself was in the year 1990 or so. If the pin used for that purpose gets rusted, it will leave its marks and the period of about 10 - 11 years is not short for this purpose. Therefore, in our considered opinion, the old punch marks are also not sufficient ground to hold that these were the old blank signed papers lying with the plaintiff when the Will got prepared. In our considered opinion, the evidence of attesting witness, Vijaykumar, was material and in absence of any cross-examinatioon in this respect we find it difficult to endorse the view taken by the learned Single Judge on this point. 15. The learned Single Judge noted that the plaintiff himself had admitted in the cross that he had used two blank cheques bearing signatures of his father and had withdrawn the amount of Rs.1,20,000/- from his account after his death and this indicates that he had the capacity to manipulate the record. The evidence on record clearly shows that Ganeshilal and his two sons were carrying on business at three different places i.e. Hathras, Delhi and Mumbai in partnership and each of them was required to deal with the banks on behalf of partnership firm. It is possible that for the purpose of the business, the blank signed cheques were kept by the deceased Ganeshilal with the plaintiff and they were 19 used for the same purpose. The learned counsel for the plaintiff vehemently argued that blank cheques and blank papers were altogether different matter while the cheques were required for everyday business depending on the requirement of the business, blank papers were not required for writing any letters, etc. There is no material to show that any such blank paper was ever left by the deceased with the plaintiff or the defendant The learned Single Judge seems to have drawn the inference that signed blank papers must be lying with the plaintiff merely because such cheques were with him. In our opinion, it will not be proper to draw such inference. 16. The evidence on record shows that on 24.9.1981, deceased was brought