IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.2054 OF 2005 Shri Narsinh Ramchandrarao Shinde ) aged 61 years, Occ. Business, ) R/at Ghulewadi, Dapodi, Pune-12 )..Appellant Versus 1. Smt.Shobhadevi Narsingh Shinde ) aged 58 years, Occ.Advocate, ) R/at. Flat No.2, Pushkaraj, ) Pushpak Park, Sanewadi, Aundh ) Pune-400 007. ) 2. Shri Ajit Gunajirao Ghule @ ) Shri Ajit Narsinh Shinde ) aged 33 years, Occ. Service ) R/at. Flat No.2, Pushkaraj, ) Pushpak Park, Sanewadi, Aundh ) Pune-400 007. ) 3. Shri Deepak Narsinh Shinde ) aged 35 years, occ. Service ) R/at 302, Aemma Towers, 15th ) Lane, Near HDFC Bank, Chembur ) Mumbai-400 011. ) 4. Shri Chetan Narsinh Shinde ) aged 29 years, Occ. Service ) R/at Ghulewadi, Dapodi, ) Pune-400 012. )..Respondents ---- Mr.A.J.Almedia for the appellant. Mr.Prasad Dani, Mr.Vilol Khaladkar, Ms.C.Salgaocar Radia for respondent nos.1 to 4. ---- Coram : R.S.Mohite,J Date : 24.10.2008 10.11.2008 AND 11.11.2008. Judgment :- 1. In view of a direction given by this Court on 17.11.2005, the appeal is placed for hearing and : 2 : final disposal at the admission stage. Hence, Appeal is admitted. By consent appeal heard finally. 2. The appellant Narsinh Ramchandrarao Shinde was the original defendant no.4 in Special Civil Suit No.207 of 2001. (He will therefore be hereinafter referred to as "defendant no.4"). Respondent no.1 in this appeal Smt.Shobhadevi Shinde was the original plaintiff in the suit. (She will hereinafter be referred to as the "plaintiff"). It is an admitted position that the plaintiff was married to defendant no.4 in the year 1966 and they divorced on 22.2.1995. Thus on the date of filing of the suit the plaintiff was the divorced wife of defendant no.4. Respondent nos. 2, 3 & 4 were the original defendant nos.1, 2 & 3 in the suit. They were the children born out of the marriage of the plaintiff with defendant no.4. It is an admitted position that as on the date of the filing of the suit, defendant nos.1, 2 & 3 were majors. 3. The record indicates that on 3.11.1995 the plaintiff preferred an application being Misc.Application No.835 of 1995 in the Court of the Civil Judge, Senior Division, Pune, seeking to obtain letters of administration with Will annexed to the credits and properties of her deceased mother who was a lady by name Yashodabai G. Ghule. In her : 3 : application she stated that her mother Yashodabai was a permanent resident of Gulewadi, Dapodi, Pune and she died at Pune on 9.10.1995. That her mother had executed her last Will and testament on 2.4.1994 by which she bequethed all her movable and immovable properties to the plaintiff and her children. That the plaintiff was the only daughter of the deceased and having no other issue, the deceased had adopted one of the plaintiff’s son (Yashodabai’s grandson) by name Ajit G.Ghule who was defendant no.3 in the said application. That the husband of deceased Yashodabai died in the year 1970 and at that time her parents were also not alive. As such the plaintiff and defendant no.3 were the only legal heirs, contemplated under Hindu Succession Act 1956. She contended that the last Will and testament of Yashodabai was duly executed and signed by the deceased and was registered in the Sub-registrar’s office and the said Will was attested by two witnesses by name Ms.Surekha Kinkar and one Kanya Vithal Rao. That the plaintiff being a legatee and beneficiary under the said Will, had beneficial interest in the estate of the deceased and was empowered to apply for grant of letters of administration to the estate of the deceased. A zerox certified copy of the Will dated 2.4.1994 was annexed to the application. She stated that no other person has applied for grant of letters of administration, succession certificate and no : 4 : executor had been appointed under the Will. On such averments, she sought the prayer that letters of administration with Will annexed be granted to her. 4. It appears that her three children i.e. defendant nos.1, 2, & 3 filed a pursis dated 3.11.1995 recording their no objection for the grant of letters of administration with Will annexed to the plaint. 