-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY T. & I. J. T. & I. J. T. & I. J. T.SUIT NO.34 OF 1990 T.SUIT NO.34 OF 1990 T.SUIT NO.34 OF 1990 IN IN IN T.PETITION NO.599 OF 1988 T.PETITION NO.599 OF 1988 T.PETITION NO.599 OF 1988 Laxmi Sitaram Kumbhare, .. Petitioner/ Petitioner/ Petitioner/ Plaintiff. Plaintiff. Plaintiff. Vs Vasant Mahadeo Velekar, .. Caveator/ Caveator/ Caveator/ Defendant. Defendant. Defendant. Mr. Q.M.Ashfaq, for the petitioner/plaintiff. Mr D.R.Mishra, for the Caveator/defendant. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. CORAM : D.B.BHOSALE,J. DATE : 10th June, 2008 DATE : 10th June, 2008 DATE : 10th June, 2008 JUDGMENT: JUDGMENT: JUDGMENT: 1. The petitioner/plaintiff has filed this petition for Probate of the Last Will and Testament of Kisan Laxman Ninave,(for short, "Kisan"),who died at Bombay on 26.8.1986. The Will, in question, was executed by Kisan on 24.6.1986. The petitioner has brought the petition as the sole propounder of the Will. 2. The petitioner is a daughter of Smt.Parvatibai Kisan Khapekar, the sister of deceased-Kisan. she claims to be the only surviving heir and next-of-kin of Kisan. Kisan was a widower and, he died leaving behind him Parvatibai Khapekar and the petitioner as his only heirs and legal representatives. Kisan left -2- properties consisting of a small room, some fixed deposits and jewellery as described in Schedule-I appended to the petition. According to the petitioner, she was not aware of the Will till Kisan died and she found it only after his death in the belongings left by him. 3. After service of a citation on 10.8.1990, the defendant filed a caveat on 28.1.1990 claiming to be the heir and next-of-kin of Kisan and opposed the petition for Probate on various grounds. It was opposed mainly on the ground that thumb impression on the Will produced by the petitioner is not that of Kisan. According to the defendant, Kisan was compelled to put his thumb impression on the alleged Will without exercising his own free will and consent. The defendant has further stated that the contents of the Will were written afterwards on a blank paper on which the thumb impression of Kisan was obtained by the defendant. The caveat further states that Kisan put his thumb impression on the Will without knowing its contents and without applying his mind to it. He was, according to the defendant, physically and mentally unfit to execute the Will and in such state of mind and health his thumb impression was obtained by the petitioner. The Will was also challenged on the ground -3- that there was no reason for Kisan to exclude the defendant while executing the Will, he being the sole heir of Kisan. A reference to the two affidavits, both dated 27.10.1983, is also made by the defendant claiming right over the properties left by Kisan. 4. I have heard learned counsel for the parties for quite some time and with their assistance gone through the entire material placed on record. Mr. Mishra, learned counsel for the defendant, who closed his evidence last, at the outset, submitted that the Will in question is not a genuine Will. He submitted that the case of the plaintiff that she is closely related to Kisan is false and there was no reason for Kisan to execute the Will in her favour. Dr.Ajit Nerurkar (PW 2), who has been examined by the plaintiff in support of the claim, does not support the case of the plaintiff. This witness, according to Mr.Mishra, does not remember, who were the other persons present when the Will was executed and that he has clearly stated the Will was not read over to the deceased in his presence. He does not identify the signatures of the witnesses who were present at the time of execution of the Will. He submitted that Dr. Nerurkar does not remember anything except that he put his signature. He, therefore, submitted that the Will cannot be stated -4- to have been proved, as provided for in section 63 of the Indian Succession Act,1925 as also provided under the provisions of the Indian Evidence Act. He then submitted that the petitioner took a prominent part in execution of the Will which confers substantial benefit on her. This circumstance, according to Mishra, is generally treated as suspicious circumstance attending the execution of the Will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. In the present case, the petitioner has miserably failed to do so and in view thereof the Will cannot be stated to have been voluntarily executed by the testator. In support of this proposition, he placed reliance upon the Judgments of the Supreme Court in H.Venkatachala Iyengar Vs. H.Venkatachala Iyengar Vs. H.Venkatachala Iyengar Vs. B.N.Thimmajamma and ors, AIR 1959 SC 443 and in B.N.Thimmajamma and ors, AIR 1959 SC 443 and in B.N.Thimmajamma and ors, AIR 1959 SC 443 and in Niranjan Umeshchandra Joshi Vs