IN THE HIGH COURT OF GUJARAT AT AHMEDABAD FIRST APPEAL No 68 of 1979 For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI and Sd/- MR.JUSTICE M.C.PATEL Sd/- ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? yes 2. To be referred to the Reporter or not? yes J 3. Whether Their Lordships wish to see the fair copy of the judgement? 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? 3 to 5 No -------------------------------------------------------------- 1. JANARDAN BADRINARAYAN PATEL 2. Shardaben ,wd/o Badrinarayan Jamnadas (Appellant No.2, Shardaben, wd/o Badrinarayan Jamnadas, since deceased by her heirs and legal representative). 2.1 Janardhan Badrinarayan Patel vs. 1. Sheth Ambalal Himatlal (Deleted) (since deceased, following trustees are brought on record): 1/1 Shri Arunbhai K. Trivedi, 1/2 Shri Anand Chandrakant, 1/3 Shri Thakorebhai, 2. Sheth Chandrakant Motilal, 3. Kesuprasad Motilal Jani (Since deceased deleted) 4. Manoramaben D/o Badrinarayan Patel, 5. Premila, D/o Badrinarayan Patel, 6. Vadilal Lallubhai Patel, 7. Shantilal Lallubhai Patel. -------------------------------------------------------------- Appearance: MR S.B.VAKILfor Appellant. MR GIRISH D BHATT for Respondent Nos 1/1,1/2 and 2 MR DN PANDYA for Respondent No.1/3, Rest served. -------------------------------------------------------------- CORAM : MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE M.C.PATEL Date of decision: 3/12/1998 ORAL JUDGEMENT(Per R.K.Abichandani,J.) The appellants challenge the judgment and order dated 25.11.1978 passed by the City Civil Court, Ahmedabad, granting probate of the will, Exh.77, dated 1.5.1967, executed by Bai Chandan, daughter of Patel Somnath Bhudardas, and widow of Badrinarayan Jamnadas, to the executors of the will, who were the original respondents Nos.1,2 and 3 in this appeal. During the pendency of this appeal, the appellant No.2, Shardaben, who was the other widow of Badrinarayan, died, and as per the court's order dated 25.6.1987, passed on Civil Application No.1799 of 1986, her son Janardhan, the appellant No.1 was also shown as her heir. The original respondent No.1, Sheth Ambalal Himatlal, the original respondent No.3, Kesuprasad Motilal Jani, have also died during the pendency of the appeal, and as per the order made in Civil Application No.3926 of 1994 on 27.9.1994, the respondents No.1/2, Shri A.K. Trivedi; 1/2, Shri Anand Chandrakant, and 1/3, Shri Thakorbhai, were brought on record as the newly appointed "trustees", as per the terms of the will. The appellant No.1, Janardhan Badrinarayan Patel, was the step-son of the testatrix, and the respondent No.4, Manoramaben, and the respondent No.5, Premila, her step-daughters. Respondents Nos. 6 and 7, Vadilal and Shantilal, were the cousin brothers of the testatrix. 2.1 A petition for probate, being Misc. Application No.552/70, of the will in question was filed on 21.10.1970, under Rule 165 of the Ahmedabad City Civil Court Rules, 1961, in the City Civil Court, Ahmedabad, stating that the applicants, Sheth Ambalal Himatlal, Sheth Chandrakant Motilal Jagabhaivala and Kesuprasad Motilal Jani were the executors named in the will of Chandanben and they would faithfully administer the property. A certified photo copy of the will was produced along with the application stating that the original will be produced during the hearing. The affidavits of the attesting witnesses, Chandulal Jagannath and Chimanlal Jivanlal were filed along with the application, as required by law. In that probate application, the stepson of the testatrix, Janardhan put forth his objections at Exh.31. The said Caveator alleged that the will was false and got up and that at the relevant time, when it purports to have been executed by Chandanben, she was not in a sound disposing state of mind and that she was completely overpowered by the applicants and had acted under undue influence. It was also alleged that the will was not executed by deceased Chandanben and, even if proved, it would not be operable, since it was vague, uncertain and wanting in necessary particulars. It was also alleged that Chandanben was keeping ill-health due to old age and due to cataract in both the eyes, she had nearly lost her vision. It was contended that the testatrix did not know and could not consider the implications of the dispositions made in the will. It was also alleged that the original applicants were co-trustees with the deceased in several trusts and therefore they had taken advantage of their position and exercised undue influence over the deceased in getting the will executed. It was further alleged that the will was unnatural and was created to defeat the interest of the Caveator, his real mother and sisters. 