1 TS-101 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Testamentary Suit No.101 of 2000 IN Testamentary Petition No.895 of 2000 IN Administration Suit No.1662 of 1994 Dr.Ramesh D. Potdar .. .. Plaintiff v/s. Ramesh V.Chitnis & ors. .. .. Defendants Mr.P.N. Patwardhan with Mr.K.H. Kamoja with Mr.B.G. Saraf for Plaintiff. Mr.Ruchir Tolat i/by M/s.L.C. Tolat & Co. for Defendants. ------ CORAM : SMT.ROSHAN DALVI, J. Date of reserving the judgment : 23rd September, 2010 Date of pronouncing the judgment : 15th December, 2010 JUDGMENT : 1.The Plaintiff has sought to propound the Will of the deceased testatrix-Laxmibai Vishnu Chitnis dated 12 th June 1992. There are essentially two immovable properties bequeathed by Laxmibai under the Will sought to be propounded. Laxmibai s husband Vishnu died intestate in 1967. The immovable property in Mumbai came to be transferred to the name of Laxmibai in 1980. 2 TS-101 Laxmibai had four sons Ramesh, Nandkumar, Arvind and Kishore. Laxmibai had sought to bequeath her entire estate to her youngest son Kishore who lived with her and who is stated to have cared for her. 2.One of her sons has expired. The other two sons and the heirs of the deceased son filed the above Administration Suit No.1662 of 1994 for administration of the estate of Laxmibai. No suit for the administration of the estate of her husband Vishnu was filed. The Plaintiffs in the Administration Suit have also filed the Caveat. The main Affidavit-in-support of the Caveat has been filed by one Shailesh Chitnis. The other Caveators have supported him. He has alleged that the Will is forged, executed under duress and undue influence and that the Caveatrix was not keeping good health and, therefore, unable to sign and execute any documents. 3.The Will has been executed a month prior to the death of the testatrix; the testatrix expired on 11 th July 1992. The Will dated 12 th June 1992 has been typewritten in Marathi. The testatrix as well as the two attesting witnesses have signed in English. One attesting witness has mentioned his address in Marathi. The other attesting witness has mentioned his address in English at the foot of the Will. A certificate of 3 TS-101 her doctor is typewritten in English. The doctor has signed in English and stated his name, qualifications and address in English at the foot of the Will. Based upon the pleadings between the parties, the following issues arise in the above Testamentary Suit which are answered as follows: (1) Whether the last Will and testament of the deceased Laxmibai dated 12 th June 1992 has validly executed.- Yes. (2) Whether the said Will was executed under duress and under influence or is forged. - No. (3) What relief, if any, are the Plaintiffs entitled to? - As per final order. 4.The maintainability of the suit is challenged on the ground that the Plaintiff is not the executor in the Will of Laxmibai. That fact is true. It is, therefore, contended that he cannot propound the Will of the deceased. The son of the deceased, Kishore, is the sole executor and the sole beneficiary under the Will of the deceased dated 12 th June 1992. He himself had executed another Will bequeathing the same property which he inherited from his mother under the aforesaid Will on 21 st October 1994. He expired on 20 th September 1998. 4 TS-101 The Plaintiff herein was the Petitioner in a Probate Petition taken out for grant of probate of Kishore s Will. That Petition is stated to have been dismissed by this Court on 13 th January 1997 as certain objections were not removed. However, upon the death of Kishore in 1998, no application for restoration of that Petition came to be made. Instead the fresh Petition came to be filed by the executor mentioned in the Will of Kishore, the sole beneficiary under the aforesaid Will of the deceased Laxmibai. 5.The Plaintiff is an independent executor. He has no relation with the deceased. He was known to the deceased as well as her son. The maintainability of the suit is challenged essentially on the ground that under Section 222 of the Indian Succession Act (the Act), probate is required to be granted only to the executor under the Will which is propounded. Stricto senso, therefore, the Plaintiff required to file a Petition for Letters of Administration with the Will annexed of the deceased Laxmibai. 6.It is also contended on behalf of the Caveators that under Rule 435 of the High Court (Original Side) Rules, 1980, relating to Testamentary Petitions, if the Petition is not prosecuted for one year after its filing, it is required to be disposed of for non- 5 TS-101 prosecution unless the Judge in Chambers gives permission to the Petitioner to proceed with the Petition already filed. This rule is directory. If the Petitioner in the Petition for probate of the Will of Kishore, which remained pending for non-removal of office objections, required to prosecute that Petition, permission of the Court in Chambers could have been taken. That was not required and is not sought. A fresh Petition on the same cause of action could have been filed. 