1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO. 41 OF 2008 1. Shri Manguesh Meghasyam Kuwelkar alias Sharad Meghasyam Kuwelkar, son of Meghasyam Kuwelkar, engineer, aged 75 years, married, residing at House No. 581, Borda, Margao, Salcete, Goa. 2. Smt. Urmila Manguesh Kuwelkar, wife of appellant no. 1, aged 71 years, housewife, residing at House No. 581, Borda, Margao, Salcete, Goa. .... Appellants V/s 1. Shri Yeshwant Meghasyam Kuwelkar alias Shishir Meghasyam Kuwelkar, son of Meghasyam Kuwelkar, amrried, aged 73 years, engineer, residing at 71A, Puroshottam Towers, Off. Gokhale Road, South Dadar, Mumbai – 400 024. 2. Smt. Sharmila Yeshwant Kuwelkar, wife o Respondent No. 1, aged 69 years, housewife, residing at 71A, Puroshottam Towers, Off. Gokhale Road, South Dadar, Mumbai – 400 024. 3. Shri Nikhil Yeshwant Kuwelkar, son of Yeshwant Kuwelkar, aged 37 years, married, engineer, residing at 71A, Puroshottam Towers, Off. Gokhale Road, South Dadar, Mumbai – 400 024. 4. Smt. Rekha Nikhil Kuwelkar, wife of Respondent no. 3, aged 32 years, housewife, residing at 71A, Puroshottam Towers, Off. Gokhale Road, South Dadar, Mumbai – 400 024. .... Respondents Mr. J.P. Mulgaonkar, Advocate for the Appellants. Mr. M.B. Da Costa, Senior Advocate with Mr. J.A. Lobo, Advocate for Respondent No. 1. 2 CORAM : N.A. BRITTO, J. DATE : 9th JULY, 2008 ORAL JUDGMENT Heard Shri Mulgaonkar, the learned Counsel on behalf of the appellants and Shri M. B. Da Costa, the learned Senior Counsel on behalf of the respondents. 2. Admit on the following substantial question of law: “Whether in view of the uncontroverted evidence that Sumatibai was owning only the suit plot allotted to her in the inventory proceedings of her husband Meghasyuam at the time of her death and when she executed the will dated 16/03/1995, the finding reached by the Courts below that Sumatibai owned properties than the suit plot bequeathed on defendants no. 1 to 3, was not perverse finding?” 3. This is plaintiffs’ second appeal arising from RCS No. 32/2000/C. The parties hereto shall be referred to in the names as they appear in the cause title of the said civil suit. 4. The plaintiff no. 1 is the eldest son and defendant no.1 is the younger son of Meghasyam and Sumatibai Kuwelkar. The plaintiff no. 1 and defendant no.1 have three sisters, all married. After the death of Meghasyam on 1/03/1989, Inventory Proceedings were held bearing no. 2/90/1992 to partition the estate left by the said Meghasyam Kuwelkar. In the said 3 partition, the suit property under item no. 12 bearing Chalta no. 45 of P.T. Sheet No. 91 situated at Vasco da Gama was allotted to Sumatibai towards her moiety share in the estate of the deceased Meghasyam by chart of partition dated 7/12/1992. There is no challenge to this allotment till this date. 5. On or about 16/03/1995, the said Sumatibai gifted the said property allotted to her, hereinafter referred to as the suit property, in favour of defendants no. 1 to 3 by a public Will executed before the notary public. The said inventory proceedings and the chart of partition was finalised by consent of parties. 6. After the death of Sumatibai, on or about 24/04/1998, the defendant no. 1 filed Inventory Proceedings bearing no. 67/98/A presumably to obtain the allotment of the suit property in his favour. On notice being issued to the plaintiffs, the plaintiffs filed the said civil suit to challenge the said Will made by their mother in favour of defendants no.1 to 3. The said Will was challenged by the plaintiffs on the ground that: (a) Since the suit property was the only asset owned by the said Sumatibai, the same could not be considered as disposable share of her assets and, as such, she could not have disposed of her entire estate. 4 (b) The defendants got the said Will executed by coercion and undue influence. It was also stated that the said Sumatibai was not in proper senses and was of improper mental equilibrium; and (c) The said Will was not explained to her in the language known to her and therefore the said Will was null and void. 7. The defendants contested the suit stating that besides the suit property, the said Sumatibai had jewelery which she had given to the plaintiff no.1 and his wife. The defendants denied that there was coercion and undue influence to compel the said Sumatibai to make the said Will and that she was in her proper senses and in perfect mental equilibrium. The defendants also stated that the said Sumatibai knew English and denied that the Will was null and void. The defendants stated that earlier when the said Sumatibai was in Bombay on 12/11/1992, she had executed another Will bequeathing the suit property to defendant no. 1 and when she returned to Goa she made the present Will as she was told that the laws regarding the Wills were different in Goa. The defendants also stated that the said Will was executed in Goa while defendant no. 1 was in Bombay. The defendants also stated that the said Sumatibai was perfectly alright and plaintiff no. 1 had even obtained two powers of attorney dated 8/12/1990 and 26/04/1991 from the said Sumatibai which were in English. 