IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION TESTAMENTARY SUIT NO. 66 OF 1993 IN TESTAMENTARY SUIT NO.495 OF 1993 Lalita Manharlal Shah alias Lalita w/o Manharlal Bhaichand Shah alias Lalita M. Shah alias L. M. Shah Ajay Kumar Manharlal Shah … Plaintiff Vs. Ashok Kumar Manharlal Shah … Defendant Mr. Ajay Manharlal Shah Plaintiff appearing in person Mr. Rajesh C. Shah i/b M/s. Negandhi Shah & Himayatullah for Defendant ORDER RESERVED ON 18TH JULY 2009 ORDER PRONOUNCED ON 4TH NOVEMBER 2009 CORAM : S. J. KATHAWALLA, J. DATE : 4TH NOVEMBER 2009 JUDGMENT The Testamentary Petition No.495 of 1993 was filed by Ajay Manharlal Shah for grant of Letters of Administration with the Will attached. The Will is alleged to have been left 1 behind by Smt. Lalitaben Manharlal Shah who expired on 19th February 1993. The Will is dated 25th April 1986 (hereinafter referred to as the said Will) and was executed at Ahmedabad. The Plaintiff/Petitioner has stated in the Petition that the said Will/writing is in Gujarati language in the handwriting of the deceased. The executor named in the Will was Mr. Manharlal Bhaichand Shah who expired on 24th June, 1992. Save and except the Plaintiff/Petitioner and the Defendant there are no next of kin left by the deceased. A true copy of the said Will in Gujarati along with its official translation in English are annexed as Exhibits A and B to the Petition. Along with the Petition the Plaintiff/Petitioner filed an Affidavit dated 23rd June 1993 of Shri Parimal Kantilal Shah one of the attesting witnesses to the said Will. 2. In the said Petition No.495/1993, the Defendant who is admittedly the elder son of the deceased and brother of the Plaintiff/Petitioner filed a Caveat dated 14th October, 1993. In the 2 Caveat dated 14th October, 1993 filed by the Defendant, the Defendant contended that the said Will dated 25th April 1986 propounded by the Plaintiff/Petitioner is not the last Will of the deceased. The last Will of the deceased is dated 15th February 1993 and is in possession of Mr. Himanshu Kantilal Shah who is one of the executors named therein. The said Will has been revoked by the Last Will dated 15th February 1993. Without prejudice to the said contention, the Defendant submitted that the said Will is not duly executed as required by law. The deceased had not signed the said Will dated 25th April 1986 in presence of the so-called two attesting witnesses and the application of the Plaintiff/Petitioner is false in this regard. It is also contended that a complete settlement was arrived at between the Defendant and Plaintiff/Petitioner regarding division of properties left by the deceased, in a meeting held at Ahmedabad on 22nd February 1993 when the Plaintiff/Petitioner did not say anything about the said Will. The Plaintiff/Petitioner for the 3 first time alleged by his Advocate’s letter dated 30th March, 1993 that there was a Will of the deceased without giving any particulars. A copy of the said Will was provided to the Defendant only under cover of the Plaintiff/Petitioner’s Advocate’s letter dated 30th April, 1993 which was posted on 3rd May, 1993. The Defendant craved leave to file a further Affidavit in support of the Caveat after taking search of the proceedings and the original said Will deposited in this Court. In view of the aforesaid Caveat filed by the Defendant the Petition was converted into a Suit. 3. Thereafter, the Defendant filed a Suit before the City Civil Court at Ahmedabad being Suit No.3523 of 1997 (the Ahmedabad Suit) for grant of Probate of the Will of the deceased dated 15th February 1993, which suit is dismissed by the City Civil Court at Ahmedabad by a Judgment/Decree dated 22.10.07/30.10.2007 (Exhibits P-27/P-28). 4 4. Admittedly, whilst dismissing the suit filed by the Defendant, the City Civil Court at Ahmedabad has held that the court finds much substance in the submission of the Defendant (Plaintiff herein) that the said document dated 15th February 1993 was not the last Will of the deceased and the same was a concocted and forged document. It was inter alia further held that “the defendant has successfully proved that the document dated 15th February 1993 purported to be the Will was concocted and forged and did not bear the signature of deceased Lalitaben, and could not be said to be the last Will of the deceased and the Plaintiff is not entitled to get the probate with respect to the properties shown in Schedule A annexed to the Plaint.” The Defendant has filed an Appeal before the Gujarat High Court against the Judgment and Decree dated 22nd October 2007/30th October 2007 (Exhibits P-27/P-28) passed by the City Civil Court at Ahmedabad in Suit No.3523 of 1997 which Appeal has been admitted, and is pending. 