KJ 1 IN THE HIGH COURT OF JUDICUATURE AT MUMBAI TESTAMENTARY & INTESTATE JURISDICTION TESTAMENTARY SUIT NO.1 OF 2004 IN TESTAMENTARY PETITION NO.439 OF 2003 Smt.Vatsala Krishnaji Damle ..Deceased Rear Admiral Sunil Damle Hindu Inhabitant of Mumbai Residing at A-6, Chiranjeev, Chittaranjan Road, Vile Parle (East), Mumbai-400 057. being the sole Executor and Trustee named in the above mentioned will of the deceased. ..Plaintiff Vs. Avinash Damle aged-60, residing at A-7, Chiranjeev Chittranjan Road, Vile Parle (East), Mumbai-57 ..Caveator ---- Ms.N. Bhagwat for the plaintiff. Mr.G.Desai i/by B.G.Saraf for the respondent/caveator. ---- CORAM : R.S.MOHITE, J DATE : 3.9.2010 KJ 2 JUDGMENT :- 1 This suit has been filed by the plaintiff for grant of probate of the last will and testament of his mother Smt.Vatsala Damle who expired on 4.3.2002 leaving behind a Will dated 12.3.2000. 2 The brief facts of the case are as follows :- (a) That the father of the plaintiff Krishnaji Damle, during his life time and through his own income, bought two plots of land bearing plot nos.16 & 16-A (old plot nos.67, 23, 24 & 25) situated on Chittaranjan Road, Vile Parle (East), Mumbai-400 057. Krishnaji died on 9.1.1980 leaving behind a will dated 15.1.1971 bequething the said property along with certain other assets as mentioned in his will, firstly by way of a life interest in favour of his wife Smt.Vatsala Damle and after her death, equally to the shares of his two sons viz the plaintiff and the defendant. (b) It is an admitted position that after the death of Krishnaji, his will was not probated but instead his widow and the present KJ 3 defendant filed a petition being Testamentary & Intestate Petition bearing No.240 of 1986, for grant of letters of administration. It is an admitted position that the stand taken by Smt.Vatsalabai and the present defendant in the said petition was that no will of Krishnaji had been found inspite of diligent search. (c) Under an agreement dated 8.12.1985 entered into by the plaintiff, the defendant and their mother Smt.Vatsala, who signed as a consenting party and one M/s.Bal Enterprises who were Builders, it was agreed to sell and convey the property bearing plot nos.16 & 16-A on the terms and conditions as mentioned in the said agreement. A glance of the agreement would indicate that for an amount of Rs.1,70,000/- Smt.Vatsala gave up her life interest and agreed to the transfer of the plots to the Builder, free of encumbrances. (d) The agreement dated 8.12.1985 further indicated that the amount of Rs.1,70,000/- payable to Smt.Vatsala in lieu of her life interest was payable as follows :- KJ 4 (i) Rs.25,000/- at the time of execution of the agreement ; (ii) Rs.25,000/- on handing over a part of the portion of the property in her possession ; (iii) Rs.1,20,000/- by way of allotment of a flat admeasuring 600 sq.ft built up area, calculated at the rate of 200 per square feet. (e) In pursuance of the agreement, Smt.Vatsala Damle received the monies under the agreement and also received a flat admeasuring 600 sq.ft built up area situated on the ground floor of the newly constructed building. The said flat in the newly constructed building bare flat no.A-1. The name of the newly constructed building was Chiranjeev and it was situated on Chittaranjan road, Vile Parle (East), Mumbai-400 057. As already stated here-in-above, Smt.Vatsalabai expired on 4.3.2002 and according to the plaintiff, she left behind a will dated 12.3.2000. (f) It is the plaintiff’s case that the will dated 12.3.2000 was executed by his mother in a sound and disposing state of mind, of KJ 5 her own free will and in accordance with law. It is his case that under the will the testatrix bequeathed her flat bearing flat no.A-1 exclusively to his son and her grandson Shishir Sunil Damle, to the exclusion of her three grand daughters, of whom one grand daughter was the daughter of the plaintiff and two were the daughters of the defendant. It is his case that the will was attested by two independant witnesses, one being Dr.Ashok Manjrekar and the other being Rajeev Asagaonkar. That under the will, he was appointed as the sole executor of the will and in such circumstances, he was entitled to file the present petition for grant of probate of the aforesaid will executed by his mother Smt.Vatsalabai. 