5 8. The defendants also stated that the said Sumatibai Kuwelkar was the daughter of Ganga who was the first wife of Jaywant S. Mulgaonkar and the said Jaywant S. Mulgaonkar after the death of his first wife, married Smt. Annapurna and from this wedlock he had two daughters by name Manjula Mulgaonkar, who upon marriage became Manjula Kakodkar and Asha Mulgaonkar, who upon marriage became Asha Borkar and the said Smt. Annapurna owned property known as 'Suprexeticho Mollo' at Assnora and that the said Annapurna and her daughter Ashabai wanted to gift half of their property to the parents of the plaintiff no.1 and of defendant no. 1, but since it was feared that the Land Ceiling Act would come into force and as the parents of the plaintiff already owned properties, they preferred to have the said property at Mulgao/Assnora transferred directly to the eldest son i.e. plaintiff no. 1 instead of giving to the parents and that is how the said deed came to be executed by Smt. Anapurna directly and although the sale deed records that some price was paid, the fact is that no money was passed to Smt. Anapurna and her daughter Ashabai. This deed is stated to have been executed in the year 1973. The defendants also stated that since the plaintiffs had already benefited by the said property at Assnora, the parents of the plaintiffs and the defendants in agreement with the plaintiffs decided and agreed to allot the suit property to defendant no. 1 and in fact the proposal to allot the said property in favour of the defendant no. 1 came from the plaintiff himself, who by his letter dated 31/12/1989 himself had suggested that the 6 said property at Vasco be gifted to the defendant no.1 and in terms of the said intention, the inventory of the father was done by the plaintiff no.1 who informed the defendant no. 1 that he was allotting the suit property at Vasco to the mother as her 50% share, for her ultimately to bequeath or gift it to the defendant no.2. 9. Both the Courts below have concluded that the suit property was not the only property owned by late Sumatibai Kuwelkar. Both the Courts below have also concluded that the plaintiffs had failed to prove that the Will was executed either under coercion or undue influence or at a time when Sumatibai was not in proper senses or proper mental equilibrium. Both the Courts below have also concluded that the Will dated 16/03/1995 is valid. 10. In my view, the findings of both the Courts on the first issue could be faulted but not on the other two issues which were framed by the learned trial Court. As far as the plea taken by the plaintiffs regarding coercion, undue influence or improper mental equilibrium, the plaintiffs had not even given particulars of the same and the said plea remained only in the realm of bare allegations of plaintiff no. 1. The learned trial Court observed that the plaintiff no.1 had not produced any evidence to prove the aspect of undue influence or coercion upon the said Sumatibai at the time of making the said Will. The learned trial Court further observed that the plaintiffs had not 7 examined any of his family members who would be the rightful witnesses to give evidence on those aspects. The learned trial Court also noted that the Will was executed before Ex-Officio Notary who was a Government functionary and an independent person who has recorded that the said Sumatibai was in her perfect senses and perfect state of mind when she executed the Will. The learned trial Court also referred to another letter dated 3/03/1991 written by the plaintiff in which the plaintiff had admitted that the mother was sound, both mentally and physically and, therefore, the case of the plaintiff no.1 that his mother was not in proper senses could not stand. 11. Learned Counsel on behalf of the plaintiffs contends, relying on the case of Niranajan Umeshchandra Joshi V/s. Mrudula Jyoti Rao & Ors. (2006 (13) SCC 433) that the onus that there was no coercion or undue influence was on the propounder of the Will. Indeed, the Apex Court in the said decision stated that: “The burden of proof that the will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence 8 of fraud, coercion or undue influence is raised, the burden would be on the caveator.” 12. In my view, the said observations of the Apex Court cannot be applied to a public Will. It is to be noted that Will in question was a public Will and not an ordinary Will and was drawn before the Civil Registrar who is Ex- Officio Public Notary. One of the main characteristics of a public Will is its solemnity. It is subject to rigorous formalities which are designed to ensure the integrity and accuracy of the testator's intentions. The Civil Code, 1867 abolished non solemn forms of Wills as they do not offer sufficient guarantees for such an important act as the creation of inheritance rights. A notary appointed under the Decree No. 8:373 is a public servant who is qualified in general to authenticate with his intervention all extra judicial acts which are required to be taken as true and authentic. In the said Will the public notary has certified that the witnesses who were present had ascertained and he certified that the said Sumatibai, the testatrix, was in her perfect senses and of sound mind, free from any coercion, suggestions, pressures etc. The said Will is nothing but a record of a public act performed by a public officer which carries with it a presumption of its truthfulness and authenticity and the said presumption certainly could not be rebutted by the bare and unsubstantiated allegation of the plaintiffs that Sumatibai was coerced or undue influence was exercised upon her or that she was of unstable mental equilibrium. Even Section 12 of the Indian Contract Act, 1872 provides that a person who is usually of unsound mind, but occasionally 9 of sound mind, may make a contract when he is of sound mind. Article 1765 of the Civil Code, 1867 provides that the capacity of the testator shall be governed