( 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 ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION USJ TESTAMENTARY SUIT NO.37 OF 1992 TESTAMENTARY SUIT NO.37 OF 1992 TESTAMENTARY SUIT NO.37 OF 1992 IN IN IN TESTAMENTARY PETITION NO.603 OF 1990 TESTAMENTARY PETITION NO.603 OF 1990 TESTAMENTARY PETITION NO.603 OF 1990 Subhash Hiraji Jadhav (Since deceased) 1. Mrs. Kumud Subhash Jadahv, aged about 29 years, widow of the deceased original petitioner No.1 (Plaintiff No.1,) daughter-in-law of the deceased, Hindu, Inhabitant of Bombay, residing at B/15, Swapna Safalya Co-op.Housing Soc.Ltd., J.B. Temkar Marg, Prabhadevi, Bombay - 400 025. 2. Akhilesh Subhash Jadhav son of the deceased original petitioner NO.1/plaintiff No.1 of Hindu, Indian Inhabitant, residing at Block No,15, B-1, Swapna Safalya Co.-Op. Housing Society, Ltd., J.B. Temkar Road, Prabhadevi, Mumbai-400 025. ..Plaintiffs Verses 1. Padmakar Hiroo Jadhav, 7/14, Municipal Staff Colony, Sashmira Road, Prabhadevi, Bombay - 400 025. 2. Smt.Indira Hiroo Jadhav 7/14, Municipal Staff Colony, Sashmira Road, Prabhadevi, Bombay - 400 025. (since deceased) 3. Smt.Sumitra Surve, Mankar Bldg, 2nd Floor, Room No.39, 11th Lane, Khetwadi, Bombay-400 004. 4. Smt.Meghana Vasant Shinde, 7/14, Municipal Staff Colony, Sashmira Road, Prabhadevi, Bombay - 400 025. ..Defendants/ Caveators ...... Miss. K.C. Nichani for plaintiffs Mr. H.S.S. Murthy i/by D.R. Mishra for defendants ( 2 ) ...... CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. CORAM : R.Y. GANOO, J. DATED : 25th March, 2009 DATED : 25th March, 2009 DATED : 25th March, 2009 Judgment : Judgment : Judgment : 1. One Mr. Subhash Hiraji Jadhav and Mrs. Kumud Subhash Jadhav filed petition No.603 of 1990 for Letters of Administration with a Will annexed in regard to the Will purported to have been executed by Hiroo alias Hiraji Laxman Jadhav on 3rd December, 1988. After the filing of the petition, citations were served upon the heirs of said Hiroo alias Hiraji Laxman Jadhav (hereinafter referred to as the "said deceased"). In all four persons i.e. Padmakar, present defendant, Smt.Indira, Mrs.Sumitra and Mrs.Meghana filled caveat jointly. Present defendant No.1 Mr. Padmakar filed affidavit in support of the caveat for himself and on behalf of other caveators. It is in these circumstances, office while converting the testamentary petition in the suit showed the name of Padmakar H. Jadhav and others as the defendants. Hence, to the present suit Padmakar Hiraji Jadhav would be defendant No.1, Smt. Indira Jadhav (since deceased) would be defendant No.2, Smt. Sumitra (correct name Sunetra S. Surve) would be defendant No.3 and Mrs. Meghana Vasant Shinde would be defendant No.4. ( 3 ) 2. In the affidavit in support of the caveat, with a view to oppose the grant of the petition following points were raised. (i) The purported Will is not the Will as per the law. (ii) The deceased was not in sound state of mind. (iii) The deceased was controlled by Subhash Jadhav and present petitioner No.1 Mrs. Kumud. (iv) The Will was executed under force and coercion. (v) There was no reason to deprive Smt. Indira and unmarried daughter Shubhangi who is now known as Mrs.Sunetra. (vi) The Will is forged and fabricated. 3. It is required to be mentioned that during the pendency of this suit, Subhash Jadhav, original petitioner No.1 expired. He left behind him Mrs. Kumud and Akhilesh his son. Consequently, name of Akhilesh was brought on record as petitioner. Based on the text of the petition as well as affidavit in support of the caveat, following issues came to be framed on 19th December, 2007. ISSUES ISSUES ISSUES FINDINGS FINDINGS FINDINGS ( 4 ) 1. Whether the Will dated 3rd December, 1988 is the last In the affirmative Will and testament of Hiroo alias Hiraji L. Jadhav and the same is legally and validly executed by him? 2. Do the defendants prove that the subject Will is In the negative forged and fabricated by the plaintiffs ? 3. What order ? As per final Decree . My answer to each of the issue is mentioned as against the respective issues. 4. At trial on behalf of the plaintiffs, Smt. Kumud S. Jadhav plaintiff No.1 gave evidence. Attesting witness of the said Will dated 3rd December, 1988 by name Mr. Jayant C. Kamani gave evidence as PW-2. No other witness was examined on behalf of plaintiffs. On behalf of the defendants, defendant No.1 Mr. Padmakar H. Jadhav son of the deceased gave evidence as DW-1. Mrs. Sunetra S. Surve daughter of the deceased gave evidence as DW-2. Mrs. Sunetra was unmarried in December, 1988 and her maiden name was Shubhangi and a reference to her is found in the text of the Will. No other witness was examined on behalf of the defendants. 