1 Ch-summonses-49-26 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Chamber Summons No.49 of 2009 IN Suit No.42 of 2002 IN Petition No.514 of 1990 Yohannan Thomas John .. .. Plaintiff v/s. Mr.Shekhar Agarwal .. .. Defendant And Karuna Agrawal .. .. Applicant W I T H Chamber Summons No.26 of 2009 IN Suit No.42 of 2002 IN Petition No.514 of 1990 Yohannan Thomas John .. .. Plaintiff v/s. Mr.Shekhar Agarwal .. .. Defendant And Ms.Uma Shah & anr. .. .. Applicants Mr.Rajesh Shah with Ms.Mehra i/by L.J. Law for Plaintiff. Mr.Rohan Cama with Ms.Pallavi Dedhia i/by Sanjay Udeshi & Co. for Caveator/Defendant. 2 Ch-summonses-49-26 Ms.Alpana Gone with Mr.Ajay Fernandis i/by Kanga & Co. for Applicants in both Chamber Summonses. ----- CORAM : SMT.ROSHAN DALVI, J. Date of reserving the judgment : 3rd December, 2010 Date of pronouncing the judgment : 23rd December, 2010 JUDGMENT : 1.Both these Chamber Summonses are taken out by two daughters of the deceased who have sought to challenge the Will of the deceased by withdrawing the consent purported to have been given by them on the ground that it was obtained under misrepresentation and/or under duress. 2.The deceased Ranchoddas Hiralal Agrawal died on 7th May 1986. He is stated to have left behind his last Will and Testament dated 3rd December 1985. The Plaintiff is the executor of the Will. He is not a beneficiary. The deceased left behind three sons and four daughters. The properties are stated to have been bequeathed to two sons. The other son and the four daughters have been disinherited. The son, who is disinherited, has filed a Caveat. The two sons, who have been bequeathed the estate of the deceased, have filed two separate consent Affidavits affirmed before the Associate/Assistant Master, High Court, Mumbai. The four daughters have 3 Ch-summonses-49-26 neither been even mentioned in the Will nor have been mentioned in the Petition for probate as the heirs and legal representatives of the deceased. Only three sons are shown as heirs in the Petition. Consequently, initially two of the sons Suresh and Subodh filed consent Affidavits on 13th March 1994. One son Shekhar challenged the Will upon the citation being issued. 3.The Petitioner is an Advocate of this Court. He has been the Advocate of the deceased as well as several of his heirs. He knew the family of the deceased. He acted as an Advocate on behalf of some of them, including the daughters. Yet he failed to show the daughters as the heirs in the Petition and consequently, he failed to file their consent Affidavits at the time the Petition was filed. 4.The Petition has been amended a number of times. Under one such amendment, the names of the four daughters of the deceased Aruna, Karuna, Uma and Asha have been added as the heirs and legal representatives of the deceased, showing their relationship as well as the address as required by the procedure to be followed in Testamentary Petitions. Upon the amendment, the consent Affidavits of the four daughters have been filed. 4 Ch-summonses-49-26 5.The Affidavits of the four daughters, Aruna, Karuna, Uma and Asha have been filed on four different dates; 5th November 1995, 6th January 1996, 22nd December 1995 and 14th February 1996, respectively. The consent of these heirs required to be filed in this Court is not necessarily to be affirmed before an officer of the Court entitled to administer an oath as an Affidavit under any rule in that behalf. All the four Affidavits are shown to be notarised in Mumbai. All the four daughters have signed the Affidavits in Mumbai. Two of the daughters lived in Mumbai and two lived in Canada. Even the daughters, who lived in Canada, have signed the Affidavits in Mumbai. These Affidavits are annexed to the Affidavit of the Plaintiff affirming that they were signed by all the daughters in his presence and are notarised. They are marked Exhibits A, B, C and D, respectively to the said Affidavit. The docket of the Affidavit of the Plaintiff does not show what kind of Affidavit it is. It only shows that it is Affidavit of the Plaintiff, affirmed on 22nd March 1996 before the Associate/Assistant Master, High Court, Mumbai. 