by the state of the person at the time when the Will was made. In other words it was incumbent upon the plaintiffs to have proved that the testatrix was suffering the alleged incapacities at the time of execution. The plaintiffs produced no such evidence. The Will was made when the testatrix was residing at Mapusa with one of her daughters. The said daughter would have been the best person to dispose about the mental state of the testatrix. Moreover, the fact that she had executed another Will while in Bombay and the subject Will while she was residing with her daughter while defendant no. 1 was away in Bombay would rule out even the slightest shadow of doubt that she was coerced or that she had executed the said Will under undue influence, etc. In fact the plaintiffs had not even given any particulars whatsoever either of the said undue influence or coercion having been exercised upon the testatrix. The findings of the Courts below therefore on that aspect of the case could not be faulted. 13. Shri Mulgaonkar, the learned counsel on behalf of the plaintiffs has submitted that the Will was executed without an interpreter and therefore it has to be considered as void and in this context Shri Mulgaonkar has placed reliance on Article 78 of Decree no. 8:373 dated 20/10/1927 which provides that: 10 Where any one or more of the parties have no knowledge of the Portuguese language, interpreters chosen by them even from the foreigners, shall intervene and they shall transmit to the notary the declaration of their wish and the translation of the document to the same parties. It further provides that: 1. The interpreters shall swear on oath upon their word of honour that they shall perform well the functions assigned to them. 2. The original in Portuguese language shall be accompanied by a translation made by the interpreter in the language that is spoken by the parties. 3. The original and the translation shall be written one by the side of the other, dividing the pages of the book for this purpose in columns and both shall be signed in general terms. 4. In these documents the very interpreter may serve as adhoc copying clerks. 5. The interpreter shall read the translation of the documents in which they have intervened. 14. Counsel on behalf of the parties agree that since the Will in question was recorded in the English language, the provisions of Article 78 would apply mutatis mutandi. However, the learned Senior Counsel on behalf of the defendants submits that this is a case where the Notary Public had found that the testatrix knew English and for that reason had recorded the Will without the assistance of an interpreter. The Will in question proceeds on the assumption that the testatrix knew English and that is also the finding given by both the Courts below. It appears that the defendants had also examined one of the witnesses to the said Will, namely Advocate Shri Bandekar. It was the contention of the plaintiffs that their mother Sumatibai did not know 11 English and knew only Marathi and Konkani. On this aspect the learned trial Court has observed that the defendants had examined the said Shri Mahesh Bandekar as DW2 who had stated that she was asked whether she knew English and she had answered in the affirmative. There is no reason to doubt the said statement of the said Bandekar, since otherwise the Notary Public would have certainly arranged for an interpreter. The said Sumatibai was also residing in Bombay before and after her marriage and therefore she could have picked up some english there. The said Sumatibai had also issued powers of attorney in english in favour of the plaintiff no.1 who had also acted on the said powers of attorney and, in such a situation, it would not lie in the mouth of plaintiff no.1 now to say that his mother did not know english. The contention of the plaintiffs that in the absence of an interpreter being appointed, the said Will should be considered as null and void needs to be rejected. In case an interpretor was required, and it would have been required, in case the testatrix had claimed she did not know english, the Notary Public would have certainly arranged for one to interpret the Will to the testatrix. 15. As regards the finding of issue no. 1 and the substantial question of law framed, it may be stated that defendant no.1 had specifically admitted that the suit property was the only asset allotted to their mother Sumatibai upon the death of their father Meghasyam. Both the Courts below have given 12 a finding that the suit property was not the only property of the testatrix. 16. As already stated, the defendant no. 1 has clearly admitted that the suit property was the only property owned by his mother when she died. On the face of the said admission, the findings of the Courts below that the suit property was not the only property of the testatrix cannot be upheld. Admittedly, none of the parties to the inventory proceedings have challenged till date the allotment done in favour of the respective parties. The property 'Suproxeticho Mollo' situated at Mulgao, Assnora, consisted of 3 parcels. The first parcel which belonged to the Meghasyam and Sumatibai was enlisted in the inventory proceedings and has been alloted to the plaintiff no. 1. The second parcel was sold by Sumatibai and her sister way back in 1962- 63. The third parcel which belonged to Anapurnabai, the step mother of Sumatibai, was sold by the said Anapurnabai and her unmarried daughter Ashabai to plaintiff no.1 and one Manju Prasad in the year 1973 or thereabout