5. Before I proceed to deal with the issues, it would be convenient to narrate certain persons who figure in the entire matter. Subhash H. Jadhav ( 5 ) original plaintiff No.1 and defendant No.1 Padmakar H. Jadhav are the sons of the deceased, out of which Subhash died during the pendency of the suit. Smt. Indira was wife of the deceased who died after the deceased during the pendency of the suit. Mrs.Meghana is the married daughter of the deceased, Mrs. Sunetra (nee Kum.Shubhangi) is the daughter of the deceased. Mrs. Kumud, present plaintiff No.1 is the daughter-in-law of the deceased and Akhilesh plaintiff No.2 is the grand son of the deceased. Advocate Mr.A.G.Shah who is referred to in the evidence is the advocate who is said to act as an attested witness and who is said to have prepared the Will at the instance of the deceased. Mr. Jayant Kamani an attesting witness has been family friend of deceased. 6. I have extensively heard learned Counsel Miss. Nichani on behalf of the plaintiffs and Mr. Murthy on behalf of the defendants. Since the dispute between the parties relates to the suit Will, it became necessary for the Court to appreciate the evidence and ascertain whether the plaintiffs have been able to prove the Will in accordance with the provisions of law and whether the plaintiffs have been able to show that the said Will dated 3rd December, 1988 is the last Will and testament duly ( 6 ) executed by the deceased. Considering the case law developed in the matter, it became necessary for the Court to consider certain circumstances, which in the submission of the Counsel for the defendants could be termed as suspicious circumstances as regards making of the Will and it became necessary for this Court to consider the evidence from that angle. At this juncture itself, it would be convenient to point out that learned Counsel Mr. Murthy relied upon the judgment in case of H.Venkatachala Iyengar Vs. H.Venkatachala Iyengar Vs. H.Venkatachala Iyengar Vs. B.N.Thimmajamma and Ors., AIR 1959, SC 443 (V46 C56) B.N.Thimmajamma and Ors., AIR 1959, SC 443 (V46 C56) B.N.Thimmajamma and Ors., AIR 1959, SC 443 (V46 C56) and drew my attention to paragraph Nos.18 to 21. As per paragraph 18 the Court is required to consider the record as regards execution of the Will. As per paragraph No.19 the Court is required to ascertain the mental and physical condition of the testator. Paragraph 20 lays down the law as regards the various suspicious circumstances and how to appreciate the evidence. Paragraph 21 deals with the point viz. propounder of the Will taking prominent part in the execution of the Will and related aspects. He also relied upon the judgment in the case Rani Purnima Rani Purnima Rani Purnima Debi and Anr. Vs. Kumar Khagendra Narayan Deb and Debi and Anr. Vs. Kumar Khagendra Narayan Deb and Debi and Anr. Vs. Kumar Khagendra Narayan Deb and Anr., AIR 1962, SC 567 (V 49 C 86) Anr., AIR 1962, SC 567 (V 49 C 86) Anr., AIR 1962, SC 567 (V 49 C 86) to bring to the notice of the Court the concept of the unnatural Will as discussed in paragraph No.5 and the role to be played by the Registering authority as discussed in ( 7 ) paragraph No.23. He also relied upon judgment in the case of Ram Piari Vs. Bhagwant and Ors. AIR 1990, Ram Piari Vs. Bhagwant and Ors. AIR 1990, Ram Piari Vs. Bhagwant and Ors. AIR 1990, SC 1742 SC 1742 SC 1742 which deals with a situation when disinheritance is amongst heirs of equal decree and no reason for exclusion is disclosed. He also relied upon judgment in case of Kalyan Singh Vs. Smt.Chhoti Kalyan Singh Vs. Smt.Chhoti Kalyan Singh Vs. Smt.Chhoti and Ors. AIR,1990, SC 396 and Ors. AIR,1990, SC 396 and Ors. AIR,1990, SC 396 which redeclares the law as regards appreciation of various circumstances which could be termed as suspicious circumstances. He also relied upon the judgment in the case of Kanakku Veettil K.P. Sankarankutty Menon Vs. Kanakku Veettil K.P. Sankarankutty Menon Vs. Kanakku Veettil K.P. Sankarankutty Menon Vs. Malathy Amma and Ors. AIR 1991, Kerla 123 Malathy Amma and Ors. AIR 1991, Kerla 123 Malathy Amma and Ors. AIR 1991, Kerla 123 which equally deals with various points discussed in earlier judgments. The learned Counsel Miss. Nichani relied upon the judgment Smt.Malkani Vs. Smt.Malkani Vs. Smt.Malkani Vs. Jamadar and Ors.AIR 1987, SC 767 (Punjab & Hariyana) Jamadar and Ors.AIR 1987, SC 767 (Punjab & Hariyana) Jamadar and Ors.AIR 1987, SC 767 (Punjab & Hariyana) wherein the Supreme Court indicated that the testamentary capacity of the testatrix and the genuineness of the Will cannot be doubted only because the beneficiaries under the Will took active part in its execution. 