1 jpc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION TESTAMENTARY SUIT NO. 83 OF 2005 IN TESTAMENTARY PETITION NO. 738 OF 2005 Jitendra Purushottamdas Gandhi and another .. Plaintiff Versus Jayendra N. Zaveri .. Defendant CORAM : SMT. ROSHAN DALVI, J. RESERVED FOR JUDGMENT ON : 11th OCTOBER, 2010 JUDGEMENT PRONOUNCED ON: DECEMBER, 2010. J U D G M E N T : 1. The plaintiffs have sought to propound the Will of their mother- Prabhavati Nathalal Zaveri dated 13.11.1995 and lodged with the Sub Registrar of Assurances. 2. The Will has been attested by two attesting witnesses who are neighbours of one of the daughters of the deceased, one Kumud, in the building where she resided with her husband and children. The state of health of the deceased has been certified in the Will by one Dr. Pradip R. Doshi. The deceased had three sons 2 and two daughters and all were married. One of her sons Jayendra, has challenged the Will. Her other four children being two sons and two daughters have accepted the Will. Her two sons- in-law are the executors of the Will. They have filed the petition for probate and are the plaintiffs in the suit. 3. The Will propounded by the plaintiffs is a detailed Will setting out the family history. It would be apt to set out the admitted chronology of events that happened during the life time of the deceased and prior to the execution of the Will to understand the family background. It would be material to appreciate whether or not the deceased would have executed the Will attested by the attesting witnesses and propounded by the plaintiffs. 4. The deceased lived with her husband and children. The husband carried on business with his sons. In 1974-75,the eldest son, Hasmukh separated. He was given his share in the family properties. The other two sons of the deceased, Bharat and Jayendra continued the business. There was a partition in the family in 1986-87 under which Bharat was inter alia given a flat in which Jayendra then resided. That was Flat No.7 in Sitamahal Cooperative Housing Society at Bomanji Petit Road, Mumbai 400 036. Jayendra moved his residence from the said Flat No.7, which 3 until then belonged to him, to Flat No.6 in the same building which belonged to his mother, since deceased. The flat continued to belong to the deceased and is the main property disposed off under the Will. The mother is stated to have had her ration card in the said premises. Jayendra obtained another ration card in the said premises. 5. The deceased is stated to have executed her Will on 13.11.1995. Jayendra contends that the deceased executed a nomination in his favour on 21.1.2002 which is not produced. The deceased was hospitalized on 31.1.2005 upon having suffered heart attack. She was discharged on 13.2.2005 and was re-hospitalized on the same day. She expired on 14.2.2005 at 3 a.m. 6. After her death, the plaintiffs obtained certified copy of her Will, which was lodged with the Sub-Registrar of Assurances. The Solicitor of the deceased, who is stated to have prepared her Will, wrote to plaintiff No.1 about the Will, on the basis of which plaintiffs No.1 informed the other heirs. The Solicitor wrote to the Secretary of Sitamahal Co-op. Housing about the Will of the deceased. The heirs held meeting on 25.6.2005 when the Will was opened, read out and a copy was given to each of them and the other executor. Upon this the aforesaid consents are obtained and the Will is 4 challenged by one of the heirs. 7. Jayendra, the caveator, has contended that there was another registered Will of his mother, which has neither been sought to be probated, nor produced. Jayendra also contended that a nomination was made by the deceased on 21.11.2002 which is also neither produced, nor proved. He has also contended that the deceased left behind a Codicil executed by her in January, 2004 which has also not been propounded, produced or proved. He claims to have stayed in Flat No.6 for 48 years alongwith his family having a separate ration card, which is not produced or proved. 8. It has been the case of the caveator that the deceased could not have executed her Will dated 13.11.1995 as the deceased was not keeping good health at that time. 9. The affidavit in support of the caveat which is a written statement in the Suit shows that Jayendra contended that he maintained the deceased, looked after her, paid maintenance bills of the Society and medically treated his mother as she lived with him. He has averred about his mother’s illness in 2005 as well as at the time of execution of the Will which was in 1995, 10 years before her death. He has also averred about his mother’s good health in 5 November 2002, when she is stated to have executed the nomination. He claims that in view of her ill health, she could not have executed the Will propounded by the plaintiffs, which runs into 8 pages. He has also averred about the partition that took place in 1986-87 and the fact of the deceased preferred to continue to stay with him in Flat No.6 in Sitamahal Society, despite partition. He has contended that he was staying in Flat No.7 in Sitamahal Society at the time of the partition and had to forcefully give it to his brother Bharat. His sisters are well settled. His grandmother aged 106 (in October, 2005 i.e. when he made the affidavit in support of the caveat) lived with him. He claims that his brothers and sisters have not challenged the nomination which is entered in the minutes book of the Society. He has relied on an undated letter in Gujarati of the deceased signed in the presence of one Ramesh K. Shah hitherto not produced. Strangely he has stated in his affidavit not only about the codicil executed by the deceased in her handwriting, but the fact that he had specifically asked the deceased whether she had made any Will in Cumballa Hill Hospital when the deceased was hospitalized for a fortnight prior to her death, when the deceased is stated to have answered in the negative and had expressed her desire to give him the flat ( Flat No.6 in Sitamahal Society) excluding his brothers and sisters because they were well settled. Hence the deceased had not executed the Will but had 6 executed a codicil. His case relating to the validity of the Will is that deceased could not have executed the Will propounded by the plaintiffs. 