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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO.59 OF 2003
IN
TESTAMENTARY PETITION NO.237 OF 2003
Edakuda Panankandiyil Narayana Kurup .. Deceased
In the matter between
Mrs. Dhana Nambiar )
Hindu Inhabitant of Bombay )
being the sole executrix named under )
the last Will of the deceased, )
residing at Shreeniketan, Plot No.377, )
9th Cross Road, Chembur, )
Bombay - 400 071 ) .. Plaintiff/Petitioner
Versus
E.P.Vinod Kurup of Mumbai )
Hindu Inhabitant of Bombay )
residing at Shiv Anil, 600, 6th Floor, )
6, Union Park, Chembur, )
Mumbai - 400 071. ) .. Defendant/Caveator
---
Mr.Prakash Lad a/w Ms.Aparna Murlidharan a/w Ms.Sayli Apte for
the plaintiff/petitioner.
Mr.Clive D'Souza for the defendant.
---
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CORAM : R.D. DHANUKA, J.
RESERVED ON : 5th July 2017
PRONOUNCED ON : 10th October, 2017
Judgment :-
. The plaintiff herein has filed a petition bearing No.237 of
2003 which is converted into Testamentary Petition No.59 of 2003 inter alia praying for probate of the last Will and Testament of Mr.Edakuda Panankandiyil Narayana Kurup dated 18th August 2002 who died on 4th September 2002 (Hereinafter referred as the "said deceased"). Some of the relevant facts for the purpose of deciding this suit are as under :-
2. The plaintiff claims to the sole executrix of the said Will dated 18th August 2002 alleged to have been executed by deceased Mr.Edakuda Panankandiyil Narayana Kurup. Plaintiff was the daughter of the said deceased. It is the case of the plaintiff that the said deceased left the Will dated 18th August 2002 bequeathing a flat described in the Will to his grandson Harish Nambiar, son of the plaintiff absolutely and exclusively. Except the said bequest, the deceased has alleged to have bequeathed all his estate, movable as also immovable to his daughter- ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:34 :::
ppn 3 ts-59.03 (j).doc plaintiff absolutely and exclusively. It is the case of the plaintiff that the said deceased left behind him surviving as his only next of kin according to the Hindu Succession Act, 1956 i.e. three sons and one daughter.
3. In the said alleged Will, it was provided that all three sons were well settled and the testator did not wish to give them anything out of his estate and hence he had excluded all his three sons from his estate and directed that none of them shall have any share or interest of any nature in any portion of his estate. According to the plaintiff, the said Will was witnessed by Mr.Kishor V. Tembe, Advocate and also by his wife i.e. Mrs.Neela K. Tembe.
4. On 4th September 2002, the said deceased died at Mumbai. On 17th February 2003, the plaintiff herein filed a Testamentary Suit No.237 of 2003 inter alia praying for probate of the alleged last Will and Testament of the said deceased. Citations were served upon the next of kins described in paragraph 8 of the plaint.
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5. Mr.Kishor V. Tembe and Mrs.Neela K. Tembe filed two separate affidavits both dated 17th February 2003 as the attesting witnesses which were annexed to the testamentary petition. Out of three sons of the said deceased, the defendant herein filed a caveat and affidavit for opposing the probate petition. In view of the said caveat and affidavit-in-support of the caveat, the Testamentary Petition No.237 of 2003 was converted into a Testamentary Suit No.59 of 2003. In the affidavit-in-support of the caveat, the caveator alleged that the alleged Will purportedly executed by the deceased on 18th August 2002 was a false and fabricated document prepared at the instance of the plaintiff with a view to make provision for herself and her children so that the entire estate of the deceased would belong to them.
6. It was further alleged that the plaintiff had a malafide motive of disinheriting the caveator completely which the deceased would never have done. It is stated by the caveator that he was given to understand that the left hand thumb impression was obtained by the Sub Registrar at the residence of the deceased. The said deceased was unable to sign the purported Will. However, the purported Will bear the signature of the deceased. It is contended that the attesting witnesses ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 ::: ppn 5 ts-59.03 (j).doc of the purported Will are the husband and wife. The caveator objected to grant of probate also on the ground that the plaintiff who was eldest in the family, her eyes were always set on the estate of the deceased. The deceased was suffering from Cancer which suffering increased in the final days of his life. The deceased died on 4 th September 2002 i.e. 17 days from the date of execution of the alleged Will. The deceased was 88 years old and was not in a proper state of mind to understand what he was doing. The deceased was illiterate and was understanding only Malayalam. He could not read or write English. The deceased was in extreme pain in the final days of his life. His poor physical & mental health and feeble mind due to medication towards the end of his life made him an easy prey to the manipulations of the plaintiff whose influence over him was overwhelming.
7. In paragraph 5 of the affidavit-in-support of the caveat, it is alleged that the purported Will shows that the language of the alleged Will was not the expression of thoughts of the deceased but was an expression of thoughts of the plaintiff herself whose main object was to make provision for herself and her children i.e. her daughter Mrs.Rekha Unni and her son Mr.Harish Nambiar. It is alleged that the only reason for excluding the caveator and his two brothers was that they are well ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 ::: ppn 6 ts-59.03 (j).doc settled. The plaintiff was also well settled and has been residing in Shreeniketan without any payment. It is further alleged that the registration of the alleged Will with Sub Registrar at Kulra was done by the plaintiff with a view to create a false impression that the purported Will was a genuine Will.
8. It is alleged that the deceased was incapable of signing the purported Will on or about 18th August 2002 on account of his illness and physical and mental weakness. The said affidavit of the attesting witnesses were tailor-made to lend credence to the genuineness of the alleged Will. The alleged Will dated 18th August 2002 which is sought to be probated by the plaintiff is a false and fabricated document. It is alleged in the affidavit-in-support of the caveat that considering close relationship that existed between the deceased and the caveator who being the youngest in the family, it is inconceivable that the deceased would have excluded him in the manner that the purported Will does. It is alleged that even assuming without admitting that the alleged Will was signed by the deceased, it was certainly signed under duress or under the influence of the plaintiff. It is further alleged that the said alleged Will alleged to have been drawn up by Mr.Kishor V. Tembe who was also the attesting witness of the alleged Will. Instructions for ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 ::: ppn 7 ts-59.03 (j).doc drawing up the alleged Will were purportedly given by the plaintiff herself. The said alleged Will is not a genuine Will.
9. It is alleged that even if the deceased had some reason to be displeased with him, he would not have excluded his children only from the estate when he had allegedly made provision for the children of the plaintiff. The deceased at the time of alleged execution of the purported Will was not in full possession of his faculties and could not have understood the contents of the purported Will. The alleged Will is against the temperament of the deceased. The deceased was not explained the contents of the alleged Will and the alleged Will was obtained fraudulently or by undue influence. It is alleged that the deceased was too feeble and was not in a position to make any testamentary disposition at the time the alleged Will was purported to have been executed by him on account of his illness and extreme old age.
10. On 9th July 2010, this Court framed the following issues. Issues and my findings thereon are as under:-
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Issues Findings
(i) Whether the last Will and Testament of In Negative.
the testator dated 18th August 2002
was validly executed ?
(ii) Whether the Will was obtained by Alleged Will is
surrounded by
fraud or was forged and fabricated ?
surrounding
suspicious
circumstances.
(iii) What relief, if any, the plaintiff/
petitioner is entitled to ? As per order.
11. The plaintiff himself entered the witness box and filed
affidavit in lieu of examination-in-chief on 29th July 2010. He also examined one of the sons of the deceased i.e. Mr.Edakuda Panankandiyil Dhandas as a witness (PW-2) who was also cross-examined by the defendant's advocate. The plaintiff also examined Mr.Kishor V. Tembe, advocate who was alleged to be one of the attesting witnesses to the alleged Will who was cross-examined by the defendant's advocate. The defendant himself entered the witness box and filed affidavit in lieu of examination-in-chief dated 17th June 2013. He was cross-examined by ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 ::: ppn 9 ts-59.03 (j).doc the plaintiff's advocate. The defendant examined one of the sons of the deceased i.e. Mr.Edakuda Panankandiyil Dhananjayan as one of the witnesses who was cross-examined by the plaintiff's advocate. The defendant had issued a witness summons upon Dr.Nobhojit Roy of BARC Hospital to produce two files containing medical records of the deceased and for recoding his evidence. The said witness was cross- examined by the plaintiff's advocate.
12. Mr.D'Souza, learned counsel appearing for the defendant invited my attention to the averments made in the plaint, affidavit-in- support of the caveat, issues framed by this Court, various affidavits in lieu of examination-in-chief filed by the witnesses and their cross- examination. He invited my attention to the deposition of the plaintiff recorded in paragraph 8 of the affidavit in lieu of examination-in-chief and submits that according to the said witness, she has alleged to have identified the signature of the deceased at the time of registration of the alleged Will. He submits that the said witness was not shown the original alleged Will of the deceased at any point of time and more particularly when she filed affidavit in lieu of examination-in-chief and when she was in witness box.
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13. Learned counsel for the defendant invited my attention to the affidavit in lieu of the examination-in-chief of Mr.Kishor V. Tembe dated 8th April 2013. It is submitted that the said Mr.Kishor V. Tembe claimed to be an Executor of the alleged Will was also not shown the original alleged Will dated 18th August 2002 of the deceased. He submits that in the said deposition of the said Mr.Kishor V.Tembe, he has not deposed as to whether he was shown the original Will. He submits that when the said witness entered the witness box before the learned Court Commissioner, even at that stage, the original alleged Will was not shown to the witness. It is thus submitted that since the original alleged Will was not shown either to the attesting witness or to the plaintiff herself, the said original alleged Will is not proved by the plaintiff. The said Mr.Kishor Tembe has not identified the signature of the deceased and the attesting witnesses on the alleged Will. In support of this submission, learned counsel for the defendant invited my attention to the entire evidence of the said Mr.Kishor V.Tembe who alleged to be the attesting witness and also to the plaintiff.
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ppn 11 ts-59.03 (j).doc 14. Learned counsel for the defendant placed reliance on
Sections 67 and 68 of the Indian Evidence Act, 1872 and would submit that even if the Will is registered, the signature of the testator has to be proved. He submits that the documents referred to and relied upon by the plaintiff in her affidavit in lieu of the examination-in-chief and more particularly in paragraph 4 were admittedly not marked as exhibits but marked "X" for identification.
15. Learned counsel for the defendant invited my attention to the answer of the plaintiff in reply to question nos.24 to 36, 43 and 44. He submits that the plaintiff has admitted in the cross-examination that the said deceased was suffering from abdominal cancer, diabetes, high blood pressure, breathlessness and had walking difficulties and whenever he was suffering from any illness, the plaintiff used to take him to BARC hospital. He submits that the attention of the witness was invited to paragraph 7 of the affidavit in lieu of examination-in-chief. She admitted that the said deceased was suffering from blood pressure also. Witness admitted that on 26th August 2002, the deceased was suffering from breathlessness and chest pain as mentioned in the progressive notes of the BARC hospital. She further admitted that the deceased was ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 ::: ppn 12 ts-59.03 (j).doc suffering from severe arm pain and was not taking solids and was also suffering from severe weakness. She deposed that she did not recollect for how long the deceased was suffering from severe arm pain but it was stated that may be, he was suffering from 27th August 2002.