7. I have perused the aforesaid judgments and I have appreciated the evidence in the light of the principles discussed in the said judgments. The three issues as above can be discussed together keeping in view the nature of the evidence placed ( 8 ) before the Court. Now, I proceed to appreciate the evidence from the stand point of deciding whether the plaintiffs have proved the due execution of the Will. Learned Counsel Miss. Nichani appearing on behalf of the plaintiffs pointed out to the Court that the Will came to be drafted by advocate Mr.A.G. Shah (hereinafter referred to as the "said advocate") and the said Will came to be executed at the residence of the deceased on 3rd December, 1988 in the presence of Mr. Subhash Jadhav, Mrs.Kumud S. Jadhav PW-1 and the said advocate and Mr.Jayant PW-2. It was pointed out that the evidence placed before the Court through Kumud PW-1 and Jayant PW-2 if perused carefully would go to show that these two witnesses have given cogent evidence as regards the execution of the Will in all respect i.e. signature of testator and signature of two attesting witnesses. She had also drawn my attention to the evidence of Padmakar H. Jadhav, DW-2 in cross-examination where Padmakar DW-1 has conceded that the Will was properly executed and he (Padmakar DW-1) was challenging the legality of the Will. The Counsel for defendants Mr. Murthy had opposed the submission made by learned Counsel Miss. Nichani and had tried to submit that the plaintiffs have failed to prove the Will in accordance with the provisions of law. ( 9 ) 8. With the assistance of the Counsel of both the sides, I have perused the evidence. Since Subhash H. Jadhav expired before commencement of recording of evidence, Subhash has not been examined. According to plaintiffs, at the time of execution of the Will, Mrs. Kumud PW-1, said advocate and Jayant PW-2 were present. Plaintiffs have examined Mrs.Kumud and Jayant PW-2. I have gone through their evidence. Mrs. Kumud PW-1 states in her cross-examination that deceased had instructed Subhash to get advocate Mr. A.G.Shah for the purposes of drafting the Will. Evidence of Mrs.Kumud PW-1 clearly shows that the deceased knew Mr.A.G. Shah. It is required to be noted that the deceased was working as a Clerk in the Municipal Corporation and had retired. After having considered the Kumud PW-1’s evidence, I am inclined to observe that Mr.A.G. Shah acted as an advocate for preparation of the Will. I am also inclined to accept the case of the plaintiffs that the said advocate and Jayant PW-2 were present in the house of the deceased on 3rd December, 1988 and the Will was executed on 3rd December, 1988 and that said advocate and Jayant PW-2 tendered their signatures as attesting witnesses. Jayant PW-2 in his evidence has stated that said advocate had shown the original Will to the deceased on 3rd December, 1988 and the deceased went through ( 10 ) it and thereafter tendered his signature and given to to Mr.A.G. Shah for his signature as an attesting witness and after Mr.A.G. Shah signed, it was given to Jayant PW-2 for his signature as an attesting witness and Jayant did tender his signature. Mrs.Kumud PW-2 has also stated in her evidence as to how the Will was executed. It is required to be mentioned that all suggestions given to Mrs.Kumud as well as Jayant PW-2 so as to disprove the execution of the Will came to be denied. Apart from the aforesaid evidence, the Padmakar DW-1 in the cross-examination has given evidence as follows :- "It is true that my father has executed this Will now shown to me. It is true that the Will has been attested by two attesting witnesses. I am challenging the legality of the Will". 