* 1 * Appeal.124.2004 03.08.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION TESTAMENTARY & INTESTATE JURISDICTION APPEAL NO. 124 OF 2004 IN T & I.J. SUIT NO. 12 OF 1984 IN PETITION NO. 304 OF 1983 Chandra Indersen Mirchandani .....Appellant/ (Orig.Defendant/Caveatrix) V/S. 1. V. Krishnan Kutty & Ors. .....Respondents/ (Orig.Petitioners/Plaintiffs) AND Rajiv Indersen Mirchandani ....Respondent (Orig.Intervenor) * * * * Mr. V.C. Kotwal, Senior Advocate a/w. Mr. Uday Singh i/by. Avor Peter D’cruz, Advocate for the petitioner. Dipen Merchant, Senior Advocate a/w. Mr. Dilip Rai a/w. Ms. Vijaylaxmi Kulkarni, Advocate for the respondent. Mr. Kevil Setalvad for the Intervenor. * * * * * 2 * Appeal.124.2004 03.08.2010 CORAM : D.K. DESHMUKH, & SMT. R.P. SONDURBALDOTA, JJ. DATED : 3 AUGUST, 2010. JUDGMENT : [PER : SMT. R.P. SONDURBALDOTA, J] 1. This Appeal takes exception to the judgment and order dated 17th December, 2003 passed by the learned Single Judge of this court in Testamentary Suit No. 12 of 1984 filed by respondents no. 1 to 3 for probate of will dated 28th May, 1982 of one Indersen Tolaram Mirchandani. Indersen died on 30th July, 1982 leaving behind his mother- Satrupi, widow-Chandra and three children, Rajeev, Kavita and Shiv. The first marriage of Indersen with one Barbro, a Swedish lady had ended in divorce on 23rd April, 1964. Rajeev and Kavita are the children of his first marriage. Indersen married Chandra on 30th August, 1964. Shiv is his son from the second marriage. Indersen was an eminent Industrialist who had large business interests in various limited companies. He was the * 3 * Appeal.124.2004 03.08.2010 Managing Director of Advani Oerlikon Ltd. He left behind will dated 28th May, 1982 bequeathing his properties to his three children and creating limited interest in favour of his first wife, Barbro. The will made no bequest whatsoever in favour of Chandra. When respondents no.1 to 3, the executors of the will applied for it’s probate, Chandra filed caveat to oppose the application. Consequently, the testamentary petition was converted into a suit. Son, Rajiv intervened in the suit to file written statement in support of the petition and against the caveat. 2. Chandra, challenged genuineness and validity of the will, denying it’s execution and signature of Indersen thereon. She contended that at the relevant time Indersen was not in sound disposing state of mind. He was ailing and was incapable of thinking and acting in rational manner. The mother and sister of Indersen had prevailed upon him to file divorce petition against her and had engineered the will. The bequests under the will were also unnatural depriving her of any share in the property. * 4 * Appeal.124.2004 03.08.2010 The will made bequest in favour of the first wife who was living separately from Indersen since the year 1958. The first wife had obtained order of judicial separation on 15th June, 1962 and decree of divorce on 23rd April, 1964. Chandra alleged that during the last illness of Indersen when he was in Jaslok Hospital and Breach Candy Hospital, neither Barbro, nor Rajiv nor Kavita had cared to even visit him. According to Chandra, her relations with Indersen were extremely cordial. Hence, deprival of bequest to her and grant of bequest to the first wife was unnatural. 3. On the above pleadings, the learned Single Judge framed three issues for consideration in the suit. The first issue is about the proof of the will dated 28th May, 1982 as the last will of Indersen. Issues no.2 and 3 related to the objections of Chandra that the will was brought about by machinations of the interested parties and that it was obtained by exercising undue influence on Indersen. 4. In support of their claim, the plaintiffs examined only one witness, Dr. S.G. Desai who was the treating doctor of Indersen * 5 * Appeal.124.2004 03.08.2010 and also the attending witness to the will. Chandra examined herself and her brother, Sunil Vaswani. On appreciation of the evidence, the learned Single Judge found Issue no.1 in the affirmative and Issues no.2 and 3 in the negative and accordingly decreed the suit in favour of the plaintiffs granting probate of the will. 5. Being aggrieved by the judgment and order, Chandra filed the present appeal contending that the evidence of Dr. Desai, the attesting witness was not sufficient to prove the will. According to her, the propounder of will ought to have adduced evidence to prove that the will was the last will of Indersen. She also contended that the medical record of Breach Candy Hospital shows that Indersen was suffering from encephalopathy probably from multiple factors. It also shows that in March 1982 he was not mentally bright and was talking incoherently, irrelevantly. She further contended that there is sufficient material brought on record to show that the relations between her and Indersen were cordial and that he had divested her from any right in his * 6 * Appeal.124.2004 03.08.2010 property only on account