: 1 : TS-22-07-Judgment=.sxw USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION TESTAMENTARY SUIT NO. 22 OF 2007 IN TESTAMENTARY PETITION NO. 21 OF 2007 Sunil Shantaram Kadam Age : 50 years, Indian Inhabitant, Religion Hindu, Domicile of State of Maharashtra, Residing at Room No.22, Bandongri, Kurar Village, Bakshising Chawl No.1, Malad (E), Mumbai, One of the Executors named under the Last Will and Testament of the Deceased Smt. Suman Krishnakant Hedukar .. Plaintiff v/s. Sandhya Shekhar Pawaskar an Adult, Occu : Household, R/at Mukkam post – Karwandi Wadi, Mangalya Bungalow, Near Khamkar Bus Stop, Dist. Ratnagiri – 415 612 .. Caveator / Defendant ......... Mr. D.M. Tailor for the plaintiff Mr. A.V. Chatuphale for the defendant ......... CORAM : R.Y.GANOO, J. DATE : 5th APRIL, 2011 ORAL JUDGMENT : 1. The plaintiff filed aforesaid Testamentary Petition to propound last Will and Testament dated 14th January, 2004 (for short said Will) : 2 : TS-22-07-Judgment=.sxw executed by Smt. Suman K. Hedukar (hereinafter referred to as the said testatrix). Said testatrix died on 16th November, 2005. The plaintiff was appointed as an executor of the said Will along with co-executor Mr. K.D. Patil. Mr. K.D. Patil filed necessary affidavit to enable the present plaintiff to prosecute the petition. In the body of the petition, present defendant Smt. Sandhya S. Pawaskar was shown as the next of kin. She filed caveat and subsequently affidavit in support of the caveat was filed objecting to the said Will. 2. The defendant challenged the said Will by contending that the said Will is forged. It is also the case of the defendant that the Will was obtained by coercion and undue influence and it was prepared by somebody else. It is also the stand of the defendant that brother of the testatrix by name Mr. Jayawant B. Natekar committed a fraud. On account of defendant filing affidavit in support of the caveat, the testamentary petition was converted into a testamentary suit. Issues were framed on 2nd July, 2010 and they are as under. “1. Whether the deceased Suman Hedukar executed her last Will and Testament on 14th January, 2004 ? 2. Whether the Will of the Testatrix Suman Hedukar is forged and fabricated ? 3. Whether the Will of the Testatrix Suman Hedukar has been : 3 : TS-22-07-Judgment=.sxw obtained by coercion and used undue influence and has been prepared by somebody else ? 4. What relief, if any, the plaintiff is entitled to ?“ 3. My answers to each of the issue are as under. 1. Issue No.1 - In the affirmative 2. Issue No.2 - In the negative 3. Issue No.3 - In the negative 4. Issue No.4 - As per final order 4. At the trial of the testamentary suit, Mr. Vishwas V. chavan stepped into witness box in his capacity as attesting witness. No other witness was examined on behalf of the plaintiff. On behalf of the defendant, defendant Mrs. Sandhya gave evidence. No other witness was examined on behalf of the defendant. The Death Certificate has been produced by the plaintiff showing that testatrix Suman Hedukar expired on 16th November, 2005. The original Will was not marked prior to commencement of the stage of arguments. At the stage of arguments the Will was marked as Exh.P1 by consent. Certain documents have been produced by the defendant and they were marked as Exhibits. They are as follows. : 4 : TS-22-07-Judgment=.sxw (i) Certificate issued by Tata Memorial Hospital dated 25th May, 2004 certifying that the testatrix was suffering from Cancer is at Exh.1. (ii) Agreement between the developer, the Co-operative Society and the testatrix concerning the premises at Dadar, Mumbai -28 dated 19th June, 1999 is at Exh.2. REASONS 5. Issue No. I, II and III :- These issues can be dealt with together. Learned Counsel Mr. Chatuphale appearing on behalf of the defendant took me through the record and submitted that the evidence placed before the Court by the plaintiff is clearly indicative of the fact that the document at Exh.P1 cannot be considered as Will and that the said document is a settlement deed regarding property of testatrix. Learned Counsel Mr. Chatuphale appearing on behalf of the defendant contended that in the body of the Will there is a clear mention about the testatrix receiving a sum of Rs.1,50,000/- from Mr. Natekar, brother of the testatrix and allowing said Mr. Natekar to enjoy the property. According to learned Counsel Mr. Chatuphale, the contents of paragraph 4 of the document, has the effect of settling the property of the testatrix and, therefore, the document should not be treated as a Will. In support of this contention, he relied upon the judgment in the case of Duraisami Reddiar and Anr. Vs. Saroja Ammal and Ors. AIR : 5 : TS-22-07-Judgment=.sxw 1981, Madras 351. 