1 fa-1109-99 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION FIRST APPEAL NO. 1109 OF 1999 Kamalakar Raghunath Kulkarni. ... Appellant (Orgi. Opponent) Versus Vijaykumar Raghunath Kulkarni ... Respondent (Orgi. Petitioner) ­­­­­ Mr. R. M. Purandare for the Appellant. Mr. A. P. Kulkarni for the Respondent. ­­­­­ CORAM : A.S.OKA, J. DATE : SEPTEMBER 6 th / 7 th , 2011. ORAL JUDGMENT: 1 Heard the learned counsel appearing for the parties. 2 By this Appeal, the Appellant has taken an exception to the Judgment and order dated 29 th October, 1999 passed by the learned Joint Civil Judge Senior Division at Kolhapur on an application made by the Respondent for grant of Probate or Letters of Administration 2 fa-1109-99 under the provisions of the Indian Succession Act, 1927 (hereinafter referred to as “the said Act”) in respect of last Will dated 20 th August, 1983 executed by one Mandakini Raghunath Kulkarni (hereinafter referred to as “the deceased”) . The Appellant and Respondent are real brothers who are the sons of the deceased. 3 In the application made by the Respondent, it is alleged that the Will dated 20 th August, 1983 is a registered Will which was the last Will and testament of the deceased. On the said application made by the Respondent, it appears that the notice was issued to the present Appellant. The Appellant appeared in the proceeding and contested the same by filing his written statement. It was contended by him that one of the properties which was mentioned in the Schedule to the application has been sold by the deceased during her lifetime to the Appellant by registered sale deed dated 15 th July, 1988. It was contended that the will dated 20 th August, 1983 was not the last Will of the deceased and by a subsequent Will dated 2 nd October, 1988, the deceased revoked her earlier Will dated 20 th August, 1983. 3 fa-1109-99 Reliance was also placed on the Codicil dated 2 nd September, 1990, allegedly executed by the deceased. It was contended that as the Will dated 20 th August, 1983 was revoked by subsequent Will dated 2 nd October 1988, the Respondent is not entitled to claim any relief on the basis of the said Will dated 20 th August, 1983. The record shows that though there was no formal order passed by the trial Court for treating the application as a suit, the same was tried as a suit. One Komalata Vijay Kulkarni, the daughter of the Respondent who was also the constituted attorney of the Respondent was examined. One Suhas S. Kulkarni who was the attesting witness to the Will dated 20 th August, 1983 executed by the deceased was examined as a witness. The Respondent also examined Dr. Subhash Madhukar Athaley as a witness who had certified the fitness of the deceased while executing Will dated 20 th August, 1983. The Appellant examined himself as a witness. The Appellant also examined one Rajendra Vasudeo Marathe who was allegedly the attesting witness to the Will dated 2 nd October 1988 and Codicil dated 2 nd September, 1990 as a witness. By 4 fa-1109-99 the impugned judgment and order the application made by the Respondent was allowed by granting Letters of Administration with a copy of the Will dated 20 th August, 1983 annexed thereto. The learned Judge held that the Appellant has failed to prove the execution of the subsequent Will dated 2 nd October, 1988 and Codicil dated 2 nd September, 1990. The learned Judge held that there were certain suspicious circumstances brought on record as regards the said two documents and no evidence was adduced by the Appellant to dispel the said suspicious circumstances. As the execution of Will dated 20 th August, 1983 was admitted by the Appellant, the learned trial Judge proceeded to grant Letters of Administration in respect of the said Will. 4 The learned counsel appearing for the Appellant has taken the Court through the record of the case. His first submission is that there is non compliance with the mandatory provision of Section 281 of the said Act which requires that an application of Probate/Letters of Administration should be verified by at least one of the witnesses to the Will in the format prescribed by Section 281 of the said Act. He 5 fa-1109-99 submitted that the Respondent did not step into the witness box and the Respondent examined his daughter who was his constituted attorney who had no personal knowledge. He submitted that under Section 283(1)(a) of the said Act, the examination of the Respondent was mandatory. He submitted that looking to the recitals in the power of attorney executed by the Respondent in favour of his daughter, she was not authorized to execute an administration bond and that she was not authorized to the administer the Will. He invited attention of the Court to the provisions of Section 291 of the said Act. 5 The learned counsel appearing for the Appellant invited attention of the Court to the evidence adduced by the parties. The learned counsel submitted that the Appellant has adduced evidence of attesting witness Mr. Rajendra Vasudeo Marathe who has proved the execution of the subsequent Will and Codicil by the deceased. He submitted that the alleged suspicious circumstances which are considered by the learned trial Judge were neither pleaded nor proved 6 fa-1109-99 and in any case, the said circumstances are totally irrelevant. He pointed out that it is not mandatory that the Will should be registered and in fact, the subsequent Will and Codicil have been executed before a Notary Public. He submitted that the execution of both the subsequent Will and Codicil have been duly proved. He submitted that once the Appellant discharged the burden of proving that there is a subsequent testamentary disposition, Letters of Administration could not have been granted. He submitted that the subsequent Will which was duly proved has the effect of revocation of the earlier Will and, therefore, in no case Letters of Administration could have been granted on the basis of the Will set up by the Respondent. He submitted that as the Respondent did not step into the witness box, the Appellant had no opportunity to cross­examine him. His submission is that the Will dated 2 nd October, 1988 the execution of which by the deceased was proved is sufficient for rejection of the prayer for grant of Letters of Administration. 