6.It is argued that the Affidavit has not been filed in accordance with the usual procedure adopted by the office of the Prothonotary and Senior Master of this Court with regard to filing of the Consent Affidavits in Testamentary Petitions. These Affidavits have 5 Ch-summonses-49-26 remained on record only as documents annexed to the Affidavit of the Plaintiff. The consent Affidavits of the two sons, who have been bequeathed the entire estate of the deceased, were filed in accordance with, what is stated to be, due procedure followed by the office of the Prothonotary and Senior Master of this Court in Testamentary Petitions. It is also argued that had the Affidavits of the daughters been sought to be tendered to the office of this Court in the form in which they have been executed, they would not have been accepted by the office and an objection in that behalf would have been taken out. That objection is seen to have been obviated by the Plaintiff by filing his own Affidavit and annexing them thereto. This has been a part of the record. Aside from an oral objection on the question of law and procedure taken by the Counsel of the Plaintiff in this behalf, the daughters have not challenged their Affidavits on this ground. 7.It will have to be seen whether the challenge now made out is only merely technical which can be condoned and/or brushed aside. A Testamentary Petition is filed for the grant of probate. Probate will be granted if all the heirs of the deceased, whose last Will and Testament is sought to be probated, agree to the grant of the probate. Such agreement/consent to the grant of probate has to be shown. There is no prescribed format 6 Ch-summonses-49-26 or form under the Rules of the Court relating to testamentary suits to require such person agreeing to the grant of probate or consenting to the grant of probate to file an Affidavit only or to attend before the Associate or the Assistant Master of this Court. However, the requirements of showing that they know that the Will has been executed, they agree with the bequests thereunder as the heirs of the deceased otherwise entitled to the estate and that they do not mind the power of the Court being granted as per the intention expressed in the Will are the essentials required to be stated. In the absence of a form, these aspects may be stated in a single sentence. The fact that the practice of this Court which has developed shows usual Affidavits do not make the law or procedure. 8.The two Affidavits of two of the sons of the deceased, the two brothers, who have been bequeathed the estate, Suresh and Subodh are, in fact, just the usual Affidavits filed separately upon being affirmed before the officer of this Court. Shekhar, another brother, who has been working in the U.S., has not filed any consent Affidavit. He has filed a caveat instead upon being served a citation. 9.One of the sisters Asha expired prior to the Chamber 7 Ch-summonses-49-26 Summons being taken out by the other three sisters. She had been murdered on 3rd August 2003. 10.Suresh and Subodh are accused in the criminal prosecution for the said murder. Suresh has since expired on 3rd November 2003. Subodh has been absconding after the murder of Asha. 11.Since their grounds for revoking their consents are based upon oral facts that have transpired, they have been directed to lead evidence. Two of the daughters, Aruna and Karuna, have led evidence. One daughter has not led evidence on the ground that she could not attend Court for that purpose. Upon the evidence of the two sisters, the Plaintiff, has led evidence to show the denial of their case. The Plaintiff is, as aforesaid, an Advocate of this Court who is otherwise an independent executor. 12.Shekhar has challenged the Will. Upon the Affidavit- in-support of the Caveat being filed by Shekhar, two issues with regard to the execution of the Will and the state of mind of the testator has already been framed. This Court would be required to see only the validity of the execution of the Will, without more. Shekhar would be defending the suit for the grant of probate. The three daughters, who seek to revoke their consent, 8 Ch-summonses-49-26 would essentially do the same as Shekhar. The case of the Plaintiff would not be altered merely because one of the heirs or some of the heirs or many of the heirs challenge the Will. Evidence may be led by Shekhar as the Defendant in the suit followed by the evidence of any other witnesses, including the sisters, with regard to the execution of the Will and the mental capacity of the testator. The onus to prove the aforesaid two issues would be on the Plaintiff. The sisters contend that they would bring to light the other facts for challenging the Will on other grounds. The onus would lie on them to prove those grounds. It would, therefore, make very little essential difference whether or not their consent Affidavits are revoked and they are allowed to file their Caveat, Affidavit-in- support thereof and defend the suit. 13.Nevertheless, they have claimed to revoke their Affidavits. Similarly though it would make little difference to the Plaintiff whose onus to prove the aforesaid issues would not alter, the Plaintiff has strenuously contested. The Chamber Summons is to allow the daughters to be made party Defendants in the suit. 14.Under these circumstances, the evidence of the two daughters and the Plaintiff would be required to be considered. 