Mrudula Jyoti Rao & ors, Niranjan Umeshchandra Joshi Vs Mrudula Jyoti Rao & ors, Niranjan Umeshchandra Joshi Vs Mrudula Jyoti Rao & ors, AIR 2007 SC 614. AIR 2007 SC 614. AIR 2007 SC 614. He then submitted that the disposition in the present case appears to be unnatural and unfair in the light of the relevant circumstances and more particularly because the propounder herself took prominent part in execution of the Will which confers on her substantial benefit. He then invited my attention to the evidence of the witnesses and submitted that Dr Nerurkar could not and did not give the particulars, such as, by which hand the thumb -5- impression was put by Kisan. A reference was also made to another Will of the very same date allegedly produced by the plaintiff before Bhoiwada Court to contend that the Will produced before this Court is a bogus and fabricated document. The learned counsel for the defendant has filed written submissions on record. He has not made any other submission. 5. On the other hand, learned counsel for the plaintiff invited my attention to the evidence of both the witnesses to contend that merely because there are some discrepancies in the evidence of Dr.Nerurkar, his evidence cannot be discarded. Dr Nerurkar had signed as a witness and has stated that the deceased put his thumb impression in his presence so also the other attesting witnesses. This part of his evidence supports the case of the plaintiff which is sufficient to hold that the Will has been proved as contemplated under section 63 of the Indian Succession Act. My attention was invited to Exhibit D-3 and D-5 which are the order dated 21.12.1984 and the Judgment dated 27.7.1989 to contend that both these documents clearly support the case of the plaintiff. Further, my attention was invited to the cross-examination of Dr Nerurkar (PW 2) and it was submitted that the Will was shown to the witness and after he identified the thumb -6- impression of the deceased and his own signature, it was exhibited as Exhibit T(P)-1. He then invited my attention to cross-examination of the plaintiff and submitted that none of the assertions of the plaintiff, made by her in the examination-in-chief, have been challenged by the defendant in the cross-examination and her case in respect of the execution of the Will and her relationship with the deceased remained unchallenged. He submitted that the plaintiff in her cross-examination has categorically denied the case put to her by the defendants that she had produced the Will in Bhoiwada Court in Case No.541/P/84. This evidence, according to him, clearly establishes that the Will in question is the last Will and testament of Kisan. 6. On the backdrop of the aforementioned facts and the submissions of the learned counsel for the parties, the following issues, as framed vide order dated 19.12.2007, fall for my consideration. 1. Whether the Will dated 24th June, 1986 is the last Will and Testament of Kisan Laxman Ninave and the same is legally and validly executed by him? 2. Does the defendant prove that the signature at the foot of the subject Will is not of the deceased? 3. What order? -7- 7. The petitioner/plaintiff in support of her claim examined herself as PW 1 and Dr. Ajit Vishram Nerurkar as PW 2. The Will was attested by Hari Ganesh Kunte and Bhagwan Shankar Jagtap, the neighbours of the deceased. They both died during pendency of the suit and, therefore, could not be examined in the case. Both these witnesses, however, had filed affidavits in support of the petitioner’s claim. The petitioner has placed on record the original Will and the other relevant documents in support of her claim. As against this, the defendant has examined himself and has placed about 15 documents on record out of which, 12 documents have been exhibited by consent of the learned counsel for the parties. Out of remaining documents, except document at sr.no.15, namely, a Xerox copy of Marathi Will of the deceased Kisan dated 24.6.1986, allegedly produced by the plaintiff in Bhoiwada Metropolitan Magistrate’s court, the learned counsel for the defendant did not press them to be exhibited. The question of proving and exhibiting the document at sr.no.15 was left to be considered at the stage of final arguments. Learned Advocate for the defendant, however, did not make any submission insofar as this document is concerned, nor did he press his Notice of -8- Motion No.46 of 2008 seeking production of the document at sr.no.15 in the course of arguments. 