7 fa-1109-99 6 I have given careful consideration to the submissions. The first contention raised by the learned counsel appearing for the Appellant is regarding of non compliance of Section 281 of the said Act. Section 281 of the said Act reads thus: “Verification of petition for probate, by one witness to Will.­ Where the application is for probate, the petition shall also be verified by at least one of the witnesses to the Will (when procurable) in the manner or to the effect following, namely:­ “I (C.D.), one of the witnesses to the last Will and testament of the testator mentioned in the above petition, declare that I was present and saw the said testator affix his signature (or mark) thereto (or that the said testator knowledge the writing annexed to the above petition to be his last Will and testament in my presence).” 7 Perusal of the record shows that application of Letters of Administration was filed on 17 th April, 1996. Perusal of the file “D” shows that along with the application made by the Respondent, an affidavit of attesting witness Suhas Kulkarni dated 17 th April, 1996 was filed which is at Exhibit­6. In the said affidavit, the witness Suhas Kulkani has stated about the execution of the Will by the deceased in his presence and the fact that he was the attesting witness. The 8 fa-1109-99 affidavit contains the verification clause. The said affidavit amounts to substantial compliance with the requirement of verification by the attesting witness. 8 Apart from the fact that there is a substantial compliance with requirement of Section 281 of the said Act, it is well settled position of law that the procedure is always a handmaid of justice. It is true that Section 281 of the said Act uses the word “shall”. It is not necessary that in every case, the use of the word “shall” indicates that the provision is mandatory. The intention of the legislature seems to be that the application for grant of letter of administration or probate should be filed only when atleast one of the attesting witnesses is supporting the Applicant by verifying the contents of the application. Suffice it to say that the provision of Section 281 of the said Act is purely a procedural provision, which cannot be construed to be a mandatory provision. The answer to the question whether non­ compliance with Section 281 of the said Act vitiates the proceedings will depend on facts and circumstances of each case. In the present 9 fa-1109-99 case, the affidavit at Exhibit – 6 filed by the attesting witness Suhas Kulkarni amounts to substantial compliance with the requirements of Section 281 of the said Act. Moreover, the execution of the will in respect of which letter of administration has been granted, is not at all disputed by the Appellant and the case of the Appellant is that by a subsequent testamentary disposition, the said Will has been revoked. 9 Civil Application No.3292 of 2005 has been filed by the Appellant for leading secondary evidence. A list of 27 documents has been annexed to the said application. The only issue for consideration of the Court is whether the Appellant has proved the execution of the alleged Will dated 2 nd October, 1988 and the Codicil dated 2 nd September, 1990. The documents which are sought to be produced are bank pass­book, copy of of Index – II, demand of stamp, duty on the sale­deed, notice dated 1 st March, 1993 of termination of the Will and the General Power of Attorney, receipt for payment of Municipal Tax, Hospital bills, certain letters, property register card and the copy of the sale­deed dated 15 th July, 1988. None of the said documents 10 fa-1109-99 are relevant for consideration of the issue involved. Moreover, the averments made in the application are very vague. Except for a bald statement that after the judgment was delivered, the Appellant has found certain documents, no particulars are given as to why the documents were not produced earlier or why no steps were taken by the Appellant to trace out the said documents during the pendency of the proceedings. Apart from the fact that the documents sought to be produced are not relevant to the controversy, the reasons recorded in the application for not producing the documents earlier are not at all satisfactory. Hence, the said application has no merit. 10 The trial Court has relied upon various suspicious circumstances in relation to the documents propounded by the Appellant. I have perused the original documents as well as the notes of evidence. As observed by the trial Court, the Will dated 20 th August, 1983 is a handwritten Will in the handwriting of the deceased. Below the Will, the deceased has made a signature in Marathi containing full name “Sau. Mandakini Raghunath Kulkarni”. Identical signature of the 11 fa-1109-99 deceased appears on the first page of the Will as well as at the centre of the second and third pages as well as at the centre of the fourth and fifth pages of the Will. The Will bears certificate of Dr.Subhash Athaley. The certificate is a detailed certificate recording that the deceased was in the sound state of mind. It also records that the concerned doctor has ascertained that the Will has been written in her own handwriting. He