9 Ch-summonses-49-26 15.The very first Affidavit of the two sisters, who have led evidence, is in support of their Chamber Summons. A case for revocation of their consent Affidavits is made out therein for the first time. This is followed by their Affidavit of examination-in-chief in which their case has been further elucidated. This case would have to be considered appreciating their replies in the cross-examination. 16.Both the Affidavit-in-support of the Chamber Summons as well as examination-in-chief as also the cross- examination are long and winding relating to various matters outside the scope of the actual execution of the Affidavits. What shall have to be only considered is circumstances in which the Affidavits of the four sisters came to be signed and what they did since 1995-96 to revoke their consents. The various aspects of their case may be considered under the following needs in respect of two sisters who have deposed. 17.Karuna s evidence : Consent affidavit : Karuna s case in paragraph 8 of the Affidavit-in-support of the Chamber Summons is that her consent Affidavit was made on a false representation by her brother Suresh who got her signature on the Affidavit. Suresh wanted her No Objection for selling 10 Ch-summonses-49-26 the Mulund HUF property. She was not given a copy of the Affidavit she signed or even allowed to read it. 18.In reply to she being questioned in her cross- examination whether she knew that her father had a property in Mulund she stated that she did not remember it. In reply to the question whether there was any property of her father situated in Mulund, she replied that she thought that in the Affidavit there was a mention of Mulund property. This evidence shows that she hardly knew about any Mulund property of her father or for that matter of the HUF. The seminal case in the Affidavit of the Chamber Summons that she signed the Affidavit because she was told that it was for sale of that property, therefore, becomes doubtful in view of her answers betraying the total lack of knowledge of the Mulund property. 19.Her deposition in her affidavit of examination-in- chief shows that on 16th December 1995 she had come from Canada for visit to India. She was at the residence of her cousin Umesh at Delhi. She was in a room with her daughter Charu Gupta when her brother Suresh came in. He said he wanted to say something important to her. He asked her daughter Charu to leave the room. Then he asked her to sign the document. She asked him why. The document referred to a Will. She 11 Ch-summonses-49-26 asked her brother about the Will. He became angry. He stated that all the other sisters have similarly signed the document and she should also sign. He said that he was in a hurry to catch a flight to Singapore. His demeanour was threatening. She felt intimidated. She signed under duress. She did not remember whether there was a date on the document. 20.The case of false representation made out in paragraph 8 of the examination-in-chief has not been deposed by her. The case of an Affidavit required for selling the Mulund family property is also not deposed by her. The case of duress deposed by her is absent in her Affidavit-in-support of the Chamber Summons. 21.It may at once be mentioned that the cases of misrepresentation and duress are mutually exclusive and diametrically different. Though both these cases make the contract voidable by the party who is misrepresented or coerced and though both the contracts are admittedly executed (signed) by the party seeking to avoid such contracts, the premise upon which they can be avoided and the evidence showing how they were executed is necessarily different. No party can, therefore, make out a case under both these provisions. No party can give evidence under both these provisions. The provisions under Sections 15 and 16 of the Indian 12 Ch-summonses-49-26 Contract Act itself show the two distinct and separate fields under which the reasons for avoiding a given contract fall. Indeed the case of Karuna in her Affidavit-in-support of the Chamber Summons (her pleadings) is under the one distinct head of misrepresentation. Her embellishment of such case in her evidence, which essentially makes it a case of coercion of the contract, by her signing the Affidavit in a condition of duress belies her case of misrepresentation altogether. If she had been misrepresented, as is her initial case, she need never have been coerced  she would have signed anyway. This shall be made more clear by her further evidence with regard to her exercise in setting right the wrong, as shall be seen presently. 