1 TS-48-And-12 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Testamentary Suit No.48 of 1990 IN Testamentary Petition No.424 of 1990 Meena Vasant Patel .. .. Plaintiff (Orig.Petitioner) v/s. Prithviraj Ambalal Patel .. .. Defendant (Orig. Respondent) A N D Testamentary Suit No.12 of 1991 IN Testamentary Petition No.647 of 1990 Prithviraj Ambalal Patel .. .. Plaintiff (Orig. Petitioner) v/s. Meena Vasant Patel .. .. Defendant (Orig.Respondent) Mr.Dipen Merchant with Mr.Mohan Salian i/by M/s.P. Mehta & Mithi & Co. for Plaintiff and for Defendant in TS No.12 of 1991. Mr.Rajesh Shah for Defendant and for Plaintiff in TS No.12 of 1991. --------- 2 TS-48-And-12 CORAM : SMT.ROSHAN DALVI, J. Date of reserving the judgment : 30th August, 2010 Date of pronouncing the judgment : 21st September, 2010 JUDGMENT : 1.The lis in the aforesaid two suits is essentially between a brother and a sister. Both have set up and relied upon one Will each of their mother. Both have objected to the Will produced by other. 2.The father of the parties had initially executed a Will on 22nd March 1978. That Will was drafted and executed in the office of M/s.Shantilal & Company, Attorneys-at- law. 3.The Will of the father, running into 2 pages, shows his separate and self acquired properties contained in his 50% share in a partnership firm of A.P. Patel & Company at Jalna. The father had 60% share in the said partnership firm. His son (the brother herein) had 40% share therein. He had bequeathed 50% share to his wife and 10% share to his son making shares of the son and the wife equal in the partnership. The residential building owned by the father at Jalna was bequeathed to his son. The residue of his estate was bequeathed to the wife. The daughter (the sister herein) was not 3 TS-48-And-12 bequeathed any estate. That aspect has not been challenged. The brother continued the business with the mother. The brother continued to reside in Jalna. The sister has been married and settled in London, United Kingdom. 4.There have been various allegations made with regard to his personal life with which these suits are not concerned. 5.The mother is stated to have made her first Will on 24th May 1989. This is the Will propounded by the daughter. This Will, also running into 2 pages, is also prepared by Shantilal & Company, Attorneys-at-law. It is much like the Will of the father and in fact, almost copied from the Will of the father with certain corrections and amendments. Under the said Will, the style of which is like the Will of her husband, the mother has bequeathed the entire estate to her daughter who has been appointed executrix. This essentially is contained in the 50% share in the partnership firm of A.P. Patel & Company. Paragraph 6 is the material alteration in the Will of the mother. As against the Will of the father where the father has bequeathed the residential building at Jalna to the son, the mother has declared that she is not giving anything to her son who has received sufficient estate under the Will of 4 TS-48-And-12 her husband but has mismanaged the affairs and sold away various immovable properties without giving her any share in the sale and for which he is accountable to her. She has directed the executrix (the sister) to demand, explain and account from her son and if possible to recover the estate, if she so desired. She has also granted the residue of the estate to her daughter. 6.Thereafter the mother is shown to have prepared another Will which is propounded by the son. That Will is rather different, though it proceeds in the same style in which the first two Wills are concerned in the beginning. It mentions about the family of the mother, the business of herself and her son, her various movable properties, her flat at Nepeansea road, Mumbai and certain small separate bequests made by her to her grandchildren and others as well as specified bequests made to her daughter and her daughter-in-law (being the sister and the wife of the brother, respectively). The Will also shows the residuary estate given to the son and a bequest made to the daughter-in-law if any of the legacies failed. The Will further shows the entitlement of the son to manage and invest the estate and a direction to the heirs not to create disturbance in the family. The Will essentially bequeaths to the son her 50% share in her business as also her residential flat 5 TS-48-And-12 in Mumbai. This Will is a more detailed Will running into four pages. 7.The signatures of the deceased on both the Wills are at the foot of the last page. The attesting witnesses in both the Wills have signed at the foot of the last page. The deceased has signed the Will bequeathing her property to her son also on the first page of the Will. In the Will bequeathing her property to her daughter the deceased has signed only on the last page. The Will executed in favour of the son is, however, not executed by the same Attorneys-at-law or any other Advocate. The signatures of the mother on this Will are admitted by the sister. The mother s handwriting is also admitted. It is contended that the signatures are taken, as on other documents, under certain threats. 8.If the Will in favour of the son, which is the last Will of the deceased is proved to have been validly executed, the Will made in favour of the daughter earlier in point of time would be of no consequence. Hence, the execution of the Will of the son must be first seen. If that Will is not proved, the execution of the earlier Will in favour of the daughter would have to be considered. Nevertheless since both the parties have challenged the Wills executed in favour of the other, two suits have been tried together and 6 TS-48-And-12 common evidence has been recorded. 