JUDGMENT A.B. Palkar, J.
1. Petitioners claiming to be executors of the Will of deceased Tribhovandas Trikamji Raichura, have filed the present petition for grant of probate of the Will dated 15.3.1981. Tribhovandas Trikamji Raichura died at Bombay on 14.2.1984 at the age of 84 years. He was residing at the time of his death at Flat No. 10 in Kavita Co-operative Housing Society Ltd., Santacruz and left considerable property. The aforesaid Will is the last Will of the deceased Tribhovandas and the value of the assets as stated in the petition is about Rs. 4,45,572.87 ps.
2. The deceased has left following heirs, next of kin, who are entitled to succeed in case of intestacy :
(1) His widow Smt. Santokaben widow of Tribhovandas Trikamji Raichura, aged about 70 years.
(2) His son Dhirajlal Tribhovandas Raichura, a bachelor aged about 50 years, both residing at Shree Bungalow (Back Side), Juhu Road, Santacruz (West), Bombay 400 054.
(3) His son Kantilal Tribhovandas Raichura, aged about 55 years, residing at 3, Sardar Nagar, Tagore Road, Opp : Law Hostel, Rajkot 360 001, Gujarat.
(4) His two married daughters viz. : Smt. Lilavati wife of Jethalal Bhatla (nee : Lilavati d/o. Tribhovandas Trikamji Raichura) aged about 60 years, residing at 27, Podar Apartments, S.V. Road, Near Central Bank of India, Kandivali (West), Bombay 400 067.
(5) Second daughter: Smt. Shantaben wife of Gokaldas Ramji Tanna (nee : Shantaben d/o. Tribhovandas Trikamji Raichura) aged about 58 years, residing at 155-A, Rama Kunj, Sir Bhalchandra Road, Hindu Colony, Dadar, Bombay 400 014.
One of the sons of deceased viz. Kantilal has filed Civil Suit bearing Civil Suit No. 342 of 1984 in the Court of the Civil Judge, Senior Division, at Rajkot in the State of Gujarat against the present petitioners. Petitioners were waiting for the decision of the suit and therefore there is a delay in filing of the petition.
3. Caveat is filed by Dhirajlal son of the deceased and Lilavati daughter of the deceased.
4. According to the caveators, they are the heirs of the deceased and have interest in the estate of the deceased in case of intestacy. The Will is not executed by the deceased, it is a forged and fabricated document created by the petitioners. The Will is not signed by the deceased. Contents appears to have been written afterwards on a paper containing the signature of the deceased. Deceased may have been compelled to sign on the Will.
5. Deceased was suffering from weak eye sight due to advanced age and was unable to read due to weak eye sight. He was being treated by Dr. Shah. Relatives of the deceased used to visit him regularly. He was " not in a condition to take independent decision. Caveators have made repeated requests for furnishing them a copy of the Will. It was submitted to them after a long time and on going through the Will, they found that all the heirs and near relatives of the deceased have been excluded and the Will is not genuine. The bequest is unnatural and the contents of the Will are factually incorrect.
6. Executors have taken full control over the property of the deceased and have locked up all the cupboards and refused sons and daughters of the deceased even to see the contents of the cupboards. Petitioners are not entitled to the probate.
7. Issues were framed and the issues with my findings thereon recorded against them are as below and reasons for the findings are stated in the paragraphs that follow :
Issues Findings.
(1) Whether the petitioners prove that the writing No.
dated 15.3.1981 is in the hand writing of the
deceased Tribhovandas Trikamji Raichura?
(2) Whether the petitioners prove that the deceased No.
Tribhovandas Trikamji Raichura was of sound
and disposing state of mind and that he signed
the Will and Testament of his own free Will and
the document has been duly and validly executed?
(3) Whether the defendants prove that the Will dated Yes.
15.3.1981 is forged and fabricated?
(4) Whether the defendants prove that the Will dated Not proved,
15.3.1981 has been obtained by fraud and un-
due influence?
(5) What order and decree ? In view of above
findings petition-
ers are not enti-
tled to probate of
the Will.
REASONS
8. All the issues can be conveniently discussed together. Petitioners (plaintiffs) examined two attesting witnesses, namely Umesh Gokaldas Tanna, P.W. 1, and Navinchandra Popatlal Gandhi, P.W. 2. Petitioners have also examined one Popatlal Girdhardas Gandhi whose evidence was recorded on commission as he was not in a position to attend the Court. One Handwriting Expert Anil Kumar Mathur was examined by petitioners and another Handwriting Expert Haresh Thakordas Gajjar was examined by the caveators: In addition, caveators examined Dhirajlal Tribhovandas Raichura in support of their case.