when both the parents were living. To a suggestion that one portion (third parcel) of the said property was not described in the inventory proceedings because it did not form part of the estate of his father DW1 stated that on paper it was not but everybody knew that it belonged to his father. Suffice to observe that in case the said third parcel had belonged to the estate of Meghasyam the defendant no.1 would have insisted that it be described as part of the estate of their deceased father. The contention of the 13 defendants that the said third parcel although was shown transferred to the plaintiffs by a sale deed and some price having been paid was in fact given on the understanding that, that would be parental share of the plaintiffs was not at all substantiated. Moreover, that was a transaction which took place as a sale between the said Annapurna and her daughter Ashabai and the plaintiffs, much prior to the death of either of the parents of the parties. As already stated there has been no challenge to the Inventory Proceedings and the allotments made therein and which show that after the death of their father the only property which was allotted to their mother was the suit property and which fact, as already stated, has been admitted specifically by the defendant no.1. It therefore follows that the suit property was the only asset which deceased Sumatibai had by virtue of the same being alloted to her as her moiety share in the said Inventory Proceedings held upon the death of her husband Meghasyam. Only because at one stage the plaintiff no.1 had suggested that the suit property could be given to defendant no. 1 does not mean that he was bound by that suggestion. 17. The next question therefore is whether the suit property being her only asset the said Sumatibai could have bequeathed the same to the defendants to the exclusion of her other son or the daughters? Both the Courts below have come to the conclusion that she could have done so but the remedy was one to seek reduction and, in my view, the said finding cannot be faulted. 14 However, what could be faulted is the finding of the trial Court that a suit had to be filed in two years. 18. The Civil Code, 1867 has an entire Chapter devoted to Wills, covering most of its aspects, beginning with Article 1739. Article 1739 of the Code defines what is a Will and when translated it states that it is “an act, by which someone disposes all or part of his properties to take effect after his death.” Article 1774, on which reliance has been placed by Shri Mulgaonkar, provides that the persons obliged to reserve the legitime may only dispose of the portion which the law permits them to dispose of. Needless to say, this Article only gives an option and contains no prohibition. It is only an enabling provision. Article 1784 defines what is legitime and states that it means the portion of the properties that the testator cannot dispose of, because it has been set apart by law for the lineal descendants or ascendants. The sole paragraph states that this portion consists of half of the properties of the testator, save as provided in Clause 2 of Article 1785 and Article 1787. Article 1786 describes what is a legitime in case of ascendants in the absence of descendants. Article 1787 speaks of what is legitime in the case of ascendants in the absence of mother or father. Article 1788 again speaks of option in case of disposition over the disposable portion and provides that where the testator disposes of a specific usufruct, or any lifetime allowance, whose value exceeds his disposable portion, the forced heirs may carry out 15 the legacy, or deliver to the legatee only the disposable portion. Article 1736 defines the concept of an heir and of legatee and states that: Heir is a person who succeeds to the totality of the inheritance, or to a part thereof without specifying the sum of money of the object. Legatee is a person, in whose favour the testator disposes of a sum of money, or specified objects, or a certain part thereof. Lastly, Article 1789 provides that where the testator has gifted or disposed of more properties than he is permitted to dispose, the forced heirs may apply, at the time of the opening of the inheritance, that the gift or disposition, be reduced, as provided in Articles 1493 and 1494 (emphasis supplied). 19. The learned first appellate Court has concluded that the person may make a Will even of specified objects and there is no bar in law on a person making a Will of a specific property. The learned first appellate Court also concluded, and in my view, rightly, that in case the said Sumatibai had under the Will given more than what she could dispose of, thereby affecting the rights of other heirs to her estate, the remedy was to apply under Section 1789 of the Code for reduction, at the time of the opening of the inheritance, of the property bequeathed. The learned first appellate Court also held, and in my view, rightly, that there was no provision in the Code from which it could be said that the will of a specific property is null and void. 16 20. A conjoint reading of the aforesaid provisions of the Civil Code relating to Wills, particularly the provisions of Article 1739, 1736 and 1789 show that in case the bequest is made by the testator of all his properties, the remedy available to the heirs is to apply for reduction, upon opening of the inheritance, and needless to say, in appropriate inventory proceedings. The learned trial Court was not at all justified in referring to Article 1503 of the Civil Code