IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION TESTAMENTARY & INTESTATE JURISDICTION TESTAMENTARY & INTESTATE JURISDICTION TESTAMENTARY SUIT NO.42 OF 1997. TESTAMENTARY SUIT NO.42 OF 1997. TESTAMENTARY SUIT NO.42 OF 1997. IN IN IN TESTAMENTARY PETITION NO.883 of 1996. TESTAMENTARY PETITION NO.883 of 1996. TESTAMENTARY PETITION NO.883 of 1996. Manjula Madhukar Padgaonkar res.at Radhakrishna Niwas No.3, 2nd floor, Block No.5 & 6 S.K.Bole Road, Dadar, Mumbai 400 028 ..Petitioner/ Plaintiff versus Mahesh Madhukar Padgaonkar, since deceased through legal heirs and representatives i) Mrs.Mandira widow of Mahesh Padgaonkar ii) Kum. Anay Daughter of Mahesh Padgaonkar iiI) Master Amay son of Mahesh Padgaonkar all residing at 3 Tawde Ward, Near Vartak Hall, Chitale Path, Dadar, Mumbai 400 028 ..Defendants Mr.N.S.Fadia for the Plaintiff Mr.J.M.D’Silva for the defendants. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 17th Nov., 2008. DATED : 17th Nov., 2008. DATED : 17th Nov., 2008. JUDGMENT. 1. The plaintiff instituted petition for probate of the last Will and testament of Madhukar K. Padgaonkar (hereinafter referred to as "the deceased") being Petition No.883 of 1996. According to the plaintiff, the deceased left behind him plaintiff and two sons and a daughter. -2- Citations were served upon these two sons and daughter. One son Mahesh since deceased filed a caveat and subsequently filed affidavit in support of the caveat and objected to the grant of the probate petition. On account of this the petition was converted into Testamentary Suit No.42 of 1997. During the pendency of the suit said Mahesh expired and that is how the heirs of Mahesh were brought on record namely Mrs. Mandira -defendant No.1(i) as widow, defendant No.1(ii) and 1(iii) are minor sons of said Mahesh. The defendant No.1(i) being mother an natural guardian, the defendant Nos.1(i) to 1(iii) filed affidavit objecting to the probate being granted, after they were brought on record. Defendant Nos.1(i) to 1(iii) in principle adopted the stand taken by Mahesh. 2. According to the plaintiff the deceased died on 15.2.1995 and had executed Will dated 28.10.1977 (hereinafter referred to as "Suit Will") and had appointed the present plaintiff as sole executrix. Defendant No.1(i) to 1(iii) who shall for the sake of convenience hereinafter referred to as the defendants, had objected to the Will by contending that the Will is illegal and improperly -3- executed. It was also their stand that the properties involved in the suit are ancestral and that the deceased had no right to dispose off the property in excess of his right in the properties. It is also the stand of the defendants that the suit Will was executed in the year 1977 and the deceased died in the year 1995 and that the suit Will is not the last Will and testament and that it is improbable that the deceased has not executed Will between the period 1977 till 1995. It was also the stand of the defendants that certain properties in the nature of gold ornaments have not been referred to in the Schedule I and to that extent there is suppression of material facts by the plaintiffs. 3. Based on the pleadings as aforesaid, the issues came to be framed as under. My answer to each of the issue is mentioned against the respective issue. Issues Findings a) Whether the petitioner proves -4- that the Will dated 28.10.1977 is legal and validly executed? ..... In the affirmative b) Whether the respondent proves that the Will dated 28.10.1977 is illegal, invalid and bad in law as alleged in para 2 of his Affidavit in support of the caveator and all heirs of the testator are entitled to equal share? .... In the negative c) Whether the petitioner is entitled to probate of the Will dated 28.10.1977? ... In the affirmative as per the Final Order 4. In the course of trial Mr.M.P.Shukla, Advocate, who claims to have acted as attesting witness in regard to the suit Will was examined as P.W.1. Plaintiff Ms. Manjula stepped into the witness box as P.W.2. No other witness was examined on behalf of the plaintiff. On behalf of the defendants, Mandira, defendant No.1(i) stepped into the witness box as P.W.2. No other witness -5- was examined on behalf of the defendants. 5. Issues at serial Nos. (a) and (b) are inter connected and therefore they can be discussed together. Reasons : Issue Nos.a & b. Reasons : Issue Nos.a & b. Reasons : Issue Nos.a & b. . Learned Advocate Mr.Fadia appearing on behalf of the plaintiff and learned Advocate Mr.D’Silva appearing on behalf of the defendant had taken me through the entire record. The plaintiff has examined Mr. Shukla P.W.1 as attesting witness and the suit Will is exhibited as Exhibit P-2. The defendants have not disputed the genuineness of the suit Will. A mere stand is taken that the suit Will is illegal and improper. In view of the aforesaid rival contentions, I have perused the evidence as well as the original Will. On the original Will one finds the signature at serial No.3. This signature is purported to be that of Mr. Shukla P.W.1. On the reverse of page 3 endorsements are found as regards the job performed by the office of the Sub-Registrar while the Will came to be lodged for registration and the Will has -6- been registered. 