6. Learned Counsel Mr. Tailor appearing on behalf of the plaintiff opposed the submission advanced by learned Counsel for the defendant and submitted that in order to construe a document as to whether the said document is a Will or settlement, one may have to see the document as a whole, appreciate intention of the person who has executed the document and thereafter one can come to appropriate conclusion. He had taken me through the evidence of PW-1 Mr. V.V. Chavan who has stated that about a month back before the execution of the said Will, the testatrix told him that she would like to execute a Will. According to learned Counsel Mr. Tailor this itself was sufficient to show that the testatrix had made up her mind to execute the Will. Learned Counsel Mr. Tailor had also taken me through the entire text of the said Will and submitted that the document in no uncertain terms deals with all the properties of the testatrix and the document is not restricted to the tenament situate at Dadar, Mumbai. He pointed out that except the said tenament, all the properties held by the testatrix have been bequeathed to the defendant. He submitted that the said Will at Exh.P1 bears the thumb impression of the deceased, signatures of the two witnesses and, therefore, the document is the Will and not a settlement deed. : 6 : TS-22-07-Judgment=.sxw 7. I have considered the rival submissions. After having gone through the judgment in the case of Duraisami Reddiar and Anr. Vs. Saroja Ammal and Ors. (Supra), the said Will, the evidence of PW-1 Mr. V.V. Chavan as also defendant DW-1 Sandhya, I am inclined to observe that document dated 14th January, 2004 is a Will by which the testatrix has bequeathed herestate. It is true that in the body of the Will at para 4, there is a mention about the property at Dadar, Mumbai and the testatrix has received a sum of Rs.1,50,000/- from said Mr. Natekar and thereafter she has bequeathed her interest in the said property to Mr. Natekar. It is true that in the first blush, it appears that the property in question is given to Mr. Natekar for Rs.1,50,000/-. However, on scrutiny of paragraph 4 it is seen that Mr. Natekar was staying with the testatrix and was looking after the testatrix and had promised to take care of the testatrix. It appears that the testatrix received a sum of Rs. 1,50,000/- to allow said Mr. Natekar to be in the premises. The testatrix was aware of the fact that as per the development agreement at Exh.2, new premises would come up and the testatrix had made up her mind to give those premises to Mr. Natekar keeping in view the assistance rendered by Mr. Natekar to her. It is to be noted that apart from the premises at Dadar, Mumbai all other assets have been bequeathed to the defendant. It is seen that as the premises at Dadar, : 7 : TS-22-07-Judgment=.sxw Mumbai have been bequeathed to Mr. Natekar, the defendant is aggrieved. Looking to the evidence of both the witnesses, as indicated earlier, I am not inclined to accept that the premises at Dadar came to be sold by the testatrix to Mr. Natekar for a sum of Rs.1,50,000/-. It is required to be noted that the Will is drafted by an Advocate and surely the learned advocate must have taken care to express the desire of the testatrix in the body of the Will. According to learned Counsel Mr. Chatuphale the concerned advocate should have advised the testatrix that clause no.4 by which she proposed to give the premises at Dadar to Mr. Natekar was illegal transaction. I do not agree with the suggestion of learned Counsel Mr. Chatuphale. A reading of paragraph 4 goes to show that the testatrix wanted to give the premises at Dadar in favour of said Mr. Natekar and wanted to see that after her death, the premises should go to Mr. Natekar and that is how she has drafted the bequest. For all these reasons, I am not inclined to accept the stand of the defendant that said Will is a settlement deed. 8. As regards the stand taken by the defendant the said Will is bad on account of forgery, coercion and undue influence. I am inclined to observe that the defendant has failed to discharge the burden cast on her to that effect. It appears that the defendant wanted to suggest that because the testatrix was suffering from Cancer, she was not in a : 8 : TS-22-07-Judgment=.sxw position to make up her mind. However, there is