5 5. On the basis of the Affidavit filed by the Caveator in Support of the Caveat contesting validity of the said Will, this Court by its order dated 21st April 2008 has framed the following issues : (i) Whether the Petitioner/Plaintiff proves that the Deceased has duly executed at Ahmedabad her Will dated 25th April 1986? (ii) Whether the Caveator/Defendant proves that the Deceased has duly executed her last Will dated 15th February, 1993? (iii) If answer to issue No.2 is in the affirmative, whether the Will dated 25th April, 1986 is revoked by the Will dated 15th February 1993? (iv) Whether the Caveator/Defendant proves that on 22nd February, 1993 a complete settlement was arrived at 6 between the Petitioner/Plaintiff and Caveator/Defendant regarding the division of properties left by the Deceased? (v) What order and decree? 6. The Plaintiff/Petitioner has examined himself as a witness (P.W.1). The Plaintiff /Petitioner has also examined one Mr. Parimal Kantilal Shah as witness(P.W.2). The Defendant has neither examined himself nor any other witness in the Suit. ISSUE NO.1 7. As stated hereinabove, in the Plaint/Petition the Plaintiff/Petitioner has claimed that the said Will is the Last Will left behind by the deceased. The said Will/writing is in Gujarati language in her own hand and character. A true copy of the said Will along with its official translation in English are annexed and marked as Exhibits A & B to the 7 Plaint. Under the said Will the deceased had appointed her husband Mr. Manharlal Bhaichand Shah as the sole executor but the sole executor died at Mumbai on 23rd June 1992. Perusal of the said Will shows that it is signed by the deceased and that there are two witnesses who have attested the signature of the deceased. The first attesting witness is Mr. Himanshu Kantilal Shah and the other attesting witness is Mr. Parimal Kantilal Shah whose Affidavit is filed along with the Petition. 8. The Plaintiff/Petitioner in his Affidavit of Examination-in-Chief dated 13th June 2003, has repeated the submissions made by him in his Petition dated 23rd June 1993 which are already set out hereinabove. The Plaintiff/Petitioner has further deposed that the deceased at the time of execution of the said Will was of sound and disposing mind, memory and understanding. He has relied on the Affidavit of Mr. Parimal Kantilal Shah attesting witness of the Will dated 25th April 8 1986, which is filed in this Court along with the Petition. The Plaintiff/Petitioner has further deposed in his Affidavit that Mr. Himanshu Kantilal Shah the attesting witness of the Will dated 25th April 1986 has in his evidence in the Ahmedabad Suit (Exhibit P-7) admitted to attesting the said Will dated 25th April 1986 and this is also recorded in the Judgment in the Ahmedabad Suit dated 22nd October 2007 (Exhibit P-27). The Plaintiff/Petitioner has further deposed that the only ground on which the Defendant has challenged the Will dated 25th April, 1986 is that the said Will is not the last Will of the deceased. The Plaintiff/Petitioner has deposed in his Affidavit that the Defendant after going through the Will of the Deceased dated 25th April 1986 (Exhibit – 106 in the Ahmedabad Suit) admitted that the signature on the Will appears to be the signature of the deceased. By the Judgment and Decree dated 22nd October 2007/30th October 2007 in the Ahmedabad Suit (Exhibits P-27 and P-28), the Ahmedabad Court has held 9 that there is no Will executed by the deceased subsequent to her Will dated 25th April 1986. Hence the said Will is the last Will of the deceased. The Plaintiff /Petitioner has also denied/disputed any settlement on property distribution between himself and the Defendant on 22nd February 1993. 9. The Plaintiff/Petitioner during his examination-in-chief on 19th September 2008, sought to tender the said Will which was objected to by the Learned Advocate appearing for the Defendant on the ground that the said Will is not proved as required under section 68 of the Indian Evidence Act. In response the Plaintiff/Petitioner submitted that the said Will has been admitted by Mr. Himanshu K. Shah one of the attesting witness of the said Will in his cross-examination in the Ahmedabad Suit. The objection was upheld, by this Court as follows : “P.C. : 10 The objection is upheld. The cross- examination does not prove the will. For instance the witness has stated that nobody was present when he signed the Will. It will therefore be necessary to comply with the provisions of Section 68 of the Indian Evidence Act in order to prove the Will. The alleged Will dated 25.4.1986 is marked “X-1” for identification.” 