6. I have perused the evidence of Shukla P.W.1. and Shukla-P.W.1 in no uncertain terms stated that he in the company of other two attesting witnesses namely Dr.Shah and Mr. Mhatre acted as witnesses for the suit Will and in turn tendered their respective signatures as attesting witnesses. Shukla-P.W.1 has given categorical evidence to show that he was present when the Will came to be executed by the deceased and as to how he acted as an attesting witness. 7. It was argued on behalf of the defendants that Mr. Shukla P.W.1 has not acted as attesting witness and he has merely acted as an witness at the stage of registration of the suit Will. It was argued by the learned Advocate for the defendants that the evidence of Shukla P.W.1 should be appreciated and the Court should hold that Shukla P.W.1 had not acted as attesting witness. It was submitted by learned Advocate for the defendants that if evidence of Shukla P.W.1 is discarded then no other attesting witness is examined by the plaintiff and therefore the court should hold that -7- the plaintiff has failed to prove the suit Will and that the Court should dismiss the suit of the plaintiff. Learned Advocate Mr.D’Silva appearing on behalf of the defendants had relied upon the had relied upon the had relied upon the judgment in the case of Babu Singh & Ors. v. Ram judgment in the case of Babu Singh & Ors. v. Ram judgment in the case of Babu Singh & Ors. v. Ram Sahai @ Ram Singh reported in 2008 AIR SCW 3429 Sahai @ Ram Singh reported in 2008 AIR SCW 3429 Sahai @ Ram Singh reported in 2008 AIR SCW 3429 to point out to the Court as to how the Court should appreciate the point in the matter where evidence of the attesting witness is discarded by the Court and the need for the plaintiff to prove the Will in accordance with the provisions of Section 69 of the Indian Evidence Act. 8. I have perused the evidence of P.W.1. I have perused the document of Will. A suggestion was given to Shukla P.W.1 that he has not acted as attesting witness and that suggestion has been denied. It is a fact that on page 3 of the Will three signatures appear, namely that of Dr. Shah, Dr. Mhatre and the third signature is that of Shukla P.W.1. Shukla P.W.1 has in terms stated that he has acted as attesting witness and has tendered his signature at the end of the said Will. A perusal of the said document of Will as a whole would clearly go to show that Shukla P.W.1 acted as -8- attesting witness. If it was the case of the defendants that Shukla P.W.1 was not acting as attesting witness, some more elaborate cross examination ought to have been conducted to bring on record under what circumstances the signature of Shukla P.W.1 appears in the body of the Will and below two other attesting witnesses. A mere suggestion to Shukla P.W.1 that the signature at serial No.3 is not signed as attesting witness is not sufficient. For the reasons mentioned aforesaid I hold that Shukla P.W.1 had acted as attesting witness and has given cogent evidence as to how he and two other attesting witnesses tendered their signatures as witnesses and the job of execution of the Will was duly completed. To that extend the plaintiff has been able to bring on record the evidence regarding proving the Will. 8. It is true that on the reverse page of page 3 endorsement as regards registration of the suit Will appears, where name of Mr.Shukla is shown as a person who had identified the deceased before the Sub Registrar of Assurances. Pages 1 to 3 is the suit Will and what is scribed on the reverse of page 3 pertains to the endorsement made in the -9- office of the Sub Registrar concerning the job of the execution of the Will. The fact that Mr. Shukla P.W.1 identified the deceased as testator before the Sub Registrar, Assurance goes to show that Shukla P.W.1 knew the deceased and had attended to the matter of registration of the Will as an Advocate. Presence of Shukla P.W.1 as attesting witness is fortifies the fact that Shukla P.W.1 had participated in the process of registration and in particular identifying the deceased as testator. 9. It was argued that Shukla P.W.1 is an interested witness and this was done on the strength of answer given by Shukla P.W.1. in his cross examination that he was a tenant in the same building where deceased was residing. In my view, the argument that Shukla P.W.1. is an interested witness cannot be accepted. In fact, taking into consideration status of Mr. Shukla as an advocate he could act as an attesting witness and the testator must have thought of having assistance of Shukla P.W.1 concerning execution of his Will. It is just difficult to accept that a practising advocate would try to identify himself with -10- deceased and give false evidence. It is not shown by the defendants that Shukla P.W.1. was otherwise concerned with the deceased in the legal matters. This will go to show that the deceased had the service of Shukla P.W.1. as an attesting witness considering his status as an advocate. 