1 TS-2 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Testamentary Suit No.2 of 2002 IN Testamentary Petition No.1052 of 2000 Mr.Amit Ajit Temurnikar & anr. ... Plaintiffs v/s. Abhay Temurnikar & anr. ... ... Defendants Mr.T.N. Patwardhan i/by Mr.B.G. Saraf for Plaintiffs. Ms.Shaila Pathak i/by Pathak Associates for Defendants. ----- CORAM : SMT.ROSHAN DALVI, J. Date of reserving the judgment : 2 nd August, 2010 Date of pronouncing the judgment : 5 th August, 2010 JUDGMENT : 1.The Plaintiffs are the grandsons of the deceased testatrix, who executed her last Will and Testament on 3.8.1993, which is required to be probated in this suit. The Defendants are the uncle and aunt of the Plaintiffs and the other son and daughter-in-law of the testatrix who have filed a Caveat to challenge the grant of probate of the Will of the deceased testatrix dated 3.8.1993. The Plaintiffs have sought to prove the Will by leading evidence of Plaintiff No.1 himself, 2 TS-2 the two attesting witnesses as well as their doctor in whose presence and in whose clinic the Will was executed by the testatrix. The Defendants have sought to challenge the Will under the evidence of Defendant No.1 himself. 2.It is the case of the Plaintiffs that the Will is validly executed. It is the case of the Defendants that the Plaintiffs got the Will executed through their grandmother by exerting undue influence, coercion and force. 3.Based upon the respective cases of the parties, the following issues have been framed on 11.4.2008 by this Court, which are answered as follows:- (i) Do the Plaintiffs prove that the deceased has executed a last Will dated 3.8.1993 ? - YES (ii)Do the Defendants prove that the Will 3.8.1993 was executed by the deceased by any force or undue influence or coercion ? - NO (iii)What order and relief ? - AS PER FINAL ORDER. 3 TS-2 4.The Affidavit of Plaintiff No.1 himself is not of much importance. He has set out the relationship between the parties, how they resided and how the Will was executed. 5.The further witness of the Plaintiffs is the sister of the deceased who deposed that she had kept the Will in the sealed envelop, as directed by the testatrix which was opened in the presence of the legal heirs and representatives on 6.2.2000. 6.The material evidence is of the two attesting witnesses and the doctor who examined the testatrix on the date of the execution of the Will. 7.Both the attesting witnesses have deposed how they attended the clinic of Dr.M.K. Joshi at 88, Paranjape B. Scheme, Road No.8, Vile Parle (E), Mumbai-400057 on 13.8.1993. They both have deposed that the deceased executed the Will in their presence and on her request and in the presence of one another, they signed the Will as attesting witnesses thereto. They have identified the signatures as well as the handwriting of the deceased on the original Will. 8.The attesting witness Geeta D. Kashyap stated in her cross-examination that she was known to the testatrix 4 TS-2 as she was her neighbour. She confirmed that she had accompanied the deceased when the Will was executed. The deceased was 75-76 years old then and was mentally and physically fit. She knew all the family members of the testatrix. The deceased had prepared the Will and brought the same to her residence. 9.The other attesting witness Madhukar D. Phatak also deposed in his cross-examination that he lived in the said building. They met in the dispensary of Dr.Joshi. The testatrix was about 70 years old and absolutely sound, mentally and physically when she signed the Will. He clarified that he was not present when the Will was prepared and neither was the other attesting witness or the doctor. He was shown the Will at the time of the execution of the Will and it was signed in the presence of Dr.Joshi and all other witnesses. 10.Their cross-examination has not shown anything to even support that their evidence is false or unacceptable. 11.Dr.Madhusudan K. Joshi, who knew the deceased, deposed that though she was old, she was having good health. On 3.8.1993, she attended his clinic at the aforesaid address. He deposed that both the attesting witnesses were present at his clinic. He completed medical check-up of the testatrix. After being satisfied with 5 TS-2 her mental and physical condition, he signed the original Will along with the rubber stamp of himself and Dr.Sudha M. Joshi. He also deposed that the deceased signed in his presence. He identified his own signatures and rubber stamp as well as the signatures of the testatrix and the attesting witnesses. 12.In his cross-examination, the doctor has confirmed that he physically examined the deceased, which was routine whenever the Will was executed. The doctor has also given the time of execution and confirmed about the two attesting witnesses who were present as also the two other patients. He confirmed that the deceased signed in his presence and the deceased was known for 6/7 years, though he was not her family doctor. He deposed that she had got the Will duly prepared by her. She had come alone. She had informed him a couple of days before she came about her visit. He performed routine examination upon her and no separate certificate for physical and mental fitness was issued. He deposed that he is not concerned with the handwriting of the deceased but saw her signing the Will in his presence. 13.In view of the consistent evidence of the two attesting witnesses as well as the doctor, there is no need to consider the evidence of the Plaintiffs as well 6 TS-2 as the sister of the deceased who kept the Will under instructions of the deceased without informing any one of the same with her husband until it was opened after the death of the testatrix. 14.It is seen that the deceased herself brought the Will with her when she came alone to his clinic and signed the Will in his presence and in the presence of two attesting witnesses after she was medically examined by the doctor and found physically and mentally fit. 15.The Defendants filed their Affidavit of examination- in-chief on 4.2.2009. They have deposed that the testatrix, who was the mother of Defendant No.1 and the mother-in-law of Defendant No.2, lived with them for many years prior to her death. They cared for her. They have deposed about an earlier Will dated 10.9.1988 executed by the testatrix in Marathi. They also deposed about the fact that the deceased had twice nominated Defendant No.2, her daughter-in-law, in respect of the suit flat. The suit flat came to be transferred by the Society to Defendant No.2 by virtue of the said nominations. 16.The nominations are relied upon by the Defendants in their Affidavit of documents. However, the nominations are not proved. Be that as it may, the nominations are 7 TS-2 seen to be dated 26.6.1987 and 15.4.1991. They are shown to be signed by the testatrix in English. The Will is executed after the nominations are made. Since the Will is proved as aforesaid by independent witnesses, including the doctor who examined the testatrix, the nominations cease to be of any importance. 17.The aforesaid evidence shows that the Will was properly and validly executed. Hence, issue No.(i) is answered in the affirmative. 18.The bare evidence of coercion, force and undue influence in paragraph 5 of the Affidavit of examination-in-chief of the Defendants has not been substantiated at all. Such evidence cannot be accepted in view of the clear and cogent evidence showing the execution of the Will by three independent witnesses and by the fact that thereafter the deceased had kept the Will with her sister in a sealed cover which was opened after her death. Hence, issue No.(ii) is answered in the negative. 19.Consequently, the Will dated 3.8.1993 of the deceased testatrix Nirmala P. Temurnikar shall be probated. Order accordingly. (SMT.ROSHAN DALVI, J.) 8 TS-2