5. The record indicates that defendant no.4, her divorced husband, however, entered a caveat and filed his written statement dated 31.8.1999 opposing the grant of letters of administration. He contended in his written statement that the alleged Will was illegal, suspicious and having no executability as the same was not executed by the deceased Yashodabai. He admitted his marriage with the plaintiff, the dissolution of marriage by a consent decree of divorce and the paternity of defendant nos.1 to 3. He also admitted that the testator Yashodabai during her life time, adopted defendant no.3 as her adopted son. He however, contended that the plaintiff was the only child. From the very beginning of her childhood, she has been kept in a convent at Panchgani as a boarder and most of the time she was away from her parents till she completed her studies upto senior Cambridge level. As a result, she did not have the desired : 5 : attachment with and feeling of affection towards her parents. That she was married to him while she was undergoing her higher education. That at the time of marriage in May-1996, he had been selected in the cadre of Deputy Collector after having passed the MPSC examination in 1964 and was serving in the Government of Maharashtra as a Probationary Deputy Collector. That after the death of Yashodabai’s husband, various properties situated at Ghulewadi, Dapodi, Pune and at Mazgaon, Mumbai were required to be administered. After his death, these properties were recorded in the name of the deceased Yashodabai in the Government record. Since Yashodabai was not able to manage all these properties, at her request, he started looking after Yashodabai’s properties. Yashodabai had executed power of attorney in his favour for the said purpose. That in October-1976 his father, who was also a Senior I.A.S. officer expired and after the death of his father, on the request of his mother-in-law, Yashodabai, he resigned from government service and started devoting his life to the management of the properties of Yashodabai. In due course, the plaintiff completed her graduation and obtained a law degree but instead of helping in the management of her mother’s property, she chose a wrong path and selected a wrong company, leaving the management entirely in his hands. : 6 : 6. He further contended that he pursuaded Yashodabai to execute a power of attorney in favour of the applicant vesting in her the powers of management of the properties at Pune and Bombay and accordingly, a power of attorney was executed by the late Yashodabai in favour of the plaintiff. However, as the plaintiff mis-used the power granted to her, late Yashodabai cancelled the said power of attorney by her registered letter dated 23.3.1991. Yashodabai also terminated a joint account between her and the plaintiff and opened a new account with the defendant no.4. That plaintiff shifted to her flat in Yashodabai’s building at Mazgaon in April-1990 and stayed there till August 1990 and from there she went to London for completing LLM course in Bristol University without obtaining permission or intimating her plans either to her mother or him. While plaintiff was studying for LLM at London, in February-1991 she had come back to India for giving an interview for direct appointments to the post of City Civil Judge/District Judge. At that time when Yashodabai questioned her, she answered that she was not sure about her future plans but might stay on in London after completing her LLM course and serve in the University of Bristol as there was likelihood of her getting a job there. In March-1991, while her daughter was away in London, Yashodabai fell sick and was admitted in the Ruby Hall Nursing Home. She : 7 : remained in the Nursing home for a month. During this period, late Yashodabai executed a registered Will dated 16.3.1991 by which all her properties were bequeathed to defendant nos.1 to 3. In this Will, the plaintiff and her then husband defendant no.4 were directed to manage these properties. The bungalow at Ghulewadi was bequeathed jointly to the plaintiff and the defendant. That the plaintiff returned from London in October-1991 and after her return, her ears were poisoned by a coterie, interested in the entire property of late Yashodabai Ghule at Dapodi and told about the Will executed by late Yashodabai on 16.3.1991. She also learnt about the contents of the Will executed by Yashodabai on 16.3.1991. In these circumstancts, the plaintiff started behaving in an indifferent and arrogant manner with her husband and made his life miserable. That inspite of request from his mother-in-law, not to leave Dapodi bungalow, he went to stay in a flat at Pimpri in December-1991. Yashodabai continued to have faith in him and lost faith in her own daughter. 