16. Learned counsel for the defendant invited my attention to the answer given by the plaintiff in cross-examination in reply to question no.47 and would submit that when the witness was shown page no.1/73 of medical reports and was asked whether the contents of the said report were correct, she answered the said question in affirmative. The witness also admitted that the deceased was admitted to the Bhabha Atomic Research Hospital on 22nd August 2002. In reply to question no.50, the witness admitted that when the deceased was admitted to the said hospital on 22nd August 2002, he was vomiting and was suffering from severe weakness. He was also suffering from loss of appetite. He was not taking solids. The witness admitted that when the deceased was admitted to the hospital in 2002, he was 88 years old. In reply to question no.66, the witness admitted that on 4th January 2001, the said deceased was provided hearing aid by BARC hospital. ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 :::
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17. It is submitted that the plaintiff had produced only two selected documents which were at pages 34/73 and 36/73 from the medical reports filed by the BARC hospital which were produced on record by the plaintiff. Doctor of the BARC examined by the defendant confirmed that those two documents produced by the plaintiff were out of those medical reports produced by the doctor from BARC. He invited my attention to the reply given to question no.88 i.e. when the plaintiff was put a suggestion by the defendant's advocate that the alleged Will was not validly executed, the plaintiff denied the said suggestion. In reply to question no.90, the witness could not produce any proof to show that the deceased could speak Hindi, Marathi, Tamil and Gujrati and read English as deposed by her in paragraph 3 of her affidavit in lieu of examination-in-chief. The witness denied the suggestion of the defendant's advocate that the purported Will dated 18 th August 2002 was obtained fraudulently and was a fabricated document. She also denied the suggestion that the deceased had a poor physical health and a feeble mind at the time of execution of the alleged Will.
18. Learned counsel for the defendant invited my attention to paragraph 16 of the affidavit in-support of the caveat and submits that ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 ::: ppn 14 ts-59.03 (j).doc the defendant had raised a specific objection that the deceased was not in a position to make any testamentary disposition and was not in a proper frame of mind to make and execute the alleged Will. He invited my attention to the deposition in paragraph 10 of the affidavit in lieu of examination-in-chief of the plaintiff alleging that the said deceased was very active and was capable of understanding the contents of the said Will at the time of execution thereof. He submits that in the said deposition, the plaintiff has not deposed whether the said deceased had actually understood the contents of the Will or not at the time of alleged execution of the said Will. It is deposed by her that the said deceased was treated at BARC hospital because the plaintiff was a teacher in Atomic Energy Central School. In the said paragraph, she deposed that when the said deceased was hospitalised only on 22nd August 2002, he was vomiting. He has only abdominal cancer and was treated in BARC hospital.
19. Learned counsel for the defendant invited my attention to the affidavit in lieu of examination-in-chief of Mr. Kishor V. Tembe, advocate and submits that even the said witness has not deposed about the alleged sound mind and disposition mind of the said deceased at the time of execution of the said Will or that the said deceased had ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 ::: ppn 15 ts-59.03 (j).doc understood the contents of the said alleged Will at the time of execution of the said alleged Will.
20. Learned counsel for the defendant placed reliance on Rule 374 of the Bombay High Court (Original Side) Rules, 1980 and submits that the affidavits of attesting witnesses have to be accompanied with the testamentary petition when filed. He submits that the contents of the affidavits of the attesting witnesses have to be incorporated into the affidavit of evidence which the alleged attesting witnesses have failed. He submits that the affidavit of attesting witnesses cannot be considered in evidence. Learned counsel for the defendant invited my attention to the affidavit of attesting witness Mr. Kishor V. Tembe dated 17 th February 2003 annexed to the petition alleging that at the time of the said deceased having subscribed his signature to the said Will, he was of sound and disposing mind, memory and understanding and to the best of his belief, made and published the same of his free Will and pleasure. The contents of the said affidavit annexed to the petition were not incorporated in affidavit of evidence of Mr.Kishor V. Tembe.
21. Learned counsel for the defendant invited my attention to the examination-in-chief of Dr.Nobhojit Roy who attended these ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 ::: ppn 16 ts-59.03 (j).doc proceedings pursuant to the summons issued to him by this Court on the application of the defendant to give evidence in respect of two files containing medical reports of the deceased maintained by BARC hospital. He submits that various portions of the medical reports were shown to the said witness.
22. It is submitted that the said doctor admitted that the hospital started treating the deceased from 28th March 2002 till his death in the Surgical Unit. He deposed that his area of specialization was General Surgery. He had gone through the medical reports when the witness was asked as to what is terminal cardio respiratory arrest in case of advance adeno carcinoma of stomach with heptic metastasis. The witness answered that it means cancer of the stomach which spread to the liver. The said answer was given by the witness after his attention was drawn to page 1/73 of the certified copy of the medical notes showing cause of the death as "terminal cardio respiratory arrest" in case of advance adeno carcinoma of stomach with heptic metastasis.
23. The said doctor also admitted that at the different times and varying period of times, the said deceased had suffered from heart disease, diabetes, hypertension, breathlessness, severe weakness, ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 ::: ppn 17 ts-59.03 (j).doc discharged from eyes, ear tinnitus, low sodium and blood pressure. When the witness was asked whether various illnesses of the deceased admitted by him was during the period from 28th March 2002 until his death on 4th September 2002, he deposed that there were pre-existing illnesses which did not manifest as a cause for admission in the hospital. He further deposed that none of the member of the team were treating those illnesses of the deceased. He deposed that Dr.Bhatt was treating the ear complaint, Dr.Nandkarni was treating the eye treatment, Dr.Nair was the physician treating diabetes, hypertension and heart disease. When the witness was asked as to what diseases the deceased was operated on, he replied that it was a cancer of the stomach, but he was not operated upon. The deceased was referred to Dr.Raman Deshpande at Tata Memorial Hospital and the doctors and the family in consultation decided not to go ahead with surgery. He submits that the said doctor admitted that it had been recorded in the notes of the patient that the family did not desire to go ahead with the operation.
24. Learned counsel for the defendant invited my attention to the answer of the witness to question no.22 and submits that the said witness admitted that the said deceased was suffering from vertigo as mentioned in the progress reports on the dates he was seen by the ENT consultant. ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 :::
ppn 18 ts-59.03 (j).doc In reply to question no.28, the witness admitted that all investigations done on the patient entered in the main file recorded by the treating doctor/clinicians. The investigation file contained physical reports of the investigation. He also admitted that severe weakness, weight and appetizer, loss and pooling of food was the results of stomach cancer.
25. Learned counsel invited my attention to reply of the witness to question nos.34 to 37 and submits that the said witness admitted that the patient was physically weak because of his illness. The said witness further deposed that the deceased was however ambulatory and had energy enough not to be bed ridden. The said deceased came in for treatment and was admitted from home on 22nd August 2002. There was no record in the hospital notes of how he got to the hospital. He presented himself to the Out Patient Department. He deposed that there was no record of who accompanied the patient to the hospital.
26. Learned counsel for the defendant invited my attention to the cross-examination of the said Dr.Nobhojit Roy and submits that though the said witness admitted that the said deceased was suffering from several illnesses, in his cross-examination, when he was asked by the learned advocate for the plaintiff that whenever he had occasioned to ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 ::: ppn 19 ts-59.03 (j).doc examine the deceased, how did he find his mental condition, the said witness deposed that the said deceased was to be extremely cheerful despite his physical condition and his diseases. When the said witness was asked whether he could tell about his understanding whenever he had examined the deceased, the said witness replied that the said deceased had a very good understanding and his decision making of not undergoing any aggressive treatment for his cancer.
27. When the said witness was put a suggestion by the plaintiff's advocate that the deceased was of sound mental condition till 2nd September 2002, he answered the said question in affirmative and further stated that as per the team record of the said witness, the said deceased was conscious and oriented which reflected his sound mental condition. It is submitted by the learned counsel that the said cross- examination of the said witness was totally contrary to his various answers given in the examination-in-chief which were giving after verifying the contents of various medical records forming part of the reports filed by the said deceased by BARC hospital. He submits that cross-examination of this witness has to be read and construed in proper perspective.
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28. The plaintiff examined himself as well as the witness Mr.Edakuda Panankandiyil Dhanadas, one of the son of the deceased and also examined Mr.Kishor V. Tembe, advocate who claimed to be one of the attesting witness to the alleged Will who were cross examined by the defendant himself. The defendant examined himself and also Dr. Nobhojit Roy of BARC Hospital and also one of the son of the said deceased Mr.Edakuda Panankandiyil Dhanadas who were cross examined by the plaintiff's counsel.
29. Learned counsel for the defendant invited my attention to the alleged Will of the deceased and would submit that the alleged testator has alleged to have bequeathed the entire property to the plaintiff and her two children. The immovable properties are bequeathed to the grand children of the deceased and the movables are bequeathed to the plaintiff. Learned counsel invited my attention to various contentions raised by the defendant in the affidavit in support of the caveat. My attention is invited to the affidavit in lieu of examination in chief of the plaintiff. Learned counsel for the defendant submits that the plaintiff has though identified the alleged signature of the deceased, the said alleged signature was identified at the time of the registration of the alleged Will. The ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 ::: ppn 21 ts-59.03 (j).doc alleged Will was never shown to the plaintiff in evidence at any point of time.
30. On this issue, the learned counsel for the defendant invited my attention to the affidavit in lieu of examination in chief filed by Mr.Kishor V. Tembe, advocate who was alleged to be one of the attesting witness. It is submitted that the said witness also did not identify the signature of the testator and the other alleged witnesses on the alleged Will. The said witness also was not shown the original of the alleged Will executed by the said deceased. Learned counsel for the defendant invited my attention to the cross examination of Mr.Kishor V. Tembe and would submit that the said alleged Will is neither proved by the said Mr.Kishor V. Tembe or by the plaintiff at all. He placed reliance on sections 67 and 68 of the Indian Evidence Act, 1872. He submits that even if a Will is registered, proof of the signature of the deceased testator on the Will is not dispensed with and has to be proved.
31. Learned counsel appearing for the defendant invited my attention to the deposition of the plaintiff in paragraphs 3 and 4 of the examination in chief and submits that the documents referred by the said witness such as public notice alleged to have been issued by the deceased ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 ::: ppn 22 ts-59.03 (j).doc on 28th October, 1989 has not been marked as exhibit as the same is not proved by the plaintiff. He invited my attention to the cross examination of (PW-1) and in particular his answer to question nos. 24 to 36, 43, 44, 53 to 55, 61 to 73, 75 to 77, 88, 92 to 99 and submits that the plaintiff has admitted in its cross examination that the said deceased was suffering from various diseases and was bed-ridden.
32. Learned counsel appearing for the defendant invited my attention to clause (4) of the alleged Will and would submit that even the said alleged Will clearly indicates that there was no rivalry between the said deceased and the defendant who was his son. The said deceased in the said alleged Will has totally disinherited the defendant. He submits that the alleged Will of the said deceased is not an unnatural Will and cannot be probated.
33. Learned counsel appearing for the defendant invited my attention to some of the objections raised by the defendant in support of his caveat and more particularly on the issue of mental capacity and disposing mind of the deceased and also disputing that the deceased could not have understood the contents of the alleged Will. He submits that neither the attesting witness nor the plaintiff has deposed about the ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 ::: ppn 23 ts-59.03 (j).doc sound and disposing mind and memory of the said deceased or that the said deceased had understood the contents of the said Will.
