1 TS-27 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. Testamentary Suit No.27 of 1993 IN Testamentary Petition No.200 of 1993 Dinesh Shankar Shailendra .. .. Plaintiff v/s. Hemant Shankar Shailendra .. Defendant Mr.Roop M. Vasudeo for Plaintiff. Mr.Paritosh Jaiswal i/by Mr.Ashok Purohit & Co. for Deft.Nos.1A, 1B & 1C. ------- CORAM : SMT.ROSHAN DALVI,J. Date of reserving the judgment : 14th January 2011 Date of pronouncing the judgment : 21st January 2011 JUDGMENT : 1.The deceased one Shankuntala, who expired on 6 th March 1991, left a Will dated 24 th August 1989. She had three sons and two daughters. She has bequeathed her property to one of her sons, Dinesh and to his grandson who is the son of another son, Manoj. The Caveator is her third son Hemant. The two daughters have not challenged 2 TS-27 the Will. The Caveator has challenged the Will on the ground that it is bogus and forged. Based upon the Affidavit-in-support of the Caveat, three issues came to be framed on 5 th May 2005 which are as follows: ISSUES (1)Does the Plaintiff prove that the Will dated 28 th April 1989 is executed by the deceased Shakuntala and it is her last Will ? ... ... Yes (2)Does the Plaintiff prove that the deceased Shakuntala was in sound and disposing state of mind at the time of execution of the Will ? ... ... Yes (3)Does the Defendant prove that the suit Will is a forged, bogus and fabricated Will ? ... No (4)Is Plaintiff entitled to grant of probate ? .. Yes (5)What order ? ... ... As per final order 2. The Plaintiff has examined one attesting witness and himself. The Defendant has examined himself alone. The other attesting witness has expired and a copy of his death certificate has been produced by the Plaintiff. 3.Parties have relied upon certain documents, the 3 TS-27 admissibility of which has been considered by this Court. The documentary evidence shall be considered presently along with the oral evidence. 4.Issue No.(1) : The essential evidence of the attesting witness is about how the Will was actually executed. He is an Advocate. The Will was prepared by the deceased and brought to him. She requested him to carry out the formalities. She signed the Will and declared it to be her Will. It was attested by his Accountant as well as himself. 5.PW1 is shown to have been known to the deceased. He was an Advocate in Bhasin & Company. Bhasin & Company had sent two notices to the Defendant with regard to the dispute in respect of the property of the deceased and her husband. Counsel on behalf of the Defendant argued that these letters in fact show the Defendant s share in the property. Whatever that be, these letters also corroborate the evidence of Advocate Dhuru that he on behalf of Bhasin & Company had met the deceased on a few occasions before the date of the execution of the Will. In paragraph 12 he has deposed that he came to know the deceased 3/4 months before she executed the Will. His senior Mr.Lalit Bhasin had asked him to contact the deceased for discussion of some problem. He had met her at her residence. She had not engaged 4 TS-27 M/s.Bhasin & Company or himself as Advocate at that time. In paragraph 13 he has deposed that he had met her 2/3 times before she executed the Will at her residence. In paragraph 19 he has deposed that on the first occasion when he had met her at her residence she told her about some disputes between her sons Dinesh and Hemant, the Plaintiff and the Defendant. He found out that those were the usual problems regarding the property. In paragraph 20 he has deposed that he again went to her residence after a few days when the deceased requested her to solve the problem between her two sons. In paragraph 21 he has deposed that he went to the residence of the deceased on three occasions. 6.With regard to the execution of the Will, in paragraph 22 he has deposed that the deceased came to his office on 28 th April 1989 for executing a Will which was already prepared by her. She asked him to help her to get it executed and attested, which he did in his office. For that purpose, he had read it out and explained it to her. She executed the Will by signing it in Hindi. He signed as an attesting witness along with an Accountant of the firm. He has detailed in his examination-in-chief the complete procedure which is in accordance with law relating to execution of the Will. In paragraph 23 of his cross-examination he has deposed that the Will was not drafted by any one from Bhasin & 5 TS-27 Company. The deceased had pre-prepared the Will, showed it to him and had completed the formality. In paragraph 25 of the evidence he has deposed that he saw the Will for the first time on 28 th April 1989 and thereafter when he deposed in this suit. He did not receive any fees for the execution of the Will. He has deposed in his cross-examination that he did not know when or who drafted the Will. This would be natural because it was pre-prepared and brought by the deceased. 7.This evidence has been corroborated by the Plaintiff in paragraph 72 of his cross-examination where he deposed that he had met Advocate Dhuru when he had visited his mother on 1 or 2 occasions before her death and that Advocate had come to mediate between his mother and the Defendant. He had not requested him to do so. It is contended that this evidence is contrary to the evidence of Advocate Dhuru. A reading of the entire evidence shows that the deceased had called the Advocate. The deceased had some problems. The problems were with regard to the disputes between the two brothers. Hence the witness would be correct in saying what they did as per their perceptions. The fact remains that the Advocate was called to solve certain family problems which related to the property disputes between the two brothers by the deceased and not the Plaintiff. 