Bombay High Court
Yohannan Thomas John vs Mr.Shekhar Agarwal on 23 December, 2010
Bench: R. S. Dalvi
1 Ch-summonses-49-26
PGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
Chamber Summons No.49 of 2009
IN
Suit No.42 of 2002
IN
Petition No.514 of 1990
Yohannan Thomas John .. .. Plaintiff
v/s.
Mr.Shekhar Agarwal .. .. Defendant
And
Karuna Agrawal .. .. Applicant
W I T
Chamber Summons No.26 of 2009
IN
Suit No.42 of 2002
IN
Petition No.514 of 1990
Yohannan Thomas John .. .. Plaintiff
v/s.
Mr.Shekhar Agarwal .. .. Defendant
And
Ms.Uma Shah & anr. .. .. Applicants
Mr.Rajesh Shah with Ms.Mehra i/by L.J. Law for Plaintiff.
Mr.Rohan Cama with Ms.Pallavi Dedhia i/by Sanjay Udeshi &
Co. for Caveator/Defendant.
::: Downloaded on - 09/06/2013 16:43:22 :::
2 Ch-summonses-49-26
Ms.Alpana Gone with Mr.Ajay Fernandis i/by Kanga & Co. for
Applicants in both Chamber Summonses.
-----
CORAM : SMT.ROSHAN DALVI, J.
Date of reserving the judgment : 3rd December, 2010
Date of pronouncing the judgment : 23rd December, 2010
JUDGMENT :
1.Both these Chamber Summonses are taken out by two
daughters of the deceased who have sought to challenge
the Will of the deceased by withdrawing the consent
purported to have been given by them on the ground that
it was obtained under misrepresentation and/or under
duress.
2.The deceased Ranchoddas Hiralal Agrawal died on 7th May
1986. He is stated to have left behind his last Will
and Testament dated 3rd December 1985. The Plaintiff is
the executor of the Will. He is not a beneficiary. The
deceased left behind three sons and four daughters. The
properties are stated to have been bequeathed to two
sons. The other son and the four daughters have been
disinherited. The son, who is disinherited, has filed
a Caveat. The two sons, who have been bequeathed the
estate of the deceased, have filed two separate consent
Affidavits affirmed before the Associate/Assistant
Master, High Court, Mumbai. The four daughters have
3 Ch-summonses-49-26
neither been even mentioned in the Will nor have been
mentioned in the Petition for probate as the heirs and
legal representatives of the deceased. Only three sons
are shown as heirs in the Petition. Consequently,
initially two of the sons Suresh and Subodh filed
consent Affidavits on 13th March 1994. One son Shekhar
challenged the Will upon the citation being issued.
3.The Petitioner is an Advocate of this Court. He has
been the Advocate of the deceased as well as several of
his heirs. He knew the family of the deceased.
ig He
acted as an Advocate on behalf of some of them,
including the daughters. Yet he failed to show the
daughters as the heirs in the Petition and
consequently, he failed to file their consent
Affidavits at the time the Petition was filed.
4.The Petition has been amended a number of times. Under
one such amendment, the names of the four daughters of
the deceased Aruna, Karuna, Uma and Asha have been
added as the heirs and legal representatives of the
deceased, showing their relationship as well as the
address as required by the procedure to be followed in
Testamentary Petitions. Upon the amendment, the
consent Affidavits of the four daughters have been
filed.
4 Ch-summonses-49-26
5.The Affidavits of the four daughters, Aruna, Karuna,
Uma and Asha have been filed on four different dates;
5th November 1995, 6th January 1996, 22nd December 1995
and 14th February 1996, respectively. The consent of
these heirs required to be filed in this Court is not
necessarily to be affirmed before an officer of the
Court entitled to administer an oath as an Affidavit
under any rule in that behalf. All the four Affidavits
are shown to be notarised in Mumbai. All the four
daughters have signed the Affidavits in Mumbai. Two of
the daughters lived in Mumbai and two lived in Canada.
Even the daughters, who lived in Canada, have signed
the Affidavits in Mumbai. These Affidavits are annexed
to the Affidavit of the Plaintiff affirming that they
were signed by all the daughters in his presence and
are notarised. They are marked Exhibits A, B, C and D,
respectively to the said Affidavit. The docket of the
Affidavit of the Plaintiff does not show what kind of
Affidavit it is. It only shows that it is Affidavit of
the Plaintiff, affirmed on 22nd March 1996 before the
Associate/Assistant Master, High Court, Mumbai.
6.It is argued that the Affidavit has not been filed in
accordance with the usual procedure adopted by the
office of the Prothonotary and Senior Master of this
Court with regard to filing of the Consent Affidavits
in Testamentary Petitions. These Affidavits have
5 Ch-summonses-49-26
remained on record only as documents annexed to the
Affidavit of the Plaintiff. The consent Affidavits of
the two sons, who have been bequeathed the entire
estate of the deceased, were filed in accordance with,
what is stated to be, due procedure followed by the
office of the Prothonotary and Senior Master of this
Court in Testamentary Petitions. It is also argued
that had the Affidavits of the daughters been sought to
be tendered to the office of this Court in the form in
which they have been executed, they would not have been
accepted by the office and an objection in that behalf
would have been taken out. That objection is seen to
have been obviated by the Plaintiff by filing his own
Affidavit and annexing them thereto. This has been a
part of the record. Aside from an oral objection on
the question of law and procedure taken by the Counsel
of the Plaintiff in this behalf, the daughters have not
challenged their Affidavits on this ground.
7.It will have to be seen whether the challenge now made
out is only merely technical which can be condoned
and/or brushed aside. A Testamentary Petition is filed
for the grant of probate. Probate will be granted if
all the heirs of the deceased, whose last Will and
Testament is sought to be probated, agree to the grant
of the probate. Such agreement/consent to the grant of
probate has to be shown. There is no prescribed format
6 Ch-summonses-49-26
or form under the Rules of the Court relating to
testamentary suits to require such person agreeing to
the grant of probate or consenting to the grant of
probate to file an Affidavit only or to attend before
the Associate or the Assistant Master of this Court.
However, the requirements of showing that they know
that the Will has been executed, they agree with the
bequests thereunder as the heirs of the deceased
otherwise entitled to the estate and that they do not
mind the power of the Court being granted as per the
intention expressedig in the Will are the essentials
required to be stated. In the absence of a form, these
aspects may be stated in a single sentence. The fact
that the practice of this Court which has developed
shows usual Affidavits do not make the law or
procedure.
8.The two Affidavits of two of the sons of the deceased,
the two brothers, who have been bequeathed the estate,
Suresh and Subodh are, in fact, just the usual
Affidavits filed separately upon being affirmed before
the officer of this Court. Shekhar, another brother,
who has been working in the U.S., has not filed any
consent Affidavit. He has filed a caveat instead upon
being served a citation.