no evidence to support such a stand. It was known to the defendant that said testatrix was suffering from cancer. In such a case, it was easily possible for the defendant to suggest the name of the decease suffered by the testatrix to PW-1 Mr. Chavan. In the cross-examination, PW-1 Mr. V.V. Chavan was asked as to whether he was aware of the fact that the testatrix was suffering from some ailment. The witness Mr. V.V. Chavan. PW-1 answered that he was not knowing that deceased was suffering from some ailment. If at all, it was the stand of the defendant that the testatrix was suffering from cancer, the defendant ought to have elicited necessary information in the cross-examination of Mr. Chavan, PW-1. She should have stated about it in her examination-in-chief. Even if it is accepted that the testatrix was suffering from cancer, there is no evidence to suggest that it affected her ability to dispose of her property by Will. The testatrix’s conduct in the matter of executing the Will shows that she had specific plans in her mind to dispose off her property by Will. 9. As specific defence was taken by the defendant that the Will is brought about by practicing fraud, coercion and undue influence, it was necessary for the defendant to place on record cogent evidence in support of the same. Same is the case as regards the defence of the : 9 : TS-22-07-Judgment=.sxw defendant that the said Will is forged. It is also the stand of the defendant that Mr. Natekar, brother of the testatrix practiced fraud upon her. It is required to be mentioned that in the examination-in- chief the defendant has not stated facts in detail to set out her case of fraud, coercion or undue influence. 10. It is required to be mentioned that the plaintiff cross-examined the defendant and in the course of cross-examination the plaintiff had drawn attention of the defendant to certain paragraphs of her examination-in-chief and explanation was sought. The relevant questions are question nos. 25, 26 and 27. The defendant has stated in her evidence affidavit that apparently the Will is forged. The plaintiff had in the cross-examination drawn attention of the defendant to affidavit in support of the caveat and had tried to seek explanation as to why the defendant wanted to say that the said Will is forged and fabricated. The defendant in answer to this question has stated as follows. “I state that my mother was illiterate and was not knowing how to read, write or sign. I do not know how her thumb impression appears on the Will and therefore, I expressed so in my statement at para 3 of the affidavit now shown to me”. : 10 : TS-22-07-Judgment=.sxw 11. Looking to the answer given by the defendant, it appears that the defendant wanted to suggest that because the testatrix did not know how to read, write or sign and because on the document of the Will, her thumb impression appears, the said document is forged. I am not inclined to accept this stand. The executor Mr. V.V. Chavan, PW-1 who has acted as an attesting witness has stated in his evidence that the Will was prepared by advocate Mr. Sudhir Phadke and at the time of execution of the Will on 14th January, 2004 in the office of said Mr. Phadke, said Phadke had read over and explain contents of the said Will in Marathi vernacular language to the testatrix and thereafter the testatrix executed the Will by putting her thumb impression. Even the original Will at Exh.P1 on page 4 and 5 mentions that the said Will was read out by Mr. Phadke to the testatrix and thereafter testatrix has put in her thumb impression. The defendant claims that testatrix was unable to sign. In such a case it is quite natural that the testatrix will put in her thumb impression. In the normal course, one may raise doubt about the thumb impression appearing in an important document like Will. However, the answer given by the defendant that the testatrix was not knowing how to write or sign clearly explains as to why the thumb impression of the testatrix is put in to denote execution of Will. Hence, the stand of the defendant that the Will is forged, cannot be : 11 : TS-22-07-Judgment=.sxw accepted. 