9. Although issue No. 1 is framed as whether the Will is in the hand writing of the deceased Tribhovandas, there is no dispute between the parties that the Will is in the handwriting of Popatlal Gandhi, P.W. 3, and it is claimed to have been signed by the deceased. Real question therefore is whether the Will is the last and genuine Will of the deceased executed when he was in sound and disposing state of mind and of his free Will. Evidence is therefore required to be minutely scrutinised. There is no specific plea of fraud or undue influence. However, it is established law that burden is heavily on the propounder to prove that Will is genuine specially when legal heirs are disinherited and taken keen interest in execution and attestation of the Will.
10. Deceased was maternal grandfather of P.W. 1 Umesh. He claims to be at the residence of the deceased when the Will was brought by the son of Popatlal Gandhi, namely Navinchandra, the other attesting witness. According to him, Navinchandra explained the contents of the Will to the deceased and thereafter the deceased executed the Will. Due to the old age the deceased had weak eye sight and added further that the deceased could read the document and after he read the Will, he was satisfied about the contents thereof and thereafter he placed signature on the Will. The-deceased asked him to sign and thereafter he signed and Navinchandra also signed as attesting witness. In the cross-examination, he stated that it was not necessary to read out the contents of the document and explain the same to the deceased and in the next breath he stated that the Will was read over to the deceased and again stated that the deceased thereafter read the contents of the Will himself. On the Will there is no endorsement to the effect that the contents were read over and explained to the deceased. This witness does not know as to who prepared the Will and stated that it was brought by Navin Gandhi. He used to visit the deceased on every Saturday and on that day it was Sunday and he was asked by the deceased to come for attesting the Will and Navinchandra was to bring the Will on that day. On the Will there is signature of the deceased only at the end. Every page is neither signed nor initialled by the deceased. The witness stated that they were not knowing whether it is necessary to take signature or initials on every page and whether it was necessary to make endorsement that the contents were read over and explained to the deceased.
11. In addition to this, there are certain admissions of the witness which clearly show that he is an interested witness. He is carrying on business in textile from 113, Narain Chowk, M. J. Market, in the name of M/s. Gokaldas Ramji. Gokaldas Ramji is one of the executors. Although he stated that he is not carrying on business in any other name, he admitted to have heard of one S.T.D. Corporation and also another firm named M/s. Umesh Textiles. The address of Umesh Textiles is 51, Laxmidas Chawl, 1st Ganesh Wadi, Bombay-2 and address of S.T.D. Corporation is the same as that of M/s. Gokaldas Ramji. He is not aware as to who are the partners and what is the constitution of the said two firms and admitted that Umesh Textile is a proprietary concern of his cousin and he is unable to say whether his family members had any business interest in S.T.D. Corporation when it was running and does not remember the interest of any of his family members in the said business and is unable to say about it unless he looks to the partnership deed. It is categorically admitted by the witness that the deceased had given loans and had deposited monies with these firms.
12. Although the witness is closely related to the deceased, he could not identify the signatures of the deceased on other papers shown to him in cross-examination. He admitted that the date on the Will was already written when Will was brought for the signature of the deceased and explained that the date was written as Will was to be executed on that day. He admitted that there are over writings and those over writings are not initialled and could not explain whether the over writings were there at the time of execution or it was done afterwards. The witness admitted that the deceased used to give financial assistance to his maternal aunt as her financial position was not very good.