8. The plaintiff (PW 1), in support of her pleadings, has categorically stated that she is the daughter of Parvatibai Kisan Khapekar, the sister of the deceased, and at the instance of her mother, she was residing with the deceased and taking his care in his old age. She has stated that she knew the defendant, who allegedly committed breach of trust for which a criminal case was filed and pending at the time of Kisan’s death. She claims that she performed the last rites of Kisan. After the death of Kisan, the defendant demanded vacant possession of the room which, she states, forced her to file a police complaint with Bhoiwada Police Station. She has stated that she did not know the execution of the last Will and she found it in the belongings of the deceased after his death. It was signed by the two neighbours, namely Hari and Bhagwan. She has stated that the Will was also signed by one Shivram Khataokar, the Special Executive Magistrate. All the three witnesses, namely, Hari Ganesh Kunte, Jagtap and Shivram Khataokar, according to the plaintiff, have expired during pendency of the proceedings and,therefore, are not available for examination in the present case in support of her -9- claim. She has also made reference to case no.541/P/84 filed at the instance of Kisan under section 406 read with section 114 of IPC against the defendant and his mother Soni Mahadeo Velekar, so also CC no.646/N/84, that is, the application filed by Kisan for return of the property. She has identified the thumb impression of the deceased. In the cross-examination, none of the assertions made by the plaintiff were challenged by the defendants. It will be advantageous to reproduce the entire cross-examination of the plaintiff, which runs into hardly three paragraphs. The cross-examination of the plaintiff reads thus: "Parvatibai was sister of late Kisan. I am the daughter of Parvatibai. As such late Kisan was my maternal uncle. After the death of Sitabai (wife of Kisan), I was staying with him in room no.546 at Parel, Mumbai. At the time when Kisan expired some of the members in my family were also staying with him. They were my husband and four children. We all were staying in room no.546. At the time of death, I was not knowing that the deceased Kisan had made his will. He also did not tell me about having executed his will. I did not produce any Will in the Bhoiwada Court, in the Court of Judicial Magistrate in case No.541/P/84. I was present when Kisan expired." 9. Dr.Nerurkar, PW 2, has categorically stated that -10- he knew the deceased for more than 15 years and as a doctor he was called by Kisan to attest the Will. He has identified his signature so also the thumb impression on the said Will as that of Kisan. It is true, in the examination-in-chief Dr Nerurkar did mention the names of the persons who were present at the time of execution of the Will and in the cross-examination, for the reasons best known to him, he has stated that he did not remember who were the other persons present at the time of execution of the Will. However, he has categorically stated that the witnesses also put their signatures on the Will in his presence. Merely because in the cross-examination he does not give the names of persons who were present at the time of the execution of the Will, and states that the contents of the Will were not read over to the deceased, and that he does not remember the date of the Will, in my opinion, cannot be treated as suspicious circumstances attending the execution of the Will. Dr.Nerurkar has specifically stated that he was called by one of the neighbours of Kisan at his residence for execution of the Will. He has further stated that Kisan requested him to sign the Will as witness and that the other witnesses also put signatures as attesting witnesses in his presence. He has identified the thumb impression of Kisan and the other signatures -11- when the original Will was shown to him in the court. His evidence is reliable and acceptable, which, in my opinion, cannot be discarded on the mere ground that it was discrepant on one of the points, such as he does not remember the names of other persons present or that the Will was not read over to Kisan. Moreover, his evidence does not show that the plaintiff took a prominent part in execution of the Will which confers on her substantial benefit. 10. The defendant (DW 1) has tried to demonstrate his relation with the deceased-Kisan and has also stated that the plaintiff was not relative of Kisan. But from his testimony, it appears, he is not sure about his relation with Kisan. In the affidavit of evidence he states that he is the son of the sister-in-law of the wife of Kisan, while in the cross-examination he states that his maternal uncle Vithoba and Kisan were co-brothers. He has not produced any other evidence to show that he was, in fact, a relative of Kisan. He has placed heavy reliance upon the joint affidavit made by Kisan and his wife dated 27.10.1983 , to contend that the entire property, by this affidavit, was given to him by Kisan and his wife. Perusal of the order dated 21.12.1984 (Exhibit D-3) shows that Kisan had applied for return -12- of all those items which