7.The Advocate for the Plaintiff has relied upon the provisions of Order IX Rules 1, 2 and 4 and Order VII Rule 13 of the Civil Procedure Code, 1980 (CPC) for filing the Petition. Under Order IX Rule 4 of the CPC, the Plaintiff is entitled to bring a fresh suit or may restore the suit to file. The rule comes into operation when the suit is dismissed, if the summons is not served or if the Plaintiff does not appear under Rules 2 and 3 of Order IX. In this case, the earlier Petition for probate of the Will of Kishore was dismissed for want of removal of office objections. It was not dismissed for want of service of the summons or for want of appearance of the Plaintiff. The fresh Petition for grant of probate of the Will of Kishore has not again been filed. Hence this rule would not apply. The Plaint can be rejected only on the grounds 6 TS-101 mentioned in Order VII Rule 11 of the CPC. The Plaint cannot be rejected for want of removal of office objections except the office objections relating to payment of Court fee. If the Court fee is not paid by the time fixed by the Court for correction of valuation of the suit, Order VII Rule 13 of the CPC allows presenting a fresh Plaint on the same cause of action if the Plaint is rejected. In this case, the Plaint was not rejected. In this case, a fresh Petition under same cause of action being for the grant of probate of the Will of Kishore is also not filed. Hence this rule also does not apply. 8.The only technicality that remained was that the Plaintiff who is the executor of the Will of the son of the deceased Laxmibai, cannot apply for probate of the Will of the deceased Laxmibai. To that extent, the procedural technicalities had not been followed. Hence Chamber Summons in that behalf is taken out and granted. The Petition is, therefore, amended accordingly to include administration of the Will of Laxmibai annexed thereto. 9.Laxmibai s Will is required to be considered for the grant or rejection of Letters of Administration with the Will annexed on merits. 7 TS-101 10.The Caveators have filed a separate Administration Suit as well as the Affidavit-in-support of the Caveat in this Petition on merits. The Caveators claim 1/3 rd interest for each of their branches being two sons of the deceased Laxmibai. Consequently, the validity of the Will must be seen on merits in this Petition. The Administration Suit would require necessary directions to be passed upon the merits being considered in the Testamentary Suit. Consequently, the aforesaid issues are required to be answered and are answered as follows. 11.It is the case of the Plaintiff that one attesting witness has expired and the whereabouts of the other attesting witness are not known. The Death Certificate of one attesting witness is filed. There is no dispute about these two aspects. The Plaintiff has got examined the doctor who has signed the certificate at the foot of the Will upon medical examination of the deceased. The Plaintiff has also examined himself but that evidence is rather irrelevant. The Caveators have examined one of the sons of the deceased and his son. The evidence of the grandson of the deceased is also irrelevant. 12.Issue No.(1) : The essential evidence is of the doctor who was present when the Will was executed by the 8 TS-101 testatrix and attested by two witnesses. His evidence is essentially under Section 69 of the Indian Evidence Act which runs thus:- 69.Proof where no attesting witness found. If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. 13.The Affidavit of examination-in-chief of Dr.Shankar Krishna Ayyar shows that he is the medical practitioner at Matunga where the deceased resided in her own property. He as well as his father were the family doctors of the deceased. He knew all the members of the family of Laxmibai. (This would be herself and Kishore s family since Kishore only resided with the deceased). 14.He has deposed that on 12 th June 1992 Kishore sent the message to his residence that his mother wanted him to sign her Will as a witness. He went to the residence a short while later. He found Laxmibai, Kishore and two other persons. He has named the persons. He has further deposed that Laxmibai showed all of them the documents in three typed pages typed in Marathi, partly in English. He has deposed about how 9 TS-101 then and there the deceased signed in English language at the foot of the document and said that that was her last Will and requested the witnesses to sign. He has deposed that thereafter one witness S.D. Chhatre signed in English and wrote the word witness 1 in English. He put his address in Marathi by his side. Thereafter another witness S.G. Pannase signed in English as witness 2 and wrote his address in English besides the signature. 