10. The Plaintiff/Petitioner was cross- examined by the Learned Advocate for the Defendant at great length. 11. Shri Parimal Kantilal Shah (P.W.2) has in his Affidavit of examination-in-chief dated 30th March, 2009 repeated and reiterated almost the entire contents of his Affidavit dated 23rd June 1993 filed along with the Plaint/Petition. In his examination-in-chief recorded before this Court on 30th March, 2009 P.W.2 has confirmed the correctness of his Affidavits dated 23rd June 11 1993 (first Affidavit) and his Affidavit of evidence dated 30th March, 2009 (second Affidavit). The attention of P.W.2 was drawn to the original of the said Will. After going through the same P.W.2 has deposed that the same is in the handwriting of the deceased who was his father’s sister. The signature on Page 7 is that of the deceased. After the signature of the deceased P.W.2 and his brother have signed the said document/Will in their capacity as witnesses. The first signature is of his brother Shri Himanshu K. Shah who under his signature has written the date 25th April 1986 in his own handwriting. After the signature of Himanshu is the signature of P.W.2 himself, and the date 25-4-1986 put therein is in his own handwriting. The deceased has also put her signature at the bottom of every page of the said document/Will. 12. Thereafter P.W.2 has further deposed that on 25th April, 1986 he and his brother Himanshu K. Shah had visited the residence of 12 the deceased in the morning. P.W.2 and his brother Himanshu had attended the residence of the deceased since on the earlier day, the deceased had informed P.W.2 and his brother Himanshu that they should attend her residence in the morning of the next day to witness her Will. The said will was already prepared by the deceased in her own handwriting which handwriting of the deceased P.W.2 identified. P.W.2 further deposed that the deceased had also informed them that she had prepared the Will in her own handwriting. P.W.2 further deposed that the deceased put her signature in his presence and in the presence of his brother on all the 7 pages of the said document/will and after she completed putting her signatures on all the 7 pages his brother Himanshu put his dated signature at Page 7 of the said document and immediately thereafter P.W.2 put his dated signature below the signature of his brother. P.W.2 deposed that the deceased, therefore, signed the said document/will in the presence of P.W.2 and his brother and they both had put 13 their signatures in the presence of the deceased and in the presence of each other. The original document/will of the deceased was thereafter taken on record and marked as Exhibit P34. 13. P.W.2 was cross examined at great length. P.W.2 has inter alia denied/disputed the suggestion put to him in his cross- examination by stating (1)that “it is incorrect to say that when my brother Himanshu signed the Will the deceased and/or myself were not present”; (2) that “it is incorrect to say that all that I have stated in my evidence pertaining to the execution of the Will is not true”; (3) that “it is incorrect to say that my statement that I can identify the handwriting of the deceased Lalitaben is false”; (4) that “it is incorrect to say that the deceased Lalitaben had already put her signature on every page of the document/will before myself and my brother attended her residence. Deceased Lalitaben had put her signature on each and every page of the Will in presence of myself and my brother”. 14 14. The Plaintiff/Petitioner who is appearing in person has submitted before this Court that the following are the admitted facts:- (i). The deceased was the mother of the Plaintiff/Petitioner and the Defendant; (ii.) the Plaintiff/Petitioner was a resident of Mumbai; (iii). the deceased expired on 19th February 1993 at Ahmedabad; (iv). that in the year 1986 both the brothers of the deceased were the residents of Ahmedabad; (v). that Parimal Kantilal Shah (P.W.2) and Himanshu Kantilal Shah are the sons of one of the brothers of the deceased; 15 (vi). the premises ‘Arunodaya’ (namely the residence of the deceased at Ahmedabad) is adjoining the premises where both the brothers of the deceased resided along with their families; (vii). that in the year 1986 the sister of the deceased also resided a few kilometers away from ‘Arunodaya’ and the residence of the brothers of the deceased; The Plaintiff/Petitioner has submitted that the said Will (Exhibit P-34)is in the handwriting of the deceased and that the same is her last Will. The only contention raised in the Caveat by the Defendant was that the Will dated 25th April, 1986 is not the last Will of 16 the deceased and that the last Will of the deceased is dated 