IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION TETAMENTARY SUIT NO.36 OF 2002 IN TESTAMENTARY PETITION NO.602 OF 2001 Bapulal Maganlal Contractor … Deceased Umakant Bapulal Contractor & Anr. … Plaintiffs Vs. Nitin Bapulal Contractor … Defendant Mr. Atit Shukla a/w. Ms. Neena Kapadia i/b Pandya Gandhi & Co. for Plaintiffs Mr. K. K. Kurup for Defendant ORDER RESERVED ON 18TH JULY 2009 ORDER PRONOUNCED ON 18TH NOVEMBER 2009 CORAM : S. J. KATHAWALLA, J. DATE : 18TH NOVEMBER, 2009 JUDGMENT The Testamentary Petition No.602 of 2001 was filed on 11th April, 2001 by Umakant Bapulal Contractor and Nalin Bapulal Contractor for grant 1 of probate in respect of the Last Will and Testament dated 11th February, 1997 of the deceased Shri Bapulal Maganlal Contractor (hereinafter referred to as ‘the said Will’), who expired on 20th June, 2000. The Executors named in the said Will are the two sons of the deceased Umakant and Nalin i.e. the Plaintiffs/Petitioners herein. A copy of the said Will which is in English language is annexed as Exhibit-B to the Petition. Along with the Petition the Plaintiffs/Petitioners filed an Affidavit dated 5th February, 2002 of Mr. Narendran Madhavan Menon, one of the attesting witnesses to the said Will. Along with the said Petition the Plaintiffs/Petitioners also filed a Joint Consent Affidavit dated 11th April, 2001 of Smt. Parvatiben Bapulal Contractor (wife of the deceased) and Smt. Jayshreeben P. Khambhati (married daughter of the deceased) and also a Consent Affidavit dated 13th August, 2001 of Smt. Sushila I. Contractor (married daughter of the deceased). By the said Affidavits, 2 the wife of the deceased ‘Parvatiben’ and his married daughters ‘Jayshree’ and ‘Sushila’ deposed that the said Will was the last Will of the deceased. The same was genuine and valid and the deponents had no objection if the Probate in respect of the said Will was issued to the Plaintiffs/Petitioners, and they consent for the same. 2. In the said Petition No. 602/2001, the Defendant who is admittedly one of the son’s of the deceased and brother of the Plaintiffs/Petitioners filed a Caveat dated 3rd May, 2002 wherein the Defendant contended that he is not aware of any Will prepared by his father during his lifetime and that he has received a citation issued by the High Court inter alia informing that the Petition has been filed by his two brothers i.e. the Plaintiffs/Petitioners herein, for grant of Probate in respect of the said Will allegedly left by the deceased. Since he has not been served with a copy 3 of the said Will and the Petition, it is not possible for him to give para-wise reply to the alleged Will or the Petition. He therefore reserved his right to file a detailed reply after receiving a copy of the alleged Will. The Defendant without allegedly not having seen the Will submitted :- “my father was paralysed since __ years and bedridden before his death and was not able to sign anything. I say and submit that the said Will was not executed by my father.” Again, without having allegedly seen the said Will, and the Defendant having reserved his right to file a detailed Affidavit, nonetheless stated in his Affidavit dated 3rd May 2002 that the Will allegedly left by the deceased is false and fabricated. In fact on 18th July, 2009 when the arguments in the Suit commenced, it was submitted by the Learned Advocate appearing for the Defendant before this Court that the Defendant is not contending that the deceased was suffering from paralysis as stated in 4 the Affidavit in Support of the Caveat. This Court has noted the fact that the Defendant is unable to speak and understand English. His Affidavit of Examination-in-Chief dated 20th April, 2009 is interpreted and explained to him by the Office of the Translator, High Court and the questions put to him during his examination and cross-examination were either put to him directly in Gujarati or were put to him in English and thereafter translated in Gujarati. Despite this, the Affidavit of the Defendant in support of the Caveat dated 3rd May, 2002 nowhere states that the same has been read out and/or explained/interpreted to the Defendant in Gujarati. The contents of the Affidavit dated 3rd May, 2002 are not confirmed/reiterated by the Defendant in his Examination—in-Chief. In view of the aforesaid Caveat filed by the Defendant, the Petition was converted into a Suit. 3. Though the Defendant had stated in the Affidavit in support of the Caveat that he has not 5 even seen the said Will propounded by the Plaintiffs/Petitioners and that he will be filing