of influence of his mother and sister. During the pendency of the appeal, Chandra died. Her son Shiv has since been brought on record who is prosecuting this appeal filed by her. 6. Dr. Desai, the witness of the plaintiffs is a gastroenterologist with Jaslok Hospital and Research Centre, as also, Bhatia Hospital. He deposed that he was treating Indersen since the year 1981 for chronic liver disease and abdominal symptoms. He had attended to Indersen in Jaslok Hospital in November, 1981 and then at his residence till March, 1982. In March, 1982 Indersen was moved to Advani Oerlikon Ltd’s guest house at Lands End in Dongri Road as he wanted to stay there and not at his home. At the company’s guest house, Dr. Desai visited him approximately twice a week. The other doctors i.e. Doctor Ashwin Mehta and Doctor C.C. Nair alongwith other specialists also were attending to Indersen, as and when, required. Dr. Desai further deposed that in May, 1982 on one of such visits Indersen informed him that he wanted to execute his will and that he wanted Dr. Desai to attest * 7 * Appeal.124.2004 03.08.2010 the same. Accordingly, in the afternoon of 28th May, 1982 Mr. Desai went to the guest house of the company where Indersen alongwith Dr. Nair and Dr. Raghu Kothare (Solicitors) were present. Indersen told him that the document which he was holding was his last will and testament and that he wanted to execute the same. Thereafter, Indersen put his signature at the bottom of the will and initialled the minor handwritten changes on the will, as well as, on each page of the will in the presence of Dr. Desai and in the presence of Dr. Nair and Dr. Kothare. Immediately, thereafter in the presence of Indersen and other two attesting witnesses Dr. Desai affixed his signature on the will as the attesting witness. Similarly, Dr. Nair and Dr. Kothare also put their signatures in his presence and in the presence of Indersen and in each others presence on the will as the attesting witnesses. Dr. Desai identified his own signature and the signature of Indersen, Dr. Nair and Mr. Kothare. With this evidence, the learned Single Judge took the will on record and marked it as Exhibit-A. Dr. Desai further testified that except for * 8 * Appeal.124.2004 03.08.2010 the three attesting witnesses and Indersen, no one was present in the room at the relevant time. He also stated that at the time of execution of the will, Indersen was in sound state of mind. He had found Indersen mentally fit at all times on his visits to the deceased. He stated that Indersen was a highly intelligent and well-read person. 7. The learned Single Judge noted that Dr. Desai, as also, the other two attesting witnesses were totally disinterested persons, not being beneficiaries under the will. With this evidence, the learned Single Judge was satisfied that the primary burden on the propounder of the will to prove by satisfactory evidence that the will was validly executed by the deceased and that at the relevant time he was in sound disposing state of mind and that he understood the nature and effect of the disposition and that he signed his will of his free will, was discharged. The above evidence of Dr. Desai, as has been rightly held by the learned Single Judge fully satisfies the requirement of Section 63 of the Indian Succession Act, 1985 and Section 68 of the Indian Evidence * 9 * Appeal.124.2004 03.08.2010 Act. 8. In her evidence to challenge the will, Chandra gave the medical history of Indersen about which there is not much dispute. Indersen had suffered the first heart attack in the year 1978. In March, 1981 he suffered the second heart attack while at the residence in Mumbai. He was moved to Jaslok Hospital for treatment. In the hospital, the mother and sister of Indersen were attending to him. He was discharged from the hospital in April, 1981. In July 1981 Indersen desired to undergo heart tri-pass surgery at Housten, Texas. Chandra had accompanied him to Texas and remained with him till 16th August, 1981. After discharge from the hospital, Indersen went on business tour first to New York and thereafter to Switzerland. In November 1981, he returned to India unwell. He was initially treated at his residence and then at Jaslok Hospital. In April, 1982 Indersen was discharged from Jaslok Hospital and moved to the guest house of the company, as per his desire. 