13. As against this the next attesting witness Navinchandra Gandhi stated that the draft of the Will was shown to the deceased and after it was approved by him, it was brought back and thereafter final document was prepared. Draft is not before the Court. This witness took the Will to the residence of the deceased at Santacruz. His evidence is that the Will was shown to the deceased, he read the Will and thereafter he signed on it. Umesh Thanna was there. He signed first and thereafter the witness signed it. Thus he does not say that the Will was read over by Umesh Thanna to the deceased and thereafter the deceased also read it. He also admitted that the deceased had deposited amounts with Umesh Textiles and Gokaldas Ramji firms. The witness has stated his age as 25 years on the date of recording of evidence. In the year 1981 the deceased was aged 82 years. Even though witness claims that he became friendly with the deceased in the year 1967 when deceased was about 68 years and he himself was aged about 10 years and realising the fallacy of his statement explained that his father and the deceased were friends and therefore, he came to know the deceased. He is a partner with his father in the firm of tax consultancy. He stated that the relations of the deceased with his daughter and son were strained. This statement is made on the basis of the letter written by the deceased to the Bank of India dated 28.4.1969. He does not know whether the daughter of the deceased was a frequent visitor to the deceased although he claims that he used to visit the deceased and was very friendly with him and could not contradict the statement that his daughter was frequently visiting the deceased. Although he claims to be close relation of the deceased, he is not aware whether the deceased had suffered fracture. He then turned around and said that he had suffered fracture. He is not aware whether the son of the deceased had taken him to the hospital and looked after him. He came to know about the incident on the very next day and admitted that he did not make any efforts to find out as to who had rendered assistance to the deceased. Contradicting P.W. 1 Umesh Thanna he stated that it will not be correct to say that the deceased has a weak eye sight and had difficulty in reading and writing. However, he admitted that the deceased was getting letters written from his father but could not explain that because of the fact that the deceased has difficulty in reading and writing, he used to get the letters written from his father. He was shown a letter in the handwriting of his father, wherein it is stated that the deceased had difficulty in reading and writing. On the back ground of the facts which have come on record of the two attesting witnesses and the contradictions in their evidence, it is necessary to refer in detail the evidence of Popatlal Gandhi, who has drafted the Will.
14. Popatlal Girdhardas Gandhi, P.W. 3, was the Tax Consultant of the deceased throughout his life. He stated that on 26.11.1967 when the deceased came to Bombay from Aden to settle permanently in Bombay, nobody went to receive him and when the deceased noticed that nobody had come to receive him, the deceased telephoned to his daughter Shantaben Tanna and thereafter Gokuldas Tanna and his son Umesh Tanna went to the Airport to receive the deceased and the deceased went to the house of Shantaben. This witness although he was only a Tax Consultant, has taken undue interest in the preparation, execution and attestation of the Will. He has produced certain correspondence between the deceased and the Bank. However not a single copy of any letter bears signature of the deceased. All the correspondence is entered into by the witness himself and the correspondence includes letters written to the Bank wherein it was requested that this witness should be accepted as the second joint holder of the account to which the Bank objected as he was not related to the deceased. As the evidence of this witness was recorded on commission certain facts which are admittedly not to his personal knowledge have also been recorded. The entire correspondence he entered into with the Bank was kept by him in his own custody and was not in the custody of the deceased at any time. He admitted that during his life time, the deceased used to keep amounts in F.D.R. and his name was also included therein as joint holder of the F.D.R. There is no assertion on the part of the witness that at any time he had informed any of the relatives of the deceased about this. One of the letter produced is initialled by his son as received on 14.6.1969. There is no where any endorsement in the handwriting of the deceased to have received any of the letter from the Bank or to have addressed any letter to the Bank and normally copies maintained in respect of the Bank correspondence would be initialled by the sender, and since all the correspondence was entered into by Popatlal Gandhi, ultimately got the Will executed getting all powers to the executors including himself, inspite of the fact there was an earlier Will of the deceased. A perusal of this correspondence shows that Popatlal Gandhi was trying to get control over the financial dealings of the deceased although he was only a Tax Consultant. In order to show that nobody was attending to the deceased he went to the extent of saying that the deceased used to cook his own food and further stated that the deceased used to prepare two additional chappaties in the morning for his evening meal. At later stage he admitted that the deceased had employed a cook. Even the earlier Will dated 12,12,1975 was prepared by this witness at the instance of the deceased but it was attested by neighbouring witnesses, whereas the present Will is attested by two interested witnesses, one of whom is his own son. In order to show that, the deceased had already given sufficient money to his heirs, he stated that the deceased had given 100 tolas of gold to his wife during the period of last about ten years. The witness is a Tax Consultant of the deceased and if the deceased had given so much gold to his wife, during the last 10 years, then he could have shown it from the files or accounts of the deceased. Although the witness claims to be very close to the deceased he admitted that the deceased was admitted to Asha Parekh Hospital at Santacruz prior to his death and he was in the Hospital for 8 to 15 days. The witness however did not attend the Hospital even to see the deceased and also did not attend the funeral. He was informed by Shantaben about the death of the deceased on 14.2.1984.. He admitted in