12. Learned advocate appearing on behalf of the plaintiff had drawn attention of the defendant to her affidavit in support of the caveat and at paragraph 4. In paragraph 4 of the affidavit in support of the caveat contention is taken up by the defendant that the Will was prepared by somebody else without reflecting therein the true intention and wishes of the deceased. This portion of the evidence was put to the defendant and question no.26 was asked. The defendant has answered as follows. “I made the said statement now shown, read over and explained to me in Marathi on the basis that I was the sole heir and next to kin of my late mother and I am alone entitled for her property and I do not know how it could be given to someone else. Regarding my next statement at para 4, I have stated that the said Will was prepared by somebody else. I say on the basis of proof in support thereof”. 13. In so far as this stand of the defendant that the Will is prepared by somebody else and it does not bear the intention of the testatrix, the aforesaid answer given by the defendant is inadequate. It is true that the defendant is the only heir and legal representative of the testatrix. However, that does not mean that the testatrix should have given all her estate and assets to the defendant. In fact except the premises at : 12 : TS-22-07-Judgment=.sxw Dadar, Mumbai and some articles lying therein, all the properties held by the testatrix have been specifically bequeathed to the defendant. The reasons for bequeathing the property at Dadar to Mr. Natekar, the brother of the testatrix are well stated in paragraph 4 of the Will. The answer given to question no.26 as stated aforesaid cannot be considered as good evidence to say that the Will does not reflect the desire of testatrix. Evidence of PW-1, Mr. V.V. Chavan clearly narrates as to how the said Will was prepared. The said Will was prepared by an advocate and the testatrix had visited office of the said advocate and the Will was executed in his office. If at all, the Will was to be executed in a secret manner, surely, the Will would not have been executed in the office of the advocate. To that extent also, the stand of the defendant cannot be accepted. 14. The defendant had stated that she had documents in support of her case to show that the Will was prepared by somebody else. In this connection, the defendant had relied upon only one document namely Power of Attorney said to have been executed in her favour in June, 2005. It is pertinent to note that the Will was executed in the year 2004 and therefore, the document namely Power of Attorney would not support the stand of the defendant that the Will was prepared by somebody else. Learned Counsel for the plaintiff had drawn attention : 13 : TS-22-07-Judgment=.sxw of the defendant to her affidavit in support of the caveat dated 26th February, 2007 to the words. - “I say that on plain reading of the contents of the said Will dated 14th January, 2004 Will is not prepared by the deceased but by the third person and the deceased under either coercion or by using undue influence on the deceased”. Suggestion is given as to on what basis such a statement has been made. Answer given by the defendant is as follows. “I state that whenever I had visited the residence of my mother, she had told me that her thumb impressions were obtained on some papers”. 15. This answer given by the witness nowhere clearly states as to on what dates such thumb impressions were made by the testatrix to the defendant. In any case, the answer to the question no.28 will not assist the defendant to submit that the testatrix had executed the Will on account of coercion or that undue influence was practiced upon her. Looking to the defence put up by the defendant the burden upon the defendant was very heavy. The defendant has not discharged the burden at all as regards issue nos. 2 and 3. 16. Learned Counsel appearing on behalf of the defendant had submitted that the stand of the plaintiff that the Will is duly registered : 14 : TS-22-07-Judgment=.sxw is not sufficient to say that the said Will is genuine. In support of this contention, learned advocate for the defendant had relied upon the Judgment in the case of Rani Purnima Debi & Anr. Vs. Kumar Khagendra Narayan Deb and Anr. AIR 1962, Supreme Court 567 (V49 C86) and Gurdial Kaur and Ors. Vs. Kartar Kaur and Ors. AIR 1998 Supreme Court 2861. He had drawn my attention to the said judgments to contend that even though the document purported to be Will is duly registered, it is the duty of the person propounding the Will to remove all suspicious circumstances and if that is not done, the Court should not grant permission to probate the Will. Learned Counsel for the defendant submitted that on receipt of Rs.1,50,000/-, the testatrix is said to have created rights in favour of Mr. Natekar and according to him the cost of the premises at Dadar is far in excess of