15.Below the space meant for the signatures of the attesting witnesses five lines were typewritten in English to constitute the certificate to be given by the doctor about the physical condition of the health of the deceased. 16.The doctor has deposed that he knew the mental and physical condition of Laxmibai. He asked the deceased whether she had read the Will before signing it and whether she knew and understood the contents. The deceased answered in the affirmative. He concluded that she was in sound mind and disposing state of health and spirit. He then signed and wrote his name, qualification and address in English. A short time thereafter he left. 17.The signature on his Affidavit of examination-in- 10 TS-101 chief is identical to the signature on the Will. He is an independent witness who has deposed about the entire execution and attestation process of the Will. His evidence shows that the execution and attestation process was scrupulously followed in accordance with law relating to execution of Wills. 18.In his cross-examination he has clarified upon being asked that he had checked the blood pressure, pulses, eye reflex of the deceased and asked her few questions to know whether she realised what she was doing. He has again stated that though she was old she was well oriented and her state of mind was good. He has deposed that he had not made any inquiries of the Will either with Kishore or Laxmibai. He has admitted that because she was old she could not herself come to give the message. He has stated that she was confined to the house. He was not aware that she was removed to the hospital in June 1992. 19.His cross-examination has not undone any part of his evidence relating to the execution and attestation of the Will. In fact, it has shown the kind of medical examination that he performed. It may be that the deceased was old, confined to the home and was soon thereafter hospitalised and she died a month later. That does not in any manner derogate from her ability 11 TS-101 to execute the Will. It must be remembered that the Wills are usually executed in the ripe old age. What is material is that an independent professional witness, who knew the deceased as his patient and who had examined her, has seen and deposed about the execution and attestation of the Will. There is absolutely nothing to show or suggest that the Will could not have been executed by the deceased. 20.The case of Niranjan Umeshchandra Joshi vs. Mridula Jyoti Rao, (2006) 13 SCC 433 = AIR 2007 SC 614 relied upon by the Caveators/Defendants in respect of suspicious circumstances of the Will does not apply to this case. What is sought to be essentially argued on behalf of the Caveators is that her son Kishore was present at the time the Will was executed. That itself is not a suspicious circumstance if otherwise the animus of the testatrix is seen. 21.The Affidavit of examination-in-chief of Ramesh makes a reference to the ill-health of the deceased. The stray references are in paragraphs 36 and 37 which are the last two paragraphs of the Affidavit. He has deposed that she was not keeping good health and not capable of understanding the effect of any documents executed by her. He has deposed that she was 83 years old and admitted to Sushrusha Hospital at Ranade Road, 12 TS-101 Dadar, Mumbai, under the supervision of Dr.Vivek Desai. He has deposed that his mother was in the hospital for more than one month prior to her death and was undergoing medical treatment. This was after the date of the execution of the Will. He has not produced any papers of his mother s hospitalisation. He has not examined Dr.Vivek Desai under whose care and treatment the mother was. His evidence is completely unsubstantiated and uncorroborated. His son s evidence has not taken his case any further. In fact, it is seen to be completely irrelevant and even incorrect and false. 22.Mr.Patwardhan on behalf of the Plaintiff drew my attention to the only requirement that the Court has to consider under Section 59 of the Indian Succession Act which runs thus:- 59. Person capable of making Wills.- Every person of sound mind not being a minor may dispose of his property by Will. Explanation 1. - A married woman may dispose by Will any property which she could alienate by her own act during her life. Explanation 2 . . . . . . Explanation 3 . . . . . . Explanation 4.