6 TS-27 8.His cross-examination shows another meeting he had with the deceased in his office with regard to the royalty rights of the film of the husband of the deceased, over which the Plaintiff as well as the Defendant had some disputes. The evidence of the attesting witness is corroborated by the evidence of the Plaintiff witness about the fact that he had 2/3 meetings with the deceased and knew the deceased. The cross-examination of the Defendant himself in answer to question No.90 shows another such meeting. This also shows that the attesting witness had met the deceased 2/3 times. 9.It may be mentioned that the fact of the admitted correspondence initiated by Bhasin & Company prior to the Will, and the fact of disputes between the two sons of the deceased prior to the execution of the Will and the admitted meetings by the two sons of the deceased as also the deceased with Advocate Dhuru is the strongest admitted circumstance to show that the deceased executed her Will. The deceased had a problem. The problem was the dispute between the Plaintiff and the Defendant, her two sons. The problem was the usual problem relating to the property. The sons had 2 or 3 meetings with the Advocate. The problem was not solved. The Defendant has deposed that the others wanted to sell the property but he did not want to sell it. The 7 TS-27 mother executed the Will soon after the meetings. The Will, therefore, falls in place though all the family members signed the MOU with regard to that property thereafter. 10.Further in paragraph 30 of the Will, he has deposed about who accompanied the deceased on the date of the execution of the Will. He deposed that some persons had accompanied her who were other than her family members. He did not remember those persons. 11.It is argued that the mother could not have got the Will prepared in English because she had signed it in Hindi and that if she had prepared the Will earlier, the Advocate did not have to explain it to her. That argument may not be apt because the Advocate is expected to explain any document which his client is to sign. 12.The initial case of the Defendant/Caveator in the Affidavit-in-support of the Caveat is that the Will is not genuine, bogus and fabricated. For the first time, in the cross-examination of the Plaintiff as PW2, the case of interpolation of the Will has been put. The Will is typewritten. It is on two sides of one paper. The main content of the Will is that the deceased has given her properties to her son Dinesh and her grandson 8 TS-27 Nishant. Clause-3 of the Will shows that they would be entitled to all her estate and effects absolutely and forever. After the full stop at the end of the sentence, the residential property of the deceased being the bungalow RIMJHIM is shown as being included along with its address. It is contended that that is a suspicious circumstance. However, that is not the case of the Caveator in the Affidavit-in-support of the Caveat. That case has not even been put to PW1, the Advocate who got the Will executed and attested. PW1 has deposed that he had requested the deceased to sign in the margin of page-1 of the Will as well as at the foot of page-1 because there was a correction in the last paragraph on page-1 by way of an addition. The deceased has also signed against the paragraph in which there is an alleged addition of the description of the property included. There is no suggestion even put to PW1, the Advocate, that there was any interpolation. 13.There is no plea that the Will is unnatural. The deceased has bequeathed her property to one out of her six children and to the grandson of another child. 14.It is contended by the Caveator that he looked after the deceased and incurred the expenses for the marriage of his two daughters. That would not entitle him to the estate of the deceased per se. It is contended on 9 TS-27 behalf of the Plaintiff that Defendant No.1 and his wife ill-treated the deceased. That aspect has also not been proved, though the factum of the filing of the complaints is admitted. In fact, it is argued that the complaints were filed at the instance of the Plaintiff. The property of the deceased is a residential bungalow. There are several rooms on the first floor. The deceased lived on the first floor. The evidence shows that she lived in one room of the bungalow since her marriage and continued to reside there until after the death of her husband. Defendant No.1 also lived on the first floor. It is not shown that he lived in the same room with the mother or that he allowed the mother to live along with him. The bungalow admittedly belonged to the father. The mother, therefore, lived in the bungalow as a matter of right even prior to the birth of their children. Defendant No.2 has sought to show that he lived along with his mother on the first floor. It is argued on his behalf that if he was ill-treating the mother, the Plaintiff could have taken the mother on the ground floor where the Plaintiff resided. However, the evidence has shown that the mother was unwilling to shift from her bedroom. That was natural. The case of either ill-treatment or good treatment made out by the respective parties remains at that. 15.The Plaintiff s evidence, as PW2, shows a number of 10 TS-27 complaints filed by the deceased against the Defendant. The complaints have been sought to be tendered. The factum of the filing of the complaints is, in fact, admitted by the Defendant in answer to question No.91 in his cross-examination. The disputes show several complaints filed by the deceased against the Defendant, though the contents of the complaints are not proved. The Defendant has contended that he had cordial relations with his mother. This is despite the admission of the criminal complaints filed by the mother. 