7. That while defendant no.4 was staying at Pimpri, the plaintiff deserted her old ailing mother in January-1992 and shifted to a flat at Sanewadi, Aundh, Pune, where she started residing alongwith defendant no.3. Yashodabai therefore, requested defendant no.4 to come back to Dapodi bungalow in : 8 : order to look after her and defendant nos.1 & 2 who were undergoing studies and were at vital stages of their careers. Thus defendant no.4 come to Dapodi and once again started looking after ailing Yashodabai. That on 25.5.1993, due to sudden change in the behaviour of the applicant, Yashodabai executed a registered codicil dated 25.8.1993 to her earlier Will dated 16.3.1991 by virtue of which all the powers given to the applicant in respect of management of the properties bequeathed in favour of applicant nos.1 to 3 were revoked and cancelled by late Yashodabai and defendant no.4 alone was vested with the said powers. That after some time, defendant no.2 went to reside with the plaintiff. Defendant no.1 married in December-1993 and he alongwith his wife came to reside at Dapodi bungalow alongwith defendant no.4 and Yashodabai. In April 1994, they left these premises as they desired to stay at a separate residence in Kondhawa. Thus after April-1994 defendant no.4 alone resided with his mother-in-law Yashodabai to take care of her. 8. It was further contended that as the plaintiff was not consumating her marriage with defendant no.4 nor was willing to discharge her maritial duties, Yashodabai advised defendant no.4 to divorce her daughter and accordingly, in February-1994 defendant no.4 and the plaintiff submitted an application for grant of divorce by mutual consent. This : 9 : application was ultimately granted by the Court on 22.2.1995 and thus on this date, the marriage between the plaintiff and the defendant no.4 stood dissolved. 9. In March-1994 Yashodabai was admitted in the Ruby Hall Nursing Home for the treatment of her heart ailment and she returned to her residence at Dapodi on 28.3.1994. At that time the plaintiff accompanied Yashodabai to the Dapodi bungalow and asked defendant no.4 to leave said bungalow and go back to his Pimpri flat. Defendant no.4 refused to do so and thus plaintiff picked up a quarrel with defendant no.4 and lodged a false complaint against him with the police. On 30.3.1994 she took her mother Yashodabai to her own residence at Aundh against Yashodabai’s will and there by taking undue advantage of the absence of defendant no.4 and defendant no.1, the plaintiff obtained the signature of Yashodabai on some pre-prepared documents. Yashodabai had not read the contents of the alleged documents and the plaintiff also obtained the signature of Yashodabai on some plain papers and stamp papers against her free will and wishes. 10. In September 1995, Yashodabai was required to be admitted in the Ruby Hall nursing home. While she was at the Nursing home, she directed her Advocate Ashok Bhatewara to draft another codicil to : 10 : her will dated 16.3.1991. This codicil was signed on 11.6.1995. It was executed before a notory Shri G.V.Dugad. Dr.K.G.Deshpande of Ruby Hall Nursing Home medically examined Yashodabai before executing of the codicil. The codicil was attested by 2 witnesses Smt.Shakuntala Kashinath Kamble and Smt.Vasanti Kashinath Sapkal. In the said codicil Yashodabai specifically mentioned that the plaintiff had got executed some documents and had obtained her signatures on pre-prepared papers against her free will and consent in the year 1994 when she had taken Yashodabai to her flat at Aundh. Codicil mentioned that all such documents stood cancelled and as per the said codicil, Yashodabai imposed further limitation and conditions and desired that defendant no.4, through his firm Vaastu Udyog Developer Properties at Ghulewadi, Dapodi, after constructing ownership flats, sell the residential and commercial tenements and out of the said sale proceeds, 10% would be reserved for the maintenance of her bungalow and for other religious functions. That 18% of the total cost of total expenditure shall be paid to defendant no.4 as supervision charges for execution and implementation of the said scheme and that the balance would be credited to the shares of defendant nos.1 to 3. Codicil also granted joint ownership rights of the bungalow at Dapodi to defendant no.4. It further provided that defendant no.4 alone was to look after and maintain all the : 11 : local properties at Ghulewadi Dapodi and Ghule Mansion Building at Mazagaon. 11. On these facts, defendant no.4 prays that the application moved by the plaintiff be dismissed with costs and that it may be held and declared that the alleged will dated 2.4.1994 of Yashodabai was illegal and liable to be cancelled. He further prayed that letters of administration be granted in favour of defendant no.4 in respect of the will dated 16.3.1991 read with its codicils dated 25.8.1993 and 11.6.1995. 