2.2 The Caveator, Manoramaben, who is the present respondent No.4, objected against the will by her affidavit Exh.33, which she later adopted as her written statement, by filing note Exh.21 in the civil suit, into which the said probate application was converted because of the contest, contending that the testatrix was, at the time of the alleged execution of the will, an old lady of feeble mind and that she along with her sister, Premila, and mother, Shardaben, was residing with her, for the purpose of looking after her health and requirements for about 20 days prior to her death on 7.5.1967. It was alleged that she was not in a position to comprehend the extent of her property and the nature of claim of others and to form the necessary judgment. It was also alleged that the will was the result of undue influence exercised upon the testatrix by the propounders and that it was not legally executed and attested. In paragraph 25 of her affidavit, which has been adopted by her as her written statement, it was alleged that the petitioners took possession of the estate and applied seals on the date of the death of the testatrix, without intimating the next of kins about their rights and powers under the alleged will, nor even apprising them with the situation. 2.3 Similar were the objections of the present respondent No.5, Caveator Premilaben, who in her objections dated 17.1.1972 at Exh.50 filed in the probate application, which was adopted by her as the written statement on 17.1.1975 by note Exh.6 filed in the suit, and she also, in paragraph 9 of that affidavit, in terms stated that after Chandanben expired on 7.5.1967, the petitioners (i.e. the executors) along with Munim Natvarlal, had taken over the possession of all the properties, including the residential house in which she had passed away, and that they had taken custody even of the gold ornaments, diamonds and pearls belonging to this Caveator, which were not returned to her, despite repeated demands. In view of the contest, the probate application was converted into Civil Suit No.2873 of 1974 and Janardhan, stepson of the testatrix, filed his written statement, Exh.20, raising similar contentions, as were raised by him in his objections, reiterating that the testatrix had acted completely under the undue influence of the plaintiffs. It was reiterated that the testatrix did not execute the will and that it was not a valid will. It was also contended that his real mother, Shardaben, and sisters, Manorama and Premila, were residing with the deceased since about 2 weeks prior to 1.5.1967, being the date on which the will is said to have been executed. It was reiterated that the deceased had lost her vision due to cataract in both the eyes and was mentally and physically feeble and not in a sound disposing state of mind. The allegations regarding undue influence were also repeated. 2.4 Shardaben, who was co-widow of the testatrix, had filed objections at Exh.47 in the probate application, in which it was stated that she and her two daughters had come to stay with Chandanben on 24.4.1967 and stayed with her till she passed away. It was alleged that she did not come to know about the will in question having been made on 1.5.1967. It was stated in para 5 of the affidavit that the deceased had made a registered will on 14.3.1955 and a codicil, as per which she had made arrangements, which would show that she had a liking for this Caveator and her children. It was alleged that there was no reason for her to cancel that arrangement and will away most of the properties to charities. It was also alleged that the will in dispute was registered nearly two-and-a-half months after it was made. After the probate application was converted into the suit, this Caveator filed her written statement Exh.26, reiterating the same allegations and contending that the testatrix was not in a proper state of mind and body to make the will. 2.5 The present respondents Nos. 6 and 7, Vadilal and Shantilal, who were cousin brothers of the testatrix, filed their written statement at Exh.37, supporting the plaintiffs-executors and stating that they did not object to the execution and validity of the will and that since the relations of Janardhan and Chandanben were strained, Chandanben had made the will in question. It was alleged that Janardhan had bitterly quarrelled with Chandanben about a month prior to the execution of the will, in presence of these persons and therefore Chandanben had made the will in question on 1.5.1967, by which she willed away the property which she had inherited from her father, Somnath, to charities. 3. The trial Court framed the issues at Exh.48 and came to a finding that the plaintiffs proved that the said will was executed by deceased Chandanben in her sound and disposing state of mind (issue No.