10. Even otherwise, the evidence of Shukla P.W.1 is not shattered and going through the cross examination of Shukla P.W.1., I find that Shukla P.W..1 has stood the test of cross examination and has affirmed his evidence in examination in chief that he had acted as attesting witness in regard to the suit Will. In view of the aforesaid discussion, I hold that the plaintiff has proved the suit Will. Since plaintiff has examined one attesting witness, plaintiff has placed before the Court an appropriate evidence in line with provisions of Section 68 of the Indian Evidence Act. The plaintiff has discharged the burden concerning the proof of suit Will. 11. Plaintiff Mrs. Manjula has also stepped into the witness box and has deposed various facts which were within her knowledge and has stated the -11- relevant facts as regards she being the Sole Executor, the deceased having died on 15.2.1995 (about which there is no dispute). She has further deposed that the deceased new English very well and she has further produced the original Will lying in her custody and that she has identified the suit Will as the original Will. The evidence of Mrs.Manjula, P.W.2 in cross examination is not shattered. Certain questions were asked to Mrs. Manjula, P.W.2 as regards the various properties being ancestral properties and certain other properties in the nature of gold ornaments being not reflected in the present suit. Those questions were declined and reasons have been given while declining those questions. In substance, a perusal of the evidence of Manjula P.W.2 goes to show that her evidence has gone unchallenged and that what is produced before the Court is the original Will of the deceased which is marked as Exhibit P-2. 12. Mrs. Mandira has stepped into the witness box as D.W.No.1. The defendants have contended that there could have been some other Will. This is being done purely on the ground that the suit Will is of 1977 and the deceased died in the year -12- 1995 and that a long period of 18 years have elapsed from the time when the suit Will was prepared. Except contending that there could be some other Will, there is no whisper in the evidence of Mandira D.W.1. to suggest a particular date on which another Will is prepared by the deceased and in any case the other Will purported to have been executed by the deceased is not produced before the Court. Hence that stand of the defendant cannot be accepted. The defendants have further contended that various gold ornaments are not reflected in the Schedule I and in Schedule I immovable property in nature of land and a building standing thereon situated at Dadar, Mumbai is referred to and certain quantum of rent for the period February 1995 till November 1996 is mentioned. In so far as this aspect is concerned, I am inclined to observe that if the plaintiff has chosen while filing the original petition to mention only two items in the schedule I, the plaintiff would get the probate only in respect of those two items and if other properties are left by the deceased, they would devolve by intestate succession as per the provisions of law. If the Court passes a decree in favour of the plaintiff -13- that would be restricted only in respect of the items mentioned in Schedule I. Hence, if it is the stand of the defendants that certain other properties are not mentioned by the plaintiff it will be open for the defendants to adopt appropriate proceeding for those properties. 13. It has been the stand of the defendants that the properties mentioned in petition is ancestral property and the deceased had no testamentary capacity to dispose of the entire property by way of a Will. In so far as this aspect is concerned, learned Advocate Mr.Fadia appearing on behalf of the plaintiffs had relied upon three judgments (a) Ochawram Nanabhai v. Ochawram Nanabhai v. Ochawram Nanabhai v. Dolatram Jamietram reported in The Bombay Law Dolatram Jamietram reported in The Bombay Law Dolatram Jamietram reported in The Bombay Law Reporter, Vol. VI page 966 Reporter, Vol. VI page 966 Reporter, Vol. VI page 966, (b) Chintaman Chintaman Chintaman Vyankatrao Ghadge v. Ramchandra Vyankatrao Ghadge Vyankatrao Ghadge v. Ramchandra Vyankatrao Ghadge Vyankatrao Ghadge v. Ramchandra Vyankatrao Ghadge reported in the Bombay Law Reporter Vol.XII page reported in the Bombay Law Reporter Vol.XII page reported in the Bombay Law Reporter Vol.XII page 694 694 694 (c) Bai Parvatibai v. Raghunath Lakshman Bai Parvatibai v. Raghunath Lakshman Bai Parvatibai v. Raghunath Lakshman reported in The Bombay Law Reporter Vol.XIII 1063 reported in The Bombay Law Reporter Vol.XIII 1063 reported in The Bombay Law Reporter Vol.XIII 1063 Learned Advocate Mr.Fadia had drawn my attention to the observations of this Court in the case of Ochawram Nanabhai v. Dolatram Jamietram Ochawram Nanabhai v. Dolatram Jamietram Ochawram Nanabhai v. Dolatram Jamietram (supra) where the Court has observed that the Court will -14- not enter on the question as to the title of the property