9.One of the sisters Asha expired prior to the Chamber
7 Ch-summonses-49-26
Summons being taken out by the other three sisters. She
had been murdered on 3rd August 2003.
10.Suresh and Subodh are accused in the criminal
prosecution for the said murder. Suresh has since
expired on 3rd November 2003. Subodh has been
absconding after the murder of Asha.
11.Since their grounds for revoking their consents are
based upon oral facts that have transpired, they have
been directed to lead evidence.
ig Two of the daughters,
Aruna and Karuna, have led evidence. One daughter has
not led evidence on the ground that she could not
attend Court for that purpose. Upon the evidence of the
two sisters, the Plaintiff, has led evidence to show
the denial of their case. The Plaintiff is, as
aforesaid, an Advocate of this Court who is otherwise
an independent executor.
12.Shekhar has challenged the Will. Upon the Affidavit-
in-support of the Caveat being filed by Shekhar, two
issues with regard to the execution of the Will and the
state of mind of the testator has already been framed.
This Court would be required to see only the validity
of the execution of the Will, without more. Shekhar
would be defending the suit for the grant of probate.
The three daughters, who seek to revoke their consent,
8 Ch-summonses-49-26
would essentially do the same as Shekhar. The case of
the Plaintiff would not be altered merely because one
of the heirs or some of the heirs or many of the heirs
challenge the Will. Evidence may be led by Shekhar as
the Defendant in the suit followed by the evidence of
any other witnesses, including the sisters, with regard
to the execution of the Will and the mental capacity of
the testator. The onus to prove the aforesaid two
issues would be on the Plaintiff. The sisters contend
that they would bring to light the other facts for
challenging the Will on other grounds.
ig The onus would
lie on them to prove those grounds. It would,
therefore, make very little essential difference
whether or not their consent Affidavits are revoked and
they are allowed to file their Caveat, Affidavit-in-
support thereof and defend the suit.
13.Nevertheless, they have claimed to revoke their
Affidavits. Similarly though it would make little
difference to the Plaintiff whose onus to prove the
aforesaid issues would not alter, the Plaintiff has
strenuously contested. The Chamber Summons is to allow
the daughters to be made party Defendants in the suit.
14.Under these circumstances, the evidence of the two
daughters and the Plaintiff would be required to be
considered.
9 Ch-summonses-49-26
15.The very first Affidavit of the two sisters, who have
led evidence, is in support of their Chamber Summons.
A case for revocation of their consent Affidavits is
made out therein for the first time. This is followed
by their Affidavit of examination-in-chief in which
their case has been further elucidated. This case
would have to be considered appreciating their replies
in the cross-examination.
16.Both the Affidavit-in-support of the Chamber Summons
as well as examination-in-chief as also the cross-
examination are long and winding relating to various
matters outside the scope of the actual execution of
the Affidavits. What shall have to be only considered
is circumstances in which the Affidavits of the four
sisters came to be signed and what they did since
1995-96 to revoke their consents. The various aspects
of their case may be considered under the following
needs in respect of two sisters who have deposed.
17.Karuna s evidence :
Consent affidavit : Karuna s case in paragraph 8 of the
Affidavit-in-support of the Chamber Summons is that her
consent Affidavit was made on a false representation by
her brother Suresh who got her signature on the
Affidavit. Suresh wanted her No Objection for selling
10 Ch-summonses-49-26
the Mulund HUF property. She was not given a copy of
the Affidavit she signed or even allowed to read it.
18.In reply to she being questioned in her cross-
examination whether she knew that her father had a
property in Mulund she stated that she did not remember
it. In reply to the question whether there was any
property of her father situated in Mulund, she replied
that she thought that in the Affidavit there was a
mention of Mulund property. This evidence shows that
she hardly knew about any Mulund property of her father
or for that matter of the HUF. The seminal case in the
Affidavit of the Chamber Summons that she signed the
Affidavit because she was told that it was for sale of
that property, therefore, becomes doubtful in view of
her answers betraying the total lack of knowledge of
the Mulund property.
19.Her deposition in her affidavit of examination-in-
chief shows that on 16th December 1995 she had come
from Canada for visit to India. She was at the
residence of her cousin Umesh at Delhi. She was in a
room with her daughter Charu Gupta when her brother
Suresh came in. He said he wanted to say something
important to her. He asked her daughter Charu to leave
the room. Then he asked her to sign the document. She
asked him why. The document referred to a Will. She
11 Ch-summonses-49-26
asked her brother about the Will. He became angry. He
stated that all the other sisters have similarly signed
the document and she should also sign. He said that he
was in a hurry to catch a flight to Singapore. His
demeanour was threatening. She felt intimidated. She
signed under duress. She did not remember whether there
was a date on the document.
20.The case of false representation made out in paragraph
8 of the examination-in-chief has not been deposed by
her. The case of an Affidavit required for selling the
Mulund family property is also not deposed by her. The
case of duress deposed by her is absent in her
Affidavit-in-support of the Chamber Summons.
21.It may at once be mentioned that the cases of
misrepresentation and duress are mutually exclusive and
diametrically different. Though both these cases make
the contract voidable by the party who is
misrepresented or coerced and though both the contracts
are admittedly executed (signed) by the party seeking
to avoid such contracts, the premise upon which they
can be avoided and the evidence showing how they were
executed is necessarily different. No party can,
therefore, make out a case under both these provisions.
No party can give evidence under both these provisions.
The provisions under Sections 15 and 16 of the Indian
12 Ch-summonses-49-26
Contract Act itself show the two distinct and separate
fields under which the reasons for avoiding a given
contract fall. Indeed the case of Karuna in her
Affidavit-in-support of the Chamber Summons (her
pleadings) is under the one distinct head of
misrepresentation. Her embellishment of such case in
her evidence, which essentially makes it a case of
coercion of the contract, by her signing the Affidavit
in a condition of duress belies her case of
misrepresentation altogether. If she had been
misrepresented, as is her initial case, she need never
have been coerced she would have signed anyway. This
shall be made more clear by her further evidence with
regard to her exercise in setting right the wrong, as
shall be seen presently.
22.Paragraph 9 of her Affidavit-in-support of the Chamber
Summons shows that when she had come to Delhi from
Canada on a short holiday in January 1996, she was
shocked to realise that document upon which Suresh
obtained her signature was the Affidavit waiving
service of citation/consent to the grant of probate.
However, that statement appears to be completely
erroneous because her Affidavit itself is shown to be
dated 6th January 1996. Her evidence shows that she
came to India on 16th December 1995. She left India on
28th February 1996. She has relied upon her passport in
13 Ch-summonses-49-26
that behalf. She, therefore, could not have realised in
January 1996 that the document she signed was a consent
Affidavit. That realisation dawned on her much later,
as shall be seen presently. She, in fact, signed the
Affidavit in January 1996 during her holiday in India.
