1 TS-43 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Testamentary Suit No.43 of 2005 IN Testamentary Petition No.357 of 2002 Joy Shankar Roy alias Joy Roy .. .. Plaintiff/ Petitioner v/s. Nilanjana Bhattacharya .. .. Defendant/ Original Caveator None for Plaintiff. Mr.P.L. Mahadik for Defendant. ----- CORAM : SMT.ROSHAN DALVI, J. Date of reserving the judgment : 15th April, 2011 Date of pronouncing the judgment : 28th April, 2011 JUDGMENT : 1. The Plaintiff/Petitioner, the son of the testatrix Manobina Bimal Chandra Roy, has sought to probate her last Will and Testament dated 9th August 1998. The testatrix expired on 18th September 2001. The Petition came to be filed on 26th April 2002. The testatrix was survived by one son, the Plaintiff and three daughters amongst whom one daughter has filed 2 TS-43 her caveat. 2. The Caveatrix Nilanjana Bhattacharya has challenged the Will on the ground that she disputes her mother s signature thereon and, therefore, the Will is not genuine, the vocabulary in the Will is not one her mother could have used, the attesting witness is not a family friend but a friend of the Plaintiff which is a suspicious circumstance, the Plaintiff is named as executor which makes it further suspicious, the Will is not genuine, she is disinherited, the Plaintiff has bequeathed the vast majority of her properties and the Will is not initialed by the testatrix on the front page. She further claims that the Will was not disclosed to her until the citation was served upon her, her mother was 82 years old and ailing and not in a fit and sound state of mind, the Plaintiff had control on his mother and kept her under his influence as he lived with her and that she was not given a share in her father s property despite years of trying to settle things amicably and she was not allowed to visit her mother. 3. Upon the aforesaid pleadings, the following issues came to be framed by Justice Dharmadhikari on 5th December 2008 which are answered as follows: 3 TS-43 ISSUES (1)Whether the Plaintiff proves the Will. - Yes (2)Whether the Plaintiff proves that the Defendant by her deliberate acts vis-a-vis the testator had bruised the testator in such a manner that she could not reasonably have expected any bequest from the testator. - Not required to be answered. (3)Whether the Defendant proves that the Will is not genuine, for the reasons stated by the Defendant in para 6 of the affidavit-in-support of Caveat. - No (4)Whether the Defendant proves that the signature appearing on the Will is not that of the testator.- No (5)Whether the Defendant proves that the testator was coerced or unduly influenced to sign the Will. - No (6)Whether the Defendant proves that the testator was not in a fit, sound or independent state of mind when the testator executed her Will. - No (7)Generally. - As per final order 4. The Plaintiff has led evidence of the two attesting witnesses to the Will. The Defendant has not led any evidence. The Plaintiff is required to prove the valid execution of the Will as per Section 63 of the Indian Succession Act and Section 68 of the Indian 4 TS-43 Evidence Act. Once that is done, the Plaintiff is not required to prove the acts of the Defendant which might have bruised her mother. The Defendant is required to prove that the Will is not genuine or is not signed by the testator or that she signed it under coercion (both of which are contradictory) or that she was not in a fit state of mind once the Plaintiff showed the valid execution. 5. The Will has been executed three years before the death of the testatrix. It was executed at the residence of the doctor of testatrix who has attested the witness as the first attesting witness. The second attesting witness is stated to be a friend of the testatrix. The Will has been professionally drafted. It is typewritten. It runs into two sheets of one paper. It appoints the Plaintiff as the executor. 6. The Will makes a mention of the four children of the testatrix. It mentions about the legal proceedings taken out by the Caveatrix against the testatrix. These include a suit filed and contempt proceedings for sending the testatrix to jail. It mentions about distress caused to her and gives that as the reason for excluding the Caveatrix. The Caveatrix is the only daughter of the testatrix who has been 5 TS-43 excluded entirely. The Will declares the 1/5th share which the testatrix obtained from the estate of her husband, four other shares having gone to the four children of the testatrix. The Will bequeaths 1/5th share which the testatrix obtained to her son, the Plaintiff absolutely. The Will further mentions about a landed property. It declares that if the house with flat is built thereon, the flat of the testatrix would devolve upon the Plaintiff, though the other children would also obtain their flats. The Will also bequeaths the share in the house in Varanasi which was the property of the father of the testatrix to the three children of the testatrix being the Plaintiff and two other daughters. The Will further mentions about the leasehold interest of the testatrix in another property Shantiniketan where she is a member. That property is bequeathed to the aforesaid three children. If that property would admit only one legatee, it has been bequeathed to the Plaintiff. 