a detailed Affidavit after receiving a copy of the said Will, no such Affidavit was filed by the Defendant at any time thereafter. Even when the matter was placed for framing of the Issues none appeared for the Defendant and this Court proceeded to frame the following Issue in the absence of the Defendant:- “Whether the Plaintiffs prove that the Will dated 11th February 1997 is a Will duly executed by the Testator in accordance with Law.” 4. The Plaintiffs/Petitioners have examined both the attesting witnesses to the said Will i.e. Mr. Narendran Madhavan Menon (P.W.1) and Dr. Pravin L. Shah (P.W.2). The Defendant has examined himself as a Witness (D.W.1) and his mother Pravatiben B. Contractor as witness (D.W.2). REASONS 6 5. As stated hereinabove the Plaintiffs /Petitioners have claimed that the said Will is the Last Will left by the deceased. The deceased had left the following persons surviving as his only heirs and next of kin according to Hindu Law by which he was governed at the time of his death :- 1. Smt. Parvatiben Bapulal Contractor (Parvatiben) - Wife 2. Smt. Jayshreeben P. Khambhati - Married (Jayshreeben) Daughter 3. Mr. Nitin Bapulal Contractor - Son (Defendant) 4. Mr.Umakant Bapulal Contractor - Son (Plaintiff No.1) 5. Mr. Nalin Bapulal Contractor - Son (Plaintiff No.2) 6. Smt. Sushila I. Contractor - Marriedd (Sushilaben) Daughter 6. Shri Narendran Menon (P.W.1) has in his Affidavit of Examination-in-Chief dated 29th January, 2009 stated that between the years 1994 7 and 2002 he was staying in 401, “Harmony”, 4th Floor Kandivali (West), Mumbai. In the same building, the deceased Bapulal Maganlal Contractor was residing in Flat No.304 on the 3rd Floor. On 11th February, 1997 P.W.1 was present at the residence of the deceased alongwith one Dr. Praveen Shah (P.W.2)a Medical Practitioner who has his dispensary at Shop No.2, Damodarwadi, Ashok Nagar, Kandivili (East), Mumbai. At that time and in both their presence, the deceased duly executed his Last Will and Testament dated 11th February, 1997. The said Dr. Shah (P.W.2) and P.W.1 at the request of the deceased and in the presence of the deceased and each other subscribed their respective signatures to the Last Will and Testament of the deceased as witnesses to the signature of the deceased. 7. In his Examination-in-Chief before this Court on 26th February, 2009 P.W.1 confirmed the contents of his Affidavits dated 5th February, 2002 8 and 29th January, 2009. P.W.1 was shown the original Will dated 11th February, 1997 when he deposed that he has signed the document as a witness and was aware that he was witnessing the Will. He has deposed that the deceased put his signature on the said Will in his presence and in the presence of Dr. P. L. Shah (P.W.2) who has also witnessed the Will. The original Will was thereafter taken on record and marked as Exhibit P-1. 8. P.W.1 in his cross-examination admitted that he knew the deceased since about 11 years prior to his death. During all the 11 years he was staying in 401, “Harmony”, on the 4th Floor, at Kandivali (E), Mumbai. The deceased was staying in Flat No.304 in the same building, i.e. “Harmony” and Mr. Nalin B. Contractor (Plaintiff No.2) was also residing in Flat No.101 of the same building. P.W.1 also stated in his cross-examination that he knows both the Plaintiffs, but he does not know the Defendant. 9 Before attesting the said Will of the deceased as a Witness he had gone through the Will. At the time of execution of the Will, the deceased, Dr. Pravin Shah (P.W.2) and P.W.1 were the only persons present. At the time of executing/signing of the said Will the deceased was in good health. P.W.1 has stated in his cross-examination that prior to his visit to the house of the deceased for witnessing his Will, he had visited the house of the deceased on one or two occasions. However, he does not recollect when he visited the house of the deceased earlier. He has admitted that he has also witnessed the previous Will of the deceased which was executed sometime in the year 1995. He has stated that the deceased had signed the Last Page of the said Will of 1997 in his presence and had also put his initials on the other pages of the said Will in his presence. In his cross- examination the Learned Advocate for the Defendant showed P.W.1 the signature of the deceased on both 10 the Wills i.e. the Will of 1997 and the Will of 1995 and suggested to P.W.1 that the second Will of 1997 was not signed by the deceased, to which P.W.1 answered “It is not true to say that the second Will of 1997 was not signed by the deceased.” 