- No person can make a Will while he is in such a state of mind, whether arising 13 TS-101 from intoxication or from illness or from any other cause, that he does not know what he is doing. Laxmibai is seen to be a person of sound mind and, therefore, capable of disposing of her property by Will. She is seen to have been able to alienate the suit property by her act at least since December 1980. She is not seen to have been intoxicated or to have been suffering from any illness such as not to know what she was doing when she executed the Will. It need hardly be mentioned that once the Plaintiff shows that the deceased had a disposable state of mind and could dispose of the estate under the testamentary disposition made by her, the onus shifts upon the Caveators to prove her lack of physical ability to execute the Will. Nothing about any lack of physical ability is stated or proved by the Caveators. Hence Issue No.(1) is answered in the affirmative. 23.Issue No.(2): The examination-in-chief of the Caveator Ramesh shows his case that his father died intestate leaving behind his mother and four sons; the case brought out in the Administration Suit also. He has claimed that he would be entitled to an equal share with the other heirs in the estate of his father. He has mentioned how in view of his employment he resided away from his parents since 1953. He has similarly 14 TS-101 deposed about other heirs. The fact remains that admittedly he did not sue to obtain his equal share with the other heirs of his father after the death of his father. Paragraph 17 of his examination-in-chief shows that the property in Mumbai, which is sought to be bequeathed by the deceased, was the self acquired property of his father. It was transferred to his mother s name in December 1980 without his knowledge and consent, two months after the death of his another brother Nandkumar and 13 years after the death of his father. However, from 1980 to 1994, he did not sue for administration of that estate. His evidence shows that the deceased had disposable interest in the properties bequeathed under her Will since 1980. She was, therefore, a complete owner for the last 12 years of her life. 24.His Affidavit of examination-in-chief makes vague reference to the serious case of forgery. In paragraph 36 he has inter alia deposed that his mother was not keeping good health and was not capable of understanding the effect of the documents executed by her and the alleged Will was not executed by her but was forged and signed by her brother Kishore. There is absolutely no further evidence to prove the forgery. 25.It is contended on his behalf that the entire Will 15 TS-101 is in Marathi but the signature is in English. The deceased knew Marathi and not English. There are millions of people in India who know their mother tongue only but sign in English. The deceased is seen to be one such. What is material is that the Will is typewritten in Marathi and hence could admittedly have been read and understood by her. The signature of the deceased on the Will is not shown to be different from her admitted signatures on any other document. No such documents are produced. The onus of proving forgery is not discharged. 26.My attention has been drawn to two rent receipts produced in the Administration Suit, a reference to which is made in paragraph 33 of the Affidavit of examination-in-chief of the second witness on behalf of the Caveators, who is the son of Ramesh. He has no caveatable interest. He has not been examined to prove any aspect other than what one of the Caveators could have proved. However, he has deposed that the Will of Laxmibai is false and the signature is not genuine and is not in her own handwriting and is fabricated. It is not understood how this witness is qualified to make these tall claims. He has never lived with the deceased. Only Kishore lived with the deceased. He has, however, relied upon the two rent receipts. He states that they are signed in English but the Will is 16 TS-101 signed in Marathi. Both these statements are completely incorrect. The rent receipts are shown to me. The rent receipts are not signed by the deceased at all. They are signed by Kishore in English. The Will of the deceased is not signed in Marathi. The Will in Marathi is signed by the deceased in English so much for the worth of the evidence on behalf of the Caveators. Nonetheless the case of forgery, nor of duress or undue influence is proved. Hence Issue No.(2) is answered in the negative. Issue No.3 : 27.The Will must, therefore, be accepted. Hence Letters of Administration with the Will of Laxmibai annexed is required to be granted. 28.The Caveators would not be entitled to administration of the estate as claimed by them or be given in any manner the 1/3 rd share in the property of the deceased Laxmibai Chitnis claimed by them. Hence no reliefs can be granted in the Administration Suit filed by the Caveators. 29.Hence the following order : ORDER (i) The Testamentary Suit is made absolute as prayed. 17 TS-101 Letters of Administration with the Will of Laxmibai Vishnu Chitnis annexed thereto be issued. (ii) Drawn up order is dispensed with. (iii)Suit No.1662 of 1994 is dismissed. No order as to costs. (SMT.ROSHAN DALVI, J.)