9. After having gone through the aforesaid portion of the evidence of Padmakar DW-1, the stand of the defendants as regards the execution of the Will cannot stand. Mr. Padmakar DW-1 had admitted that deceased had executed the Will and it was duly attested by two attesting witnesses. Since no other witness came to be examined on behalf of the defendants to challenge the said execution of the Will. I hold that the plaintiffs have proved execution of the Will. According to learned Counsel for the defendants, the plaintiffs should have ( 11 ) examined advocate Mr.A.G. Shah to dispel all doubts regarding the execution of the Will. Learned Counsel Miss. Nichani has submitted that if the evidence of Jayant PW-2 and Mrs.Kumud PW-1 was led in such a fashion that these two witnesses have been able to prove the case of the plaintiffs, it was not necessary for the plaintiffs to examine the said Mr.A.G. Shah and no adverse inference should be drawn for non-examination of said Mr.A.G. Shah and it cannot be considered as a suspicious circumstance. I have considered the rival submission. Evidence of Mrs. Kumud PW-1 clearly indicate that Mr.A.G. Shah had acted as an advocate in the matter of preparation of the Will. She has stated that her father-in-law had instructed Subhash to get Mr.A.G. Shah for the preparation of the Will. Her evidence also goes to indicate that Mr.A.G. Shah knew the deceased. In my view, there is no specific challenge to the fact that Mr.A.G. Shah and the deceased knew each other. In any case, reading the evidence as a whole the case put up by the plaintiffs that the deceased knew Mr.A.G. Shah cannot be doubted. Mr. A.G. Shah is a practicing advocate in Bombay. There is nothing to doubt the word of Kumud PW-1 whose evidence shows that Mr.A.G.Shah was involved in the preparation of Will. Jayant PW-2 who is a third party so far as the entire matter is concerned and he has made out the ( 12 ) presence of Mr.A.G. Shah in the house of the deceased on 3rd December, 2008. In my view, Jayant had no reason to give false evidence as regards the presence of Mr.A.G. Shah. It is well known that services of an advocate are availed of in the matter of preparation of Will and it is not necessary that in each and every case an advocate who prepared the Will is required to be examined. The plaintiffs after having gone through the evidence of Kumud PW-1 and Jayant PW-2 appear to have taken a decision of not examining the said Mr.A.G.Shah. Their decision was proper. In my view, non examination of said Mr.A.G. Shah cannot be termed as suspicious circumstance. Similarly, no adverse inference is required to be drawn against the plaintiffs. 10. Considering the aforesaid discussion and in particular the evidence of Padmakar DW-1, discussed above, I am inclined to observe that the plaintiffs have proved the execution of the Will by the deceased and that plaintiffs have also proved that two attesting witnesses namely said Mr.A.G. Shah and Jayant PW-2 did their job as attesting witnesses. At this stage itself, it is required to be mentioned that a stand was taken by the defendants that Jayant PW-2 is an outsider to the entire family and his acting as an attesting witness is unnatural. So far ( 13 ) as this aspect is concerned, defendants could not bring on record any material to show that Jayant PW-2 was a got up witness. Mr. Jayant PW-2 is reported to be a friend of Subhash and he used to visit the house of the deceased and eventually Jayant PW-2 is a family friend. The two photographs of Exhibit D-4 and D-5 came to be produced. In these two photographs, Jayant is seen. These photographs pertain to birthday celebration of Subhash’s son and in the cross-examination of Padmakar DW-1, Padmakar had to accept that Jayant was present at the time of birthday celebration in the two photographs of Exhibit D-4 and D-5 and eventually he knows Jayant PW-2 and that Jayant PW-2 was family friend. 11. In view of the aforesaid discussion, I hold that the plaintiffs have been able to prove the due execution of the Will. 12. Learned Counsel Mr. Murthy had tried to place before the Court some points as suspicious circumstances and wanted this Court to discard the Will in question. 13. The first circumstance placed before the Court is viz. the Will is unnatural. The learned ( 14 ) Counsel Mr. Murthy drew my attention to the original Will Exhibit D-1 and submitted that Smt.Indira wife of the deceased, Shubhangi now known as Sunetra and Mrs. Meghana being daughters of deceased have been excluded. According to Mr. Murthy, there was no reason for the deceased to exclude his wife as well as unmarried daughter Shubhangi. According to Mr. Murthy, Subhash and Kumud controlled the deceased and managed to get the Will executed in their favour. He pointed out that no bequest is made in favour of any relatives other than Subhash and Kumud or Akhilesh son of Subhash and Kumud, which goes to show that the Will is unnatural. He further pointed out that Kumud PW-1 admits that there were no disputes between Smt. Indira and the deceased as husband and wife and if that be so there was no reason for the deceased to exclude Smt.Indira. Insofar as this aspect is concerned, I would like to reproduce the relevant portion of