(3)); and that the defendants failed to prove that it was a fabricated will (issue No.(2)). On issue No.6, the trial Court negatived the allegation that the will was executed by Chandanben under undue influence of the plaintiffs. Issue No.1 was on the question as to whether the properties mentioned in the will were of the ownership of Chandanben and that she could have disposed them of. On that issue, the trial Court held that it was not at all necessary to conclude anything in a probate petition, except the validity, genuineness and due execution of the will and the factum of appointment of executors thereunder. The said issue contemplated inquiry into the title of the properties, which were dealt with in the will by Chandanben. It is well-settled that the grant of probate does not have the effect of construing the will nor does it determine the question of title to the property. It was, therefore, rightly conceded by all the parties before the probate court that this issue did not arise for its consideration. This decision is not questioned before us by any one, and, in our view, rightly so. 4. The will in question is said to have been executed on 1.5.1967. The testatrix Chandanben passed away on 7.5.1967. The will was presented for registration on 25.7.1967 before the Sub Registrar, Ahmedabad. The contentions, which have been raised before us, centre around the validity of the will and the manner of its execution, as also the nature of the dispositions made thereunder. It would, therefore, be appropriate to have a careful look at the will, which is at Exh.77. The original will, which is before us, is a typed will. It is tied with a pink ribbon as well as with a white string. It is a detailed will and the testatrix's full signature appears at the bottom of typed page 19 of the will, behind which page there is an endorsement and signature said to have been made by witness Maheshbhai Jashwantlal Shah, the Justice of the Peace, on 1.5.1967 along with his seal of office. The accompaniments of this will are Schedules ` ', ` ' and ` ' which we will, for convenience, refer as `A',`B' and `C', respectively. All these also are typed papes. Schedule 'A' has seven typed pages; Schedule 'B' has eight typed pages and Schedule 'C' has five. Behind the 5th typed page of Schedule 'B', there are endorsements showing that this will was presented before the Sub Registrar on 25.7.1967. On that page, the endorsement shows that it was produced by one of the executors, described as Kesuprasad Motilal Jani. On the same page, there is recorded the statement given by Maheshbhai Jashwantlal Shah, the Justice of the Peace, before the Sub Registrar, and is followed, on the next page, by the statement of Chimanlal Jivanlal, the attesting witness, after which comes the statement of Chandulal Jagannath Raval, the other attesting witness. All these statements are given on oath before the Joint Sub Registrar, who has put his signatures and seals of office. After this will, there are two papers which have been stitched along with it with the white string and these are certified copies of extracts from the property register (Village Form 6) dated 2.6.1976 and the docket of Advocate, Dalsukhbhai Amritlal Mehta. The white string covers this village form and docket, while the pink ribbon covers the will and its accompaniments as well as the statements recorded before the Sub Registrar. Therefore, white string seems to have been applied at the time of presenting the will before the probate court by the Advocate. At the top on left corner of the will, there are pin-marks on each page upto the last page of Schedule 'C'. On the further two pages on which the statements of the attesting witnesses were recorded by the Sub Registrar, there are no corresponding pin-marks. This shows that at some point of time the will, including the schedules, were pinned together and those pins were removed. The number of pin-marks indicate that they were pinned together more than once. The papers of the will are ordinary papers and show sign of decay, though all the writings are easily readable, at least on this date. We are describing the state of the will in the context of the arguments which have been canvassed before us, which we will consider later. 