3 The grant of probate has been opposed by the defendant who filed a caveat. In short, it is his case that the flat which was bequeathed under the will, could not have been bequethed because his mother Vatsalabai continued to have only life interest in the said flat and such life interest could not have been bequethed under the transfer of property. It is his further case that KJ 6 the will dated 23.3.2000 was false, bogus and fabricated and was made under the suspicious circumstances. That the will did not bear the signature of the testatrix. The defendant contended that the testatrix was not in a sound and disposing state of mind and there was no certificate of a Neurologist attached to alleged will to prove her sound and disposing state of mind. He contended that the signature of the alleged attesting witness Rajeev Asgaonkar was not his signature. It was his case that the property was not properly described in schedule-A of the petition and was under valued. That the alleged bequeathing under the will was against his father’s wish, which was to divide the assets equally amongst the two sons and as both the sons and three grand daughters were not given any share as per the desire of his father. 4 After considering the pleadings, this Court framed two issues as under :- (a) Whether the plaintiff proves that the will is legal and valid ? KJ 7 (b) Whether the defendants prove that the deceased did not execute a will ? 5 At the stage of evidence the plaintiff examined an attesting witness Rajeev Asgaonkar PW-1 and himself as PW-2. Amongst the documents held to be duly proved and exhibited were, Exhibit P-1 i.e the will executed by the testator, Exh.P-2 which was the office copy of a letter dated 18.10.2002 sent by the plaintiff’s Advocate in the reply to the legal notice dated 7.7.2002 addressed by the defendant’s Advocate and Exhibit-P-3 which was the receipt dated 18.10.2002 in respect of the aforesaid letter. 6 The defendant Avinash Damle examined himself and proved a letter dated 5.2.1996 which was exhibited as Exhibit D-2. 7 PW-1 Rajeev Asgaonkar stated in his examination-in-chief that on 12.5.2000 he was informed by the deceased Smt.Vatsala whom he had known for 40 years that she desired to make her KJ 8 Will. He stated that though Smt.Vatsala was of 8o years of age, she was in a normal health for a person of her age, of sound mind, alert and not mentally or physically incapacitated. He stated that on 12.5.2000 he was present at Chiranjeev, Chittaranjan Road, Vile Parle (East). He did not find that the testatrix was under any fear or coercion and she informed him that she was making a will in favour of her grand son Shishir. Thereafter Vatsalabai proceeded to sign her will in the presence of Dr.Ashok Ganpat Manjrekar who was also present along with him. That after Smt.Vatsalabai signed the will in front of both of them, Dr.Ashok Manjrekar first signed as a witness and immediately thereafter he signed as an attesting witness in front of both Smt.Vatsala and Dr.Ashok Manjrekar. He stated that at the time of execution of the will, Shishir Damle who was the sole beneficiary and the grand son of Smt.Vatsalabai was not present. He contended that the will was not a fraudulent document and all the signatures on the will were genuine. He identified all the signatures on the will. In his cross-examination the witness stated that the plaintiff had told him that his mother was desirous of making a will. He stated that when he was called KJ 9 by the deceased, he straight away went to her house and did not go to the house of the plaintiff. He denied that the will was not executed by Smt.Vatsalabai in his presence. He denied that when the will was handed over to him, the will already carried the signature of the deceased and Dr.Ashok Manjrekar. He stated that he was not aware about the health of Smt.Vatsalabai after her operation. He denied that Smt.Vatsalabai was not physically and mentally fit on 12.3.2000 when the will was executed. He stated that he was requested by Dr.Sunil Damle to sign as an attesting witness and at his request, he has signed the will as an attesting witness. 8 The plaintiff in his examination-in-chief supported the case as already set out here in above. In his cross-examination he admitted that his father had left a will dated 15.1.1971 and that no probate has been obtained of the said will. He admitted that the defendant has obtained letters of administration and had stated in the petition, there was no will left behind by his father had been found. By consent the will of Krishnaji Damle was KJ 10 exhibited as Exhibit D-1. During the cross-examination of the plaintiff, the plaintiff admitted that the property bequethed under his mother’s will was sold by himself and the defendant as vendors and their mother as consenting party vide an agreement dated 8.12.1985 in favour of M/s.Bal Enterprises. He stated that he was not aware as to whether M/s.Bal Enterprises had executed any document in favour of their mother while giving her flat no.A-1 or while alloting the flat. He denied that M/s.Bal Enterprises has not allotted flat no.A-1 to their mother as she had only a life