15th February, 1993. The only other contention raised by the Defendant without prejudice to the aforesaid contention was “that the alleged Will dated 25-4-1986 is not duly executed as required in law…….that the deceased had not signed the alleged will dated 25-4-1986 in presence of the so-called two attesting witnesses thereto….that the Application of the Petitioner is false in this connection.” The Plaintiff/Petitioner has therefore submitted that in the Ahmedabad Suit the Hon’ble Court has given its finding that the Will dated 15-2-1993 propounded by the Defendant is forged and fabricated. Though an Appeal is filed therefrom and admitted by the Gujarat High Court the Judgment/Decree in the Ahmedabad Suit is not stayed. The question therefore of the said Will dated 15-2-1993 being the last Will of the deceased as alleged by the Defendant in his Caveat does not arise. The Plaintiff/Petitioner has further submitted that the aforestated without prejudice contention of the Defendant, 17 recorded in his Affidavit in Support of the Caveat goes to show that according to the Defendant the said Will was not duly executed as required in law, only on the limited ground that the deceased had not signed the Will dated 25-4-1986 in the presence of the two attesting witnesses. It is further submitted by the Plaintiff/Petitioner that though the defendant in his Affidavit in Support of the Caveat craved leave to file a further Affidavit after the search of the proceedings and inspection of the original Will, no further Affidavit came to be filed thereafter. Therefore, at no point of time the Defendant has in the present proceedings alleged/contended that the Will of the deceased is not in her own handwriting or that the signature/s on the Will dated 25th April 1986 is/are not the signature/s of the deceased or that the said Will is fabricated and not genuine. The Defendant not having led any evidence in the present proceedings, in the course of his arguments before this Court cannot be heard to say that the said Will of the 18 deceased is not in her own handwriting or that the said Will does not bear her signature/s or that the said Will is not genuine or is fabricated or there are suspicious circumstances prevailing as regards the said Will. It is further submitted that it is also not the case of the Defendant, in his Affidavit in Support of the Caveat, that the deceased was not physically or mentally in a fit state /condition in the year 1986. 15. The Plaintiff/Petitioner has submitted that in the letter of the Defendant addressed to the Advocate for the Plaintiff/Petitioner dated 14th May, 1993 (Exhibit P16/D-19), the Defendant had alleged that the said Will does not appear to be genuine and purported to be signed seven years before her death at Ahmedabad. These allegations were vehemently denied by the Advocate for the Plaintiff/Petitioner by his letter dated 19th May, 1993 (Exhibit D-20). Thereafter in the Affidavit in Support of the Caveat dated 25th October, 1993 the Defendant 19 chose not to make even a whisper qua the genuineness of the said Will or any suspicious circumstances pertaining to the said Will and only alleged that the deceased had not signed the alleged Will in the presence of the so- called two attesting witnesses. The Plaintiff/Petitioner has further submitted that in a question asked by him to the Defendant during his cross-examination in the Ahmedabad Suit (Exhibit P-6) on 18th April 2006 whether the said original Will is in the handwriting of the deceased, the Defendant answered that he is unable to answer the question because he has not personally inspected the Will and the Will is inspected only by his Advocate. Again in a direct question asked to the Defendant (at Page 175) whether he can identify the signature of the deceased in the Will dated 25th April 1986 (Exhibit 106 in the Ahmedabad Suit), the Defendant answered that the same appears to be the signature of the deceased. In a question asked to the Defendant during his cross examination in the Ahmedabad Suit on 12th 20 February 2007 (Exhibit P-6 at Pg.163) the Defendant has stated that the deceased made a Will in the year 1986 which was revoked by her Will of 1992. Both the Wills were made by the deceased at Ahmedabad. At Page 170, in a question put to the Defendant as to where he was when the deceased made a handwritten will dated 25-4-1986, the Defendant has replied that he was in Mumbai. The Plaintiff/Petitioner has submitted that the Defendant has at no time thereafter filed any Additional Affidavit in support of the Caveat, disputing the handwriting and/or signature/s of the deceased in the Will dated 25th April 1986. It is submitted that the Defendant now cannot