22.Paragraph 9 of her Affidavit-in-support of the Chamber Summons shows that when she had come to Delhi from Canada on a short holiday in January 1996, she was shocked to realise that document upon which Suresh obtained her signature was the Affidavit waiving service of citation/consent to the grant of probate. However, that statement appears to be completely erroneous because her Affidavit itself is shown to be dated 6th January 1996. Her evidence shows that she came to India on 16th December 1995. She left India on 28th February 1996. She has relied upon her passport in 13 Ch-summonses-49-26 that behalf. She, therefore, could not have realised in January 1996 that the document she signed was a consent Affidavit. That realisation dawned on her much later, as shall be seen presently. She, in fact, signed the Affidavit in January 1996 during her holiday in India. 23.In her cross-examination, she deposed that her brother Umesh and her daughter Charu were present in the house then. The meeting with her brother lasted a few minutes; he asked her to sign the document and at the end of the interaction she signed. She read the document before signing. Only Suresh and she were present at that time. Suresh took away the original Affidavit and did not give her the copy. 24.She further deposed that her daughter Charu questioned her for signing the document without showing it to her. She did not lodge a Police complaint, write a letter to her brother Suresh recording the duress, call upon him to return the document, inform any other brothers or discuss it with her sisters or ascertain from sisters whether they had also similarly signed such document or received any information from the sisters in that behalf. She did not call any one or raise any alarm, though she signed under duress. Though she admitted having read the document under question No.14, she deposed that she did not completely understand the 14 Ch-summonses-49-26 contents under question No.23 of the cross-examination. She was an educated person, though a lay person as regards the law. She is M.A. in education. 25.A reading of her evidence shows that she would have willingly signed an Affidavit with regard to the sale of the Mulund property. If that was so, her deposition about duress is negatived. Consequently, Suresh s intimidation or her daughters questioning or Asha s information to her that she signed under similar circumstances when Suresh was in the hospital (an aspect which is hearsay) is false. 26.She had not signed the Affidavit in the presence of the Plaintiff nor any notary nor any officer of this Court. She has not stated that she did not sign in the presence of Advocate Agarwal who is shown to have identified her. 27.Karuna has also deposed about what Asha informed her about signing her Affidavit. Asha was murdered in August 2003. She has not stated when Asha informed her about the Affidavit. The Affidavit is not shown to be the cause of her death. Asha could not have made a dying declaration in that behalf. The evidence of Karuna with regard to what Asha told her about the Affidavit is completely hearsay and accordingly, 15 Ch-summonses-49-26 inadmissible in evidence. It is, therefore, not considered. 28.Why revocation of consent affidavit : The reason is absent in her affidavit in support of the Chamber Summons. Her Affidavit of examination-in-chief details how and why the Affidavit called Revocation affidavit came to be filed in January 2001. In November 2000, Shekhar told her that he was seriously prejudiced by the sisters executing their consent Affidavits. At that time, she was shocked to learn that what she had signed was under the impression that it was a document of sale of Mulund property and not any Affidavit which would affect Shekhar s ability to inherit. She told Shekhar that she had not executed any such consent Affidavit. Shekhar gave her a copy of the Affidavit signed by her. It was dated on a different day then when her brother had taken her signature in her cousin s house. (She has relied upon her passport to show that she was not in India on 6th January 1996 when the Affidavit is shown to have been signed but her evidence as well as her passport show that she was in India from 16th December 1995 and 28th February 1996 which includes the date put on the Affidavit.) She told Shekhar that she would set right the mistake because she realised the correct facts. (The correct facts, according to her, were that Suresh had taken her 16 Ch-summonses-49-26 consent Affidavit, though she thought that she had signed the Affidavit with regard to the Mulund property.) She has shown what happened with Shekhar in November 2000 to show how she affirmed the Affidavit in January 2001, revoking her consent Affidavit. 