12. In due course, since the written statement raised a counter claim, a reply to the same dated 10.3.2000 came to be filed by the plaintiff. It was contended there that the alleged codicil dated 11.6.1995 was a bogus document and was an attempt made by defendant no.4 to commit fraud on the plaintiff as well as defendant nos.1 to 3 who were the beneficiaries of the will dated 2.4.1994. She contended that at the time of the marriage, since she had not completed her graduation, the husband always insulted her in public in front of his fellow officers. Therefore, at her mother’s instance she joined college in 1976 and did her B.A. As she was being made to sign various documents and cheques alongwith her mother, she decided to do law in order to safeguard her mother’s property. In due course, : 12 : she started practising as an Advocate. She became a lecturer in Constitutional Law at Symbiosis college and was appointed on Disciplinary Committee by the Bar Council of India. Her husband was furious at her progress and used to harass her mentally and even beat her physically. On various occasions, plaintiff was required to lodge a police complaint against her husband and on one occasion, the Police Commissioner of Pune had seized the revolver possessed by defendant no.4 as there was a threat to the life of the plaintiff. That her husband beat her in presence of her 3 children even after they had all become majors. When the harassment become extreme and beyond tolerance, since defendant no.4 refused to vacate the bungalow at Dapodi, in order to avoid complications, under guidance of her mother and looking at her safety, plaintiff left her own mother’s house which was a bungalow admeasuring 10,000 sq.ft. and started living with her children in one very small flat admeasuring 500 sq.ft. at Aundh with hardly any money as her husband defendant no.4 had taken all her money. She was living without any funds. All these events made her mother Yashodabai very sad. Yashodabai kept requesting defendant no.4 to leave her bungalow but he refused to do so. Yashodabai did not initiate any legal action against her son-in-law only to protect the family but defendant no.4 took maximum advantage of this failing on the part of Yashodabai. Since 1992, : 13 : two of the plaintiff’s children i.e. defendant nos.2 & 3 started living separately in one flat at Aundh. The plaintiff used to call her mother at Dapodi almost everyday in order to make enquiry about her health and whenever it would be possible the applicant also used to visit her mother at Dapodi in the absence of defendant no.4. In 1994 Yashodabai was sick and was admitted in the hospital and was hospitalised for more than a month. After her hospitalisation, Yashodabai asked the plaintiff to come and stay again at Dapodi as she was afraid to be alone there with defendant no.4 and as defendant no.4 had driven out the applicant no.1 and his wife Swapna from the Dapodi house by harassing them. In these circumstances, plaintiff went to reside with her mother at Dapodi bungalow. This infuriated defendant no.4 and within a day or two he took an opportunity of the children being out of the house and on some pretext he beat up the applicant and also threatened to kill her and also abused his mother-in-law. Under these circumstances, Yashodabai and the plaintiff left the bungalow and came to reside at Aundh with the plaintiff and her grand-children. When she lived at Aundh, Yashodabai was extremely happy to live with her own daughter as well as grand-children for a period of two months. That by early 1994, Yashodabai had realised that there was no chance of defendant no.4 improving his behaviour. That defendant no.4 was living lavishly : 14 : from her money and under apprehension that defendant no.4 will harass the plaintiff as well as her two children in order to grab her estate, Yashodabai instructed her Advocate S.K.Jain to prepare a fresh will. This will was executed on 2.4.1994 and was signed by Yashodabai while in good health. It was attested by two witnesses as stated in the application. It was contended that the alleged codicil dated 11.6.1995 was nothing but a development agreement executed by the owner in favour of the developer. On reading its contents, it was clear that under the said document, the entire control of the estate of Yashodabai would go to defendant no.4. That under the document the plaintiff was excluded from getting benefit in her mother’s estate. The plaintiff who was the only child of the testator was totally excluded from getting any benefit out of the family estate particularly even though she was living separately. That defendant no.4 used to threaten Yashodabai with her life in order to extort money. Yashodabai had lodged a police complaint to Dapodi police station against defendant no.4. It was contended that since it was admitted that the document dated 11.6.1995 was the codicil to will dated 16.3.1991, the said document could not be given effect to as the main will itself has been revoked and cancelled by the will dated 2.4.1994. It was contended that on 11.6.1995 Yashodabai was not in a physical and : 15 : mental condition to give instructions to her lawyer not to execute codicil and documents. That the contents of the said document dated 11.6.1995 itself indicated that it was prepared entirely by defendant no.4 and it appears that the signature on the document was obtained by force and undue advantage. Yashodabai was not physically well. It was contended that of the two attesting witnesses of the said codicil, Vasanti Sakpal was an ex-servant of Yashodabai who had been removed from the service and the 2nd attesting witness Shakuntala Kamble was the friend of defendant no.4. Dr.K.G.Deshpande was a person who had never treated Yashodabai. He was not on duty on the date of execution of the will. That Dr.Wadia who was treating Yashodabai was never called to certify her mental condition when he was treating her for the last 12 years. The plaintiff reiterated that the will dated 2.4.1994 was a valid will and the plaintiff was entitled to obtain letters of administration of the said will. 13. On such rival pleadings the case went to trial. In order to prove her case the plaintiff examined seven witnesses. The first witness was Shailendra Pawar who was an officer from the Sub-Registrar’s office Pune and who produced the original will. The 2nd witness was Miss.Surekha Kinkar who was an attesting witness to the will of Yashodabai said to have been executed on 2.4.1994. The 3rd witness for : 16 : the plaintiff was Mr.Rushymukh Keru Hampe who was the Sub-registrar in Pune and was the person who had registered the aforesaid will dated 2.4.1994. Plaintiff’s witness no.4 was Advocate Miss.Nandini Deshpande who was a practising Advocate and was present at the time of execution of the will and who had read over the said will to Yashodabai. The 5th and last witness of the plaintiff was Prabhakar Jadhav who was the police constable who was examined to prove the factum of Yashodabai lodging a police complaint against defendant no.4 on 28.3.1994 i.e. 5/6 days prior to the execution of the will. Defendant no.2 Ajit Ghule stepped into the witness box and in his evidence he supported the case of his mother. The 6th witness examined was that of his son Ajit Ghule. The evidence of Ajit Ghule completely supported his mother and naratted the harassment being meted out by defendant no.4 on her and on other family members. The 7th and the last witness on behalf of the plaintiff was Sudhir Mokashi who was attached to the Civil Court at Pune and he was examined to show that defendant no.4 had come to the office in order to force one women to sign on his affidavit which she has refused to do so. 14. On behalf of the defendant no.4, 11 witnessess were examined. Of these the first witness Dr.Mrs.Khalida Bedmutha was the attesting witness to : 17 : the will executed by Yashodabai in 1991. The 2nd witness was Dr.Ramesh Bedmutha who had certified about the health of Yashodabai when she executed the will of 1991. The 3rd witness for the defendant no.4 was Smt.Vatsala Chokulkar who was the retired Assistant Commissioner of Police Mumbai. She was the attesting witness to the codicil said to have been executed in 1993. The 4th witness for the defendant no.4 was Shri Pandurang Chavan who was the Sub-registrar at Pune who has registered the will dated 16.3.1991. The 5th witness for defendant no.4 was J.B.Dugal who was the notory before whom the codicil dated 11.6.1995 was executed. The 6th witness for defendant no.4 was Vijay Tavre who was the officer serving with Pune Dist. Co-operative Bank. He was examined to show Yashodabai’s cancellation of the nomination of plaintiff on 8.10.1992. The 7th witness for defendant no.4 was Santosh Kolte who was working as a clerk in the Sub-registrar of Haveli no.5 and he was examined to prove the registration of the codicil dated 11.6.1995 on 2.11.1995. The 8th witness for defendant no.4 was Umesh Mhetre who was working as Jt.Sub-Registrar at the relevant time at Haveli. He was also examined to prove the registration of codicil dated 11.6.1995 on 2.11.1995. As the 9th witness, defendant no.4 examined himself. The 10th witness examined by defendant no.4 was Advocate Ashok Bhatewara who was said to have prepared : 18 : codicil dated 11.6.1995. The 11th and last witness for defendant no.4 was Tukaram Gadkar who at the relevant time, was working in the Sub-registrar’s office at Haveli and he was examined to prove certain facets of the working of the Sub-registrar’s office. 15. On the basis of the aforesaid oral and documentary evidence, by the impugned judgment and order dated 4.1.2005, the Jt.Civil Judge, Sr.Division, Pune, was pleased to decree the plaintiff’s suit with costs, directing the issue of letters of administration with will annexed to the plaintiff on payment of requisite