10. Based on the aforesaid pleadings, Justice V.C. Daga framed the following issues on 21 st January, 2008, which are answered as follows: (a) Whether the plaintiffs prove that the deceased has duly executed her Will in Gujarati language and character on 13 th November, 1995, as stated in the petition ? -- No (b) Whether the defendant proves that the deceased could not have executed the said Will for the reasons stated in paragraph 5 of the Affidavit in support of the caveat ? -- Yes (c) What reliefs are the plaintiffs entitled for ? -- As per final order (d) What order ? -- As per final order 11. The plaintiffs have examined plaintiff No.1 himself and one attesting witness. The defendant/caveator has neither examined 7 himself nor any other witness. He has not produced nor proved any of the documents referred by him, including the earlier Will and later codicil, the nomination, ration cards, undated letter of the deceased, documents relating to previous heart attack, if any, expenses alleged to be borne by him on her last hospitalization, etc. relied upon by him. 12. For want of any evidence led by him, the admissions with regard to the family partition which took place in 1986-87 and the change of his residence are the material factors to consider, as shall be seen presently. The deceased was in easy circumstances. Jayendra continued to reside with her. The fact that he paid for the maintenance of the Society outgoings or maintained his mother is not disputed as shall be seen presently. The fact that the deceased had cordial relations with all her children is also not disputed. 13. The deceased is stated to have reposed confidence in her sons-in-law for the execution of the Will. This is to the exclusion of three sons of the deceased, two of whom have consented to the grant of probate and one of whom has challenged it. 14. Issue Nos. 1 and 2 : Plaintiff No.1- Jitendra is stated to have been directed by the deceased to assist her in making the Will. 8 His evidence shows how he assisted his mother-in-law in that behalf. The Will has not been registered but was kept in the custody of the Registrar. He has been extensively cross examined on various aspects of the family partitions, his relationship with his in-laws, his acts with regards to the execution of the Will, lodging it for registration, illness of the deceased, his acts after the death of the deceased etc. 15. However, in view of the fact that the deceased had a large family, having left five children, out of which only one has challenged the Will, the contents of the Will might become relevant to bear in mind while understanding the challenge as well as consent and may aptly be reproduced before the evidence is considered. 16. The main grievance of Jayendra is to the bequest with regard to the Flat, in his affidavit in support of the caveat. The deceased had several other movable properties and one other immovable property also. Her Will shows the execution of previous Will by Solicitor Suryakant Khona which is stated to have been misplaced. The deceased has set out her family details as well as her family properties which were understandably set out by her in view of the nature of her Will itself which shall be appreciated presently. 9 17. The deceased has given an equal share to all her five children in Flat No.6 in Sitamahal Society, shares of limited Companies, silver utensils, gold ornaments and in any residuary property left out by her. She has given Rs.20 lacs to her daughter Kumud from the proceeds of Flat No.6, which is directed to be sold, to be given to her. She has given her silver utensils to all the sons, except Hasmukh, her eldest son, because he had received his share in 1974. She has given ornaments left with her to her three sons. She has left a house at Godiyar, Saurashtra to Jayendra- the caveator. She has excused recovery of Rs.6 lacs with interest from Jayendra and Bharat (which was to be paid to her upon the partition of 1986-87). She has left Rs.2 lacs for the upkeep and maintenance of her own mother to be made on interest thereon and the capital to whoever looked after her. She has left Rs.10,000/- to charity. Essentially Kumud gets Rs.20 lacs and Jayendra gets the Saurashtra house. 