23.In her cross-examination, she deposed that her brother
Umesh and her daughter Charu were present in the house
then. The meeting with her brother lasted a few
minutes; he asked her to sign the document and at the
end of the interaction
ig she signed. She read the
document before signing. Only Suresh and she were
present at that time. Suresh took away the original
Affidavit and did not give her the copy.
24.She further deposed that her daughter Charu questioned
her for signing the document without showing it to her.
She did not lodge a Police complaint, write a letter to
her brother Suresh recording the duress, call upon him
to return the document, inform any other brothers or
discuss it with her sisters or ascertain from sisters
whether they had also similarly signed such document or
received any information from the sisters in that
behalf. She did not call any one or raise any alarm,
though she signed under duress. Though she admitted
having read the document under question No.14, she
deposed that she did not completely understand the
14 Ch-summonses-49-26
contents under question No.23 of the cross-examination.
She was an educated person, though a lay person as
regards the law. She is M.A. in education.
25.A reading of her evidence shows that she would have
willingly signed an Affidavit with regard to the sale
of the Mulund property. If that was so, her deposition
about duress is negatived. Consequently, Suresh s
intimidation or her daughters questioning or Asha s
information to her that she signed under similar
circumstances when ig Suresh was in the hospital (an
aspect which is hearsay) is false.
26.She had not signed the Affidavit in the presence of
the Plaintiff nor any notary nor any officer of this
Court. She has not stated that she did not sign in the
presence of Advocate Agarwal who is shown to have
identified her.
27.Karuna has also deposed about what Asha informed her
about signing her Affidavit. Asha was murdered in
August 2003. She has not stated when Asha informed her
about the Affidavit. The Affidavit is not shown to be
the cause of her death. Asha could not have made a
dying declaration in that behalf. The evidence of
Karuna with regard to what Asha told her about the
Affidavit is completely hearsay and accordingly,
15 Ch-summonses-49-26
inadmissible in evidence. It is, therefore, not
considered.
28.Why revocation of consent affidavit : The reason is
absent in her affidavit in support of the Chamber
Summons. Her Affidavit of examination-in-chief details
how and why the Affidavit called Revocation affidavit
came to be filed in January 2001. In November 2000,
Shekhar told her that he was seriously prejudiced by
the sisters executing their consent Affidavits. At
that time, she was shocked to learn that what she had
signed was under the impression that it was a document
of sale of Mulund property and not any Affidavit which
would affect Shekhar s ability to inherit. She told
Shekhar that she had not executed any such consent
Affidavit. Shekhar gave her a copy of the Affidavit
signed by her. It was dated on a different day then
when her brother had taken her signature in her
cousin s house. (She has relied upon her passport to
show that she was not in India on 6th January 1996 when
the Affidavit is shown to have been signed but her
evidence as well as her passport show that she was in
India from 16th December 1995 and 28th February 1996
which includes the date put on the Affidavit.) She
told Shekhar that she would set right the mistake
because she realised the correct facts. (The correct
facts, according to her, were that Suresh had taken her
16 Ch-summonses-49-26
consent Affidavit, though she thought that she had
signed the Affidavit with regard to the Mulund
property.) She has shown what happened with Shekhar
in November 2000 to show how she affirmed the Affidavit
in January 2001, revoking her consent Affidavit.
29.Revocation Affidavit : Paragraph 10 of her Affidavit-
in-support of the Chamber Summons shows that in January
2001, her Advocate prepared Affidavits for the four
sisters which were executed in the presence of the
Associate of this Court. By those Affidavits, the four
sisters withdrew their consent to the grant of probate
of the Will of their father sought to be propounded by
the Plaintiff. Karuna has stated that she has misplaced
the copy of the Affidavit. The original Affidavit
affirmed in January 2001 has not been filed in this
proceeding until now. The copy is not produced.
Neither primary nor secondary evidence is, therefore,
available to show the execution of that Affidavit.
That Affidavit has not seen the light of the day.
30.The Affidavit-in-support of the Chamber Summons does
not show which Advocate prepared her Affidavit in
January 2008 and how it was affirmed or on which date
it was affirmed. It only shows that all the four
sisters had executed those Affidavits in the presence
of the Associate withdrawing their consent.
17 Ch-summonses-49-26
31.Her evidence-in-chief shows that Shekhar arranged for
preparing the Affidavit revoking the consent stating
that the sisters had been fraudulently made to consent
for the grant of probate. On 25th January 2001, the
sisters met Shekhar s lawyer Sanjay Udeshi for
executing the Affidavit revoking the consent
fraudulently obtained. The Solicitor explained them
that it would be better to have a separate lawyer for
the four sisters. He had arranged for one. She believed
that it was the firm of M/s.Rawal Shah & Company but it
may be Mr.Joseph Verghese whose name appeared on the
docket of the revocation Affidavits. She read the
Affidavit to be signed by her. She did not remember the
contents because she did not have the copy or the
original. Similar Affidavits were of her three sisters.
They were all executed in the presence of the
Associate. All four of them were present at the time of
the execution. These Affidavits were not filed because
talks of settlement in the family were in progress.
However, she had an impression that they were filed.
32.This evidence shows that though there were talks of
settlement she wanted to revoke her consent. Both these
aspects are inconsistent with one another. In fact,
even if she had not consented she would be expected to
consent upon certain talks of settlement. The
18 Ch-summonses-49-26
Affidavits, which were affirmed on 25th January 2001,
have never been filed. The present Advocate of the
sisters has written letters to M/s.Raval Shah & Company
as well as Joseph Verghese, requesting them to give
information about the Affidavits discovered not to have
been filed. These letters are written in February 2009
less than two months before the Chamber Summonses have
been filed. Both the Advocates have stated that they
have not represented the daughters and do not have the
Affidavits.
33.The Affidavits
never came to be filed in the
Testamentary proceedings and the sisters never inquired
about them.
34.A case is put to her that these Affidavits have never
been signed on 25th January 2001 when they were stated
to have been signed by all the four sisters who were
present before the officer of this Court. Mr.Shah on
behalf of the Plaintiff stated to Court that the
register maintained by the office of the Prothonotary
and Senior Master of this Court for the relevant date
does not show any entry of these Affidavits being
filed. Hence I have gone through the register. The
relevant entry is on the reverse of page 13384 opposite
page 13385. It shows Petition No.514 of 1990 against
the name V. Joseph and A15/3 . The other entries show
19 Ch-summonses-49-26
A5 . A reading of the entries shows that whereas the
other Advocates mentioned in the other columns got one
Affidavit sworn paying the Court fee stamp of Rs.5/-,
V. Joseph got three Affidavits sworn paying the Court
fee stamp of Rs.15/- in Petition No.514 of 1990.