34. Learned counsel appearing for the defendant invited my attention to Rule 373 of the Bombay High Court (Original Side) Rules and would submit that the affidavit of the attesting witness has to be in the format prescribed under the said Rule. The affidavit of the attesting witness has to be accompanied with the testamentary petition when filed.
35. Learned counsel appearing for the defendant invited my attention to the examination in chief of Dr. Nobhojit Roy (PW-3) and in particular his reply to question nos. 4, 8 to 12, 14 to 37 and would submit that the said witness who was who was practicing doctor in BARC Hospital where the said deceased was admitted for quiet sometime after verifying the medical report showing to him by the learned counsel for the defendant. He submits that the said doctor could not produce any team record which were alleged to have been referred by him in his cross examination. He submits that insofar as the evidence of the said Dr. Nobhojit Roy is thus concerned, this court shall consider the entire evidence in toto including the evidence of the other two witnesses examined by the plaintiff who had categorically admitted that the said ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 ::: ppn 24 ts-59.03 (j).doc deceased was suffering from various diseases till his death.
36. Learned counsel for the defendant invited my attention to the evidence of the plaintiff (PW-1) and also some portion of the cross examination and more particularly question nos. 10, 11 to 26, 33, 36 to 38, 53, 59 to 63 and 68. He submits that the plaintiff in her cross examination has admitted that she had given instructions to her advocate to prepare the affidavit of evidence of her brother Mr.Edakuda Panankandiyil Dhanadas (PW-2). He submits that the said affidavit filed by the said PW-2 shall be thus discarded by this court. He submits that the said witness categorically admitted in the cross examination that the deceased was suffering from abdominal cancer, diabetics, high blood pressure, hypertension etc. Whenever the said deceased was suffering from any illness, he was taken to BARC Hospital. He also admitted that on 26th August, 2002, the said deceased was suffering from breathlessness, chest pain and also severe arm pain and was not taking solids' and was suffering from severe weakness.
37. Learned counsel appearing for the defendant submits that the said witness (PW-2) admitted that all the children of the said deceased were looking after the said deceased. All the children had performed the ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 ::: ppn 25 ts-59.03 (j).doc last rites of the said deceased. He invited my attention to the affidavit in lieu of examination in chief of the defendant (PW-1) filed on 17th June, 2013. He submits that both the parents of the defendant were extremely fond of him and there is no reason whatsoever for the father of the defendant to dis-entitle him to the share in his estate. The deceased was not only fond of the defendant but also his only child Vishal Kurup. The plaintiff who was the eldest in the family, her eyes were always set on the estate of the deceased. The defendant also placed on record that the said deceased was suffering from diseases and pain and died on 4th September, 2002 i.e. 17 days from the date of execution of the alleged Will. The said deceased was 88 years old when the alleged Will was executed and he was not in a proper state of mind to understand what he was doing.
38. Learned counsel for the defendant heavily placed reliance on the medical report of the BARC Hospital relating to the treatment given to the said deceased from time to time which reports were taken on record by this court. He also invited my attention to some of the answers given by DW-1 in his cross examination. DW-1 admitted that the father had issued a public notice but did not recollect the date. The defendant denied the submission that after 1989, his relationship with the father were severe.
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39. The witness denied the suggestion that the plaintiff was looking after the father during his illness or that the plaintiff was present personally in the BARC Hospital all throughout. The witness also denied the suggestion that the said deceased knew to read and write English and used to read the English newspapers. When the witness was put a suggestion that the deceased was not mentally ill, he deposed that the compilation of medical papers which he had filed would prove the mental condition of the deceased. He submits that no bills were raised by BARC Hospital for the treatment given to the said deceased. The defendant was put a suggestion by the plaintiff's advocate that Mr.Kishor V. Tembe, advocate (PW-3) was a friend of the deceased and was a regular visitor in the house of the deceased. Mr.Kishor V. Tembe was a resident of the same vicinity where the said deceased was residing.
40. Learned counsel for the defendant invited my attention to some of the documents from the medical reports also separately produced in evidence by the defendant which were obtained under the provisions of the Right to Information Act. It is submitted that the defendant thus has proved that the said deceased was suffering from various diseases and did not have sound and disposing mind on the date of execution of the ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 ::: ppn 27 ts-59.03 (j).doc alleged Will nor to understand the contents of the alleged Will.
41. Insofar as the production of the medical report of BARC Hospital is concerned, Mr.Lad, learned counsel for the plaintiff initially raised an objection to the marking of those documents on the ground that the same were not forming part of the Government record. He submits that the plaintiff has raised an objection when such documents were relied upon by the defendant and were shown to the witness examined by the plaintiff and also to Dr. Nobhojit Roy examined by the defendant. He submits that since the documents were produced at the time of cross examination, the Order 13 Rule 1 will not apply.
42. On the issue of marking of the original report, learned counsel for the defendant invited my attention to various parts of the cross examination of the witnesses by the plaintiff and also the evidence of Dr. Nobhojit Roy who was shown most of the documents forming part of the medical report and would submit that after verifying the correctness of those reports, the said Dr. Nobhojit Roy had confirmed that the said deceased was suffering from various diseases. Learned counsel invited my attention to the order passed by this court on 1 st July, 2014 taking those two medical reports files on record and marked as ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 ::: ppn 28 ts-59.03 (j).doc Exs.A and A-1. He submits that the plaintiff thus cannot raise any dispute now that those medical files cannot be marked as exhibits. He submits that in any event, the said documents were obtained by the defendant under Right to Information Act and were confronted to various witnesses and they had given their reply based on the reports. In my view, those medical records are already taken on record and thus there is no merit in the submission of the learned counsel for the plaintiff.
43. Learned counsel for the defendant submits that the alleged Will is surrounded by various suspicious circumstances which are required to be dispelled by the propounder of the alleged Will. He submits that conscious of this court has to be satisfied before granting probate. He submits that the plaintiff claimed to be executrix of the Will is an interested party. She herself and her children were exclusive beneficiary under the said Will. She was alleged to be present when the alleged Will was executed by the said deceased. She had called her husband to witness the alleged registration in the office of the Sub Registrar of Assurances. She had given instructions to draft the affidavit of PW-2.
44. Learned counsel for the defendant placed reliance on the ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 ::: ppn 29 ts-59.03 (j).doc judgment of Supreme Court in case of Rani Purnima Debi and another Vs. Kumar Khagendra Narayan Deb and another, AIR 1962 SC 567 and in particular paragraphs 5 to 8, 12, 13 and 23 and would submit that the onus is on the propounder of the Will to dispel the suspicious circumstances. He submits that since the plaintiff who claims to be executrix had played prominent part in execution of the Will of the deceased, it was one of the suspicious circumstances that the plaintiff failed to dispel.
45. Learned counsel appearing for the defendant placed reliance on the judgment of the Kerala High Court in case of The Parent Teacher Association Maharaja's College vs. State of Kerala, AIR 1995 Kerala 209 and in particular paragraph 4 and would submit that even after the alleged Will is registered, the genuineness of the said alleged Will cannot be presumed. The execution of the Will will have to be independently proved by the propounder of the alleged Will.
46. Learned counsel for the defendant placed reliance on the judgment of this Court in case of Sheshrao M. Kuratkar vs. Keshavrao M. Kuratkar, AIR 2006, Bombay 33 and would submit that since the alleged Will was not produced in evidence by the propounder of the ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 ::: ppn 30 ts-59.03 (j).doc alleged Will and the said alleged original Will was not shown to the witnesses examined by the plaintiff, including the attesting witness for the purpose of identifying the signatures thereon, the execution of the Will is not proved and thus on that ground itself, the petition filed by the plaintiff herein deserves to be dismissed.
47. Mr.Lad, learned counsel appearing for the plaintiff placed reliance on section 63 of the Indian Succession Ac, 1925 and section 68 of the Indian Evidence Act. He submits that insofar as compliance of section 63 of the Indian Succession Act is concerned, the plaintiff has already proved by leading documentary as well as oral evidence that the testator had signed the said Will. He also proved that the said Will was attested by two witnesses. According to the learned counsel, the attestation of the Will was also duly proved by the plaintiff by examining one of the attesting witness. He invited my attention to paragraph 8 of the affidavit in support of the caveat and would submit that the caveator has admitted the signature of the testator on the original Will and thus in view of section 68 of the Indian Evidence Act, the facts which are admitted by the defendant are not required to be proved. He submits that the plaintiff was thus not required to prove the execution of the Will by the said deceased.
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48. Learned counsel for the plaintiff invited my attention to the affidavit in lieu of examination in chief filed by Mr.Kishor Tembe, Advocate and also his cross-examination. He submits that the said Mr.Kishor Tembe, Advocate is an advocate practicing in this Court and has been residing in the same vicinity in which the said deceased testator was residing. He was known to the family of the deceased testator and had drawn the Will in question as per the instructions of the deceased testator. He submits that the plaintiff has thus discharged the burden under section 68 of the Indian Evidence Act by examining one of the attesting witness.
49. Learned counsel for the plaintiff invited my attention to the answer given by Mr.Kishor Tembe, Advocate to questions 36 and 37 and would submit that the said witness was only put a suggestion by the learned counsel for the defendant that the Will was not signed by the said deceased testator or by the said attesting witness. He submits that though the signature of the deceased testator was not required to be proved in view of the signature of the testator having been admitted in the affidavit in support of caveat, the plaintiff has duly proved the execution of the Will as well as attestation thereof by examining various witnesses. He ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 ::: ppn 32 ts-59.03 (j).doc submits that the genuineness of the Will is also proved by the plaintiff. The Will in question was duly registered in accordance with the provisions of the Indian Registration Act. The photograph of the deceased testator on the registered Will was duly identified by the defendant.
50. Insofar as the issue of suspicious circumstances raised by the defendant in execution of the Will is concerned, it is submitted by the learned counsel for the plaintiff that out of three brothers of the plaintiff and the defendant, two brothers have already filed the consent affidavits for grant of probate in favour of the plaintiff. The another brother, who was examined as one one of the witness by the defendant had also filed a consent affidavit for grant of probate in favour of the plaintiff. Learned counsel also invited my attention to the deposition of the said witness Mr.E.P. Dhananjayan (DW-2) and in particular paragraph 3 admitting that the consent affidavit was filed by him. He also invited my attention to the cross-examination of the witness and in particular his reply to questions 4 to 9 and submits that the deposition of the said witness does not assist the case of the defendant but would assist the case of the plaintiff.
51. Learned counsel for the plaintiff invited my attention to paragraph 4 of the affidavit in support of the caveat and submits that ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 ::: ppn 33 ts-59.03 (j).doc though the defendant has alleged that the said deceased was of 88 years old on the date of execution of the Will and was not in a proper state of mind to understand what he was doing, the defendant did not prove such allegations. He submits that merely because the said deceased testator died 17 days after the execution of the Will, the probate cannot be refused on that ground. He placed reliance on the judgment of the Supreme Court in case of Madhukar D. Shende vs. Tarabai Aba Shedage, AIR 2002 SC 637 and the judgment of the Supreme Court in case of Seth Benichand (since dead) Now by L.Rs. Smt.Kamla Kunwar & others, AIR 1977 SC
63.