interest in the property of Krishnaji. The plaintiff volunteered that M/s.Bal Enterprises was aware of her life interest and that is why M/s.Bal Enterprises had allotted the flat to their late mother on ownership basis. He stated that the two attesting witnesses had been informed and invited by him as per the directions of his late mother. He stated that he had told these attesting witnesses that his mother desired to execute a will and had requested them to be present as attesting witnesses. He admitted that he did not call the defendants at the time when the will was to be executed. He stated that since he was serving in the Indian Navy and as his job KJ 11 was transferable, he used to be posted at several places in India. He admitted that defendant was looking after his mother by providing her medicines. He stated that whenever he was on leave he also used to take care of her mother. He denied that in order to deprive the defendant of an equal share in the property, he had fabricated the will of his late mother. He denied that his mother under-went a major surgery prior to two years before the execution of the alleged will and was not in a position to execute the will. He admitted that he has not taken any Doctor’s opinion with regard to his mother’s health at the time of execution of the will. 9 In his evidence the defendant supported his contention as already set out here-in-above. In his cross-examination he admitted that he had not obtained probate in respect of the will of his deceased father and instead of obtaining probate he has obtained letters of administration. He volunteered that in the application for letters of administration, he has stated that the will of his deceased father was not traceable. He denied that the said KJ 12 statement has been in-correctly made. He admitted that he was allotted flat no.A-7 consisting of two bed rooms and the plaintiff was also allotted a separate flat No.A6 also having two bed rooms. He admitted that agreement dated 8.12.1985 was registered but denied that under clause-6 of the agreement, it was recorded that his mother had agreed to surrender the life interest and was being allotted a flat by way of consideration. He admitted that the petition for grant of letters of administration had only filed by himself and his mother. He stated that he knew Dr.Ashok Manjrekar and he volunteered that Dr. Ashok Manjrekar was treating her mother for about 20 years. He admitted that Mr.Rajiv Asgaonkar was also a resident of Vile parle. He claimed that his mother never left his company but admitted that she used to stay in her flat at ground floor whereas he used to stay on the 2nd floor in the said building. He denied that his mother was residing on the ground floor as she was not having cordial relationship with his wife. He claimed that the surgery performed on his mother was at the hospital by one Dr. Vinayak Tilak but was performed by Dr. Vidya Date. He denied that surgery was not a major surgery. KJ 13 He admitted that his mother ultimately died at Goa where she was residing with the plaintiff. He admitted that on his mother’s death, he did not visit to Goa. He claimed that prior to the execution of the will he had once visited Goa and had been accompanied by his family members. He admitted that the plaintiff had taken Smt.Vatsalabai to Goa with his permission. He admitted that the beneficiary Shishir was working with Stayam Computers, Hyderabad and was not staying in Goa. He admitted that he has not personally visited Goa to ascertain whether his mother was secluded. He denied that as per traditions, his mother intended to give her flat only to her grand-son and therefore, the daughters of the plaintiff as well as defendant were excluded. 10 Having heard both sides and considering the entire material on record, in my view, the petition deserves to be allowed. For the reasons as mentioned below, it is held that the plaintiff has proved the execution of the will of Smt.Vatsalabai dated 12.3.2000 and has proved that the same is legal and valid. It is further held that the defendant has failed to prove that the deceased did not execute KJ 14 the will. 11 In so far as proof of the will, I find no reason to doubt the evidence of the attesting witness (PW 1) Rajeev Asgaonkar. His evidence is simple and straight forward. Much capital is sought to be made out of the answer given by him in cross-examination that he had attested the will at the behest of the plaintiff. This so called admission cannot be read in isolation. It has to be read along with the testimony of PW-2 who has stated that he called the attesting witnesses on the direction given by his mother. The plaintiff had a flat in the said building and his presence at the time when the will was executed by his mother, who was over 80 years of age, cannot by itself be said to be a suspicious circumstances. Smt.Vatsalabai who was 80 years of age would have required some assistance for communicating to the witnesses and if she chose to take the help of the plaintiff, specially when she intended to bequeath the property to his son, her actions in this regard cannot be said to be suspicious. 