18. It is made out by the plaintiffs that the Will is the most reasonable and natural. She bequeathed her properties to all the heirs almost equally, given the fact that Jayendra- caveator was to purchase his own flat upon the partition of 1986-87 and had only temporarily moved with his mother in flat No.6 which was adjoining flat No.7 which was a part of one large flat earlier. It is made out 10 by the caveator that the Will is most unreasonable and got up by the plaintiffs to exclude and deprive the caveator from the flat which would legitimately only belong to him, given the fact that his mother lived with him and was maintained by him all along and that is the only essential property of the deceased which is sought to be divided in the five parts so as to deprive him of 80% of its value. The extent of the other properties, being shares, ornaments, silver utensils in which the deceased could have had any disposable interest, after having dealt with some of those properties during her life time, may not be much. Similarly the value of the property at Saurashtra, given to the caveator may also not be much. It was for the defendant/caveator to bring on record those facts, which he sought to contend showing that his mother could never have executed such an inequitable testament, which he has failed to do. In this scenario, the evidence of plaintiff No.1 would be required to be considered for determination of the aforesaid Issues. It would essentially have to be seen whether the deceased could have executed the Will in the way it is shown to be. 19. The evidence of Plaintiff No.1 shows that he held the confidence of his father-in-law as well as mother-in-law at all times and he was consulted by his father-in-law at the time of separation of the eldest son-Hasmukh in 1974-75 as well as at the time of 11 separation of the two sons, Bharat and Jayendra in 1985-86 (The Agreement of partition is dated 21.1.1987). In November, 1995, his mother-in-law expressed her desire to make a Will and requested him to take her to a Lawyer. She stated that she had prepared an earlier Will through one Suryakant Khona- Solicitor. She had found out that he had expired. Since Jitendra had heard of Desai & Divanji, he found out their Telephone No. from the directory and contacted them and he was directed by a person in the firm to meet Divya Shah, the person dealing with testaments. He informed him about his mother-in-law’s desire to make a Will. She was called by Divya Shah. He took her to the office. He was directed to sit out. His mother-in-law was taken in. She held discussion with the Solicitor. He was not present at the time of execution of the Will. He took her mother-in-law home. The Solicitor called for details of the two separations in the family from his mother-in-law. After one or two days, his mother-in-law told him to give the details to the Solicitor. He gave the details which are incorporated in the Will. 20. Some days thereafter, on 13 th November, 1995, he was called by the deceased to the residence of her married daughter, his sister-in-law Kumud at Grant Road at 2.30 p.m. By then the Will was executed and his mother-in-law required him to accompany him 12 to the Registrar’s office at Old Customs House. He accompanied her with the said daughter- Kumud and her husband Samir, Plaintiff No.2 who is the other executor. He has claimed that the Will was registered and lodged with the Sub-registrar of Assurances and receipt was issued,which was handed over by his mother-in-law to him. That receipt is not produced. His mother in law informed that he and Kumud’s husband (Samir) were the executors. 21. After the death of his mother in law, he told Samir to get the certified copy of the Will from the Sub-Registrar. Samir told Kumud to get it. Kumud obtained the certified copy on 16 th June, 2005 which was handed over to Divya Shah, Solicitor. Divya Shah directed plaintiff No.1 to serve copies upon all the heirs of deceased under his letter dated 17 th June, 2005. The heirs held meeting on 25.6.2005 when the Will was read out. The office of the Prothonotary and Senior Master of this Court obtained original Will from the office of Sub-Registrar under a subpoena. He has deposed that the deceased was active until her death. She had affection for all her children. She read books and visited temples and went on pilgrimages. He has also relied upon the letter handwritten by the deceased in Gujarati, addressed to his wife Jotsna. 13 22. His cross examination relates to his marriage, partition, incident of exchange of flat No. 6 and 7, sum of Rs.6 lacs payable to the mother with interest by her two sons Bharat and Jayendra and interest computed at Rs.6,000/- per month receivable by her until the amount was paid off, which was never paid off and which she has excused to her sons in the Will. 23. He has explained that Jayendra had to give Flat No.7 in the partition of 1985-86 to Bharat and he stayed with his mother. The fact remains that the mother owned a flat even earlier and continued to own it thereafter and she lived there with her own mother- Narmadaben. 24. His cross examination further shows that the deceased had visited USA in 1987. A letter dated 20 th November, 1987 was sent by her from USA showing that all was well. Jayendra and his grand mother continued to live in the flat then. 25. During her last hospitalization all the family members visited her. The caveator claims to have paid for her hospitalization. The evidence shows that the plaintiff never treated or paid for or knew about the details of the hospitals or the treatment given to the deceased. He had not contacted any Doctor including Dr. K.D. Shah 14 who treated the deceased. He did not know about her earlier hospitalization in 2002 in Bhatia Hospital. ( Incidentally nomination is stated to have been made by her in 2002). He did not remember any hospitalization of the deceased in 1994 or 1995. 