52. Insofar as the issue as to whether the said deceased testator was in the proper state of mind and was able to understand what he was doing is concerned, learned counsel for the plaintiff invited my attention to the cross-examination of Dr.Nobhojit Roy, who was examined as one of the witness by the defendant and more particularly to his answers to questions 1 to 4. He submits that the said Dr.Nobhojit Roy, who was treating the said deceased testator in B.A.R.C. Hospital had admitted in the cross-examination that the deceased testator was always cheerful, was having sound and disposing mind and was mentally alert. ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 :::
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53. It is submitted by the learned counsel for the plaintiff that even if according to the defendant the said doctor who was examined by the defendant as one of the witness had turned hostile in view of his answers in the cross-examination contrary to the answers given in the examination in chief, since the defendant did not apply for declaration of the said witness as hostile and did not seek permission for examining the said witness, the admissions of the said witness in his cross-examination conducted by the plaintiff has to be considered by this Court and cannot be ignored. He submits that the sound mind and good mental condition of the said deceased testator is thus proved by the plaintiff at the time of execution of the Will in question.
54. It is submitted that the defendant has not made any attempt to explain as to why the cross-examination of the said witness examined by the defendant was wrong or has to be ignored. He submits that the defendant did not re-examine the said witness though he had an opportunity and scope to re-examine the witness for the purpose of clarification. He submits that re-examination of the said witness was not confined only to seek clarification or to clarify the ambiguity.
55. It is submitted by the learned counsel for the plaintiff that ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 ::: ppn 35 ts-59.03 (j).doc even if it is proved by the defendant that the said deceased was suffering from various illnesses and was frequently admitted in the hospital, only such ailments would not be sufficient to declare a person of unsound mind or that he was not able to understand as to what he was doing. He submits that every illness may not affect the sound mind. He submits that the mental understanding of the deceased testator has been clearly proved by the plaintiff and his witnesses. Learned counsel invited my attention to the cross-examination of the plaintiff and more particularly answers to question no.24 and submits that there was no whisper in the cross-examination about the brain of the deceased testator by the defendant.
56. It is submitted that though the will was executed on 18 th August 2002 and the testator died on 4 th September 2002, it was not the case of the defendant that the said deceased was in the hospital on the date of his death. He was admitted in the hospital as outdoor patient. Family members of the said deceased did not agree for surgery for illness of cancer.
57. Learned counsel for the plaintiff invited my attention to the cross-examination of the plaintiff and more particularly in reply to ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 ::: ppn 36 ts-59.03 (j).doc question nos.29 and 33 and would submit that from the names of the medicine notes, gravity of the illness of the said deceased could not concluded. He submits that since the plaintiff was an employee of the BARC hospital, the said deceased was admitted to the said hospital and was not charged anything. The testator died in the hospital. He submits that the defendant has not produced any evidence to show that the deceased testator was not able to understand or was not of a sound mind.
58. Learned counsel for the plaintiff invited my attention to the affidavit in lieu of examination-in-chief of Mr.Edakuda Panankandiyil Dhanadas (PW-2) and in particular paragraph 2 and 4 and would submit that the said witness also has proved that the said deceased testator was of sound and disposing mind on the date of execution of his Will. He submits that even from the medical reports marked as Exhibits 'A' and 'A-1' produced by the defendant from the BARC hospital, the defendant could not show any material to prove that the testator was not of sound and disposing mind on the date of execution of his Will or on the date of registration of the Will. He submits that all three witnesses examined by the plaintiff has deposed about sound and disposing mind of the deceased testator. Though the defendant had cross-examined all three witnesses, the defendant could not prove that the deceased testator was not of a ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:35 ::: ppn 37 ts-59.03 (j).doc sound and disposing mind.
59. Learned counsel for the plaintiff invited my attention to the evidence of Mr.Edakuda Panankandiyil Dhananjayan (DW-2) who was one of the sons of the deceased testator was examined by the defendant. He submits that in his deposition, the said witness stated that whenever he had visited the deceased testator, he was sleeping. He submitted that the said witness thus could not assess the mental condition of the said deceased. He submits that the said witness also could not prove that the said deceased testator was not of a sound and disposing mind on the date of execution of the Will. He submits that the plaintiff was all throughout staying with the deceased testator and was providing treatment to the testator. He submits that all three witnesses examined by the plaintiff had proved that the said deceased testator could read and write English.
60. It is submitted by the learned counsel for the plaintiff that the deceased testator had given two shops to the brothers during his lifetime. The said deceased had also given a factory to the defendant. The plaintiff was given the residential flat who was staying with the said deceased testator for last several years. All three sons of the deceased ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 38 ts-59.03 (j).doc were staying separately. Two of the sons of the deceased testator did not raise any objection for grant of probate in favour of the plaintiff. The deceased was not on talking terms with the defendant and issued a public notice against the defendant which would show the strained relation between the deceased and the defendant. He invited my attention to various clauses of the Will and would submit that the deceased testator had explained the Will categorically as to why all his sons were disinherited in the Will. He submits that in these circumstances, it cannot be concluded that the Will left by the said deceased testator was an unnatural Will.
61. In so far as the submission of the learned counsel for the defendant that the plaintiff and her husband had participated in the execution of the Will is concerned, it is submitted by the learned counsel for the plaintiff that the husband of the plaintiff was present at the time of registration of the Will since Mr.Kishor V.Tembe, advocate was not available that point of time. On the date of execution of the Will, Mr.Kishor V.Tembe and his wife were present along with the testator. The said deceased had given instructions to Mr.Kishor V. Tembe, advocate to draft the said Will. Mr.Kishor V.Tembe in his evidence has confirmed that the said deceased testator had given instructions to draft ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 39 ts-59.03 (j).doc the said Will. He submits that this confirmation of Mr.Kishor V. Tembe, advocate that the testator had given his instructions to draft the Will has not been shaken in the cross examination by the defendant.
62. Learned counsel invited my attention to paragraph 2 of the affidavit in lieu of examination-in-chief filed by Mr.Kishor V. Tembe, advocate and also to his reply to question no.20 in his cross-examination. He submits that the said witness has deposed that at the time of drafting the alleged Will, the plaintiff was not present. He also invited my attention to the answers given by the said witness to question nos.21 to 23, 27 and 28. He submits that there was no cross-examination of the said witness on his deposition about sound and disposing mind of the said deceased testator by the defendant. He submits that suspicious circumstances highlighted by the defendant are not abnormal. The plaintiff was the daughter of the said deceased. DW-2 has not fully supported the defendant. He has admitted to have executed a consent affidavit for grant of probate in favour of the plaintiff.
63. Learned counsel for the plaintiff invited my attention to the cross-examination of the defendant and in particular in reply to question nos.60 to 93 and would submit that the said witness has admitted the ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 40 ts-59.03 (j).doc issuance of a public notice by the said deceased testator to the defendant. He submits that Wagle Estate property was sold by the said deceased to pay loans and dues of the defendant. Learned counsel submits that all the suspicious circumstances raised by the defendant are fully explained by the plaintiff. This Court has to consider overall circumstances in the matter and not any particular part of the evidence.
64. In so far as the issue no.2 i.e. whether the Will was obtained by fraud or was forged and fabricated is concerned, learned counsel for the plaintiff submits that the burden of proof was on the defendant to prove that the alleged Will was forged or fabricated or that the plaintiff had committed any fraud upon the said deceased or on the defendant. He submits that since the defendant had admitted the signature of the deceased on the Will, he could not allege the forgery in execution of the said Will. He submits that allegations of fraud are also not proved by the defendant by bringing any evidence on record.
65. Mr.D'Souza, learned counsel for the defendant in rejoinder invited my attention to the affidavit-in-support of the caveat and would submit that his client has not admitted the execution of the alleged Will by the deceased testator. He submits that admittedly the said alleged ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 41 ts-59.03 (j).doc original Will was neither shown to the plaintiff nor to the alleged attesting witnesses of the defendant and thus the said alleged Will itself is not proved and/or that ground itself, testamentary suit inter alia praying for probate deserves to be dismissed. In support of this submission, learned counsel invited my attention to the order dated 5 th August 2010 passed by this Court showing that the alleged Will was marked as Exhibit-E for the sake of convenience. He submits that the said alleged Will thereafter was never marked till date since the original Will thereof has never shown to the witnesses examined by the plaintiff. He submits that merely because the photograph of the deceased on the alleged Will is admitted by the defendant, that would not make any difference or on that basis, it can not be concluded that the alleged Will is admitted by the defendant.
66. In so far as the submission of the learned counsel for the plaintiff that if Dr.Nobhojit Roy had turned hostile, the defendant ought to have filed an application against him as hostile witness and ought to have sought permission to cross-examine the said witness examined by him is concerned, learned counsel for the defendant placed reliance on section 154 of the Indian Evidence Act, 1872 and submits that medical reports were produced pursuant to the witness summons issued by this ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 42 ts-59.03 (j).doc Court upon the BARC hospital. The said Dr.Nobhojit Roy was examined to prove the illness of the deceased. Dr.Nobhojit Roy was shown the substantial part of those medical reports who admitted in his evidence that the said deceased testator was suffering from severe serious illness. He submits that Mr.Kishor V.Tembe did not depose that the said deceased testator was of sound and disposing mind. He submits that it was nobody's case that the deceased testator read and understood the contents of the Will. He submits that Dr.Nobhojit Roy was examined for a different purpose. There was thus no question asked to the said witness about sound and disposing mind of the deceased by the defendant. Since 28th March 2002, the said deceased was treated in the hospital from time to time and was under the treatment of the said Dr.Nobhojit Roy till his death.
67. Learned counsel for the defendant distinguishes the judgment of the Supreme Court in the case of Seth Beni Chand (since dead) now L.Rs. Vs. Smt. Kamla Kunwar and Ors., reported in AIR 1977 SC 63 and in particular paragraphs 2, 3 and 5 thereof and would submit that the facts before the Supreme Court in the said judgment were totally different. Admittedly no litigation between the deceased testator and his legal heirs was going on in Court of law. In this case, ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 43 ts-59.03 (j).doc the defendant had proved that the relations between the deceased father and the defendant were cordial.
68. Learned counsel for the defendant distinguishes the judgment of the Supreme Court in the case of Madhukar D.Shende Vs.Tarabai Aba Shedage, reported in AIR 2002 SC 637. He submits that in the said matter, no medical evidence was produced to show that the deceased was of sound and disposing mind whereas in this case, the defendant had examined the doctor Dr.Nobhojit Roy of the hospital who was treating the said deceased. He submits that the witness (DW-2) examined by the defendant, in his cross-examination, has deposed that the consent affidavit signed by him was prepared by the advocate of the plaintiff and thus he had signed it. It is submitted by the learned counsel that the plaintiff has failed to prove that the Will was duly executed by the said deceased and that the said deceased was of sound and disposing mind on the date of execution of the alleged Will and thus the testamentary suit filed by the plaintiff shall be dismissed by this Court. REASONS AND CONCLUSIONS:-
Issue No.1 : Whether the last Will and Testament of the testator dated 18th August, 2002 was validly executed ?