dispute the said handwriting or the signature/s of the deceased or the genuineness of the Will. 16. The Plaintiff/Petitioner has submitted that in the present proceedings he has relied on the evidence of Mr. Himanshu K. Shah which was recorded in the Ahmedabad Suit, for the purpose of proving the said Will because in the said 21 evidence Mr. Himanshu K. Shah has admitted the execution of the said Will. However, when the Plaintiff/Petitioner tendered the said Will before this Court (Coram : S. J. Vazifdar, J) on 19th September 2008 the same was objected to on behalf of the Defendant on the ground that the Will has not been proved as required by Section 68 of the Indian Evidence Act, more so, since the said Himanshu had stated in his evidence that nobody was present when he had signed the Will of the deceased. This court had therefore ordered that it will be necessary for the Plaintiff/Petitioner to comply with the provision of Section 68 of the Indian Evidence Act in order to prove the Will. The Plaintiff/Petitioner has thereafter led the evidence of one of the attesting witnesses (as required under Section 68 of the Indian Evidence Act) in order to prove the due execution of the Will dated 25th April 1986. 17. The Plaintiff/Petitioner has submitted that the attesting witness Mr. Parimal Kantilal 22 Shah (P.W.2) has stated in his Affidavits as well as in his evidence recorded before this Court that the said Will was prepared by the deceased in her own handwriting and he can identify the same. The deceased had also informed him and his brother Himanshu that she had prepared the Will in her handwriting. The deceased had put her signature in his presence and in the presence of his brother Himanshu on all the 7 pages of the said Will. After she completed putting her signature on all the 7 pages, his brother put his signature at Page 7 of the document and immediately thereafter he (P.W.2) signed the document/Will below the signature of his brother. The deceased had therefore signed the said document/Will in his presence i.e. P.W.2 and in the presence of his brother and they then both had put their dated signatures in the presence of the deceased and each other. According to the Plaintiff /Petitioner even after cross- examination the credibility of P.W.2 is not shaken. It is therefore submitted by the 23 Plaintiff/Petitioner that the evidence given by P.W.2 is trustworthy and cannot be discarded, and that he has successfully proved that the said Will of the deceased (Exhibit P34) is executed in accordance with law. 18. The Plaintiff/Petitioner has also relied on the decision of the Hon’ble Supreme Court in the case of Shashi Kumar Banerjee & Ors. v/s. Subodh Kumar Banerjee, AIR 1964 Supreme Court 529 wherein it is held that when the Will is in the handwriting of the testator and when in the Will itself the testator states that he has signed the Will then very little evidence is required to prove due execution and attestation of the Will. The Plaintiff /Petitioner has drawn this Court’s attention to the portion of the said Will wherein the deceased has in her own handwriting categorically stated that she has made the Will in her absolute conscious state of mind without any kind of threat or fear or without being under the influence of any intoxicant. She has 24 further stated that she has affixed her signature to her Will in the presence of two witnesses and the said two witnesses have affixed their signature in her presence. The Plaintiff/Petitioner has therefore submitted that the Will of the deceased is squarely covered by the decision of the Hon’ble Supreme Court in Shashi Kumar Banerjee & Ors. (Supra). The Plaintiff/ Petitioner has also cited several other decisions which are to the same effect. 19. The Plaintiff/Petitioner has also relied on the decision of the Hon’ble Supreme Court in Ramabhai Padmakar Patil (dead) through L.R’s & Ors. Vs. Rukmanibai Vishnu Vekhande & Ors., 2004(1) Mh.L.J 47, wherein the Hon’ble Supreme Court has held that in view of Section 63 of the Indian Succession Act and the proviso of Section 68 of the Indian Evidence Act the requirement of law would be fully satisfied if only one of the attesting witnesses is examined to prove the Will. 25 20. The Plaintiff/Petitioner relying on the decision of the Hon’ble Supreme Court in Munir Ahmad & Ors. Vs. State of Rajasthan AIR 1989 Supreme Court 705, submitted that the Defendant could have lead his evidence but has chosen not to do so. The Defendant has not lead oral evidence of any individual in support of his case. In the case of a living person evidence in judicial proceedings may be tendered by calling the witness to the witness stand and cannot be substituted by an