26. The plaintiff has been cross examined upon how he actually took the deceased to the Solicitor -Divya Shah. He was of the confidence of the deceased. She consulted him at times. She called him to talk to him. She expressed her desire to make the Will. She called him after two days. He had gone there at 2 p.m. when the caveator was not expected to be at home. He would be at the shop. He had obtained the address of the firm- Desai & Divanji from the telephone directory. Next day he went to the firm. He was directed to meet Divya Shah. He met him for the first time. He informed him about his mother-in-law’s desire and his mother-in-law was called by the Solicitor. On the next day, he went to his mother- in-law’s house at 3 p.m. straight into the bedroom. Others may not have been there. He did not even speak to the mother of the deceased. He took the deceased in a Taxi. It took half an hour of journey. There was complete silence; none spoke. At the attorney’s office, he was asked to wait out, when his mother-in-law was in for 45 minutes. Even thereafter there was no talk between them. It was only when he was told by his mother-in-law to deliver details of the 15 partitions to the solicitor that he went back to the solicitor. He is stated to have given details from memory. He did not see the draft of the Will prepared by the Solicitor. He did not know the language in which it was prepared. It was sent to the deceased. He did not know its contents and did not ask for them. 27. He was called by the deceased after the Will was executed to lodge it with the Registrar of Assurances. He had not known who were the attesting witnesses. He had not seen the Will. His evidence shows that he saw the Will for the first time in June, 2005, when he learnt who the attesting witnesses were. He was called in his sister-in-law’s house ( i.e. the house of the daughter (Kumud) of the deceased, at Grant Road). He went there at 2.30 p.m. Deceased and Samir were there. She told him that she had executed the Will and wanted to register it. He took her by taxi to the Old Custom House. His initial evidence shows that he alone took the deceased in a Taxi. There was no talk. They reached at 3.30 p.m. Advocate Seema Bhosale from M/s Desai and Divanji was there. He deposed that the Will was registered and receipt was given. The deceased gave it to him. That was given to the Registrar to obtain the original will. The certified copy of the Will was stated to have been collected by Kumud. 16 28. His evidence further shows that two receipts were received. He has deposed that Kumud and Samir were present at the time of registration and had gone together in the taxi. The Will was with Kumud and Samir in the taxi. (This evidence is contrary to his earlier evidence that he went with the deceased alone in the taxi.) He had not informed anyone about the Will because that was a personal matter. It was only after the obsequial ceremonies of the deceased was performed and four months thereafter that he informed her heirs in June, 2005. Strangely he has deposed that deceased told him not to inform anyone for four months. The heirs were informed on 25 th June, 2005 when the Will was read out. However, a letter was addressed by Divya Shah to the Society relating to the flat of the deceased after the death of the deceased. This might show the knowledge of the plaintiff and the fact that he had contacted some lawyer 10 years after the Will was executed. 29. The cross examination of the plaintiff shows certain intriguing aspects of having chosen that solicitor. He confirmed that he had brought the deceased to the solicitor. He had not known the Solicitor before. He had not asked the solicitor about the fees that he would charge. The will is executed in Gujarati language. It runs into 8 pages, which are not numbered, excluding the front page and the docket page. There appears no reference to 17 Divya Shah with his firm in the Will or even the docket. It is not shown to be registered. It is merely shown to be lodged with the Registrar showing Will No.7 of 2005 in TP lodging 701 of 2005. The Will does not bear any stamp of registration. The Stamps of the Registrar are only from the reverse of page 1 of the Will and later pages without any signatures and the last page is dated 16.6.1995. Though one or even two registration receipts are stated to have been issued, none is produced. The original will however is brought from the office of Sub-Registrar of Assurances upon a subpoena being issued in this behalf by the office of the Prothonotary & Senior Master of this Court. The Will was, therefore, lodged for registration but not registered. This has to be appreciated alongside the fact that the deceased has not signed on any of the pages except the last page against a cross mark. The Will bears an identification of one S.S. Bhosale, Advocate. The signature, designation of the signatory, name and address of the firm Desai & Davanji are handwritten to show "identification". Who is identified is not shown. She is from M/s Desai and Divanji. Divya Shah who prepared the Will has not identified. It is not known whether Advocate S. S. Bhosale served in Desai & Divanji or was their partner. She is not examined. The Will is apparently not prepared in the office of the attorneys. It is not explained by Jitendra how Advocate S.S. Bhosale came to be available at the Registrar’s Office, when she 18 identified and where she identified. There is no rubber stamp of the Firm. Identification is not immediately after the signature of the deceased; it is at the foot of the page, though there is space left after the signature of the deceased. 30. It has been the case of the caveator/defendant that his mother could not have executed such a detailed will running into 8 pages. She has not signed every page. She has signed only against a ‘X’ mark. It is argued on behalf of