Niranjan Umeshchandra Joshi .. ... vs Mrudula Jyoti Rao & Ors. .. Respondents

Appellant is the son of Late Umeshchandra Madhav Joshi (hereinafter referred to as "the deceased"). He owned considerable properties. A Charitable Trust by the name of "Umesh Yoga Charitable Trust" was created by the deceased in his native village at Manor. For the said purpose, he donated 7 acres of land of his own. 4 acres of land was said to have been donated by the appellant herein. Deceased purchased a residential house at Dadar named "Umesh Dham" in 1949. The first floor of the said house was used for residence, which he also used for holding Yoga classes and also for manufacture of Hair Oil. Deceased started yoga classes. He also started manufacture of hair oil, namely, (Ramtirth Brahmi Hair Oil). Sometime thereafter, he along with his children shifted his residence to the ground floor of the said house. He had 7 sons and 3 daughters. Appellant herein is his second son. Respondent No. 2 allegedly eloped and married a Muslim boy. Respondent No. 1, however, had an arranged marriage. The relationship amongst the brothers and sisters, except respondent No. 2 was said to be cordial. Sudarshan, Jagdish and Pravin were allegedly helping the testator in management of the business of manufacture of hair oil. All his sons, namely, Sudarshan, Dr. Vishnu, Jagdish, Arvind, Sunil and Tarabai (respondent No. 2) lived together at the same house known as 'Umesh Dham'. Appellant herein and another brother Sunil were not married. Appellant is a doctor of repute. He is a Gynaeocologist and Obstreticist and his qualifications are M.D. (Obst. and Gyt.), FISC, FCPC, D.G.O.D.F.P. He started his practice in 1971. He opened a clinic and hospital at Parel.

On 14.11.1983, the deceased expressed his desire to execute a Power of Attorney as also a Will. On his purported instructions, Appellant contacted Mr. M.K. Mahimkar, Advocate, who was working with M/s Ramesh Shroff & Co. Mr. Mahimkar and Appellant visited the testator at Breach Candy Hospital. Deceased instructed Mr. Mahimkar to draft a Power of Attorney before drafting the Will as he expressed a desire to speak to his wife before executing the Will. He allegedly spoke to his wife. The Will was drafted the next day. While the Will was being drafted he asked Appellant and Pravin, his another son to wait outside the room. Appellant and Mr. Mahimkar visited the hospital during non-visiting hours for execution of the Will. It was drawn up in Mr. Mahimkar's handwriting allegedly at the spot. They and one Mr. Phadke, classmate of Mr. Mahimkar entered the cubicle of ICU of the Hospital at 3.30 p.m. for execution of the Will. The deceased sent for Dr. Bhupender Gandhi, a friend of Appellant for attesting the Will. He reached the cubicle at about 4.30 p.m. The Will thereafter was executed.

However, no step was taken for obtaining a probate soon thereafter. On 1.4.1985, a deed of assignment in regard to the manufacturing unit of Hair Oil was executed in favour of Sudarshan for a consideration of Rs. 4 lakhs. As per the deed of assignment, a sum of Rs. one lakh (hereinafter as Will) was to be paid on or before 31.12.1986 and the rest of the amount was to be paid on or before 31.3.1988.

A Testamentary Application was filed by Appellant on 21.12.1985. On 8.1.1987, a joint consent letter was filed by Tarabai, Dr. Vishnu, Arvind and Sunil in the said Testamentary Application.

On 14.1.1987, a Promissory Note for Rs.3 lacs was executed by Sudarshan in favour of Appellant in furtherance of the said deed of assignment. On 10.3.1987, a Caveat was filed by Mridula, first Respondent without affidavit and on 28.4.1987 an Affidavit was filed by her withdrawing the "no objection" earlier given for grant of probate. She was allowed to do so after she affirmed on an affidavit in support thereof.

xx xx xx "7. I declare that all the rest and residue of my estate wheresoever situate, after payment of funeral expenses, debts, liabilities, probate duty, costs, charges and expenses of management and administration is hereinafter referred to as my "Residuary Estates".

8. I devise and bequeath my residuary estate to my son Dr. Niranjan Umeshchandra Joshi absolutely.

Rs.8,12,066.32 Deduct amount shown in Schedule No.II Rs.4,77,605.30

Even in the death report entered into the Municipal record of the Bombay hospital the cause of death was shown to be Bronchopneumonia and Liposarcoma.

The appeal is dismissed with costs. Counsel's fee assessed at Rs. 25,000/-.