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69. The plaintiff himself entered into the witness box and also examined one of the sons of the deceased Mr.Edakuda Panankandiyil Dhanadas as a witness (PW-2). The plaintiff had also examined Mr.Kishor V. Tembe, advocate who was alleged to be one of the attesting witnesses to the alleged Will. The defendant examined himself and also one of the sons of the deceased Mr.Edakuda Panankandiyil Dhanadas as one of the witnesses. The defendant had also issued witness summons upon Dr. Nobhojit Roy of BARC who had produced two files containing medical records of the deceased and for recording his evidence.
70. A perusal of the deposition of the plaintiff and more particularly in paragraph (8) of his affidavit in lieu of examination in chief, she has alleged to have identified the signature of the deceased at the time of registration of the alleged Will. There is no dispute that when the plaintiff entered the witness box, she was not shown the alleged original Will of the said deceased or even thereafter till her evidence was closed. None of the other witnesses examined by the plaintiff including the alleged witness Mr.Kishor V.Tembe were shown the alleged original Will of the said deceased at any point of time.
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71. A perusal of the deposition of Mr.Kishor V. Tembe, advocate indicates that he did not depose as to whether he was shown the original Will even before the learned Court Commissioner. In view of this admitted fact, learned counsel for the defendant vehemently urged before this court that since the alleged original Will was not shown to the plaintiff who was propounder of the said alleged Will or to any of the witnesses examined by the plaintiff including the alleged attesting witness, execution of the said alleged Will dated 18 th August, 2002 of the deceased was not proved in evidence by the plaintiff and thus the Suit deserves to be dismissed on this ground alone.
72. Per contra, the submission of the learned counsel for the plaintiff is that the original Will was filed before the Prothonotary and Senior Master. The witnesses examined by the plaintiff were cross examined on the issue of execution of the said Will and thus even if the original Will was not shown to the plaintiff or his witnesses, the defendant cannot be allowed to urge that the execution of the said Will is not proved by the plaintiff.
73. It is not in dispute that the said alleged original Will of the ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 46 ts-59.03 (j).doc deceased has not been marked as an exhibit at any stage of the evidence by this court. The plaintiff also did not apply before this court at the stage of oral and documentary evidence to mark the Will as an exhibit.
74. I will now consider the relevant part of the evidence of the witnesses examined by the parties on this issue. Insofar as the evidence of the plaintiff (PW-1) is concerned, in her affidavit in lieu of examination in chief, she has deposed that the deceased had given instructions to Mr.Kishor V.Tembe, advocate to draft a Will. The said deceased, the plaintiff herself, Mr.Kishor V.Tembe and his wife Ms.Neela Kishor Tembe were present. She has deposed in the said affidavit that as per the instructions of the said deceased, Mr.Kishor V.Tembe advocate drafted the Will and came to the residence of the said deceased with his wife on 18th August, 2002 i.e. after two days of such instructions given by the said deceased to him. She has deposed that the said deceased had requested the said Mr.Kishor V.Tembe and his wife to be the witnesses of his last Will. Considering the long standing cordial relation, the said Mr.Kishor V.Tembe and his wife agreed to be the witnesses of the said Will. She has deposed in her affidavit that the husband of the plaintiff Mr.V.P.K.Nambiar fixed as an appointment with the Sub Registrar's Office on 19th August, 2002 for registration of the said Will. ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 :::
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75. It is deposed that the said deceased, the husband of the petitioner and Mr.Bhanudas Shinde were present at the office of the Sub Registrar at Chembur and admitted execution of the last Will of the deceased. She identified the signature of the deceased on the said Will and also identified the signature of her, Mr.V.P.K.Nambiar and Mr.Bhanudas Shinde as attesting witnesses of the said Will. She deposed that the said Will was signed in her presence. The plaintiff has not deposed in the said affidavit that the said Will was signed by the said deceased or by the alleged attesting witnesses in her presence on the date of its alleged execution on 18th August, 2002.
76. In the cross examination of the PW-1 in reply to question no.84, when the witness was asked as to on what basis in last four lines on page 9 para no.8 of her affidavit in lieu of examination in chief, she made a deposition that the contents of the alleged Will was true and correct, the witness answered that when both the witnesses and the deceased were signing the Will, she was present. The witness denied the suggestion put to the witness that the alleged Will dated 18th August,2002 was not validly executed. She answered the question in negative when she was asked whether she had any documentary evidence to support her case that ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 48 ts-59.03 (j).doc the said deceased could speak Hindi, Marathi, Tamil and Gujarati and could read English. She also deposed that she was going to examine a witness to prove that the said deceased knew English and could read English and speak Hindi, Marathi, Tamil and Gujrati.
77. Insofar as the evidence of one of the son of the said deceased Mr.Edakuda Panankandiyil Dhanadas (PW-2) is concerned, the said witness in his cross-examination admitted that when the purported Will dated 18th August, 2002 was executed, he was not present. He was also not present when the purported Will was registered. The said witness admitted in his cross examination that all the children of the said deceased were looking after the said deceased and had performed the last rites of the said deceased. He also admitted that the said deceased was also fond of other grand children. He admitted that he was called by the plaintiff to give his evidence in the suit. He could not produce any documents to show that the said deceased did not like the defendant.
78. In the cross examination of the said PW-2, he also admitted that the said deceased died at the age of 88 and was suffering from abdominal cancer, diabetes, high blood pressure, hyper tension. He however denied that he was suffering from breathlessness. The said ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 49 ts-59.03 (j).doc witness was not aware that the said deceased was admitted to BARC Hospital for treatment of discharge from eyes. He however admitted that the said deceased was in and out of BARC Hospital. He could not produce any documentary evidence to show that the plaintiff has constructed the alleged portion of the building.
79. The said PW-2 deposed that the plaintiff used to give him updates about the health condition of the said deceased. He however deposed that Mr.Kishor Tembe advocate was a friend of the said deceased and used to visit the house often. The said advocate also knew the plaintiff. The said witness also knew Mr.Kishor Tembe, advocate. In reply to Question No.59, the said witness admitted that during the stay of the defendant with the said deceased, he was also looking after the said deceased. He also admitted that after the death of the said deceased, the plaintiff, the elder brother Mr.Dhananjay had accompanied the defendant to Panchvati, Nashik to immerse the ashes of the deceased and to perform the last rites. The witness deposed that all the four legal heirs had visited the Panchvati, Nashik. The witness admitted that the said deceased had studied upto 4th form in a Malayalam medium in Kerala. He however volunteered that English was also one of the subject. He admitted that Hindi, Marathi and Gujrati were not the subjects in the syllabus in the 4 th ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 50 ts-59.03 (j).doc form.
80. Insofar as physical and mental condition of the said deceased on the date of execution of the said alleged Will is concerned, PW-1 in his affidavit in lieu of examination in chief dated 29 th July, 2010 deposed that till December 2001, the health of the said deceased was good. In the month of December 2001, the said deceased was complaining about the pain in stomach and thereafter he was treated in BARC Hospital. In the month of March 2002, abdominal cancer was detected. She denied that although the said deceased was suffering from diabetic and blood pressure, his periodical condition was shown as normal. She deposed that since the said deceased was suffering from diabetic and blood pressure, the said witness had taken him to BARC Hospital for check up on 30th July, 2002. He was normal and doctor called him after six months.
81. The said witness deposed that after the demise of the said deceased, she showed the said alleged Will to her brother Mr.E.P.Dhanadas and Mr.E.P.Dhanadas and after going through the alleged Will, they accepted the said Will and accepted that they were ready to give consent for grant of such probate Will. The defendant ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 51 ts-59.03 (j).doc however refused to give consent and asked for his share.
82. PW-1 in her examination in chief deposed that the said deceased was very active and was capable of understanding the contents of the said alleged Will at the time of execution thereof. She deposed that the said deceased was hospitalized only on 22nd August, 2002 in Ward No.3-D for vomiting. He had only abdominal cancer and was treated in BARC Hospital. In the cross examination of PW-1, on the issue of alleged sound and disposing mind and good health of the said deceased, the said witness admitted that the said deceased was suffering from hyper tension but was not suffering from heart diseases. Whenever the said deceased was suffering from any illness, he used to be taken to the BARC Hospital. When the witness was asked as to on what basis she had deposed that when the deceased was checked on 30th July, 2002, he was normal, the witness deposed that the said deceased could come after six months for another check up. She deposed that the said deceased was normal on 30th July, 2002. She however admitted that the said deceased died on 3rd September, 2002 before completion of six months.
83. When the PW-1 was shown the medical report dated 30 th July, 2002 (Ex.D collectively) and was asked whether that the doctor who ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 52 ts-59.03 (j).doc had checked the said deceased on 30th July, 2002 had not certified that the deceased was normal, the witness answered the said question in affirmative. She admitted that the said deceased was administered medicines for hyper tension and diabetes. She did not recollect as to why the other two medicines were administered. The witness was shown the progress notes of BARC Hospital dated 26th August, 2002 and was asked that on 26th August, 2002, the said deceased was admitted to the said hospital as he was suffering from chest pain and breathlessness or not, the witness deposed that the said deceased was admitted in the hospital for vomiting on 22nd August, 2002 and he continued to be in hospital till his death. She admitted that the said deceased was suffering from breathlessness and chest pain on 26th August, 2002 when he was admitted in the BARC Hospital as mentioned in the progressive notes of the BARC Hospital. She also admitted that the said deceased might be suffering from severe arm pain and on 22nd August 2002 was not taking solid and was also suffering from severe weakness and loss of appetite.
84. When the witness was shown page 1/73 of medical report and was asked to confirm whether the contents of the said report were correct, the witness answered the said question in affirmative. However, in reply to Question No.55, the witness answered that her answer to ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 53 ts-59.03 (j).doc Question No.47 that the contents of the medical report were correct insofar as the deceased was suffering from ischemic heart disease was false. The witness admitted that when the said deceased was admitted in the hospital in the year 2002, he was of extreme old age i.e. of 88 years. The witness admitted that on 4th January, 2001, the said deceased was provided hearing aid by BARC Hospital. The witness admitted that the medical report produced by her were provided to her by BARC Hospital on her request and were forming part of the medical report produced by the defendant. When the witness was asked whether it was correct that the said deceased loved all the children, PW-1 answered that she did not know. The witness admitted that her deposition in paragraph (10) of her affidavit in lieu of examination in chief that the said deceased had only abdominal cancer was wrong.
85. Insofar as evidence of Mr.Kishor V.Tembe, advocate who was alleged to be one of the attesting witness to the alleged Will is concerned, in his affidavit in lieu of examination in chief dated 8th April, 2013, the said witness deposed that the said deceased was known to him and was his family friend. The said deceased knew the father of the said witness. He was regularly visiting the premises of the said witness and the said witness was also visiting him at his residence at Chembur. ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 :::
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86. In paragraph (2) of the said affidavit, the witness deposed that the said deceased had contacted him in the month of August 2002 and had requested him to draft a Will. He had instructed him to draft a Will and according to him, he had drafted a Will as per his instructions. It is deposed that the said Will was approved by the deceased and thereafter the said deceased requested him and his wife to be the witnesses in the said Will. It is deposed that accordingly the said witness and his wife witnessed the said Will on 18th August,2002.
87. In paragraph (3) of the affidavit in lieu of examination in chief, it is deposed that the said deceased, the witness and his wife had signed the Will in presence of each other on 18 th August, 2002. He further deposed that the said witness was knowing English and was in a postilion to read, write and talk English. The said Mr.Kishor V.Tembe in the said affidavit in lieu of examination in chief did not identify the signature of the said deceased on the said alleged Will dated 18 th August, 2002 or signature of himself and his wife.