16.The Defendant has relied upon a photograph in paragraph 17 of his evidence. The photograph shows the Defendant, his wife, sister, his mother and some children. The parties are sitting for the photograph. The mother is at the fag end. The photograph does not show either cordial or strained relationship. It merely shows that the family photograph is taken with all parties seated and staring into a camera. 17.There is some dispute with regard to the custody from which the Will has emerged. The Will has been executed on 28 th April 1989. The testatrix died on 6 th March 1990. The Petition is filed by the Petitioner in person on 30 th March 1993. The Petitioner has to explain the delay in filing the Petition. In paragraph 10 of the 11 TS-27 Petition, the delay has been explained. It is the case of the Petitioner that he was not aware of obtaining legal representations in respect of the assets left by the deceased and he was advised to obtain the same just prior to filing of the Petition. He has, therefore, applied for condonation of delay. The evidence shows that the daughter of the deceased Amla, who lived and served in Dubai, came to India on the date of her death upon being informed of the death. After the funeral she gave a copy of the Will to the Plaintiff upon the fact that her mother had given the copy of the Will to her. She returned to Dubai. She came back on 13 th day for the obsequial ceremony. The original Will was not found. The evidence has shown that the original Will was got from the locker of the Union Bank of India, Khar Branch. It had to be broken open because the key of the locker was not found. When the locker was broken open, the original Will was found in an envelope. The envelope has not been preserved. This happened in 1992. The Petition, therefore, could not be filed until 1992. The delay is, therefore, sufficiently explained. Upon the Will being proved by the attesting witness, custody of the Will, a copy of which was produced immediately after the death of the deceased does not come up for any suspicion. 18.The Petitioner has filed a Petition in person. The 12 TS-27 Petitioner appears to have tried to obtain some assistance from the Testamentary Department of this Court. The evidence also shows that the Petitioner was advised by some officer from the Testamentary Department itself. This would take time. It must be accepted that he may not have known the correct procedure. 19.The sister, who gave the copy of the Will to the Plaintiff on the date of the death of the deceased itself, has been filed a consent letter. That consent letter is affirmed by her before the consular agent of Consulate General of India in Dubai on 5 th January 1991 well before the filing of the Petition. It is contended that that is also a suspicious circumstance. A reading of the said letter does not show anything suspicious. The consent letter had to be obtained. However, the original Will was not found and hence the Petition was not filed. The sister, who gave her consent in the said letter, has not withdrawn her consent and has not challenged the Will. The letter of the sister giving consent prior to the filing of the Petition, therefore, does not raise any suspicion. 20.The sister Amla was to file an Affidavit of examination-in-chief on behalf of the Plaintiff. An unaffirmed Affidavit was given to the Defendant. She 13 TS-27 resides in Dubai. Her Affidavit has not come to be filed. The Defendant contends that there were some corrections in the final affidavit from the draft which was earlier prepared. She is not examined. Her affidavit remains at that. 21.It is contended that even the affidavit of the attesting witness has not been filed along with the Petition as is required under Rule 374 of the High Court (Original Side) Rules. The Petition is filed by the Petitioner in person. This has been an error. It appears that the office of the Prothonotary and Senior Master has not correctly verified the Petition before registering it. Indeed, only a draft affidavit of the attesting witness has been filed as per Form 102. It has several blanks. It is not affirmed. It is interesting to note that the name of the attesting witness who is R.C. Dhuru is shown as R-C-Dharia in the said draft. This does show resemblance to the attesting witness, though it is not the correct name of the attesting witness. The letters R and C do reflect that it was meant to be the affidavit of that attesting witness. PW1, the attesting witness, himself has been questioned about the affidavit. He has also deposed that he has not filed the Affidavit-in-support of the Petition. In answer to question No.16 in his cross- examination he has deposed that he came to know about 14 TS-27 the Testamentary Petition itself a couple of weeks before he filed his Affidavit of examination-in-chief on 6 th October 2005. In answer to question No.42 in his cross-examination he has deposed that the Plaintiff had not requested him to make any Affidavit-in-support of the Will after the death of the deceased. It, therefore, remained to be filed. The fact remains that it has remained a draft. However, that is not the reason to come to any conclusion about the lack of validity of the execution of the Will during lifetime of the deceased, though it constitutes an irregularity. 