12 The record does indicate that prior to the execution of the KJ 15 Will even the defendant was taking care of his mother who was staying just below her. The evidence also indicates that prior to the execution of the will he had also visited Goa. His relations with his mother seemed to have soured only after his mother executed the will in question. In the entire evidence, there is not a single word doubting the integrity of the attesting witness Rajeev Asgaonkar on giving a hint as to why Rajeev Asgaonkar would give false evidence. This is not suggested that Rajeev Asgaonkar was enmical to the defendant. In so far as the other attesting witness Dr. Ashok Manjrekar, the defendant has admitted that he was treating Smt.Vatsalabai for several years and was her family doctor. The defendant has furnished no material to show that the choice of this attesting witness was faulty or motivated. It is true that the will in question does not contain an endorsement by any doctor but this by itself cannot be said to be fatal to the proof of its execution. The attesting witness Rajeev Asgaonkar has categorically stated that the testatrix was in a sound and disposing state of mind on the day when the will was executed. In his cross- examination, though some attempt has been made to show that KJ 16 she had undergone an operation the defendant has admitted that, that operation was conducted two years ago. The defendant has not examined any hand-writing expert to prove that the signatures on the Will were forged. It is clear that the testatrix intended to bequeath her property to the male grand-child and while excluding the two daughters of the defendant and the daughter of the plaintiff. 13 Advocate for the plaintiff referred to several judgments and a brief reference to the judgments cited would be in order. In the case of Naresh Chandra Das Gupta Vs. Paresh Charan Das Gupta & Anr reported in AIR 1955 SC 363 the Apex Court held as under :- “It is elementary law that it is not every influence which is brought to bear on a testator that can be characterised as “undue”. It is open to a person to plead his case before the testator and to persuade him to make a disposition in his favour. And if the testator retains his mental capacity, and there is no element of fraud or coercion, the will cannot be attacked on the ground of undue influence.” KJ 17 In the case of Smt.Malkani Vs. Jamdar & Ors reported in AIR 1987 SC 767, the Apex Court held that the testamentary capacity of the excutrix or the genuineness of the Will cannot be doubted only on account of participation of beneficiaries.” 14 I am not convinced by any of the contentions raised on behalf of the defendant. The contention that Smt.Vatsalabai did not have the requisite title to bequethe the property is a question that cannot be decided in probate proceedings. Since any observation in this regard may prejudice the defendant in any proceeding which he may choose to take before a Court of competent jurisdiction, I would prefer not to make any observation in that regard in this proceeding. It is seen that draft issues which related to this question, as sought to be raised were specifically struck off when the issues were actually framed. The Counsel for the defendant contended that in view of Section 63(c) of the Succession Act, the will should have been attested by the attesting witness on a direction by the testator. However, later on Counsel fairly conceded that no such specific direction was KJ 18 required under Section 63 (c). 15 Merely because two sons and the three grand daughters have been excluded, I do not find this, to be the suspicious circumstance. It is quite possible that testatrix being 80 years of age, wanted her property to be passed on to her only grand-son and therefore, excluded all the three grand daughters including the daughter of the plaintiff and her two sons. The will does not mention the exact reason as to why all the other heirs have been excluded and in the circumstances, the suggestion made to the defendant that all the grand daughters as well as the two sons were excluded so that the property passed on intact to the sole male grandchild cannot be said to be unacceptable. 16 In the net result, the petition is allowed in terms of prayer clause-(a) and stands disposed off with no order as to costs. (R.S.MOHITE,J.) KJ 19