9. According to Chandra, at the time of execution of the will, * 10 * Appeal.124.2004 03.08.2010 Indersen was not in sound and disposing state of mind on account of his bad health. In support of these allegations, in addition to her deposition, she heavily relies upon the record of Jaslok Hospital. She has, however, not examined any of the Doctors who had treated Indersen while at Jaslok Hospital. Chandra stated that due to his ill-health and insufficient supply of oxygen to his brain Indersen was unable to act or think rationally. At the material time, he was suffering from dizzy spells. From February, 1982 onwards his physical, as well as, mental condition had greatly deteriorated. He had suffered brain stroke and paralysis on 26th March, 1982 and was removed from the company’s guest house to Jaslok Hospital in a very critical condition. On 7th April 1982, he was removed from Jaslok Hospital back to the company’s guest house on a drip and with an indwelling catheter, even though his condition was extremely serious and the hospital authorities had refused to give and did not give discharge. He was discharged from the hospital at the instance of his sister, Pravina. These statements of Chandra, however, are not borne out by the * 11 * Appeal.124.2004 03.08.2010 hospital record. Chandra relies upon the notings in the hospital case papers for the dates 31st March 1982, 1st April 1982, 3rd April 1982, 5th April 1982 and 7th April, 1982 which notings depict the condition of Indersen on the respective dates in Jaslok Hospital. The notings indicate that on those dates, Indersen was conscious, but, drowsy and talking irrelevant. He was also shown to be irritable. The notings in the case papers for the date 7th April, 1982 show that Indersen himself had expressed keen desire for going home and therefore he was discharged by putting a noting that he was fit to go out of the hospital at his own risk. The last noting for that date is the undertaking given by sister, Pravina that she wished to take her brother away at her own risk and against the medical advise. The notings do indicate that medically Indersen was not advised to leave the hospital. But at the same time, it is clearly mentioned therein that he was fit to go out of the hospital as he himself was keen to go home, but, at his own risk. The undertaking of Pravina taken in the circumstances, was by way of routine practice adopted by the hospital of taking * 12 * Appeal.124.2004 03.08.2010 undertakings and notings in the case papers from the relatives of the patients. Therefore, there can be no substance in the contention of Chandra that on 7th April, 1982 Indersen was discharged from the hospital though his condition was extremely serious and the hospital authorities had refused to give and did not give any discharge. It is to be noted here that after his discharge when Indersen was taken to the company’s guest house, he was being regularly attended there by the doctors from Jaslok Hospital i.e. Dr. Desai-P.W.1, Dr. Ashwin Mehta, Dr. C.C. Nair alongwith other specialists. The evidence also shows that the company’s guest house was sufficiently equipped with the medical facilities. 10. As regards the effect of the physical ailment on the mental faculties of Indersen, there is the positive evidence of Dr. Desai who was the treating doctor of Indersen that his state of mind was sound and disposing. Dr. Desai, was subjected to extensive cross- examination on this aspect. It was suggested to him that Indersen was weak, physically and mentally, because he was suffering from * 13 * Appeal.124.2004 03.08.2010 liver diseases as also chronic hepatitis. It was suggested that Indersen was unable to take his own decisions in any matter and therefore he was influenced by his mother and sister, in respect of disposition of his estate. However, all these suggestions were negatived by Dr. Desai. In reply to the hypothetical questions put to Dr. Desai, as a Medical Expert he stated that in advanced liver diseases, the mental condition of a patient gets impaired and that in advance chronic hepatitis, a patient could have manic features. He, however, categorically stated that the investigation by the doctors did not show any chronic hepatitis and that there was no mental or behavioral change in Indersen when he was taken to the company’s guest house after the discharge. It has already been mentioned above that Chandra has not examined any other medical expert in support of the claim made by her to establish that Indersen was suffering from chronic hepatitis or that his physical and mental condition had deteriorated to such an extent that he was unable to take his own decisions. On the contrary, Chandra admitted in her cross-examination that Indersen was * 14 * Appeal.124.2004 03.08.2010 always firm in his decisions and could not have been influenced while taking decisions when he was of sound health and mentally in fit condition. In the above circumstances, the learned Single Judge has rightly rejected the contention of Chandra that at the relevant time Indersen was not in sound and disposing state of mind on account of his ill-health. The evidence shows that there was no such effect on the mental faculties of Indersen. 