29.Revocation Affidavit : Paragraph 10 of her Affidavit- in-support of the Chamber Summons shows that in January 2001, her Advocate prepared Affidavits for the four sisters which were executed in the presence of the Associate of this Court. By those Affidavits, the four sisters withdrew their consent to the grant of probate of the Will of their father sought to be propounded by the Plaintiff. Karuna has stated that she has misplaced the copy of the Affidavit. The original Affidavit affirmed in January 2001 has not been filed in this proceeding until now. The copy is not produced. Neither primary nor secondary evidence is, therefore, available to show the execution of that Affidavit. That Affidavit has not seen the light of the day. 30.The Affidavit-in-support of the Chamber Summons does not show which Advocate prepared her Affidavit in January 2008 and how it was affirmed or on which date it was affirmed. It only shows that all the four sisters had executed those Affidavits in the presence of the Associate withdrawing their consent. 17 Ch-summonses-49-26 31.Her evidence-in-chief shows that Shekhar arranged for preparing the Affidavit revoking the consent stating that the sisters had been fraudulently made to consent for the grant of probate. On 25th January 2001, the sisters met Shekhar s lawyer Sanjay Udeshi for executing the Affidavit revoking the consent fraudulently obtained. The Solicitor explained them that it would be better to have a separate lawyer for the four sisters. He had arranged for one. She believed that it was the firm of M/s.Rawal Shah & Company but it may be Mr.Joseph Verghese whose name appeared on the docket of the revocation Affidavits. She read the Affidavit to be signed by her. She did not remember the contents because she did not have the copy or the original. Similar Affidavits were of her three sisters. They were all executed in the presence of the Associate. All four of them were present at the time of the execution. These Affidavits were not filed because talks of settlement in the family were in progress. However, she had an impression that they were filed. 32.This evidence shows that though there were talks of settlement she wanted to revoke her consent. Both these aspects are inconsistent with one another. In fact, even if she had not consented she would be expected to consent upon certain talks of settlement. The 18 Ch-summonses-49-26 Affidavits, which were affirmed on 25th January 2001, have never been filed. The present Advocate of the sisters has written letters to M/s.Raval Shah & Company as well as Joseph Verghese, requesting them to give information about the Affidavits discovered not to have been filed. These letters are written in February 2009 less than two months before the Chamber Summonses have been filed. Both the Advocates have stated that they have not represented the daughters and do not have the Affidavits. 33.The Affidavits never came to be filed in the Testamentary proceedings and the sisters never inquired about them. 34.A case is put to her that these Affidavits have never been signed on 25th January 2001 when they were stated to have been signed by all the four sisters who were present before the officer of this Court. Mr.Shah on behalf of the Plaintiff stated to Court that the register maintained by the office of the Prothonotary and Senior Master of this Court for the relevant date does not show any entry of these Affidavits being filed. Hence I have gone through the register. The relevant entry is on the reverse of page 13384 opposite page 13385. It shows Petition No.514 of 1990 against the name V. Joseph and A15/3 . The other entries show 19 Ch-summonses-49-26 A5 . A reading of the entries shows that whereas the other Advocates mentioned in the other columns got one Affidavit sworn paying the Court fee stamp of Rs.5/-, V. Joseph got three Affidavits sworn paying the Court fee stamp of Rs.15/- in Petition No.514 of 1990. 35.This shows three affidavits by three of the sisters on 25th January 2001. Karuna claims to have filed the revocation affidavit on 25th January 2001. She has not been able to produce or show any copy of any such affidavit. However, a reading of the entire evidence shows four Affidavits filed by the four sisters. That evidence is partly untrue. Karuna, whose copy Affidavit has not been found since, is shown not to have filed any such Affidavit. Karuna ordinarily resides in Canada. She may not have been present in India on 25th January 2001.