9. P.W.1 has in his cross-examination, inter alia denied the following suggestions put to him in his cross-examination by stating (1) that “it is incorrect to say that I was close to the son of Bapulal Contractor and not Bapulal Contractor.” (2) that “it is incorrect to say that he was mentally unwell prior to 5 years of his death.” (3) that “it is incorrect to say that I have signed the Will at the instance of the son of Bapulal Contractor or that I have never seen Bapulal Contractor putting his signature on the Will.” (4) that “it is not correct that I have come to court to give false evidence at the instance of the son of Bapulal Contractor.” 11 10. P.W.2 Dr. P. L. Shah filed his Affidavit of examination-in-chief dated 12th March, 2009 wherein he has deposed that he is a Medical Practitioner since the year 1983/84. The deceased was residing at 304 ‘Harmony’ which is very close to his dispensary. The deceased was his patient for a long time. The deceased was keeping good health and use to consult him only for minor ailments. He personally knew the deceased for six to seven years. The remaining facts as regards the attestation of the said Will in the Affidavit of examination-in-chief of Dr. P. L. Shah (P.W.2) are similar to those set out in the Affidavit of examination-in-chief of P.W.1. In his examination- in-chief conducted on 12th March, 2009 before this Court, Dr. Shah confirmed the contents of his Affidavit of Examination-in-Chief dated 12-3-2009 and upon being shown the original Will (Exhibit P-1) admitted that he had signed the document as a 12 witness and at the time of signing the same was aware that he was witnessing the Will of the deceased. P.W.2 has deposed before this Court that the signature on the right hand side on Page 5, of Exh. P-1, above the signature of the Witness is that of the deceased which was put by the deceased in the presence of P.W.2 and underneath his signature the deceased in his own hand wrote the date 11/2/97 in the presence of P.W.2. After the deceased put his signature on the said document/will in the presence of P.W.1 and P.W.2 both P.W.1 and P.W.2 witnessed/signed the Will in the presence of the deceased and in the presence of each other. Below the signature of P.W.2, P.W.2 has handwritten the date 11/2/97. Apart from the signature of the deceased on Page 5, the deceased had put his initials on each page of the document/will in the presence of P.W.2. 11. In his cross-examination, P.W.2 has stated that he knew the deceased about three to four years 13 prior to witnessing the said Will. The deceased himself had called P.W.2 at his residence to witness his Will. The deceased had called up P.W.2 in the morning of 11/2/1997. However, P.W.2 informed the deceased that he would be visiting the residence of the deceased in the evening, which he did at around 7/7.30 p.m. When P.W.2 went to the residence of the deceased, the deceased was alone. Thereafter Mr. Menon (P.W.1) also came to the residence of the deceased. P.W.2 in his cross- examination has further stated that he knew the deceased since he was visiting his dispensary as his patient. P.W.2 has stated that he maintains the medical records of his patients for a maximum period of six to eight years and he does not know whether he still has the medical records of the deceased. P.W.2 has stated that when he visited the deceased on 11th February, 1997 the physical and mental condition of the deceased was absolutely normal. P.W.2 has further stated that apart from 14 the deceased Bapulal being his patient, his son Nalin Contractor was also his patient and had consulted him on some occasions and on very rare occasions the wife of the deceased had also consulted him as a patient. He has also stated that it would be correct to say that on most of the occasions when the deceased visited P.W.2 at his dispensary his wife had accompanied him. In a question put to P.W.2 whether the deceased only knew Gujarati or other languages also, P.W.2 stated that in his presence the deceased only spoke in Gujarati. P.W.2 has stated that the Will was not explained to the deceased in Gujarati in the presence of P.W.2 and he is not aware as to who had prepared the said Will. He had only signed the document as a witness without going through the Will. P.W.2 has categorically stated in his cross examination that Nalin Contractor the son of the deceased is not a friend but a patient of P.W.2. P.W.2 has inter alia denied the suggestion put to 15 him in his cross-examination by stating that “it is incorrect to say that the deceased Bapulal had not