the Will by which the deceased has given explanation as to why he does not wish to give anything to Smt.Indira, Shubhangi and other daughter Mrs. Meghana. The relevant portion is as under:- "1. I have in my family my wife Indira, eldest son Padmakar, Younger Son Subhash and two daughters i.e. Mangal (married) and Shubhangi. However my eldest Son with his family has separated and my wife and my daughter Shubhangi stay with him separate from me against my wishes. They have chosen not to look after me or take care of me even ( 15 ) though I am not keeping well. I therefore do not desire to bequeath anything to them under my this Will. I have given enough to my married daughter Mangal at the time of her marriage, I therefore do not desire to bequeath anything under this Will to her". 14. A reading of this paragraph would clearly go to show that the deceased has clarified as to why he did not wish to give any property to Smt.Indira, Subhangi and Mrs.Meghana. A reading of the above paragraph would clearly go to show that Smt.Indira i.e. wife of the deceased left the house alongwith Padmakar DW-1 and started staying alongwith Padmakar against wishes of the deceased. Same is the position in so far as Shubhangi is concerned. The deceased has laid emphasis on the fact that Smt.Indira as well as Shubhangi have not looked after or taken his care even though he was not keeping well. It is admitted by both the sides that deceased in the year 1981 had paralysis and naturally being a paralytic person, he required care and assistance. In so far as Mrs. Meghna who is referred to as Mangal in the Will is concerned, the deceased has clarified that he had given enough to her at the time of her marriage and that is why he was not willing to give anything to her. Paragraph 2 of the said Will also goes to indicate as to how the deceased wanted to bequeath his property to Subhash and his family. The relevant portion of the Will is as under:- ( 16 ) "2. My other Son Subhash and his family have looked very well after me and are taking proper care. I therefore desire to bequeath to him and his family my present and residue property at the time of my death as stated hereafter". 15. In my view, contents of paragraph 1 and 2 throw light on the mental frame of the deceased as to why he wanted to exclude Smt.Indira, Padmakar, Shubhangi and Mrs.Meghana and why he wanted to give property to Mrs.Kumud and Subhash. It is true that Mrs. Kumud PW-1 states in her evidence that relations between the Smt.Indira and deceased were good. It is required to be mentioned that Mr.Kumud PW-1 has stated in her evidence that on 29th September, 1988 certain dispute as regards use of water took place between Smt. Indira and Subhash and that in the morning of 30th September, 1988, a quarrel took place between Subhash on one hand and Padmakar DW-1 and Mr.Vasant Shinde on the other. It is seen that a police complaint came to be filed by Shubhash. Padmakar DW-1 has not accepted this incident and he claims that this incident is false. Statement of the deceased came to be recorded by the Police on 30th September, 1988 and that statement is at Exhibit D-2. Said statement was read in evidence at the request of both the Counsel. The said statement clearly goes to show that in the morning of ( 17 ) 30th September, 1988 exchange of words and a quarrel took place between Subhash and one Mr. Shinde, Padmakar DW-1 and Subhash was injured. The deceased has stated about such a quarrel and the deceased has also stated in his statement that because he was paralytic, he just kept himself aloof. The deceased has narrated about the said incident and has further stated that Subhash and Kumud went to the hospital. The deceased in the earlier part of the statement has stated that relations between Padmakar DW-1 and Mrs.Indira on one hand did not go well with Subhash and his wife Kumud and he does not take part in that. It is admitted by both sides that the deceased was residing in the house namely flat No.B-15, Swapna Saphyalya CHS Ltd., J.B. Temkar Road, Prabhadevi, Mumbai-25. Evidence of Mrs.Kumud PW-1 as well as Padmakar DW-1 goes to show that all was not well between Subhash and Padmakar DW-1. Evidence on record also go to show that Padmakar and his family members, Smt.Indira and Shubhangi left the house on 30th September, 1988. Even Padmakar DW-1 has stated that he alongwith his family members, Smt.Indira and Shubhangi left the house and got accommodated himself finally in the quarters provided to him. From the evidence on record, it is clear that Smt.Indira and Shubhangi left deceased