cross-examination that he did not go to the Airport when the deceased arrived from Aden. Even then he has the audacity to say that no one had gone to receive the deceased and the deceased had to telephone his daughter from Airport. I may point out here that this hearsay evidence has been recorded as the witness was examined on commission. Although he claims to be regularly visiting the deceased, he cannot say as to who were the other family members visiting the deceased. The deceased was residing at Santacruz and he had taken the flat nearer to the flat of his son Dhirajlal. The witness could not contradict the statement that the deceased bought the flat at Santacruz because he wanted to stay nearer to his son. He admitted that after the death of the deceased, the executors have withdrawn the amount from the other firms under his advice and these amounts were reinvested with M/s. Gokuldas Ramji and M/s. Umesh Textiles. He admitted that these two firms are family concerns of Gokuldas Ramji Tanna and his son Umesh Tanna and in view of this he did not make enquiries regarding constitution of these firms. All these loans given to these firms are not secured. He had no explanation as to why when he was acting as executor, he did not get the loans and investments secured. In fact whatever amount was received after the death of the deceased, could have been Invested in some Nationalised Bank or in some other manner where there is security, but instead those amounts were invested in these firms in which one of the executors is a partner. He admitted that the deceased had no dispute with his grandson Mahesh and as per the earlier Will, the bequest was in favour of Mahesh and Shailesh, sons of Kantilal. The witness was not ready to admit that the deceased had difficulty in reading and writing, inspite of the fact that this fact is expressly written in his hand in the letter and went on to say that it was so written because the deceased wanted not to write letters personally. Even before obtaining any probate, an attempt was made to get the flat transferred and the witness explained that he does not know that the Will is required to be probated and in December, 1986 he came to know that probate was required to be obtained because the son of the deceased filed a suit in the Court at Rajkot. There is no evidence of any doctor certifying that the deceased was in sound state of mind and body when the Will was obtained and the witness explained that since the deceased was in good health/signature of the doctor was not taken.
15. Before 1 proceed to consider the evidence of the Handwriting Expert, it is necessary to refer to the evidence of Dhirajlal son of the deceased. He is 65 years of age and is unmarried. Admittedly even in the earlier Will he was neither a beneficiary nor a legatee. There were other beneficiaries and considerable property is given to the sons of his brother Kantilal. He has stated that after his father after coming from Aden he was residing with him and at the time of his arrival his sister and brother-in-law Gokaldas had gone to the Airport and he stayed at the house of Kantilal at Khar. In contrast it is worthwhile to remind how Popatlal has given a pervert narration of the incident. He has produced letters written by his father from Aden at Exh. D-3 collectively. From the said letters it is clear that his father was advising him to get married and not to live in alone though he was interested in spiritual matters. He has clearly stated that his sister Lilaben used to visit father once in a week. His mother's movement was restricted due to illness and therefore, father was visiting her once or twice in a month. He has admitted that a cheque for Rs. 25.000/- was given by his father by way of gift to him and Rs. 20.000/- to his mother, which were accepted. It is his evidence that his father was living alone and had engaged a cook which falsifies the version of Popatlal that the deceased himself was cooking. There is nothing in cross-examination of this witness to falsify him. He is not a beneficiary under the Will and therefore, he is clearly disinterested even though he is the son of the deceased. It is clear from the above discussed evidence that the deceased was maintaining good relations with his wife and sons and he had love for his daughter as well as grandchildren and if we look at the earlier Will, it clearly shows that apart from giving property to grandchildren, the deceased had given some amounts to different relatives and in comparison, in the disputed Will, he has not even mentioned any of them nor is there any mention as to why he is taking away properties bequeathed to children and the gifts given to various relatives, these circumstances make the present Will suspicious which suspicion the propounder has failed to repell.
17. It is well known that the expert witness can always give opinion favourable to the side who has engaged him and the evidence of the expert is therefore to be looked at keeping in mind this aspect of the matter and therefore, I have tried to compare the signatures with the help of the material provided in the opinion of the experts.
18. There are some other aspects why the opinion of Mr. Gajjar examined by defendants is more reliable. The expert engaged by the plaintiff is one who does not know Gujarati language and is not conversant with reading and writing Gujarati language and has studied through English medium. It is well known that the person who does not know a vernacular language is at great disadvantage if he has to compare hand writing or signature in vernacular because of the peculiar habit of the persons writing the script which could better be known only to the person who is conversant with the script and the language and therefore, plaintiffs' expert who was admittedly not knowing Gujarati script was at great disadvantage. He has taken enlargements of a smaller size than what is recommended for the experts whereas defendants' witness Gajjar has taken the enlargements of the size recommended. More over he had only one full signature for comparison. In his evidence he admitted difference in each alphabet in the disputed and admitted signature and his conclusion is mainly based on his inability to find marks of forgery. He stated that since he could not find forgery, he takes it as genuine. One cannot forget that if a forger has made continuous practice of copying the signature then less marks of forgery are likely to be found and therefore, one has to concentrate on the dissimilarities which remain obvious even to layman's naked eye inspite of a skillfull attempt at copying the signature.