35.This shows three affidavits by three of the sisters on
25th January 2001. Karuna claims to have filed the
revocation affidavit on 25th January 2001. She has not
been able to produce or show any copy of any such
affidavit. However, a reading of the entire evidence
shows four Affidavits filed by the four sisters. That
evidence is partly untrue. Karuna, whose copy Affidavit
has not been found since, is shown not to have filed
any such Affidavit. Karuna ordinarily resides in
Canada. She may not have been present in India on 25th
January 2001. Three Affidavits are seen to have been
signed and affirmed in Petition No.514 of 1990 on 25th
January 2001. These three Affidavits could be only of
the three out of four aforesaid sisters. Karuna s
Affidavit is specifically seen not to have been signed
or affirmed.
36.It may be mentioned that in the compilation of
documents produced by the daughters there are four
Affidavits; two of Aruna; one of Uma and one of Asha.
The evidence of Karuna shows that her Affidavit is
misplaced. The letter of her present Attorneys
20 Ch-summonses-49-26
addressed to Raval Shah & Company as also Joseph &
Associates shows that that Affidavit has been misplaced
and a copy is not sent. However, the compilation of
documents seeks to show four copies of similar
Affidavits executed by the four sisters. An attempt at
smuggling in a copy of the affidavit to pass it off as
of Karuna cannot be ruled out. The Register
specifically showing three affidavits executed and for
which Court fee stamps of Rs.15/- were shown belies the
entire evidence of Karuna. The compilation of documents
containing two Affidavits of Aruna and one each of Uma
and Asha seeking to show four aforesaid revocation
Affidavits is misleading. Karuna has, therefore, not
proved the filing of the revocation Affidavit by her as
deposed by her orally at all. In fact, the
corroborative evidence contained in the register
maintained by the office of this Court disproves that
oral evidence completely.
37.Relating to the evidence with regard to the filing of
the Affidavit, she has been extensively cross-examined.
She did not remember signing any vakalatnama in favour
of either of these Advocates. She did not remember
whether Sanjay Udeshi, the Solicitor of Shekhar was
present when she signed the Affidavit. She did not know
who kept that Affidavit. She did not even know that it
was kept with the sisters. She did not remember whether
21 Ch-summonses-49-26
she took the copy. She did not know whether the filing
of that Affidavit was of importance. She never inquired
with any of the lawyers whether the Affidavit was
filed. She did not know whether it was prepared by
Sanjay Udeshi. She did not remember to which of these
lawyers she went or his name or face. She did not know
why that Affidavit was not filed in Court. She also did
not ask her sisters whether it was filed and the
sisters never informed her that it was filed. She has
been put the case that none of the sisters ever signed
the Affidavit dated 25th January 2001. Indeed she has
never signed the affidavit. Such evidence can be
expected only of a dishonest witness.
38.In any event, the copy of the Affidavit sought to be
produced, which appears to be a photo copy of the photo
copy of the Affidavit, also shows that each of the
three sisters is not interested in her share of the
property of her father and has specifically stated that
the same may be divided amongst their respective
brothers and sisters also whilst stating about their
lack of awareness of the alleged Will, their lack of
consent and how they signed a paper upon the
representation of their brother Suresh, which turned
out to be their consent Affidavits consenting to the
issue of probate without serving of citation upon them.
Even a copy of the copy of the Affidavit of Karuna is
22 Ch-summonses-49-26
not shown.
39.Settlement talks : Settlement talks is the prime
reason to explain why the revocation affidavits never
came to be filed. The initial explanation is in
paragraph 11 of the Affidavit-in-support of the Chamber
Summons. Asha is stated to have tried to broker peace
between the family members. That was on her visit to
India from Canada in March 2002. She was murdered on
3rd August 2003 in the house of her brother Suresh.
Suresh and Subodh are stated to have been accused of
the murder in the criminal prosecution. Paragraph 11 of
the said Affidavit of Karuna shows that because of such
developments in the family the sisters failed to give
their Advocate further instructions. The sisters had
affirmed the Affidavit. The original Affidavit remained
with the relevant Advocate. It shows that it was made
in the above Petition. It had to be filed in the
Petition. The Affidavit is stated to have been prepared
by Shekhar s Solicitor. He had made arrangement for
other Advocate whose name was on the docket. It was
for that Advocate to get it filed. Of course, since the
consent Affidavit was already filed, an application for
seeking permission of the Court to file the revocation
Affidavit and to revoke the consent already granted was
to be taken out. The instructions in that behalf are
stated not to have been given because of the sister s
23 Ch-summonses-49-26
murder. Consequently, the Affidavit remained to be
filed. Consequently, the citation could not be served
upon the daughters and the Will could not be disputed.
This fact shows that despite the talks of settlement
and despite the filing of the revocation affidavit,
because of the murder the Affidavit was not filed. This
does not show the delay of a period of two and half
years between 25th January 2001 and August 2003 why the
Affidavit remained to be filed and why those
instructions could not be given by the four sisters to
their Advocate so that citation could be served upon
them.
40.The Affidavit of examination-in-chief is completely
contrary to this case shown in paragraph 11 of the
Affidavit-in-support of the Chamber Summons. Paragraph
7 of the Affidavit of examination-in-chief of Karuna
shows that it was her impression that the revocation
Affidavits were filed by her lawyer. That was M/s.Raval
Shah & Company who she believed was her lawyer or
Joesph Verghese whose name was on the docket. The said
paragraph further shows that It appears now that the
original revocation Affidavits were not filed in Court.
Why they could not be filed between 25th January 2001
and August 2003 is not shown.
41.In paragraph 8 of her Affidavit of examination-in-
24 Ch-summonses-49-26
chief she has deposed about the talks of settlement.
These were in March 2002. Her sister s grand-daughter
Pooja was to be married. The entire family had
collected. Two of the sisters had come from Canada.
Consent Terms were drafted. This was in a separate suit
filed in this Court on its Original Side being Suit No.
922 of 1998 filed by Shekhar against all the other
siblings. Suresh admitted that the properties were HUF
properties. The sisters were offered a share. Their
signatures were taken on certain Consent Terms. At this
time, the lawyers of the sisters (it is not known who)
concluded that since the matter was settled, revocation
Affidavits were not required to be filed.
42.The Consent Terms were not executed in the
Testamentary Petition. Testamentary Petition was not
settled. The Consent Terms were to be filed in the
suit. That related to HUF properties. In the same
paragraph she has deposed that Subodh (the other
brother, since absconding) was not agreeable to the
terms and hence Consent Term paper was null and void.
Hence the Consent Terms, which were to be accepted,
were really not executed.
43.The sisters have relied upon and produced a copy
letter dated 20th March 2002 with regard to the Consent
Terms. The letter is written by Raval Shah & Company
25 Ch-summonses-49-26
who is stated to have filed the vakalatnama for the
four sisters in Suit No.922 of 1998. Hence he was
their Attorney. (She does not remember him or his
face). He wrote a letter to the Advocate for the
Plaintiff and the Advocate of Defendant No.1. Shekhar
was the Plaintiff and Suresh was Defendant No.1.