11. It is alleged by Chandra that her relations with Indersen were most cordial and therefore it was most unlikely that Indersen would divest her of any property and would provide for the divorced wife who had not been in contact with him for a long period of time. She also alleged that Indersen was influenced in his decisions by his mother and sister who were against her. There are no reasons disclosed or indicated for the mother and sister of Indersen to be against her. She has, however, alleged that in November, 1981 when Indersen returned to India in frail health condition, instead of giving him home care and attention, within 12 days of the return he was taken to Guruvayur Temple in * 15 * Appeal.124.2004 03.08.2010 Kerala by his sister-Pravina, her husband Col. Mathur and Advocate Raghu Kothare. The visit to Guruvayur Temple involved car journey of over 3 hours from Cochin. The visit to Guruvayur Temple was against Chandra’s appeal of postponing the visit until his health recovered. Indersen returned from the said trip on 12th December, 1981 feeling exhausted, but, in the same month he went by car to Pune accompanied by son, Shiv. During the car journey, Indersen got swelling to his feet and had great difficulty in getting out of the car. In Pune, his condition became worse. He was suffering from uramia and was also vomiting bile from time to time. After his return from Pune, Indersen was diagnosed of suffering from serum jaundice and took medical treatment for the same. Though Chandra refers to the two trips to Kerala and Pune, it is not her case that the visits were against the desire of Indersen or against medical advice. Therefore, no malafides can be attributed to sister, Pravina or the persons accompanying them to Guruvayur Temple. As regards the trip to Pune, Chandra’s own son, Shiv had accompanied Indersen. * 16 * Appeal.124.2004 03.08.2010 12. In order to show that Chandra had cordial relations with Indersen, she deposed that Indersen had a desire to construct a bungalow in Pune for residence of herself and son, Shiv. She has examined her brother, Mr. S. Vaswani, in support of her statement. Her brother supported her by deposing that Indersen did express a desire to construct a bungalow in Pune for the residence of Chandra and son, Shiv by way of provision for their residence at Pune. The other material brought on record, however, indicates completely strained relationship between Indersen and Chandra. This is borne out by Chandra’s own letter dated 25th December, 1978 (Exh.P-1) to Indersen. The letter shows that the relations between the two were so strained that both had mutually agreed to stay separately. The learned Single Judge in his judgment has quoted the relevant extracts from the letter, which would be worthwhile repeating here. .........Our leaving together as man and wife can hardly be “ termed exemplary if we were to take the presence of our innocent child into account..” ......Would you therefore kindly accept my total agreement to “ * 17 * Appeal.124.2004 03.08.2010 your standing invitation that we should part company..” .....Please arrange to take charge as soon as possible, of all the “ assets etc. jewellery and other things received by me in the last 14 years.” ......I would like to stress that my departure should be made as “ graceful as possible in return for all the co-operation of our prepared to offer....” Chandra ended her letter with following caution :- .........Please take this letter very seriously. I mean “ business.” 12. Chandra, tried to explain the letter in her evidence by saying that she wrote this letter only with a view to protect the health of Indersen as he was not listening to her. This letter, however, was written almost four years prior to the deterioration in the health of Indersen. In any case, even if the explanation offered is to be accepted at it's face value, it would hardly mean that the relations between the two were cordial and normal. Besides, undisputedly at the relevant time both were not in direct communication with each other. The communication was through their respective lawyers and Indersen had already filed a petition * 18 * Appeal.124.2004 03.08.2010 for divorce being Matrimonial Petition No. 416 of 1982 in the Bombay City Civil Court at Bombay. In the circumstances, there is no merit in the claim made by Chandra that her relations with Indersen were cordial. 13. The last contention of Chandra was that the bequest made under the Will is unnatural. We find no force in this contention, either, because the bequest to Kavita and Rajeev, the children from the first wife of Indersen cannot be said to be unnatural, they being his children. The bequest to the divorced wife apparently was on account of some unfulfilled liabilities of Indersen towards her. Chandra has been completely deprived of any share in the properties of Indersen. The reason therefor has been stated in the will itself. In the will, Indersen states that he has made no provision for his estranged wife, Chandra against whom he has initiated proceedings for divorce since he has made enough provision for her over the years. 14. In the circumstances, we find no infirmity whatsoever in the impugned judgment and order which exhaustively deals with every contention taken up by Chandra. Hence, the Appeal is * 19 * Appeal.124.2004 03.08.2010 dismissed. [SMT. R.P. SONDURBALDOTA, J] [D.K. DESHMUKH, J]