4.1 The will has initials of Chandanben Somnath on each page upto the 19th page, below which there is also her full signature, as noted above. In the deposition of one of the witnesses, there was some confusion about the existence of initials of Chandanben on pages 4 and 12. But on the examination of the original will, both the learned Counsel have agreed that the initials occur even on these two pages. We have checked up the original will and find that initials are there in all these pages in the margin. While there are initials on each page at one place of the margin, we find that on page No.10, where there is some correction in census number and overtyping in No.4238, there is also second initial placed against the line which containes the overwritten figures. Even on page 11, we find that there are two initials and one of them is against the overwriting in the word "Makan". On page 19 of the will, the signature, which is said to have been put by the testatrix, is in Gujarati and it seems to have been compressed in whatever little space was left at the bottom of the page, after the date of "1st May, 1967" was written. That signature reads "Chandan Somnath, daughter of Bhudardas and widow of Badrinarayan Jamnadas". Opposite that signature, are signatures said to have been put by the attesting witnesses, Chimanlal Jivanlal and Raval Chandulal Jagannath. There is overwriting at the place where "Chandulal" is written. The name "Chandulal" can be read, while looking at the document, but the name written below "Chandulal" cannot easily be read by a mere look at the document. It appears that later on, during the arguments, an enlarged copy of the signature, which was not shown to the attesting witness, Raval Chandulal Jagannath, since the enlargement was not available and was not on record when he was examined, was relied upon to ascertain the overwritten name and it showed that below the name Chandulal, Chimanlal was first written. There is no overwriting in the signature of Raval Chandulal Jagannath at the places where his surname "Raval" and his father's name "Jagannath" appear. There are seals of Justice of the Peace, Mr.Mahesh Jashwantlal Shah, and his signatures throughout in this will. The seals, which appear between pages 2 and 19, are said to have been put at the time when the will was attested, leaving impression of one seal in between two pages. The signature of M.J.Shah runs across two pages in the margines above the place where the seals are affixed. There are similarly affixed seals of the Deputy Registrar's office, in the will. On the reverse of the typed page 19 also, there is a seal of Maheshbhai Jashwantlal Shah, below his endorsement, and his signature with the date 1.5.1967. In that endorsement, it is stated that the entire writing of the will was read over to Chandanben in her proper state of mind and body and alertness, in presence of the witnesses and that she had affirmed that it was proper and further that she had put her signature in his presence and the witnesses had also signed in his presence. On the first page of Schedule 'A', there is signature and seal of M.J.Shah and between pages 2 to 7 of that Schedule, the signature and seal are spread over the margin of two pages and on page 7 there is an additional seal and signature of Maheshbhai Jashnwantlal Shah, Justice of Peace, with day 1.5.1967 written below it. There are similar seals and signatures of M.J.Shah in Schedule 'B' and Schedule 'C'. At the end of both these Schedules, there is additional seal and signature of M.J.Shah. All throughout these pages, there is seal of the office of the Joint Sub Registrar. 5.1 We may now note the contents of the will. In its initial portion, the history of past wills made by the testatrix is given and it is stated that she had made a will on 19.9.1950, which was registered on 16.10.1950, which she was hereby cancelling. Then there is a reference to another will made on 24.7.1951 which was got registered on 21.1.1952 in the Sub Registry, Ahmedabad and for that also it is stated that the will was hereby cancelled. Then there is reference to will and codicil dated 14.3.1955, which were registered on 17.3.1955, which were also cancelled. The will further records that there was another will dated 31.8.1996, which was unregistered and which was also hereby cancelled. Then there is an omnibus statement that any other will, registered or unregistered, or codicil that may surface, was also cancelled hereby. 5.2 In paragraph 2 of the will, it is stated that the testatrix did not have any child of her own, nor had she adopted one. Her husband, Badrinarayan Jamnadas Patel had died on 13.12.1951. He had another wife, Sharda, whose son was Janardhan, and she had two daughters, Manorama and Premila. It is stated that all these persons were got married by the testatrix. 