Subhash was not agreeable to the Consent Terms. It is
because of Subhash that the consent term paper was null
and void. Yet that letter is not addressed to Subhash.
The letter shows that Suresh misrepresented and played
a fraud upon the sisters alleging that certain Consent
Terms were signed by them. However, the sisters have
not accepted the Consent Terms. The letter further
shows that if Suresh seeks to rely upon the Consent
Terms, Raval Shah & Company on behalf of the sisters
would object to the same. It reiterates that the
sisters have a 1/7th share in the estate.
44.The letter relied upon by the sisters is diametrically
different from the deposition of Karuna with regard to
the talks of settlement and the Consent Terms in
paragraph 8 of the Affidavit of examination-in-chief.
In any event, even if there were talks of settlement in
March 2002, due to which the Advocate reasoned that the
revocation Affidavits need not be filed, it leaves
completely unexplained the position between January
2001 and March 2002. It is not explained why revocation
26 Ch-summonses-49-26
Affidavits, if affirmed in January 2001, were not filed
immediately thereafter and prior to the talks of
settlement at the time of the grand-daughter s
marriage.
45.Reading of paragraph 11 of the Affidavit-in-support of
the Chamber Summons, making out a case of why
instructions to file the revocation Affidavit were not
given to the Advocate to show the condonation of delay
in that behalf from January 2001 to August 2003 is
different from the evidence of Karuna, showing how the
delay is sought to be condoned between January 2001 and
March 2002 upon the talks of settlement at the time of
the grand-daughter s marriage in paragraph 8 of the
Affidavit of examination-in-chief and the other talks
of settlement in that family of which particulars are
not given in paragraph 7 of the Affidavit of
examination-in-chief.
46.What can be discerned from non-filing of the Affidavit
is that neither of the excuses is true. The talks of
settlement, if at all were in the suit. They related to
HUF property. In the suit the talks of settlement are
shown to have broken down because four sisters sought
to revoke the consent terms allegedly signed by them
again under misrepresentation and fraud. Further the
death of sister Asha in the later year also had nothing
27 Ch-summonses-49-26
to do with giving instructions. It was well past the
time to give instructions to file the revocation
Affidavit, if any. The talks of settlement of August
2002 have not been referred to in the Affidavit-in-
support of the Chamber Summons at all. The excuse of
the murder of the sister has not been referred to in
the Affidavit of examination-in-chief of Karuna to
explain the delay of a number of years in filing the
revocation Affidavit until then.
47.Karuna has been extensively cross-examined with regard
to these Consent Terms. She has deposed that the
sisters did not back out of the Consent Terms (a fact
directly contrary to what is mentioned in her own
Advocate s letter dated 20th March 2002). She did not
remember whether she willingly signed the Consent Terms
or whether she was forced to sign it. She could not
show that that letter was addressed to Subhash. She did
not know whether it was addressed at the instance of
Shekhar. She understood that the Consent Terms were not
agreeable to Subhash, but did not know why that fact
was not mentioned or alleged in the letter of her
Advocate dated 20th March 2002. She did not remember
whether she even tried to find out whether the
revocation Affidavit was filed in Court when the
Consent Terms failed. The record of the Court shows
that on 29th January 2009 for the first time, she
28 Ch-summonses-49-26
expressed surprise or raised the point. A case has been
put to Karuna with regard to the talks of settlement
deposed by her in paragraph 7 of her Affidavit of
examination-in-chief that those were between Shekhar
and the sisters in consideration for signing the
Affidavits on 25th January 2001.
48.Realisation of non-filing of the revocation
affidavits: The Affidavit-in-support of the Chamber
Summons does not show how and under which circumstances
the fours sisters ig realised that the revocation
Affidavits were not filed in the above Testamentary
Petition. Paragraph 12 of the Affidavit of examination-
in-chief of Karuna shows that it was only when the
Applicants present Advocate appeared on 29th January
2009 and prayed for a direction in the Testamentary
Petition that the citation be served upon the
Applicants in the light of their revocation Affidavit
dated 25th January 2001 and the Plaintiff s Advocate
alleged that the Applicants had not filed any Affidavit
revoking their No Objection to the grant of probate
that the sisters were put to notice of non-filing of
the revocation Affidavit. This specific case is not in
the pleadings. This case shows a delay of precisely
eight years and four days from the affirmation of the
Affidavit to the knowledge that it was not filed. It
speaks much not only of the sisters but their present
29 Ch-summonses-49-26
and past Attorneys who gave them legal advice to have
their Affidavits allegedly made under misrepresentation
and fraud or duress to have them set aside as voidable
documents and who rendered professional advice in that
behalf in drafting the Affidavits having them affirmed
and leaving them at that.
49.Aruna s evidence :
Consent affidavit : Aruna s case in paragraph 4 of the
Affidavit-in-support of her Chamber Summons is that she
signed the consent Affidavit of 14th February 1996 on
false assurances of her brother Suresh who came alone
to her residence with a paper and asked her to sign it
saying that it was required for the sale of Mulund HUF
property. Upon his request, she signed it because he
was a father figure and she did not have any reason to
doubt his words. However, that was without any
intention of giving her consent for the grant of
probate of the purported Will of her deceased father.
50.She confirmed that she had not signed in the presence
of any notary or the Plaintiff. She has not stated that
she did not sign in the presence of Advocate Agarwal
who is shown to have identified her.
51.In paragraph 3(a) of the examination-in-chief, Aruna
has detailed how and when this transaction took place.
30 Ch-summonses-49-26
That was on 5th December 1995 and not 14th February 1996
which is shown to be the date on the Affidavit. She has
detailed about her residence and how her brother came
in a hurried manner and had gone for a wedding at SNDT
college close to her residence. Her husband was present
(she has not examined him though). She read the word
Will in the document and asked him about the Will.
Her brother assured that he would show it to her. She
inquired a couple of times about it but he ignored her
queries. Her brother took the signed Affidavit without
giving her a copy.
52.In her cross-examination she deposed that this
happened between 6.45 and 7 p.m. She did not question
anything. She simply signed it. She inquired about
where the Will was. Her brother said that it was at
home and he would show it to her. She knew that her
father had property at Mulund. She did not discuss with
her sisters about the incident until much later when
Asha came from abroad. When Asha came from abroad her
brother was very sick and she could not think of
discussing any of these things. However, on occasions
the sisters exchanged their experiences. She told her
about signing of the document and about the wedding at
SNDT when Karuna told her that her signature was
obtained in Delhi. However, Karuna s cross-examination
has shown that she did not remember discussing with the
31 Ch-summonses-49-26
sisters about the incident.