9.Essentially it would have to be seen whether and if so, which Will is validly executed and whether the deceased did execute both the Wills of her own volition. With regard to the Will of the son, he has examined himself and has been cross-examined. He has not examined either of the attesting witnesses or any other witnesses to prove the attestation of the Will. It has been the evidence of the son that both the attesting witnesses have not been found and hence, have not been examined. It may be mentioned straightway that the proof of the Will, which is required to be attested, is essentially under Section 68 of the Indian Evidence Act, 1872 (the Act) which runs thus:- 68. Proof of execution of document required to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. However,if no attesting witness is found the proof of that document would be under Section 69 of the Act which runs thus:- 69.Proof where no attesting witness found.- If 7 TS-48-And-12 no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. 10.The Court would be required to consider the lack of execution by the attestation of the Will from the evidence led on behalf of of the Plaintiff to see the kind of evidence led when no attesting witness has been found to prove the attestation of at least one of the witnesses. 11.The son has identified the various signatures himself. He is not the author of the document. He has been cross-examined with regard to the signatures of the attesting witness whom he identified. One attesting witness Dinkar Shah is his business acquaintance. His deposition shows that he knew that attesting witness who worked in Mahavir Mill Stores at Nagdevi, Mumbai. During his service in Mahavir Mill Stores the son supplied fire fighting hoses to the said firm. The consignments were received by Dinkar Shah who signed the delivery challans upon acceptance of the goods. Dinkar Shah had signed about 80/90 such challans, none of which is produced to identify the signatures or to compare the signatures. The son has further given evidence that his mother knew the said 8 TS-48-And-12 Dinkar Shah because after he was acquainted with him in the course of his business transactions, whenever payments were to be made to the mother, Dinkar Shah used to go to his house to make the necessary payments and hence, the deceased came to know him.Further evidence of this witness shows that Dinkar Shah left Mahavir Mill Stores in 1984-85 and then carried on his own business in which the relationship between the son and Dinkar Shah continued. 12.The other attesting witness, one Dilip Vedant, was the family priest at Jalna. He as well as his father had got performed certain religious ceremonies in their house by the said priest. Dilip Vedant used to live in their flat at Nepeansea road when he was in Mumbai. He knew his handwriting and signatures because Dilip Vedant used to prepare vouchers, cash bills and receipts and sign them for their firm of M/s.A.P. Patel & Company. None of these vouchers is also produced to prove and compare the signatures thereon. 13.The son deposed that he did not know the whereabouts of either of the witnesses. He had inquired with couple of dealers in Nagdevi to find out the whereabouts of Dinkar Shah. He also made inquiry at his residential address and he found out from the neighbours that he had left the residence. He did not 9 TS-48-And-12 find out his whereabouts from the dealers in Nagdevi. No dealer or neighbour is examined. No particulars of the dealers or neighbours are given. It is not known how many neighbours were contacted at the residential address of Dinkar Shah. 14.The son deposed that he did not know the whereabouts of Dilip Vedant. He may be either at Jalna or at Mumbai. He left Jalna in 1995-96. He inquired from one of his close friends at Aurangabad about the whereabouts of Dilip Vedant but did not obtain any. The close friend is not examined. The particulars of the friend are not given. 15.From such evidence of examination-in-chief itself, the requirement of proof of execution of the document such as Will required to be attested when no attesting witness was found is seen not to have been at all complied. The son has been unable to prove that the signature of one attesting witness at least is in his handwriting and that the signature of the person executing the document is in his handwriting. 16.The Will propounded by the brother is stated to have been found when an inventory was made when aside from both of them, their cousins Raghubhai and Rasikbhai were present. One Dhanjibhai was also stated to have been present. Rasikbhai s signature has been 10 TS-48-And-12 identified. Dhanjibhai has not signed the inventory. The signatures as well as presence of Raghubhai has been denied by the brother. Both of them are stated to be dead. 17.In the case of Babu Singh & ors. vs. Ram Sahai, AIR 2008 SC 2485 non-examination of an attesting witness was held fatal to the proof of a Will when no efforts were made to procure his presence by issue of summons even though he was stated to have been won over by the other side. It was held that proof of the Will could not be made under Section 69 of the Evidence Act as a relaxation of the usual mode of proving a Will under Section 63 of the Act. The party must have taken steps to compel attendance of attesting witnesses. 