5.3 It is then recorded that on 1.5.1949, there was a partition of the moveable properties of the joint family between her husband Badrinarayan and minor, Janardhan, Sharda and the testatrix and four declarations were registered in that regard on 6.5.1949. It is stated that the moveable property, which came to her under such declaration, became her own property and there was also partition of the immoveable property between these members of the joint family and under the partition-deed dated 18.5.1949, certain immoveable properties came to her share. It is stated that she had made registered will dated 19.9.1950 in respect of the said moveable and immoveable properties, which had come to her share on the partition of the joint family and that will she was hereby cancelling. Then are enumerated the moveable and immoveable properties, out of these properties, which had remained with her, in sub-paragraphs (a) to (f). Sub-paragraph (a) enumerates immoveable property of survey No.548 Part, admeasuring 1391 sq. yards in Wadej. In sub-paragraph (b), there is reference to the Shares of mill companies mentioned therein, which were acquired by her out of the proceeds of the immoveable properties at Naroda, which was sold by her a decade back. In sub-paragraph (c), there is mentioned immoveable property, which is described as Survey No.68-68A and 70-B Part, plot No.4, admeasuring 562 sq.yards in Shahibaug Patel Society. In sub-paragraph (d), there is mention of the insurance policies which amount, as stated therein, was spent by her on her stepdaughter, Manorama's marriage. In sub-paragraph (e), it is stated that all the ornaments, diamonds, pearls, household furniture and other effects which she had received from her husband Badrinarayan in her share, were already given to her stepson, Janardhan, and his sisters and mother and therefore nothing was required to be done in respect thereof. In sub-paragraph (f), it is stated that she had an account in Central Bank of India in which there was a sum of Rs.200/- lying in credit. After describing the properties, which had come to her at the time of partition from her husband, Badrinarayan, she makes a disposition of these properties by stating that on her death, the trustees named in paragraph 5 of the will shall take over these properties in their possession as owners, and after spending an amount of Rs.3,000/- on her obsequies,etc. and paying the estate-duty and taxes, for which a lump sum amount of Rs.4,000/- should be deducted, all the remaining property will be given to her stopson, Janardhan Badrinarayan. It is stated that if Janardhan did not give the amount of Rs.7,000/- to the trustees, the said properties should be sold by the trustees and after deducting an amount of Rs.7,000/- from the sale proceeds, rest of the amount should be given to Janardhan. 5.4 Having thus dealt with the properties, which Chandanben had acquired from her husband's side, she then proceeds to deal with the properties which she acquired from her father, Somnath Bhudardas Patel,in paragraph 3 onwards of the will. It is stated that the testatrix had, during the lifetime of her father, Somnath Bhudardas Patel, given certain properties of which she was the absolute owner and which were mentioned in Schedule A. She had also inherited certain properties under the registered will of her father, made on 23.4.1928, and on the death of her father, occurring on 16.11.1935, she had become the owner of those properties, which are mentioned in Schedule 'B' to the will. The properties, which were acquired by her from the interest etc. earned out of these properties, were enumerated in schedule 'C' of the will. It is stated in para 4 of the will that these Schedules 'A', 'B' and "C" shall be treated as a part of the will and all these properties that she may be owning at the time of her death as well as all other properties that she may acquire or which may have been, through oversight, not mentioned in the will be administered, as mentioned in this will. 5.5 In paragraph 5 of the will, referring to the properties mentioned in Schedule 'A' and the property bearing Survey No.4265, which is mentioned in Schedule 'B', and any other property that she may acquire, as also furniture, household articles, telephone and all other immoveable properties, that may be found in the residential house bearing Survey No.2785 in Lamba Pada's Pole, should be treated as part of Schedule 'A' and all such properties and any property that may have through oversight, not been mentioned in the will, should be administered by Sheth Ambalal Himatlal, Chandrakant Motibhai Jagabhaivala and Kesuprasad Motilal Jani, who were appointed as "trustees". It is stated that these three persons were people of her confidence and they should take over the possession of the properties mentioned in Schedule 'A' and administer these properties and their income in the manner indicated, and these properties should be given as stated in the following paragraph. This statement occurs on page 8 of the will and after the word "para",