53.She has further deposed that after the death of her
father she had no discussion with her brothers about
the estate of her father or her share therein. It did
not occur to her that she was entitled to a share. She
did not discuss with her husband about her share. She
deposed that gradually they came to know that they had
a share in the property and that they all were entitled
to the share when Shekhar informed them. The only
letter she wrote to Suresh or Subhash was the aforesaid
letter addressed by Raval Shah & Company which was
dated 20th March 2002. This answer shows that after
December 1995 until 2002 no query was also made. The
said letter was not even addressed to Subhash. She did
not initiate any proceedings for obtaining her share in
the HUF property also. Despite asking Suresh to show
her the Will orally, which was done by the other
sisters also, she did not ask him for a copy of the
Will or the document which she had signed.
54.Since she deposed that when she was asked to sign the
document under duress she had seen that it referred to
a Will and asked her brother why it referred to the
Will, she was asked in cross-examination whether she
asked Suresh to show her the Will of which a reference
was made in the document she signed. She answered in
32 Ch-summonses-49-26
the affirmative. Suresh never showed her the Will or
copy of it. She had asked him at the time she signed on
the document itself but because he got angry she did
not pursue it. (Her initial evidence is that she had
pursued it twice and then left it.) She did not ask her
sisters about the Will left by her father. She did not
even ask the Plaintiff about the Will (though the
Plaintiff was known to her.) She did not even deem it
fit to engage an Advocate to ascertain whether any Will
was left by her father. This was until her brother
Shekhar told her in despair about the damage she had
done along with all other sisters to his right to
inherit his father s estate. Even when Shekhar
approached her she did not ask him why suddenly he had
approached her in November 2000. She did not ask Suresh
whether the Mulund property was sold. She did not write
any letter to Suresh informing him about the execution
of her Affidavit under duress. She did not inform the
Plaintiff about that fact (much as Karuna had failed to
do any of these).
55.Why revocation of consent affidavit : Paragraph 5 of
the Affidavit-in-support of the Chamber Summons shows
how she was informed in November 2001 that the document
she signed on and of which copy was not given by her
brother was the consent Affidavit. She realised that it
was fraudulently secured by Suresh. Shekhar informed
33 Ch-summonses-49-26
her of this fact and furnished her a copy after he told
her how it had seriously prejudiced him. When all the
sisters discovered fraud they decided to take action.
That was the filing of the revocation Affidavit on 25th
January 2001.
56.Revocation affidavit : The fact of filing this is
mentioned in paragraph 6 of her Affidavit-in-support of
the Chamber Summons. How it was filed is detailed in
paragraph 7 of her Affidavit of examination-in-chief.
She sought to tender the photo copy of the affidavit as
an Exhibit as having been executed by her in the
presence of the Associate of this Court when all the
four sisters were present. She has deposed that a photo
copy of the Affidavit was made on instructions of her
lawyer arranged by Sanjay Udeshi. She had compared the
original with the photo copy and the photo copy was
prepared from the original. She stated that the
contents were true and correct. Much like Karuna, she
has deposed about how Shekhar s lawyer advised her to
get a separate lawyer and has mentioned about both the
aforesaid lawyers. She has further mentioned that
paragraph 3 of the Affidavit showing that she was not
interested in the share of the property of her father
and that it may be divided amongst her brothers and
sisters were pointed out by her as not needed but she
nevertheless felt it best to sign the Affidavit and to
34 Ch-summonses-49-26
deal with that aspect later.
57.Aruna has referred to a copy of this Affidavit. A
photo copy of this Affidavit is produced by her. The
photo copy shows the signature already put by Aruna
herself, the Advocate identifying her as also the
Associate. The photo copy is, therefore, copy of the
affirmed Affidavit ready to be filed in Court in
Petition No.514 of 1990. However, it is not the photo
copy which could have been taken out at the time of
affirmation of the Affidavit or immediately thereafter.
The photo copy produced in the compilation of documents
is a faint new copy. However, the copy produced by her
is not the photo copy of the original Affidavit which
was taken out on 25th January 2001. That would have
been her secondary evidence. The age of the paper of
the Affidavit itself would have shown its execution.
The copy produced by her is not a document about 8/9
years old. It is, therefore, a photo copy of the photo
copy of the original Affidavit. It is not known when
the copy is taken out. It is not seen to be a document
eight years old. It is not even stated to be so. It
is, therefore, not secondary evidence produced by Aruna
being a copy obtained by the mechanical process
required under the provisions of the Evidence Act for
proving the execution of the document by secondary
evidence. It may be mentioned that only the copy of the
35 Ch-summonses-49-26
document taken out at the time of the execution of the
document or soon thereafter and produced from proper
custody would show the execution of the original. A
copy newly made from whatever copy that may be existing
would not show the execution of the original document.
The copy of the Affidavit dated 25th January 2001 of
any of the sisters sought to be produced by Aruna does
not meet with the requirements of Section 65 of the
Evidence Act. They do not show that the original
document of such copy could have been genuinely
executed at such distance of time. The copy of the
Affidavit relied upon by her is not secondary evidence
and cannot even be considered.
58.Mr.Rajesh Shah, Counsel on behalf of the Plaintiff
argued that corroborative evidence of the filing of
such affidavit would have been the register maintained
by the Court for affirmation of Affidavit by the
Associate/Assistant Master of this Court. Though the
sisters have not produced the corroborative evidence of
the register, this Court has called upon the office to
produce the register to ascertain the truth. Entries of
25th January 2001 of all the Affidavits sought to be
filed by various Advocates in the various proceedings
in this Court and amount of stamp thereon run into
seven pages. Three affidavits are indeed seen to have
been affirmed in Petition No.514 of 1990. Advocate
36 Ch-summonses-49-26
Verghese s name and stamps of Rs.15/- are shown
cancelled. One of these could have been Aruna s
affidavit. The other two are shown to be of Uma and
Asha by the copies produced on record. Karuna s
affidavit is seen not to have been filed, despite her
oral evidence to the contrary, which stands excluded by
the documentary evidence, as dishonest and false
evidence.
59.Aruna s further evidence is of how this Affidavit came
not to be filed due to talks of settlement.
ig Though the
photo copy of the affidavit is not admissible in
evidence, she has been extensively cross-examined
thereon and hence it is considered.
60.She has deposed in her cross-examination when she was
asked to name her Advocate engaged by Sanjay Udeshi
that it was Raval Shah & Company and behind the page
Joseph Verghese was written. Raval Shah & Company is
not shown to be written anywhere in the Affidavit.
Raval Shah & Company represented the fours sisters in
Suit No.922 of 1998. She did not remember whom she
contacted in that firm. She did not remember having met
Joseph Verghese. She signed the vakalatnama in favour
of Raval Shah for filing the Affidavit in 2001. She did
not know why the name of Joseph Verghese was on the
docket despite such vakalatnama. She did not inquire
about it. Sanjay Udeshi waited for the four sisters in
37 Ch-summonses-49-26
Court. When they attended the Court for signing the
Affidavit, he was present there. There was one more
Advocate. She did not remember whether she was
introduced to him. The Register mentions the name of
Joseph Verghese probably taken by the office of the
Court from the docket of the affidavits. She had
reservation about Clause-3 in the Affidavit because it
was not acceptable to her but she signed the Affidavit
and wanted to deal with it later on as told to her
sister Asha. The objection that she had was that she
was entitled to a share in her father s property. She
had stated earlier that she had left the objectionable
part at that and had decided to deal with it later.