signed the 1995 Will or the 1997 Will or that I am giving false evidence at the instance of his sons.” 12. After the evidence of P.W.1 and P.W.2 was concluded, a joint Affidavit dated 26th March, 2009 of Examination-in-Chief was filed by the Defendant and Smt. Parvati Babulal Contractor wife of the deceased. When it was pointed out to the Learned Advocate for the Defendant that Parvatiben had already filed a Consent Affidavit as far back as on 11th April, 2001 admitting that the said Will is genuine and valid and she has no objection to Probate being granted to the Plaintiffs/Petitioners in respect of the said Will, the Learned Advocate for the Defendant informed this Court that he will not rely on the said Joint Affidavit of evidence of Parvatiben and the Defendant dated 26th March, 2009 but will file a separate Affidavit of evidence of the Defendant and shall take appropriate steps to 16 have the Consent Affidavit of Parvatiben dated 11th April, 2001 set aside. 13. Thereafter an Affidavit of Examination-in- Chief of the Defendant dated 20th April, 2009 was filed before this Court. In the said Affidavit the Defendant, who had alleged in his Affidavit in Support of the Caveat dated 3rd May, 2002 that his father was paralysed and bedridden before his death and was not able to sign anything, now, after a span of 7 years changed his story to allege that his father was not in a position to sign at all for the last 5 years prior to his death since his hands were “shivering” and he had a “failed memory”. The Defendant has further deposed that the properties mentioned in the said Will are not the self acquired or the exclusive properties of the deceased and therefore the said Will is itself bad in law and cannot be probated at all. It is alleged that the said Will is clearly a manipulation by the Plaintiffs to the detriment of others. It is 17 deposed by the Defendant that in the Will of 1995 and 1997 it is stated that it was explained in Gujarati language to the maker of the Will. However, no evidence is on record to show that the Will was explained to the maker by anybody. The Deponent has deposed that as regards the Consent Affidavit of Parvatiben dated 3rd April, 2001, Parvatiben would be taking out appropriate proceedings to defend herself. The Defendant has alleged that the attesting witnesses are good friends of the Plaintiffs who wanted to grab the entire premises. 14. The Defendant in his cross-examination has admitted that upto 1993 the deceased, his wife Parvatiben, the Plaintiffs and the Defendant were residing at Ganga Niwas at Khar which was a joint family property. After 1993 the deceased shifted to Kandivali along with Parvatiben and brother, Nalin Contractor (Plaintiff No.2). However, the Defendant continued to reside at ‘Ganga Niwas’ at 18 Khar. Though according to the Defendant, initially there was no demarcation amongst the family members and the entire property (Ganga Niwas) was treated as one property, he has admitted that he has a separate ration card of his immediate family and has produced the same. He also admitted that a separate room was given to him in ‘Ganga Niwas’, since his wife was a pure vegetarian and his father and other members use to eat non-vegetarian food like eggs. He has admitted that in the year 1993 itself he filed a suit against his father being Suit No.1328/1993 and his father filed a suit against him being No.8010/1993 in the City Civil Court Bombay. He has also admitted that his father had filed a suit against him before this Court being Suit No.4190/1994. He has further admitted that M/s. Parvati Builders had filed a Suit against him being Suit No.4510/1995 before this Court. He has also admitted that there were complaints filed with the police by his father as well as himself 19 against one another. The Defendant has stated that he use to meet his father on certain occasions after 1993. He has stated that his mother and sisters had informed him that their family doctor was Dr. Nair. He has admitted that he had never accompanied his father to any doctor. When asked in his cross-examination on what basis the Defendant was alleging that the attesting witnesses viz. P.W.1 and P.W.2 are the friends of the Plaintiffs, he has stated that when he visited his father and mother he had seen them “loitering together”. The Defendant, though specifically asked to produce an original signature of his father could not do so. Instead he produced the Membership Card of Khar Gymkhana (Exhibit P-5) which again does not bear the original signature of the deceased. The Defendant has stated that both the Wills of the deceased were read out to him in the presence of his mother and three brothers by one Mr. Ashwin Pandya approximately two years after 20 the demise of the deceased. He has admitted that Mr. Ashwin Pandya had also taken signatures after verifying the facts that the Will was read out to him and his brothers. 