which the testator by his Will purports to leave. He had also drawn my attention to the observations of this Court in the case of Chintaman Chintaman Chintaman Vyankatrao Ghadge v. Ramchandra Vyankatrao Ghadge Vyankatrao Ghadge v. Ramchandra Vyankatrao Ghadge Vyankatrao Ghadge v. Ramchandra Vyankatrao Ghadge (supra) where the Court has observed that on an application for probate it is not the province of the Court to go into the question of title with reference to the property of which the Will purports to dispose, or the validity of such disposition. He had also drawn my attention to the observations of this Court in the case of Bai Bai Bai Parvatibai v. Raghunath Lakshman Parvatibai v. Raghunath Lakshman Parvatibai v. Raghunath Lakshman (supra) where the Court has observed that in a testamentary suit the testamentary Court dealing with the question of issuing grant of probate is concerned to see whether the Will is duly executed as required by law by a testator of sound and disposing state of mind. I have perused the three judgments which are cited by learned Advocate Mr. Fadia and in view of the said judgments it is not necessary for this Court to go into the question of title to the assets which are set out in the Schedule I and this Court is required to ascertain whether the plaintiff has been able to prove the Will which has -15- been propounded in the present suit. I have already observed that the plaintiff has proved the suit Will and if that is so, the plaintiff would be entitled to the probate of the Suit Will. 14. It was argued by learned Advocate D’Silva that defendant 1(ii) and 1(iii) are not properly represented in as much as no guardian is appointed for them. This argument cannot be accepted because after the death of Mahesh present defendants were brought on record, amendment to the petition was carried out and defendant No.1(ii) and 1(iii) are shown to be represented by mother and natural guardian by name Mandira defendant No.1(i). If this be so, the stand of the defendants that defendant Nos.1(ii) and 1(iii) are not properly represented cannot be accepted. 15. Another objection was raised so as to say that the defendant Nos.1(ii) Anay is son of Mahesh, whereas in the cause title he is shown as daughter. This undoubtedly must be mistake of fact and it appears that there must be some typographical mistake in communicating to the learned advocate of the plaintiff the names and the status of the heirs -16- of Mahesh. In the normal course, the learned Advocate for plaintiff would not commit such mistake and in any case showing Anay as daughter cannot be a ground to dismiss the suit. At this stage, learned Advocate Mr. Fadia showed to me letter dated 11.10.2006 addressed by learned Advocate Mr.Lad, who then appeared on behalf of Mahesh, wherein the name of Anay is shown and Anay is referred to as daughter at serial No.2. This letter clearly indicates that because the learned Advocate for plaintiff was informed that Anay is daughter, Anay must have been shown as daughter. No prejudice is caused to any of the defendants as they were duly represented by an advocate. 16. For the reasons mentioned aforesaid, I am inclined to observe that the plaintiff has shown that the Suit Will dated 28.8.1977was properly and validly executed by the deceased and that it is the last Will and Testament of the deceased. The stand taken by the defendants in their affidavit in support of the caveat cannot be accepted and to that extent issue No. (a) is answered in the affirmative. Issue No. (b) is answered in the negative. -17- Issue No.(c) Issue No.(c) Issue No.(c) 17. In view of the answer to the issue No.(a) in the affirmative and issue No.(b) in the negative plaintiff would be entitled for probate of the said Will dated 28.10.1977 executed by Madhukar K. Padgaonkar and to that extent the suit will have to be decreed. Hence, issue no.(c) is answered in the affirmative and as per the operative part. 18. Before I part with the judgment, it is clarified that if it is the stand of the defendants that some other properties not reflected in Schedule I have been left by the deceased Madhukar, they will be free to institute appropriate proceedings to establish their rights in regard to the said properties. The decree proposed to be passed in this suit is in respect of the assets which are mentioned in Schedule I to the original Petition No.883 of 1996. Since the parties to the suit are related to each other there shall be no order as to costs. For the reasons mentioned aforesaid, I pass the following decree. -18- DECREE i) Suit is decreed. ii) Office to issue probate to the plaintiff i.e. Original petitioner Mrs. Manjula Padgaonkar in regard to the last Will and Testament dated 28.10.1977 left by Madhukar Keshav Padgaonkar in regard to properties mentioned in Schedule I. iii) There shall be no order as to costs. iv) Office to issue probate as per this decree as expeditiously as possible subject ofcourse to plaintiff-original petitioner complying with the office procedure. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)