However, after signing the Affidavit she did not deal
with it later. She did not raise that issue with any
one. The Affidavit was brought by Mr.Udeshi. She did
not tell Shekhar that it was not acceptable to her.
The Advocate took away all the fours original
Affidavits. That Advocate was Mr.Udeshi. She signed
that Affidavit to save Shekhar and to reveal the facts.
Though it was an important Affidavit, she did not
inquire whether it was filed in Court. She left it to
Mr.Udeshi s discretion (presumably because of the
settlement talks). Even after 2009 when she realised
that it was not filed she did not question Mr.Udeshi or
write to him or even tell the present Advocate that
these original Affidavits were with Mr.Udeshi.
38 Ch-summonses-49-26
61.Her present Advocates are stated to have written a
letter to Mr.Udeshi to furnish the original Affidavit
to her. No such letter has been shown. The only letter
written inter alia to M/s.Sanjay Udeshi & Co. is dated
22nd March 2002 which does not refer to any revocation
affidavit in the above Testamentary Petition. Instead
her present Advocates wrote two letters to Joseph
Verghese and Raval Shah & Company. Neither of these
letters has referred to the revocation Affidavits. They
refer to the revocation of the Consent Terms allegedly
filed in Suit No.922 of 1998.
62.It is not understood how though Raval Shah is shown to
have represented the sisters in Suit No.922 of 1998,
their present Attorneys had to address a letter to that
firm on 28th February 2009 asking for details of the
Affidavits why would be the sisters not directly
inquire from their own Advocate who once represented
them? The reply of Raval Shah & Company is equally
surprising. The firm has mentioned that they have not
acted as Advocates in the Testamentary Petition or
filed Affidavits. The firm also did not recognise the
signatures on the Affidavits and refuted having the
originals. Similar letter addressed to Joseph Verghese
by the Plaintiff s present Attorneys on 16th February
2009 assuming that the Affidavits were with the
39 Ch-summonses-49-26
Advocate and calling upon them to return the same and
the reply of Joseph Verghese that they have not
represented any parties in the above Petition and do
not have those documents is not understood. Aruna has
deposed in her cross-examination that the original
Affidavit remained with Mr.Sanjay Udeshi. Why then was
the letter not addressed to Sanjay Udeshi by the
present Advocate of the four sisters? The act of the
Advocates and the deposition of Aruna read together
show a vain effort in trying to produce evidence to
show that the original document could not be obtained.
63.She stated that she contacted Sanjay Udeshi to ask him
to give the original Affidavit. She did not remember
when he told that he did not remember where the
Affidavit was placed. She does not remember having
written any such letter to him. Sanjay Udeshi, her Man
Friday, is not examined.
64.These answers so completely at variance with her
initial case and without any corroborative evidence of
any independent witness, such as Sanjay Udeshi, can
carry her case no further. They neither prove the
execution of the revocation Affidavit nor show the
secondary evidence of the copy of the Affidavit to be
admissible. She has merely made an allegation against
the Attorney that she had written him letters which she
40 Ch-summonses-49-26
could not produce, asked him to return the Affidavit
which he could not do and ultimately did not produce
the original Affidavits, though her evidence shows
custody of these Affidavits without showing how from
such custody they were attempted to be produced but
could not be produced. The revocation affidavits remain
at that.
65.No action : The legal position is that the four
sisters have not, until their evidence, even revoked
the consent Affidavits filed by them in 1995-96 which,
according to themselves, were obtained by either
misrepresentation and/or under duress though they were
informed that in November 2000 the after-effects caused
to Shekhar which they sought to remedy and also reveal
the facts . Though from November 2000, they decided to
take action, the case that is made out is the action
that never was. Even in 2002, the sisters did litigate
against the brothers. Even at that time and despite the
information of Shekhar given since November 2000, no
attempt was made to seek to file any Affidavit revoking
the Caveat despite writing to two of the brothers of
the misrepresentation practised on them even in those
Consent Terms.
66.Marshalling and collating the two oral evidences : The
prevarication of the two sisters about their seminal
41 Ch-summonses-49-26
case of misrepresentation and/or duress, the gross
delay in acting upon any such misrepresentation or
duress and the evidence with regard to the affirmation
of the revocation Affidavits by three of the four
sisters without filing them in the proceedings and in
fact, the letters of her present Advocates to their two
Advocates without examining any of the Advocates who
took part in preparation of the Affidavits or the
solicitor who is stated to have kept the affidavit in
fact belies their case totally. The entire case is
essentially of applying for condonation of delay of
more than nine years. However, the sisters have not
honestly come to Court to apply for such condonation.
They have by untruth sought to make out a case which
has not been substantiated.
67.Uma and Asha have not deposed before the Court. They
could not be cross-examined. Asha, of course, has
expired in the meantime. No sufficient explanation is
shown why Uma has not made herself available for cross-
examination. Her evidence could have been recorded, if
she was shown to be debilitated at her residence. No
such attempt has been made as no Affidavit of
examination-in-chief of Uma is filed. The evidence of
Aruna and Karuna relating to what Asha informed them
about how her Affidavit was signed is completely
hearsay and deserves to be totally rejected. Uma has
42 Ch-summonses-49-26
deemed it fit to stay out of the fray. The evidence has
brought out Aruna and Karuna in rather poor light.
68.Conclusion of the oral evidence on behalf of the
Applicants : The evidence led as a whole shows that
until the filing of the Chamber Summons, nothing
whatsoever was done by the four sisters in the above
Testamentary Suit to revoke the Affidavits of consent
signed by them, whatever be the reason for the
revocation made out by them. The sisters best know the
truth. They refrained
ig from filing the Revocation
affidavits affirmed by three of them.
69.It is the case of the Plaintiff that Shekhar wanted to
file his additional Written Statement by way of the
Affidavit-in-support of the Caveat which would
constitute his Written Statement years after the
specified limited time of eight days of the filing of
the Caveat setting out certain further grounds to
challenge the Will of his father in the above
Testamentary Suit. The additional Written Statement
sought to be filed in 2007-08 was not allowed to be
filed in November 2008. It is only after that that
Shekhar has put up the four sisters. If they are
allowed to file a separate Caveat on the premise that
they had not, on their free volition, consented to the
grant of probate, they may take up a completely
43 Ch-summonses-49-26
different case hitherto not made out in the suit by
Shekhar. Of course, the onus would be on them to prove
any such case. A stray reference in paragraph 8 of the
Affidavit-in-support of the Chamber Summons suggests
that the Will is bogus and got up document prepared
more than ten years before the demise of the deceased.