7. The Caveatrix admittedly filed certain litigations against the testatrix. She has been disinherited. In the litigation the testatrix as well as the other children, who were the Defendants in the suit filed by the Caveatrix being Suit No.2275 of 1995, were represented by the same Advocate and Solicitor who 6 TS-43 is shown on the docket of the Will. The docket shows that it was typewritten in May 1998. It has been executed on 9th August 1998. 8. The Will bears three initials at the foot of page-1, above the execution clause near the date and on the docket near the date. The Will bears three signatures at the foot of page-2. The testatrix has executed the Will. Two attesting witnesses have attested it. The first initial and the date are in the same pen as the signature of the testatrix. Two other initials are in the same pen as that of the attesting witnesses. 9. The short chronology of dates and events shows that there was a litigation between the parties since 1995. The Will was drafted in May 1998 and executed in August 1998. The testatrix expired in 2001. The Petition has been filed in 2002. Upon these circumstances, the evidence led by the Plaintiff of the two attesting witnesses would have to be considered. 10. Both the attesting witnesses have stated that they knew the testatrix. They have acknowledged the presence of one another. The Will was executed at the residence of the first attesting witness who was 7 TS-43 the Physician of the testatrix. Both of them saw the testatrix, put her initials on both the pages and her signature and date at the bottom of the docket. Thereafter both of them one by one themselves signed the said paper. They have identified both their signatures as well as the handwriting in the name and address written at the foot of the document. They both have deposed that at the time of execution of the Will the testatrix was in a sound and disposing state of mind, memory and understanding and had executed the Will of her free will and pleasure. Both these witnesses have been cross- examined. 11. Both the witnesses have deposed in their cross- examination also about the place of execution and the fact of they having signed the Will in the presence of and after the testatrix. The doctor has, however, deposed that he did not remember the name of the other attesting witness and that attesting witness was a male. (This is an incorrect fact). The doctor has further deposed that he had asked her few questions such as her name, age, residence and how she came to his residence. He did not remember the age that she had told him. He had not asked her for any physical medical check up. He had known her for 15 years. She had called him for visits and he had 8 TS-43 not found any illness except hypertension and gastric problem. She had not attended his dispensary but only called visits whenever required. The Plaintiff or his sister Yashodhara used to call him for visits. He remembered that somebody would have called him a couple of days earlier to check whether he would be at home on the date of the execution of the Will, but did not remember who. He did not remember the exact time when the Will was executed. The testatrix had not discussed with him that she wanted to make her Will earlier. He had not inquired about the contents of the Will. He had not seen the testatrix signing before. He knew the entire family of the testatrix. 12. The entire cross-examination rather than showing that the Will was not executed has clarified how the Will was executed. It has shown how the soundness of mind of the testatrix was checked by her family Physician who knew the entire family. The witness has been brought out as the witness of truth. He has not deposed anything unknown to him. He did not remember the time of execution and who had called him which is a natural phenomenon. He also did not remember the age she had mentioned to him which is most acceptable. The important thing was the execution and her health which he remembered and has 9 TS-43 deposed not only in his examination-in-chief but has clarified in his cross-examination. It is argued that he has wrongly deposed that the other attesting witness was male whilst she was the female. Though that is correct, the error is seen to be not only justified but rather naturally made because the witness has not even remembered her name. The witness only knew the testatrix and her son who were present. The witness had never met the other attesting witness. Hence he would not remember her name and perhaps even her sex  the witness was 76 years old at the time of deposition and had deposed before the Court Commissioner more than 11 years after the execution of the Will. The evidence of the witness is credible and is required to be accepted. The evidence of this witness is sufficient to prove the valid execution of the Will. 13. Nevertheless, the Plaintiff has got examined the other attesting witness also who has similarly deposed about the execution. In her cross- examination, she has deposed about how she knew the testatrix. That was since 1967 when her daughter and the daughter of the testatrix were friends in college which is how she came to know the testatrix and her family. She has, however, deposed that she did not know the Caveatrix. The Caveatrix also is 10 TS-43 seen not to have known her from the