88. In his cross examination, the said witness deposed that he did not recall as to whether he had read the petition and also as to when he had learnt of the filing of the petition. He deposed that he did not ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 55 ts-59.03 (j).doc know how many children the deceased had but he knew the petitioner and the defendant. When the witness was asked that since when he had been visiting the house of the deceased, he deposed that he might have visited twice or thrice. He deposed that he knew the plaintiff since last several years as she was the daughter of the deceased. He answered the question in negative when he was asked whether at the time of drafting of the alleged Will, the plaintiff was present. He deposed that the plaintiff might have been present at the time of giving instructions as the said witness had gone to the residence of the said deceased.
89. The said witness deposed that the deceased had sent the message to the said witness through the plaintiff calling him to the residence of the said deceased. The plaintiff personally had come to the house of the said witness with the message to call him to the residence of the said deceased. The witness could not recall as to when and in which year he had prepared a document for the said deceased with regard to the letting down of the premises in his building. The witness was asked whether he had given suggestion to the plaintiff to get the alleged Will registered, he answered the said question in negative. He deposed that he came to know about the registration of the Will several days after the death of the deceased when the plaintiff wanted to file a petition for ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 56 ts-59.03 (j).doc probate. He admitted that he was requested by the plaintiff's advocate to prepare his affidavit of evidence.
90. The defendant himself entered the witness box and filed affidavit in lieu of examination in chief dated 17 th June, 2013. In his examination in chief, he deposed that he being the youngest in the family, his parents were extremely fond of him. His father had no reason whatsoever to dis-entitle him to the share in his estate. His father was not only fond of him but also his only child Vishal Kurup. He deposed that the plaintiff was the eldest in the family and her eyes were always set on the estate of the deceased. The plaintiff surrendered her premises at Degras Mansion at Chembur and went to reside with the deceased to influence him and get a Will executed in her favour. He deposed that the said deceased was suffering from cancer and several other diseases and the suffering increased in the final days of his life. Within about 17 days from the date of execution of the alleged Will, the said deceased died. He was not in a proper state of mind to understand what he was doing. The deceased was illiterate and understood only Malayalam and could not read or write English. He was in extreme pain in the final days of his life.
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91. The defendant placed reliance on the certified copy of the medical report obtained by him under the provisions of Right to Information Act from the BARC Hospital on 13th July, 2012 and placed on record. The witness deposed that the said alleged Will dated 18 th August,2002 was false and fabricated document. The registration of the alleged Will was at the residence of the said deceased. It is deposed that the left hand of the thumb impression was obtained by the Sub-Registrar at the residence of the said deceased. He deposed that the plaintiff who claims to be the executrix of the said alleged Will was self appointed and was not named by the deceased in the alleged Will.
92. The said witness deposed that the said deceased was incapable of signing the purported Will on or about 18 th August, 2002 on account of his illness and physical and mental weakness. He deposed that in view of the close relationship existed between the deceased and the defendant, he could not have been excluded in the alleged Will from any request. The said deceased was not in a proper frame of mind and could not have understood the contents of the alleged Will. The alleged Will was obtained fraudulently or by undue influence and by without explaining the contents to the deceased. The deceased was too feeble and was not in a position to make any testamentary dispossession at the time ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 58 ts-59.03 (j).doc the alleged Will was purported to have been executed by him on account of his illness and extreme old age.
93. In his cross examination, the defendant (DW-1) admitted that his business ran into difficulties because he did not receive payment from the company by name of M/s. Lektrix. The said deceased was impleaded as a party in a suit filed by Bank of Baroda for recovery of the sum of Rs.9 lacs approximately against the defendant. When the witness was shown the photograph annexed to the registered Will and was asked whether the photographs were of the said deceased, the witness answered in affirmative. He however volunteered that he could not comment on the thumb impression as he was not present at that time.
94. In reply to question 118 when the defendant was put a suggestion that the said deceased was not mentally ill, he replied that compilation of medical papers which he had filed explains the mental condition of the said deceased.
95. The defendant examined his another brother Mr.E.P. Dhananjayan as one of the witness, who filed his affidavit in lieu of examination in chief dated 18th February, 2014. In his cross-examination, ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 59 ts-59.03 (j).doc he admitted that when he went to the office of Advocate Mrs.Madhuri Gaikwad along with his sister, the affidavit dated 11th March, 2004 was drafted. He denied that after discussing with him, Advocate Mrs.Madhuri Gaikwad had drafted the affidavit dated 11 th March, 2004. He deposed that till date he had not raised any question regarding the correctness of his affidavit because he was not interested. In reply to question 7 when he was asked to explain as to what he meant by saying that "you were not interested", the witness replied that he was very sick mind and therefore, he did not have time to run after this and as the plaintiff is his only sister, I did not mind if it was Willed to her.
96. The witness was shown photograph in the alleged Will of the deceased. He identified the photograph of the deceased. When he was asked to identify the signature of the deceased on the alleged Will, the witness replied that he could not say as he had not signed in his presence. He further deposed that whenever he used to sign the cheques in front of him, his signature was different. The witness admitted that since 1979, the plaintiff was residing along with the said deceased at Chembur house. In reply to question 30, the suggestion was put to the witness that during all his visits, the deceased used to talk with the said witness and was recognizing him and was in his proper senses, the witness replied that ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 60 ts-59.03 (j).doc whenever he visited the deceased, he used to be lying down and there was not much talk. The witness denied the suggestion that there was any pressure by the defendant on him to give evidence in support of the defendant.
97. In reply to question 38 when the witness was put a suggestion that the statement made by the said witness in his affidavit that the defendant being the youngest in the family, his parents were extremely fond of him was incorrect, the witness denied the said suggestion and deposed that the parents were very fond of the defendant.
98. The defendant had got witness summons issued to the head of Surgical Unit of BARC Hospital, Dr.Nobhojit Roy. The BARC Hospital had produced the medical reports filed by the said deceased which has been taken on record by this Court by a separate order. The said Dr.Nobhojit Roy was examined by the defendant as one of his witness. The said witness admitted that he was the head of Surgical Unit of BARC Hospital and was treating the said deceased in BARC Hospital as a part of treating team. The head of the Surgical Unit was somebody else at that time.
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99. After perusing the medical reports shown to the witness, he deposed that the said Hospital had started treating the said deceased from 28th March, 2002 till his death in the Surgical Unit. He deposed that he is specialized General Surgeon. The other two doctors on the team were also specialized in General Surgeon. When the witness was shown page 1/73 of the medical notes and was asked to explain the cause of death mentioned in the said report, he deposed that it was due to cancer of stomach which spread to the liver. The said deceased was suffering from cancer since 16th April, 2002 i.e. the date on which the deceased diagnosed.
100. The said witness was asked to confirm that the deceased suffered from heart disease, diabetes, hypertension, breathlessness, severe weakness, discharge from eyes, ear tinnitus, low sodium and blood pressure, the witness deposed that at different times and varying period of times, the said deceased had each of these illnesses. He further deposed that none of the member of the team were treating the said illnesses. He deposed that Dr.Bhatt was treating the ear complaint, Dr.Nadkarni was treating the eye complaint, Dr.Nair was the physician treating diabetes, hypertension and heart disease.
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101. The witness admitted that the said deceased was suffering from cancer with stomach but he was not operated upon. The witness deposed that the said deceased was referred to Dr.Raman Deshpande at Tata Memorial Hospital. The doctors and the family in consultation decided not to go ahead with surgery. The witness admitted that it had been recorded in the notes of patient that the family did not desire to go ahead with the operation. The witness admitted that the said deceased was suffering from vertigo on the dates that he was sent by the ENT consultant. He admitted that severe weaknes, weight and appetizer loss and pooling of food was the results of stomach cancer. He further admitted that pulling of food is a endoscopicing finding of symptoms. The witness admitted that the said deceased was physically weak because of his illness but was ambulatory and had energy enough not to be bed ridden. He admitted that there was no record in the hospital notes as to how he was brought in the hospital. There was no record of who accompanied the patient to the hospital.
102. The said witness however, in his cross-examination deposed that the said deceased was speaking with him in English and Hindi language. When the witness was asked about the mental condition of the said deceased whenever the said witness had occasion to examine him, he ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 63 ts-59.03 (j).doc replied that the said deceased was to be extremely cheerful despite his physical condition and deceases. He also replied that the deceased had a very good understanding and his decision making of not undergoing any aggressive treatment for his cancer. The witness was put a suggestion that the said deceased was of a sound mental condition till 2 nd September, 2002. The said witness answered the said question in affirmative. He further deposed that as per the record of the said witness and of the team, the deceased was conscious and oriented which reflected his sound mental condition. There was no re-examination of the said witness.
103. This court in case of Sheshrao M. Kuratkar (supra) has held that if there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 64 ts-59.03 (j).doc the testator's mind was not free. It is held that in such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account and the propounder is required to remove the doubts by clear and satisfactory evidence.
104. This court in the said judgment held that no presumption of law can be drawn in respect of the document which is 30 years old document in respect of the Will which has not been produced on record though it was available and thus the said Will which was alleged to have been executed was not duly proved as required by law as per the provisions of sections 63, 67 and 68 of the Indian Evidence Act. The principles laid down by this Court in case of Sheshrao M. Kuratkar (supra) squarely applies to the facts of this case. In this case admittedly, the original alleged Will was neither produced in evidence nor proved by the attesting witnesses or by the plaintiffs. The attesting witness has also not identified the signature of the alleged testator and/or himself and other alleged signatures on the alleged Will. Since the Will was not produced in evidence, the same was not exhibited as a document on ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 65 ts-59.03 (j).doc record.
105. Section 68 of the Indian Evidence Act, 1872 clearly provides that if the document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Section 62 of the Indian Evidence Act, 1872 provides that the primary evidence means the document itself produced for the inspection of the Court.
106. Section 64 provides that the document must be proved by primary evidence except in cases mentioned in the said Indian Evidence Act, 1872. In my view even the certified copy of the Will is not admissible per se in evidence being not a primary document. It is thus clear that the plaintiff has failed to prove the execution and attestation of the Will as required under the provisions of Indian Evidence Act, 1872 by producing and proving the original alleged Will though had examined the witnesses.
107. Supreme Court in case of Rani Purnima Debi and another ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 66 ts-59.03 (j).doc (supra) has adverted to the earlier judgment of Supreme Court in case of H.Venkatachala Iyengar v. B. N. Thimmajamma, AIR 1959 SC 443 in which it is held that the mode of proving a Will did not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by section 63 of the Indian Succession Act, 1925. The onus of proving the Will was on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and signature of the testator as required by law was sufficient to discharge the onus. However, if there were suspicious circumstances, the onus would be on the propounder to dispel them to the satisfaction of the Court before the Will could be accepted as genuine.
108. It is held that the condition of the testator's mind might appear to be very feeble and debilitated and evidence adduced might not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the Will might appear to be unnatural, improbable or unfair in the light of relevant circumstances; or the Will might otherwise indicate that the said dispositions might not be the result of the testator's free will and mind, in such cases, the Court would naturally expect that all legitimate suspicions should be completely ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 67 ts-59.03 (j).doc removed before the document was accepted as the last Will of the testator. It is further held that if the propounder himself might take a prominent part in the execution of the Will which conferred on him substantial benefits, it is generally treated as a suspicious circumstances attending the execution of the Will and the propounder is required to remove the doubts by clear and satisfactory evidence.