70.The real case made out by the sisters to revoke their
consents to the Will is the one which has been spilled
out by Aruna in paragraph 8 of her Affidavit-in-
support of the Chamber Summons thus:
After my sister Dr.Asha Goel was brutally
murdered ....... that I was alerted to the
extent of their greed and total disregard to
family (ties). ...... Due to these events I and
my sisters have decided to claim what is our
rightful share .....
This, therefore, is the true reason for revoking the
consents. If that is so, the consents were initially
voluntarily given. It is legitimate and acceptable that the
sisters would be so bitter about murder of their own sister
and suspect the brother in whose house she was murdered
while she was on vacation from Canada and while she was
brokering peace in the family. That is, however, not the
reason to allow the remaining three sisters to set aside
44 Ch-summonses-49-26
their consents once voluntarily given to Suresh (though
Suresh and Subhash are the only two beneficiaries under the
Will of their father). In fact, it is, therefore, that
despite their evidence that they were misrepresented or
coerced they did not take any steps whatsoever. That was
not a legitimate response of a party who has been
misrepresented or coerced. Even assuming that they realised
in November 2000 that they were misrepresented, no action
was taken thereafter. Only an Affidavit was affirmed by
three of the four sisters in January 2001. It was never
filed. This was despite the sisters taking an active part
in Suit No.922 of 1998 relating also to the HUF families of
which the estate of the deceased is a part. This is despite
the fact that they were represented by Raval Shah & Company
in that suit and admittedly Raval Shah & Company has
written at least one letter inter alia to Sanjay Udeshi
himself about the sisters not accepting the Consent Terms
allegedly signed by them. Even thereafter nothing was
done. In fact, even after Asha was murdered on 3rd August
2003, nothing has been done. This could be accepted for
quite some time. The trauma suffered by the sisters would
not impel them into action. But such trauma is not expected
to last six years till 2009 for the sisters to take action
soon after the brothers additional Written Statement was
not allowed to be filed.
71.Evidence in reply to the application : The
45 Ch-summonses-49-26
Plaintiff has examined himself, though not required. He
is an independent executor being an Advocate of this
Court. He has deposed that the sisters had signed in
his presence before the notary. The sisters knew him.
Some of them had engaged him as Advocate. He was a
family Advocate. None of the sisters has deposed that
they did not know him. They have only stated that they
have not signed in his presence or in the presence of
the notary.
72.The cross-examination of the Plaintiff has itself
brought out that the Plaintiff was acquainted with the
deceased since about 1972-73, originally as a friend
and then as a client. He attended to a matter of Hind
Co-operative Housing Society for the first time and was
acting as their lawyer on 3rd December 1985 when the
Will is stated to have been prepared. He was acquainted
with the other members of the family. He could have
been a likely candidate as an executor of the Will.
73.Of course, in the original Petition, he has not
shown the four sisters as the heirs. That is a rather
serious error. That fact has been sought to be remedied
by filing their consents. It appears that the consents
were expected and were ultimately given. The evidence
of the sisters themselves has shown that the sisters
would have certainly consented at the time their
46 Ch-summonses-49-26
Affidavits were filed or even before. Though,
therefore, it was wrong not to show their names, not
much would turn upon that fact. In any event, that is
wholly irrelevant to the issue in the Chamber Summons
in which the Court is called upon to see whether the
consents ultimately obtained were obtained by duress or
misrepresentation. His evidence has shown that two of
the daughters Aruna and Uma used to meet him
frequently. That is because Karuna and Asha were
settled in Canada. Aruna and Uma lived close to his
house and used to come there
ig day and night . He knew
about the matter of Uma s son of Surang hotel and guest
house in Santa Cruz of Aruna, for which there were
disputes in which he was involved as Advocate. He had
met Karuna only once when she came to sign the
Affidavit. He has detailed how he was in contact with
the children of Mr.Agarwal.
74. Relating to the execution of the Consent Terms he has
deposed that he may have talked to the sisters about
the Affidavits or any other matter before the
Affidavits were signed. He had met three of the
sisters prior to the execution of the Affidavit all
except Karuna, whom he met only on the date of the
Affidavit. He came to know that Uma would file a
consent Affidavit on the date of his daughter s
marriage. He came to know that Asha would sign her
47 Ch-summonses-49-26
Affidavit when he met her in Uma s house. He did not
remember when Aruna was willing to give her consent and
he met Karuna only once. This is in keeping with the
sisters permanent residences. This shows that he knew
Aruna and Uma personally, and had invited at least
Aruna to his daughter s marriage. He had prepared all
the four Affidavits. They were regular Affidavits and
he did not need instructions. Asha had told him her
address when he told her about the filing of the
Affidavit. He knew Aruna s address himself. Uma herself
told him that she would sign the Affidavit. He handed
over her the draft of the consent Affidavit in her
house. Uma or someone must have told him that Karuna
would also file a consent Affidavit. He has deposed how
he fixed up a meeting with each of them to sign the
Affidavit. Karuna had phoned him. He had arranged her
meeting. He did not arrange the meeting of Aruna and
Asha. All the four Affidavits were signed in his
office. He did not know who else was present when the
Affidavits were signed but he recognised all of them.
Only he was asked about how Advocate Agarwal remained
present to identify the sisters. He did not know how he
was present may be his juniors got him. He emphasised
that he was present when the Affidavits were signed.
75. He did not know about the registration of the
notarisation in the notarial register or who arranged
48 Ch-summonses-49-26
for those notaries. He did not identify the sisters
because he was not acting as an Advocate in the
Petition. He, however, did not know and could not
answer whether Mr.Agarwal knew the sisters or whether
the notary made the relevant entries. That evidence
could have been got from those respective witnesses who
have not been examined.
76.Incidentally, the Affidavits show that each of the
four sisters was identified by one Advocate Agarwal who
is shown to have signed on all the four dates that the
Affidavits are shown to have been prepared. The sisters
have not said a word about any such identification or
about the fact that they did not know Advocate Agarwal
or did not sign in his presence. It is not known
whether Advocate Agarwal was a relative of the family,
given his surname. This Advocate, though shown to be
residing at Ghatkopar, has identified each of the
sisters before the notary. Such identification is
accepted.
77.Final conclusion : In essence, the sisters have not
proved their oral case made out in the Chamber
Summonses. The evidence of the Plaintiff is secondary
and could be relied upon only when the initial onus is
discharged by the sisters. That having not been done,
the consideration of his evidence is unnecessary.
49 Ch-summonses-49-26
78.From the oral evidence, the case in the Chamber
Summonses is not made out. Both the Chamber Summonses
are dismissed with costs.
(SMT.ROSHAN DALVI, J.)
50 Ch-summonses-49-26