18.Similarly in the case of K. Laxmanan vs. Thekkayil Padmini & ors, (2009) 1 SCC 354 though the scribe and one attesting witness had died and another attesting witness was not in good physical condition and though the son of one attesting witness was examined and identified his father s signature, because the evidence showed that he was not present at the time of execution, the Will was held not proved. It was observed that attestation is not an empty formality. 19.The Will propounded by the son is, therefore, not 11 TS-48-And-12 proved and the probate cannot be issued of the Will of the deceased dated 9th March 1990. 20.The sister has propounded the earlier Will dated 24th May 1989. That Will is executed by the mother in the office of the same Attorney in which her husband s Will was executed. That Will is almost verbatim the Will of her husband on page-1 except for the name of the executant, her age and the appointment of the executrix under the Will. On page-2 the essential bequest that she has made is also essentially the same as was done by her husband except for the extent of the share she owned and bequeathed in the partnership firm of A.P. Patel & Co. and the person to whom the share was bequeathed. Only paragraph-6 of the Will is essentially different as recited hereinabove. The last clause of the residuary estate is also the same except for the change in the name of the residuary legatee. - 21.The Will has been admittedly executed when inter alia her daughter, the sole legatee and the sole executrix, was present with her. The daughter, who was otherwise resident in London, had visited India about a month prior to the execution of the Will. She had admittedly brought various gifts for the mother, including jewellery stated to be of about 5,000 Pound Sterling/Rs.5 Lakhs in cash and gold and diamond 12 TS-48-And-12 jewellery because she was affluent in 1989 as also various nic-nacs, including toileteries on the premise that she lived with her mother and her son failed to provide her bare necessities. Soon before the execution of the Will, admittedly, the mother and daughter had gone on a pilgrimage, which has been stated by the daughter to be her ultimate wish which she performed to make her happy. It is also an admitted position that in the years prior to the visit of the daughter the relations between the mother and the daughter were, at one time, strained. This was in view of certain two marriages of the daughter, the details of which, though brought out in the verbose cross-examination of the daughter, do not merit a reference. The daughter has, however, claimed that she has visited the mother not only on the said occasion a month prior to the execution of the Will but on many other occasions, the details of which are not shown. Her passport itself is not produced. In her cross-examination she has deposed that she has not received the original passport from her London residence but has given the details of the passport orally from the passport faxed to her. 22.It is under these circumstances that the execution of the Will by the mother in the Attorneys office is to be appreciated. The Attorney was her neighbour. The father and the mother both knew the Attorney. 13 TS-48-And-12 Consequently, the Attorney has also given evidence of the execution of the Will. He has deposed about how the Will was executed and attested by the two attesting witnesses. The other attesting witness was admittedly a close friend of the daughter and an Advocate. She has not been examined. The evidence of the attesting witness shows that the Will was executed upon an appointment taken by the mother on telephone for that purpose. The mother, daughter as well as granddaughter attended his office. The mother gave instructions. He directed them to come after 2/3 hours post lunch. He prepared the Will on the same day. The parties returned to the Attorneys office after lunch and the mother executed the Will in the presence of the two attesting witnesses who signed in the presence of one another. 23.Under this Will except the daughter, all other family members, including the grandchildren of the testatrix have been completely excluded. Allegations have been made against the son of mismanagement and exclusion of the mother. It is in view of such a bequest that the genuineness of the execution comes for consideration. 24.It may be stated that a Will such as that of the testatrix could otherwise have been prepared by the 14 TS-48-And-12 Attorney as deposed by the said Attorney. There is nothing amiss in preparing such a Will within 2/3 hours. The Attorney having prepared the father s Will, they would have had a draft. The fact that the entire Will runs in the same style and tenor shows that some draft was with the Attorney, upon which certain corrections could have been made to make the Will of the mother. Such a draft could have been provided by the mother herself or taken from the Attorneys office. There is no specific evidence on this score but its naturalness to that extent cannot be ruled out. 25.The Attorney has filed two affidavits. The second affidavit, which is filed after part evidence has been recorded, has made certain additions to show that the daughter was sitting outside his office when the Will was executed. That matters little. In fact the second affidavit goes against the grain of the deposition of the sister herself. The daughter of the testatrix could well have been present at the time when the Will was executed. It is only the complete exclusion of the son as well as grandchildren who are the children of the son that would justify an eyebrow being raised. 