19. However, I am not basing the entire decision on the evidence of the expert witness. According to me that only corroborates the other evidence already discussed. Even if I were to hold that signature on the disputed Will is genuine, my conclusion would not be different in respect of nature of the document and I would still hold it as a Will brought into existence without the deceased knowing what are the contents thereof,
20. There are circumstances which create strong suspicion which the propounder has failed miserably to repell.
(i) The deceased has left a considerable property, moveable as well as immoveable; (ii) The scribe Popatlal Gandhi was the Tax Consultant of the deceased and had thus a fiduciary relationship with the deceased; (iii) It is claimed that the Will is signed by the deceased, which fact is disputed by the close relatives of the deceased; (iv) The deceased was about 82 years of age on the date of execution; (v) The Will disinherits sons, daughters, and grand children of the deceased; (vi) The bequest is allegedly for some auspicious function as the wording used in "Subh Karya"; (vii) Executors are given full powers and complete discretion to deal with the property without any control over them; (viii) Executors are not close relatives of the deceased; (ix) Earlier to this deceased had admittedly executed a Will bequeathing immoveable property to his grandchildren; (x) That Will is dated 12.12.1975 and is admittedly a genuine Will; (xi) The bequest is unnatural; (xii) The bequest is vague, (xii) The deceased had weak eye sight and evidence of Will having been read over is contradictory and the document is silent on that aspect.
21. The bequest is also vague in the sense that the executors have been authorised to use the entire property for any holy or auspicious function "Subh Karya". This is an extremely vague purpose and although it is claimed that it was a charitable purpose, the word does not necessarily convey any charitable purpose. Executors can very well use the property for functions like marriage ceremonies or birthday functions or naming ceremonies of their children and grandchildren and still successfully maintain that it was for "Subh Karya" as envisaged by the Will. In such a case it would be difficult to challenge that it was not a "Sub Karya". In this connection, the plaintiffs have relied on a judgment of this Court Mahadeo Ramchandra Washikar v. Darnodar Vishwanath Gokhale 59 Bom. L.R. 472 wherein the direction by the testator was to dispose of his residuary estate according to the discretion of the executor as he deemed fit. It is pertinent to point out that it was only in respect of the residuary estate clear discretion was given to the executors. Here the entire property is bequeathed in such a manner that executors can usurp the property, and use it entirely for their own benefit and still successfully maintain that they have used it as is laid down by the testator, that also and this after disinheriting all the heirs and close relatives including his grandchildren to whom property was given by earlier Will. There is nothing on record to show that after the earlier Will there was any reason for the deceased to change his mind not to give any property to his grandchildren for whom he had the same care and affection. Why should the deceased have anything against the grand children. The deceased has a widowed daughter and it has come in the evidence of plaintiffs' witness that deceased was loving her and taking care of her welfare. Similarly welfare of his wife would be prime consideration in the mind of the deceased. Even if we presume that since the wife was living with Dhirajlal and deceased has no worry on that account, his anxiety for his widowed daughter would still remain and it is highly improbable that without making any adequate provision for her, the deceased would bequeath the property for a vague purpose "Subh Karya" giving executors full authority and opportunity to exploit and use the property in the manner they like. In any case no reasonable explanation has come from the petitioners as to why the deceased wanted to change his earlier Will in which he had meticulously and carefully prepared in 1975. It is extremely improbable that the deceased was in a position to read himself and one of the attesting witness even does not say that Will was read over to the deceased. Therefore, mere proof of signature would not be sufficient to prove genuine nature of the Will and since above referred evidence clearly shows that the signature does not appear to be genuine, it is not possible to accept the Will as genuine. For all these reasons, I find that it is not possible to accept the petitioners' case that the Will is either executed by the deceased or is otherwise a genuine last Will of the deceased, and therefore, all the issues are answered against petitioners and in favour of caveators/ defendants.
22. The petition as well as the suit stand dismissed with costs.