has noted that the deceased singed the documents in his presence and even the attesting witnesses signed the documents in his presence. Dr.Subhash Athaley has been examined as a witness. The alleged Will dated 2 nd October, 1988 is a type­written Will. The first Will has been duly registered under the Indian Registration Act, 1908. On the alleged Will dated 2 nd October, 1988, the deceased has singed as “Shri. Mandakini R. Kulkarni”. Instead of the word “Sau.” (Mrs), the deceased has allegedly used the word “Shri”. Moreover, the signature does not contain the full middle name of the deceased namely the name of her husband. Identical signature appears on the first page of the Will. The said document is 12 fa-1109-99 allegedly executed before the Notary of Mr. R.A.Wagholikar. The Codicil dated 2 nd September, 1990 is again a type­written document. In clause (3) of the said document, it is stated that the deceased had sustained fracture of the right hand and right leg and she was being treated in the Surya Hospital. The Codicil bears alleged thumb impression of the deceased. The Codicil bears a certificate of one Dr.Sathe, who has recorded that the deceased was of sound mind and she was in a position to know the consequences of the Will. The said certificate does not record that the document was executed in the hospital and Dr.Sathe had endorsed the said certificate after examining the deceased in the hospital. The certificate does not record the reason for the deceased allegedly affixing her thumb mark on the Will. Moreover, Dr.Sathe has not been examined as a witness. These are the suspicious circumstances brought on record as regards the Will and Codicil set up by the Appellant. 11 The Appellant stepped into witness box. He stated that the deceased got the second Will typed and she read over the Will to the 13 fa-1109-99 witnesses. She signed the Will and thereafter, the witnesses signed the Will, which was notarized thereafter. It is stated that the testator was identified by Mr. Lavate, Advocate to the notary. 12 The Appellant further stated that on 2 nd September, 1990 his mother again prepared a Codicil, which was prepared and executed by her in the Surya Hospital, Pune. It is stated that the attesting witnesses were present and the same was also executed before a Notary public. He stated that Mr.Lavate, Advocate identified the deceased. It is stated that Dr.Sathe, who endorsed the certificate on the Will is attached to the Surya Hospital. In the examination­in­ chief, the Appellant has not explained as to how his mother got typed the Codicil on 2 nd September, 1990 when she was hospitalized in the Surya Hospital. In the cross­examination, there is a serious challenge to the execution of the said Will by the mother as well as the execution of the Codicil. It is not his case that somebody else got the Codicil typed as per the instructions of the deceased and thereafter, the deceased executed the same in the hospital. A suggestion was given 14 fa-1109-99 that on 2 nd October, 1988, the deceased was not present in Pune. There is no document produced on record to show that when the Codicil was executed, the deceased was admitted in the Surya Hospital. As pointed out earlier, Dr.Sathe's certificate is completely silent about the fact that the deceased was admitted in the said hospital. The Appellant did not examine the notary public before him the Will and the Codicil who allegedly executed as well as the Advocates who allegedly identified the deceased before the Notary. Dr.Sathe was not examined by the Appellant. The person who has allegedly identified the thumb impression of the deceased on the Codicil has not been examined. There is no documentary evidence on record to show that the deceased was hospitalized on 2 nd September, 1990. 13 It is true that one Rajendra Vasudo Marathe, the alleged attesting witness was examined by the Appellant. He admitted in the cross­examination that the Appellant was his friend. A suggestion was given that on 2 nd October, 1988 and 2 nd September, 1990, the 15 fa-1109-99 deceased was not at Pune. The suggestion was denied. 14 In view of the aforesaid suspicious circumstances, the learned trial Judge disbelieved the case of the Appellant regarding execution of the Will and the Codicil. There is another aspect which is brought on record is that the Appellant had filed a Civil Suit in the year 1982 against his mother (the testator), father and the present Respondent in respect of the very property. This is also a factor considered by the the learned Judge while testing the case of the Appellant that there was a subsequent Will and the Codicil under which a bequest was made to him. Therefore, no fault can be found with the finding of the trial Court that the Appellant has failed to prove the execution of the subsequent Will and the Codicil. 15 It is true that the Respondent did not step into witness box and he examined his daughter, who is his constituted attorney. The application filed by the Respondent was for grant of letters of administration in respect of the Will dated 20 th August, 1983. The 16 fa-1109-99 Appellant did not dispute the execution of the said Will. In fact his case was that the said Will was revoked by the subsequent Will. 16 It is obvious that even though the Constituted Attorney of the Appellant has been examined, the administration bond, which is required to be submitted under the provision of Section 291 of the said Act will have to be executed by the Respondent himself. 17 In view of the aforesaid discussion, I find that there is no merit in the appeal. Accordingly, the appeal is dismissed with no order as to costs. 18 Civil Application No.3292 of 2005 is disposed of for the reasons recorded above. [ A.S.OKA, J ]