22.It is essentially the contention of the Defendant that the mother could not have executed the Will because she had no bequeathable interest in the property. The property was initially purchased in the joint names of the father and mother. They are not however shown as joint owners. They would be co-owners. Their respective share would devolve on their death upon their heirs. After the death of the father, the mother as well as the children continued to live as before. Two daughters were married and lived separately. All had an equal share in the share of the father as his heirs. The mother has a half share. She would also be entitled to inherit the share of her husband along with her children. It is not for this Court to determine that share. 15 TS-27 23.It is contended on behalf of the Defendant that prior to the execution of the Will in the letters written by the Advocates of the deceased; M/s.Bhasin & Company, the position that she did not own the entire property was accepted. After the date of the execution of the Will, a Memorandum of Understanding (MOU) came to be executed by all the parties, including the Defendant. It is argued on behalf of the Defendant that even Section 37-I Clearance Form under the Income Tax Act was signed by the Plaintiff as well as the deceased with regard to their share alone and not for the entire property. They sought to sell the property to a developer. The Defendant does not desire to sell the property. However, he contends that the execution of the MOU after the date of the execution of the Will is itself a suspicious circumstance that the Will has been fabricated and forged. It may be mentioned that the testator/testatrix can deal with his/her property inter vivos after the execution of the Will. Only the legacy adeems if that is done. That itself is not a suspicious circumstance. The Will, in this case, has not shown either that the testatrix owns the entire of the property or a part share. She has only bequeathed all her estate and effects to the above two beneficiaries, including the bungalow. She would, of course, be entitled to bequeath only such of the share 16 TS-27 that she had owned. That share could be determined in the civil suit. 24.It is upon the aforesaid aspects which are contended to be suspicious circumstances that the validity of the Will has been challenged. Mr.Vasudeo has neatly and succinctly pointed out all the aforesaid evidence to present a clear picture about each of the aspects. None of the circumstances by itself nor all the circumstances read as a whole are a pointer to the fact that the Will was not executed by the deceased, whatever be her capacity to bequeath. Hence Issue No. (1) is answered in the affirmative. 25.Issue No.2 : The Plaintiff has averred that his mother was in sound health prior to the execution of the Will and until her death. This is sought to be shown by the fact that the mother travelled to the United States as well as Dubai where one son and one daughter respectively lived. A copy of the passport of the mother is, in fact, produced by the Defendant. The passport shows her visits. The Defendant has admitted her travel to the United States and Dubai. These travels were in 1989-90. The Will is prepared in 1989. Despite the initial cross-examination of the Plaintiff as to whether the Defendant had accompanied the mother, which was refuted by the Plaintiff at page-47 of the 17 TS-27 evidence, the Defendant s later cross-examination admits that he had not accompanied the mother. She had travelled alone. This is a strong circumstance to show good health of the deceased. 26.In fact the evidence shows that the mother had sent notices to the Defendant months prior to the date of execution of her Will. The notices have been relied upon by the Counsel on behalf of the Defendant to show the extent of the legal right of the deceased claimed by her therein. Months prior to the execution of the Will the mother had arranged for a meeting of Advocate Dhuru which is also admitted to have been held. The MOU relied upon by the Defendant himself shows its execution inter alia by the deceased after the date of the execution of the Will. If the mother could address notices, hold meetings or execute other documents, she could as well execute a Will. Her mental capacity to do so is reflected in her dealings with regard to the property bequeathed. 27.The Defendant has relied upon a photograph of the mother alleging ill-health. He has sought to contend that the photograph shows her face being blown up with some glands. Such a photograph does not show such mental incapacity as to disable a person from executing the Will. 18 TS-27 28.The Defendant has alleged that the mother suffered from high blood pressure. He has admitted that he has no documentary evidence to show that fact. This is also not so debilitating as to disentitle her from understanding her position as a testatrix. Hence Issue No.(2) is answered in the affirmative. 29.Issue No.(3) : The Defendant has to prove the forgery, if any, or fabrication of the Will. Aside from a bare statement in paragraphs 6, 11 and 32 of the Affidavit of examination-in-chief there is no evidence and no particulars of the forgery or fabrication whatsoever. The Defendant has not led any evidence of forgery. There is no expert examined to show that the Will is not signed by the deceased. No further signature of the deceased has been produced. 30.There is also no evidence as to how the Defendant got suspicious about the execution of the Will, a copy of which was produced on the date of the death of the