fact that in her affidavit-in-support of the Caveat itself she has stated that she is someone unheard of . She has deposed that she moved from Mumbai to Pune but would often visit Mumbai and used to visit the testatrix. She has deposed about how she signed the Will. She has also deposed that she would write the date below the signature but she had not done in this case because the date was written on the Will. She has also deposed that she did not know the contents of the Will and was not informed about it before the execution. She did not remember the date when the Will was signed or its time. She was given the Will for signing by the testatrix herself. She has also deposed about the health of the testatrix, upon being asked in the cross-examination, as having perfectly good health. She did not remember precisely how she was told to attend for the attestation of the Will but she deposed that it could have been on the phone. She would have come from Pune to Mumbai but did not remember whether she came the day before. She did not know the doctor. She may have seen him for the first time on that day. She did not know that the doctor was the good friend of the testatrix. However, she saw the doctor signing as the witness. She was not familiar with the signature of the testatrix 11 TS-43 herself. She had only seen her signing in her presence. She confirmed that she had put her initials on the first page and second page as well as on the docket wherever the changes were made. She knew the Plaintiff very well as she knew the entire family aside from the Caveatrix. Though she knew the family, she did not know the Caveatrix personally. She did not remember seeing her in the residence of the testatrix. 14. Her evidence is also without any embellishment. She knew the family except the Caveatrix. Aside from seeing that this statement is true from what is claimed by the Caveatrix herself of this witness, this suggests how only the Caveatrix was aloof from the family. She did not know the doctor and had not met him before, which is what explains how the doctor forgot her name and her sex at that distance of time. She did not even know that the doctor was a good friend of the testatrix. All that her deposition shows is that the attestation has taken place precisely as required by law, without more. She need not have been told the contents of the Will. She could have been called by any one for its execution. 15. A reading of the entire short evidence shows due 12 TS-43 execution of the Will. The attestation is by an independent professional doctor who was sufficiently known to the testatrix. It is also by a family friend. The fact that it was executed at the residence of the doctor shows the mobility of the testatrix. The fact that she lived for about three years thereafter shows that she did not suffer from any debilitating illness. The execution is proved beyond doubt. There is nothing suspicious about the execution. 16. The very Will shows the distress of the testatrix as having been betrayed by her own daughter. This is not only in view of the litigation which was the Administration Suit filed by the daughter, the Caveatrix, as claimed by her after years of trying to settle things amicably , but also a contempt Notice of Motion taken out by her daughter against her mother, the consequences of which are mentioned in the Will itself  for sending her to jail. 17. It is contended by the Caveatrix that the Plaintiff was present, is appointed executor and has been bequeathed a large part of the estate of the testatrix but has not deposed in Court and hence was not available for cross-examination. There is nothing suspicious found about the Will. There are 13 TS-43 no suspicious circumstances that the Plaintiff as the propounder of the Will would have to remove. Hence non-examination of the Plaintiff is not material for determination of issue No.(1) which requires him to prove the due execution of the Will. The reliance placed upon the case of Apoline D Souza vs. John D Souza, (2007) 7 SCC 225 is immaterial in view of the lack of suspicious circumstances required to be removed by the propounder. Consequently, issue No.(1) is answered in the affirmative. 18. Issue No.(2) : This relates to the acts of the Caveatrix against the testatrix, by which she could not reasonably expect any bequest to be made in her favour. Once the Will is validly proved, it does not matter why a particular heir has been disinherited. It is in the sole and absolute discretion of the testatrix to make a reasonable or unreasonable bequest, provided she is in a fit position to do so and has done it as per law. Hence issue No.(2) is not required to be answered. 19. Issue Nos.(3), (4), (5) & (6) : The onus lies upon the Caveatrix to prove these issues. Her affidavit of examination-in-chief has given the aforesaid several reasons why the Will should not be probated. 14 TS-43 The Caveatrix has not examined herself. There is, therefore, nothing on record to prove any of these issues. All the issues are, therefore, answered in the negative. 20. Issue No.(7) : The suit is decreed as prayed. The last Will and Testament dated 9th August 1998 of the testatrix Manobina Bimal Chandra Roy shall be probated. 21. Office shall issue the probate. 22. Drawn up decree is dispensed with. (SMT.ROSHAN DALVI, J.)