Rs.1,50,000/- and that the testatrix was made to sign the said document and deal with the property at Dadar at very low price. According to him, this is a suspicious circumstance and the same should be treated as sufficient to discard the said Will. Learned Counsel appearing on behalf of the plaintiff submitted that paragraph 4 of the said Will clearly shows as to under what circumstances the testatrix has bequeathed the property at Dadar to said Mr. Natekar. He submitted that said paragraph 4 clearly indicates that Mr. Natekar was taking due care of the testatrix during her old age and that is how the testatrix : 15 : TS-22-07-Judgment=.sxw permitted Mr. Natekar to stay with her on receipt of Rs.1,50,000/- and thereafter created a bequest in regard to the said property. Mr. Tailor submitted that the said amount of Rs.1,50,000/- received by the testatrix is bequeathed to the defendant. 17. Learned Counsel Mr. Tailor appearing on behalf of the plaintiff also submitted that the Court should note that the Will was prepared at the instance of the testatrix by the advocate and that the said Will was executed in the office of the advocate and thereafter it was taken up for registration and the procedure for registration was duly completed. Learned advocate Mr. Tailor had also drawn my attention to the fact that certain blanks in the said Will as regards the particulars of the cheque were filled in by Mr. Phadke in his handwriting and that the said handwritten portion is countersinged by the testatrix by putting her thumb impression. According to learned Counsel Mr. Tailor the Will was prepared in a proper manner and has been duly attested by the two witnesses as per the requirement of Section 63 of the Indian Succession Act, 1925 and therefore the Will should be treated as properly executed and genuine. 18. After having gone through the record and having considered the rival submissions, I am inclined to accept the stand of the plaintiff that : 16 : TS-22-07-Judgment=.sxw the testatrix executed the Will out of her free Will and that the same was executed in accordance with the provisions of law. The evidence of PW-1 Mr. V.V. Chavan as to execution of Will and registration thereof has to be accepted. No doubt, Mr. Natekar was present at the time when the said Will is executed. Presence of Mr. Natekar by itself cannot be treated as suspicious circumstance because Mr. Natekar is the real brother of the testatrix and was looking after the testatrix. It is pertinent to note that defendant has been staying in Ratnagiri along with her husband and that is how Mr. Natekar was required to take care of the testatrix. After having considered the evidence of Mr.Chavan, PW-1, the defendant and the other circumstances, I am inclined to observe that the plaintiff has been able to make out a case that the testatrix executed said Will in accordance with the provisions of law and the requirements of Section 63 of the Indian Succession Act, 1925 have been duly fulfilled. 19. It is required to be mentioned that plaintiff Mr. Sunil Kadam was appointed as an executor as the testatrix knew Mr. Kadam since 1969-1970. No bequest is made in favour of the plaintiff. Mr. Kadam is not at all personally interested in propounding the Will. He has done the job of an executor as the responsibility was cast on him. It is seen that certain blanks were filed in on 14th January, 2004 in the office of : 17 : TS-22-07-Judgment=.sxw advocate Mr. Phadke by advocate Mr. Phadke. Said portions are countersigned by way of thumb impression of the testatrix. The Will at the end specifically mentions that the Will was read out and explained to the testatrix and thereafter only she has put in her thumb impression. The Will is drafted in Marathi language and it is nobodies case that the testatrix did not know Marathi. 20. For the reasons mentioned aforesaid, I hold that the plaintiff has been able to make out the case that the testatrix did execute Will on 14th January, 2004 in accordance with the provisions of law. Since the defendant has failed to discharge the burden, the said Will can be taken up for grant of probate. In view of the aforesaid discussion, Issue No.1 is answered in the affirmative. Issue No.2 and 3 are answered in the negative. 21. Issue No.4 :- In view of answers to issue Nos.1,2 and 3 as indicated above and in view of answer to issue No.1 in the affirmative, the plaintiff’s suit will have to be decreed and directions will have to be given to office to proceed to grant probate to the plaintiff in regard to original