109. Supreme Court in the said judgment considered that there was no dispute that the relations between the testator and his wife and sister were good and in these circumstances, the Court should have expected something better than what is provided in the Will for wife and sister of the testator. The daughter was completely disinherited. It is further observed by the Supreme Court that there was no satisfactory evidence to show that the relations between the testator and his daughter was bad and thus in these circumstances it was accepted that the testator would have made some provision for the daughter. Supreme Court accordingly observed that in those circumstances, the Will was most unnatural and there was a suspicions circumstances which may be satisfactorily explained before the propounder of the Will could get the Letters of Administration.
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110. In the facts of this case, the evidence on record and in particular the evidence of the DW-2 examined by the defendant clearly indicates that the relation between the deceased and the defendant was not strained and all the children of the said deceased had attended the funeral. The defendant was the youngest son of the deceased and in these circumstances could not have been disinherited by the deceased father. In my view, the learned counsel for the defendant is thus right in his submission that the alleged Will of the said deceased is unnatural.
111. A perusal of the evidence further indicates that the plaintiff had himself participated in execution of the Will. Her husband was an alleged witness before the Sub Registrar of Assurances at the time of the registration of the alleged Will. The plaintiff and her son are the only beneficiary of the alleged Will of the deceased father. Since the plaintiff and her husband had taken major part in preparation and execution of the alleged Will, it clearly created a suspicious circumstances in execution of the alleged Will. The onus was thus on the plaintiff to remove such doubt and to dispel the suspicious circumstances by leading appropriate evidence which the plaintiff failed to prove. The principles laid down by the Supreme Court in case of Rani Purnima Debi and another (supra) ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 69 ts-59.03 (j).doc squarely applies to the facts of this case. I am respectfully bound by the said judgment.
112. Kerala High Court in case of Vattakam Purath Parambil Ananda Bhai and another (supra) has held that merely because a Will is registered its genuineness cannot be presumed. Registration of a Will does not change the onus of proof from its propounder to its challenger. It is held that since the burden is heavily upon the propounder to prove the Will, he cannot adopt the stand that the registration of the Will itself is a circumstance to dispel any suspicious circumstance. It is held that when the genuineness of the Will is challenged the propounder has necessarily to substantiate his case regarding its genuineness even in a case where it is registered. At best registration of a Will though not required by law is only a piece of evidence of the execution, but it cannot have greater sanctity. It is not in dispute that under the provisions of Indian Registration Act, the Will is not required to be registered compulsorily. In my view, the principles laid down by the Kerala High Court in case of Vattakam Purath Parambil Ananda Bhai and another (supra) squarely applies to the facts of this case. I am respectfully in agreement with the views expressed by the Kerala High Court in the said judgment. Merely because the alleged Will is registered, the onus to prove the execution of ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:36 ::: ppn 70 ts-59.03 (j).doc the said Will and that the same was executed by the said deceased on his own free will is not discharged. Since the execution of the said Will itself is disputed on several grounds including on the ground that there are suspicious circumstances, the onus to prove the execution and attestation of the Will and dispel to such suspicious circumstances was on the plaintiff which in my view he has failed to discharge.
113. A perusal of the evidence led by the plaintiff and also the defendant clearly indicates that the said deceased was suffering from abdominal cancer, diabetes, high blood pressure, breathlessness, vertigo and had several other health issues including chest pain, severe arm pain and was not taking solids and was suffering from severe weakness. The plaintiff herself in her cross-examination has categorically admitted that the said deceased was suffering from several such serious diseases and was admitted in the BARC Hospital on 27 th August, 2002. The plaintiff admitted that the said deceased was vomiting and suffering from severe weakness and also from loss of appetite when he was admitted to the Hospital on 27th August, 2002. The said deceased was 88 years old when he was admitted to the Hospital before his demise. The said deceased was also provided hearing aid in the said BARC Hospital. ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:37 :::
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114. The medical reports of the said deceased produced by the said BARC Hospital pursuant to a witness summons issued by this Court which were confronted to the plaintiff as well as Doctor, who was examined by the defendant admitted that the said deceased was suffering from all the aforesaid deceases from time to time. The said Doctor admitted in his evidence that the said deceased was suffering from cancer of stomach, which has spread to Liver. The family members of the said deceased had decided not to go ahead with operation of the said deceased. The said deceased was also having discharged from his eyes, ear tinnitus, low sodium. The said deceased was continued to be in hospital until his death on 4th September 2002.
115. The Doctor (DW2), who was examined by the defendant however, in his cross-examination admitted that the said deceased was physically weak because of his illness and that severe weakness, weight and appetizer loss and pooling of food was the result of stomach cancer.
116. The learned counsel for the plaintiff has strongly placed reliance on the cross-examination of said Dr.Nobhojit Roy (DW2), who gave inconsistent reply in the cross-examination. The said witness in his cross-examination deposed that the said deceased was extremely cheerful ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:37 ::: ppn 72 ts-59.03 (j).doc despite his severe condition and his diseases. The said Doctor deposed that the said deceased had a very good understanding and his decision making of not undergoing aggressive treatment for his cancer. As per team record of the said witness, the deceased was conscious, oriented and reflected his sound mental condition.
117. It is not in dispute that the Doctor did not produce any team record of the said witness in support of his answer that the said deceased was conscious, oriented and reflected his sound mental condition. The medical report produced by the said hospital through the said witness did not indicate that the decision not to operate the said deceased for cancer of stomach, which had spread to the Liver, was taken by the deceased. On the contrary, the said Doctor has clearly deposed that said decision was taken by the family members of the said deceased. In my view, various answers given by the said Doctor in the examination-in-chief to prove that the said deceased was suffering from various diseases was given after considering the medical reports of the said deceased. It was placed on record that the said deceased was suffering from several serious diseases including cancer of stomach, which had spread to Liver. The said deceased had become very weak and had stopped taking solids. ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:37 :::
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118. In my view, the answers given in cross-examination by the said Doctor, which were contrary to the answers, which were given in examination-in-chief were based on the medical reports, thus cannot be considered by this Court in isolation. This Court has to consider entire evidence in right perspective to find out the truth. The plaintiff herself admitted that the said deceased was suffering from several diseases for last several years and was totally weak. After considering the age of the said deceased as 88 years and in view of the proved fact that the said deceased was suffering from several diseases, some of which were of serious nature, in my view such diseases had impaired his mental capacity as well as the understanding as well as sound and disposing capacity to understand what documents he was executing including the alleged Will. I am thus not inclined to accept the submission of the learned counsel for the plaintiff that the plaintiff had proved, by cross-examining the said Doctor, that inspite of several diseases and having age of 88 years, the deceased was mentally sound and was of disposing mind. The said Doctor alone had not treated the said deceased all through out. No other Doctors, who had treated the said deceased for all such diseases were examined.
119. In my view, the onus was on plaintiff to prove that the said ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:37 ::: ppn 74 ts-59.03 (j).doc deceased was of sound of disposing mind and was capable of understanding the execution of documents including Will and the contents thereof on the date of execution of such documents to the satisfaction of the Court by leading cogent evidence. In my view, the plaintiff has miserably failed to prove that inspite of suffering from several such diseases for years and though the deceased was 88 years already on the date of execution, he was of sound and disposing mind. The said deceased was in hospital and died in the hospital as admitted by the plaintiff in her cross-examination.
120. In so far as submission of learned counsel for defendant that Will was surrounded by surrounding suspicious circumstances is concerned, a perusal of record clearly indicates that the said witness was illiterate. The alleged will was in English. The plaintiff could not produce any proof to show that the said deceased could speak English, Hindi, Tamil and could read English, in her evidence. In my view, few answers given by the said Dr.Nobhojit Roy in cross-examination which were totally contrary to the medical record and his own evidence in examination-in-chief and thus do not inspire confidence. In my view, the plaintiff was required to produce trustworthy and unimpeachable evidence before this Court to prove the execution and attestation of Will ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:37 ::: ppn 75 ts-59.03 (j).doc and to dispel the suspicious surrounding circumstances.
121. The Supreme Court in case of Kalyan Singh Vs. Smt.Chooti & Others, AIR 1990 SC, 396 has held that execution and validity of a Will cannot be determined merely by considering the evidence produced by the propounder. In order to Judge the credibility of witnesses and disengage the truth from falsehood, the Court is not confined only to their testimony and demeanor. It would be open to the Court to consider the circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the Court to look into surrounding circumstances as well as inherent probabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.
122. A perusal of the evidence referred above clearly indicates that the plaintiff (PW-1) had admitted that she had given instructions to her Advocate to prepare affidavit of evidence of her brother Mr.Edakuda Panankandiyil Dhanadas (PW-2). The plaintiff was present when the alleged will was executed by the said deceased. The husband of the plaintiff was alleged to be present at the time of registration of the said Will. The plaintiff and her two children were exclusive beneficiaries ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:37 ::: ppn 76 ts-59.03 (j).doc under the said alleged Will. The plaintiff herself in her evidence admitted that the said deceased, the plaintiff herself, Mr.Kishor V. Tembe and his wife Mrs.Nila K. Tembe were present. She admitted that considering the long standing cordial relations, Mr.Kishor V. Tembe agreed to be witness of the Will. The husband of the plaintiff fixed an appointment in Registrar's Office for registration of the said Will. She deposed that the said alleged Will was signed in her presence. She however, did not depose that the said Will was signed by the said deceased or by the alleged attesting witness in her presence on the date of alleged execution on 18th August, 2002.
123. In her cross-examination, plaintiff admitted that when both the witnesses were signing the Will, she was present. She could not produce any documentary evidence to support her contention that the deceased could speak English, Hindi, Marathi, Tamil, Gujrathi and could read English. Though she deposed that she was going to examine a witness to prove that the said deceased knew English and could read English and speak Hindi, Marathi, Tamil and Gujrathi, she did not examine any witness to prove the said allegation. It is thus clear beyond reasonable doubt that the plaintiff, who was staying with the said deceased for last several years had played a prominent role in ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:37 ::: ppn 77 ts-59.03 (j).doc preparation and execution of the said alleged Will and also in registration of the said alleged Will. The Supreme Court as well this Court in catena of decisions has already held that shaky signature, the feeble mind and unfair and unjust disposing of property, propounder himself taking a leading part in making of the Will under which he or she receives a substantial benefit and such other circumstances raised suspicion about the execution of the Will and such suspicion cannot be removed by some assertion of propounder that the will bears the signature of the testator or that the testator was in a sound and disposing mind and memory at the time when Will was made. It is held that the wife and children of the testator, who was normally receive their due share, were disinherited because the testator might have his own reasons for excluding them.