were allegedly given to the defendant and he had so stated in the affidavit. That application and the order clearly shows that the affidavit dated 28.10.1983 was withdrawn by Kisan and the application filed by Kisan was allowed by the Metropolitan Court which further directed the defendant to return the fixed deposit receipts and Bank books, as mentioned in the application, to Kisan. That order was not carried further by the defendant. Similarly, the judgment dated 27.7.1989 in case no.541/P/84 filed against the defendant and his mother Soni Mahadev Velekar under section 406, though ended in acquittal, clearly show that the property which, inter alia, forms a part of the Will, was directed to be returned to the legal claimant of the deceased Kisan on production of the proof from the competent Court. The Court has, thus, clearly refused to hand over the jewellery to the defendant or his mother. The jewellery, willed out by Kisan to the plaintiff and the jewellery which was the subject matter of the case of criminal breach of trust is one and the same. 11. In order to prove the execution of Will, as contemplated under section 63 of the Indian Succession Act, it is absolutely necessary that the testator must have signed the Will in the presence of the attestors -13- or the testator must have personally acknowledged his signature in the presence of attestors. As regards attestation of Will, the clause (c) of section 63 required that the Will shall be attested by two or more witnesses. It is not necessary that both of them be present simultaneously at the time of putting their signatures but the requirement is that each of the attesting witness must have seen the testator sign or affix his mark to the Will or has received from the testator a personal acknowledgement of his signature or mark on the Will. There is also an additional requirement that each of the attesting witness shall also sign the Will in the presence of the attestors. 12. It is true, onus of proving the will is always on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature or mark of the testator as required by law is sufficient to discharge the onus. Where, however, there are suspicious circumstances, the onus is on the propounder to explain to the satisfaction of the court before it accepts the Will as genuine. In the present case, I do not find any such suspicious circumstance surrounding the execution of the Will in question. Testimony of the plaintiff and Dr. Nerurkar, as observed earlier, -14- is sufficient to discharge the onus on the plaintiff to prove the Will. The assertions made by the plaintiff in her examination-in-chief in respect of her relation with Kisan and the circumstances in which, according to her, the Will was executed, and the evidence of Doctor Nerurkar in whose presence testator put his thumb mark on the Will and even the witnesses signed the will in his presence are more than sufficient to hold that the Will is genuine. Though the defendants did not challenge the physical and mental fitness of Kisan seriously, Dr.Nerurkar who was the doctor of Kisan for 15 years prior to his death, has categorically stated that Kisan was sound and mentally fit at the time of execution of the Will. Thus, it is true that all the requirements/conditions contemplated under section 63 stand complied with to hold that the Will is likely and validly executed. 13. That apart, the inconsistent stand in respect of the execution of the Will taken by the defendant cannot be overlooked. At the inception, he has stated that the thumb impression on the Will is not that of Kisan and then he has stated that Kisan did not execute the alleged Will out of his own free will and desire and he executed the same under force and coercion at the hands of the plaintiff. He has also stated that the thumb -15- impression of Kisan was obtained on blank paper and it was subsequently used for preparing the Will. He has even challenged the attestation of the Will which, according to him, was defective. I do not find any substance in these inconsistent grounds of challenge set out by the defendant in the affidavit in support of the caveat. In my opinion, the plaintiff has established the execution of the Will in the manner in which it is required to be executed under section 63 of the Indian Succession Act. It is clear from the pleadings and the evidence on record that Kisan put his thumb impression on the Will in the presence of the Witnesses including Dr.Nerurkar. The original Will was shown to Dr Nerurkar, who identified the thumb impression of Kisan, his own signature and the signatures of other witnesses. In the result, the first issue is answered in the affirmative and issue no.2 is answered in the negative. Accordingly, the caveat, by virtue of which the petition was converted into the suit, stands dismissed. (D.B.Bhosale,J.)