15. Thereafter a Notice of Motion being No. 72/2009 was taken out on behalf of Parvatiben by the Advocate for the Defendant seeking withdrawal of the Joint Affidavit dated 11th April 2001 filed by Parvatiben jointly with her married daughter Jayshreeben in support of the Probate Petition, and for allowing her to file her Affidavit of Evidence in the above Suit and to contest the same. It is pertinent to note that Jaysrheeben did not seek withdrawal of the said Joint Affidavit. In the Affidavit in Support dated 27th April, 2009 of the Notice of Motion it is inter alia alleged that the signature in the said Will is not of the deceased and that it is unbelievable that the deceased would Will away the properties to only two 21 of his sons. The said Notice of Motion was disposed of by the following order dated 18th June, 2009:- “2. After hearing the parties at length, the parties have agreed that the notice of motion be disposed of by the following order :- (i). The affidavit dated 11th April 2001 filed by Mrs. Parvati B. Contractor be treated as withdrawn. (ii). Mrs. Parvati B. Contractor is not desirous of contesting the Will by filing any caveat and shall only be giving evidence in the suit as a witness by the defendant Shri Nitin B. Contractor. It is made clear that Mrs. Parvati B. Contractor is not a party to the present proceedings. (iii). The allegations made in the Notice of Motion against the plaintiff/petitioner are withdrawn. 3. The evidence of Mrs. Parvati B. Contractor tendered by Mr. Kurup, learned Advocate for 22 the defendant – Shri Nitin B. Contractor is taken on record. The cross-examination of Mrs. Parvati B. Contractor is kept tomorrow at 10 a.m. since she is an elderly lady of 80 years of age and has to leave for Ahmedabad by 12.00 noon. 3. In view thereof, Notice of Motion stands disposed of.” 16. In the Affidavit of Examination-in-Chief of Parvatiben (D.W.2) dated 19th June 2009, despite having agreed to withdraw the allegations made against the Plaintiffs/Petitioners as recorded in the Order passed in the Notice of Motion No. 72/2009, Parvatiben once again repeated some of the same allegations. Parvatiben alleged that the Plaintiffs/Petitioners immediately after the demise of their father drove her and the Defendant out of Mumbai. She has alleged that the Plaintiffs became very greedy and wanted to grab all the properties. Therefore, they befriended some of the local people 23 and came to this court with false documents. She alleged that the signature of the deceased appearing on the said Will is forged. What is found in the said Will is the manipulation by the Plaintiffs/Petitioners and it does not bear the signature of the deceased. She has alleged that her husband knew only Gujarati and he could not have signed a Will which is made in English without interpreting the same in Gujarati. There is no date on the said Will. The beneficiaries could not have sold the properties since the court had not granted probate on the said Will. She and the Defendant are at the mercy of her daughters who also supports the claim in the matter. 17. In her cross-examination Parvatiben (D.W. 2) in a question put by the Court to her as to why she did not contest the said Will since 2002, first stated that she had not stated anything against the said Will earlier because her sons had already disposed off the properties. She was therefore 24 asked by the Court that in that event why was she now alleging, after several years, that the said Will was not genuine, to which D.W.2 answered that she is now making statements against the genuineness of the said Will because she is now told that she will not get the share in Ganga Niwas property. As regards her knowledge pertaining to the said Will and its contents, she first stated that she came to know about the Will and its contents only six months after the demise of the deceased. She later changed her answer and stated that she came to know about the contents of the said Will approximately one year back. She thereafter once again changed her answer to allege that about two years back Advocate Mr. Wasawada who was the Advocate of the deceased handed over a copy of the said Will to her. Thereafter once again she changed her answer to say that the