124. It has been held by the Supreme Court that the presence of suspicious circumstances makes the initial onus heavier and therefore in cases where the circumstances attendant upon the execution of the Will excite the suspicion of the Court, the propounder must remove all legitimate suspicion before execution of last Will of the testator. It is held that in such circumstances, the test of satisfaction of the judicial conscience has been evolved. The propounder has to remove such suspicion from the mind of the Court by cogent and satisfactory evidence. ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:37 :::
ppn 78 ts-59.03 (j).doc In my view, there is no cogent evidence led by the plaintiff to prove that the said deceased with several diseases including disease of serious nature and at the age of 88 years, was in sound and disposing state of mind and that he had understood nature and effect of the disposing and had affixed the signature on the alleged Will after understanding the contents thereof and of his own free-will. A perusal of the evidence clearly indicates that none of the witnesses examined by the plaintiff by cogent evidence proved that the said deceased was explained contents and consequences of the execution of the said alleged Will in the language known to him i.e. Malayalam nor could prove that he could read and write English.
125. A perusal of the evidence further indicates that the witness examined by the plaintiff and the witness DW-2 clearly proves that all the sons of the said deceased including the defendant were taking care of the said deceased and had attended all the rituals even after his death. It is also proved by the defendant that the said deceased had love and affection for the defendant and also with the son of the defendant, the defendant being the youngest in the family. The plaintiff could not prove that the said deceased had any strained relations with the defendant, which could dis-inheritate the defendant completely from the bequest alleged to have been made by the said deceased in the said alleged Will and would have ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:37 ::: ppn 79 ts-59.03 (j).doc given the entire property exclusively to the plaintiff and her two children. In my view, the learned counsel for the defendant is thus right in his submission that the said alleged Will was unnatural and cannot be accepted by this Court even on that ground.
126. A perusal of the affidavit of Mr.Kishor V. Tembe dated 17 th August, 2003 initially produced indicates that contents of the said affidavit was not incorporated in the affidavit of the evidence filed by said Mr.Kishor V. Tembe. The deposition made in the affidavit of the evidence filed by said Mr.Kishor V. Tembe, Advocate were vague and did not advance or prove the case of the plaintiff in any manner whatsoever.
127. In my view, the public notice referred to and relied upon the learned counsel for the plaintiff in support of his submission that the relations between the defendant and the said deceased were strained and thus on that ground the defendant could have been disinherited by the said deceased, cannot be relied upon as the same was not proved by the plaintiff and was not exhibited in evidence.
128. In so far as the submission of the learned counsel for the plaintiff that since defendant had alleged to have admitted the signature ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:37 ::: ppn 80 ts-59.03 (j).doc of the said deceased in the alleged original Will and thus plaintiff was not required to prove the execution and attestation of the said alleged Will under Section 88 of the Indian Evidence Act is concerned, in my view there is no merit in submission of the learned counsel of the plaintiff. The defendant in his affidavit in support of caveat has raised several objections in respect of the alleged execution and attestation of the Will and has also challenged the alleged Will on a ground of fraud, fabrication, the alleged Will being unnatural and surrounded by suspicious circumstances. The onus was thus on the plaintiff to prove the due execution and attestation of the alleged Will by leading cogent evidence, which the plaintiff in my view has miserably failed.
129. The plaintiff has not even proved the existence of the original Will by producing the same in evidence. None of the witnesses examined by the plaintiff were shown alleged Will in the evidence. The said alleged Will was marked by this Court for identification and was never marked as exhibit at any stage in view of the said Will not having been proved. Thus I am not inclined to accept the submission of the learned counsel for the plaintiff that the alleged Will was duly executed and attested under Section 63 of the Indian Succession Act, 1925 and under Section 68 of the Indian Evidence Act, 1872. I am also not ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:37 ::: ppn 81 ts-59.03 (j).doc inclined to accept the submission of the learned counsel that the said Mr.Kishor V. Tembe, Advocate, who was known to the family of the deceased testator had drawn the Will in question. The said Mr.Kishor V. Tembe in his cross-examination admitted that he has hardly visited twice or thrice at the residence of the said deceased though he claimed to have known the said deceased for last several years.
130. There is no merit in the submission of the learned counsel for the plaintiff that the said Mr.Kishor V. Tembe was only put a suggestion in the cross-examination that Will was not signed by the said deceased testator or by said attesting witness. The execution and attestation of the Will was disputed by the defendant and thus onus was on the plaintiff to prove execution and attestation of alleged Will by cogent evidence. The defendant himself entered in the witness box to prove the allegations made in affidavit in support of caveat, which were duly proved by him.
131. In so far as reliance placed by learned counsel for the plaintiff on the consent affidavit filed by the two other brothers of the plaintiff and the defendant for grant of probate in favour of the plaintiff is concerned, a perusal of the record indicates that one of the brother, who ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:37 ::: ppn 82 ts-59.03 (j).doc had filed such consent affidavit in favour of the plaintiff was examined as a witness by the defendant. The said brother had in his evidence deposed that the said consent affidavit was prepared by the plaintiff's Advocate and he has signed it since he was not interested in share in the property of the said deceased. The plaintiff in her evidence admitted the consent affidavit. It is not in dispute that the said affidavit was prepared by the Advocate of the plaintiff. The said witness examined by defendant also proved that when he visited office of the Advocate, the said affidavit was already ready for signature of the said witness. Be that as it may, the said witness (DW-2) in his cross-examination deposed that whenever he had visited the said deceased, he was always found lying down and was not able to talk to him. He further deposed that whenever deceased signed the cheques in front of him, the said signature was different. The said witness had also deposed that the deceased was fond of the defendant.
132. So far as the submission of the learned counsel for the plaintiff that the evidence of the said Dr. Nobhojit Roy and in particular his answers in cross-examination cannot be considered by this Court on the ground that the defendant had not applied for declaring the said witness as hostile witness or that he was not re-examined by the defendant as concerned, in my view, the learned counsel for the defendant is right in ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:37 ::: ppn 83 ts-59.03 (j).doc his submission that the medical reports were produced pursuant to the witness summons issued by this Court upon the BARC hospital. The said Dr. Nobhojit Roy was examined to prove the illness of the deceased. The plaintiff, who had examined herself and Mr.Kishor V. Tembe did not depose that the said deceased was of sound and disposing mind. It was nobody's case that the deceased testator had read and understood the contents of the alleged Will. The defendant has not asked any question to the said witness about sound and disposing mind of the deceased.
133. In my view, the defendant has rightly placed reliance on Section 154 of the Indian Evidence Act, 1872. Be as it may, this Court has to consider the entire evidence in right perspective and not slight inconsistency, if any in the evidence led by the said Dr.Nobhojit Roy, who was examined by the defendant for a limited purpose and more particularly in view of the fact that the answers given by the said witness were ex-facie, contrary to the medical reports produced on record by the said hospital and contrary to his earlier deposition, which was based on the medical reports. In my view, there is no merit in the submission of the learned counsel for the plaintiff that said Dr.Nobhojit Roy was not having declared as hostile witness or that the defendant did not seek an opportunity to reexamine him in the circumstances, this Court cannot ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:37 ::: ppn 84 ts-59.03 (j).doc ignore the said part of the evidence of Dr.Nobojit Roy.
134. In so far as submission of the learned counsel for the plaintiff that even if the said deceased was suffering from various ailments, that would not be sufficient to declare a person of unsound mind or that he was not able to understand as to what he was doing, in my view, in view of the admitted fact that the said deceased was suffering from several diseases including some of which were serious in nature and considering the age of the said deceased as 88 years on the date of alleged execution of the date, the Court has to consider the cumulative effect of such serious diseases being suffered by the said deceased, his advance age and in view of the said deceased having expired within 17 days from the date of the alleged execution of the Will. The plaintiff could not dispel the surrounding suspicious circumstances by leading cogent evidence and could not clear the doubt from the mind of the Court that in such circumstances, the said deceased would have executed the alleged Will as propounded by the plaintiff.
135. In my view, conscience of the Court has to be satisfied by producing cogent evidence by the plaintiff that the Will was executed and attested in accordance with law, was not an unnatural Will and was not ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:37 ::: ppn 85 ts-59.03 (j).doc surrounded by any suspicious surroundings. There is no merit in the submission of the learned counsel for the plaintiff that the witnesses including PW-2 and Mr.Kishor V. Tembe could prove that the said deceased was of sound and disposing mind on the date of execution of the alleged Will. In my view, there is no merit in the submission of the learned counsel for the plaintiff that the suspicious circumstances highlighted by the defendant are abnormal. There is no evidence produced by the plaintiff to show that the defendant had not supported the said deceased.
136. In so far as Judgment of the Division Bench of this Court in case of Bhika Cullianji & Company, Bombay (supra) relied upon by the learned counsel for the plaintiff in support of his submission that since there was no cross-examination of the witness on the material aspects, it amounted to admission on the part of the defendant is concerned, in my view all the witnesses examined by the plaintiff were extensively cross- examined by the learned counsel for the defendant. Be as it may, the plaintiff could not point out any part of the deposition of the plaintiff or his witness, which remained un-controverted by the defendant by allegedly not cross-examining all such witnesses as canvassed by the learned counsel for the plaintiff. The Judgment of this Court in Bhika ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:37 ::: ppn 86 ts-59.03 (j).doc Cullianji & Company (supra) thus would not advance the case of the plaintiff and is clearly distinguishable in the facts of this case.
137. In so far Judgment of the Supreme Court in case of Madhukar D. Shende (supra) relied upon by the learned counsel for the plaintiff is concerned, the Supreme Court in the said Judgment had considered a situation where the Will was not opposed by any of the relatives of the deceased, who would have succeeded as legal heirs of the deceased, if the Will would not have been there. The challenge to the Will was thrown by the stranger to the family and the person, who had trespassed upon the property. The Supreme Court also recorded a finding that there was nothing to show that the said deceased was physically or mentally incapacitated from executing the Will. The Supreme Court also considered that the factum of execution of Will by the deceased was denied by a trespasser without raising any specific pleadings. However, in the facts of this case, it is an admitted position that the said deceased was totally bedridden and was suffering from several diseases some of which were serious in nature and also that the said deceased was 88 years old on the date of alleged execution of Will. In my view, the Judgment of Supreme Court in case of Madhukar D. Shende (supra) would thus not advance the case of the plaintiff. The facts before the Supreme Court in ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:37 ::: ppn 87 ts-59.03 (j).doc the said Judgment were totally different and are clearly distinguishable in the facts
138. In so far as Judgment of the Supreme Court in the case of Seth Beni Chand (supra), which is relied upon by the learned counsel for the plaintiff is concerned, the Supreme Court gave a finding in the facts of that case that there were civil and criminal proceedings vehemently fought between the deceased and his son between each other and thus in such circumstances, the exclusion of the son from the estate of the said deceased, could not be considered as unnatural. The facts before the Supreme Court in the said Judgment are totally different and are clearly distinguishable in the facts of this case. The plaintiff could not prove by any cogent evidence that the relations between the said deceased and the defendant were not cordial. On the contrary, the evidence on record clearly indicates that the said deceased was fond of the defendant and that the defendant also used to take care of the said deceased and had also attended all the rituals after the death of the said deceased.
139. For the reasons recorded aforesaid, Issue No.(i) is answered in negative. In so far as Issue No.(ii) is concerned, in my view the alleged Will dated 18th August, 2002 is surrounded by suspicious ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:37 ::: ppn 88 ts-59.03 (j).doc circumstances and thus cannot be accepted. The said issue is answered accordingly. I therefore, pass the following order:-
ORDER (I) The Testamentary Suit No.59 of 2003 is dismissed.
(II) There shall be no order as to costs.
(R.D.DHANUKA, J.) spt/ ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:37 :::