26.It is an elementary rule of construction and appreciation of Wills that the Court must sit in the armchair of the testator or the testatrix. The Court 15 TS-48-And-12 must ascertain from the evidence whether the testator or the testatrix could have executed a Will such as the one which is sought to be propounded and is challenged. It is in this regard that the cross-examination of the daughter becomes material to consider. 27.The material part of the otherwise lengthy cross- examination, which would be required to be considered by the Court and the few documents out of many which have been produced, which will be required to be appreciated by the Court, are thus: (a) The daughter had taken her mother on pilgrimage in April 1989. (The Will has been executed on 24th May 1989). (b) She did not remember how much she spent on the gift items brought for her mother at the relevant time in April 1989. She was in affluent circumstances. (She, therefore, came to India in April 1989, a month prior to the execution of the Will.) (c) The sister had planned to take her mother some time in future with her to London. Her mother had applied for the passport. She had helped her in procuring it. 16 TS-48-And-12 (d)Her mother resided at Jalna with her brother and his family. She deposed that it was but natural . (e) The mother used to reside in Mumbai as well as Jalna with the brother and his family. (f) The expenses of part-time cook, driver and servant were met by the brother in 1989 for the mother. (g) The mother used to withdraw monies from the partnership accounts, though the sister did not know how she used to meet the household expenses. (h) The partnership accounts were being maintained and audited in regular course. (i) Her brother was in overall charge of the business left behind by her father as he was one of the partners along with her mother. (j) The mother had made complaints to her about her brother orally as well as in writing. (No complaints in writing have been produced despite being called upon). (k)There were no physical threats by the brother or his wife. 17 TS-48-And-12 (l)The mother was happy prior to the death of her husband but thereafter she became dependent on her brother and his wife, emotionally, physically and financially. As a result she was emotionally threatened to sign the documents. (The witness has enumerated certain other documents which the mother signed with which these suits are not concerned). The witness learnt about signing of the documents only through the mother. (No document is produced and the evidence remains uncorroborated). The sister did not confront the brother about the execution of any documents. (m) Her relations with her sister-in-law Suhasini were strained even before her marriage to her brother. Occasionally her relations with her mother, brother and his wife were cordial which were on occasion like Diwali and religious functions. She did not remember whether she had sought help from her sister-in-law regarding her matrimonial problems while she was in London. The daughter was asked in her cross-examination whether she had written letters to her sister-in-law. she deposed that she did not remember whether she had written any letters to her sister-in-law. She was asked whether she had not written a single letter to her 18 TS-48-And-12 sister-in-law. She had replied that she did not remember whether she had written any letter. She also did not remember whether she had written any letter to her mother or brother seeking help while she was in London to solve her matrimonial problems. The sister was asked whether it would be correct that she had no cordial relations with her sister-in-law and that, therefore, she never sought her help in solving her matrimonial problems. She answered in the affirmative. (There have been several letters written by her to her sister-in-law which have been produced in the cross- examination. These are sent by Post to her sister-in- law. Part of some letters have been shown to her and specifically marked in evidence. These letters are addressed by her from London to her sister-in-law Suhasini in Jalna. It is not required to go into the contents of the letters. Suffice it to say that they are one too many and show themselves to be genuinely sent by the daughter to her sister-in-law. She has neither denied sending those letters nor deposed that those letters were only written to make certain allegations. Correspondence between the sisters-in-law is established by several letters and one inland letter marked Exhibits D-9, 13, 14, 15, 16 and 20 along with the envelopes. 19 TS-48-And-12 It may be mentioned that one letter specifically written to the sister-in-law inter alia shows that she states to her sister-in-law to take care of her health expressing that if anything were to happen to her there would be none to look after her brother, the kids and her mother. She admitted her feelings expressed therein. The letters show the witnesses rather dishonest stand. The letters also show that her evidence that her relations with the sister-in-law were not cordial is false. Another letter shown to the witness which she admitted to have been written and which she justified reflected that she stated that she was Nirdosh and also that she was not believed (by her mother). She explained that she was desperate at the time the letter was written and had contemplated ending her life. (n)The signatures on both the Wills are of her mother. The handwriting on the Will is also of her mother. (o)Her mother expressed her desire to take her to the family Solicitors. She did not remember whether she had expressed it before, after or during the pilgrimage. She had not asked her why her mother wanted 20 TS-48-And-12