Vol. C-1, paragraph 12, p. 265, Evidence Affidavit of Defendant
No.2(a).
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17. It is at this stage that the Plaintiff's version progresses from
the dubious to the truly incredible. In her evidence, Ashwini says
that Mukund was diagnosed with cancer in 1985. He suffered
terribly. He was being treated by one Dr. Sharik at Asha Hospital
(apparently also at Bombay Hospital), and by Dr. Pramod Jhaver at
Bombay Hospital. His condition deteriorated. In 1986, he was
admitted to Bombay Hospital under Dr. Jhaver. He was discharged
and brought home in February/March 1986; his condition
worsened. He was re-admitted to Bombay Hospital on 1st
November 1986. Ashwini and her husband Atmaram, his brother
Chandrakant and his wife Rohini tended to him. Dr. Jhaver said the
disease had gone beyond the terminal stage. On 18th November
1986, the Plaintiff, against all advice, and exercising his authority as
the eldest son, forced a discharge from Bombay Hospital and took
him to Asha Hospital in Malad. By this time, Mukund was semi-
conscious and in agony. His ability to recognize people was gone,
and he could barely comprehend anything. He was totally bed-
ridden.19
18. I find the cross-examination of Ashwini very peculiar. She was
cross-examined on this aspect of her direct testimony at all, beyond
suggestions being put to her. The bulk of the cross-examination
focussed on properties. But her evidence as to Mukund's physical
and mental condition was surely critical to the first two issues. The
absence of any meaningful cross-examination about his illness and
hospitalization is fatal.
Vol. C-1, paragraphs 10, the first paragraph 11, and paragraph 12,
pp. 263-265, Evidence Affidavit of Defendant No.2(a)
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19. What the Plaintiff says makes things worse. According to him,
Advocate Khan came to Jay Polyclinic to take instructions from
Mukund about the Will.
20. Now the story gets unbelievable. In Narsingh's and Dr.
Savla's version, Advocate A. A. Khan who allegedly drafted the said
Will in question came to Jay Polyclinic on 26th November 1986 to
take instructions for drafting the Will. Dr. Savla gave him a 'draft' of
the medical certificate to be attached. Khan then left the clinic. 20
This would, I think, sufficiently indicate that Mukund was in no
condition to move about. Yet, Wagle, Dr. Savla and the Plaintiff all
insist that Mukund then walked to Khan's office, a short distance
from Wagle's hotel and close also to Mukund's house21 and Dr.
Savla's Jay Polyclinic.22 We are also asked to believe that Khan had
kept everything in readiness, including the two attesting witnesses,
and the Notary. Why this could not have been done at the Jay
Polyclinic, if indeed Mukund was there and since he admittedly had
cancer, is not explained. It is also not insignificant that Narsingh was
present at the time of execution of the Will.
21. What little remains of the Plaintiff's case is, I think, given the
burial it deserves by what I can only describe as the most ill-advised
question put in cross-examination to Ashwini, Defendant No.2(a).
This is worth reproducing in full:23
Vol. C-1, Qns. 43-50, pp. 242-244, cross-examination of Dr.
Savla.
Vol. C-1, Qns. 51-52, p. 213, and Qns. 25-28, p. 207, cross-
examination of Wagle.
Vol. C-1, Qn. 46, p. 243, cross-examination of Dr. Savla.
Vol. C-1, p. 282, cross-examination of Defendant No.2(a)
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Q35. You have said in your evidence that
the Will dated 26.11.1986 is forged
and fabricated. What is the basis of
your statement in this regard?
Ans. Because on the day that the Will was
purportedly signed, my father-in-law
was admitted in Asha Hospital under
Dr.Sharik, he was in a very bad
medical condition, he was semi-
conscious and not aware of what he was
saying or his surroundings. His
physical and mental condition were
both very poor. He was not at all in
the condition where he could execute
any documents or understand any
documents that were shown to him. He
was completely bed-ridden.
22. I do not know why this question was put to Ashwini, or why it
was put in this fashion. What the Plaintiff succeeded in doing is
eliciting, as part of the cross-examination, and therefore as an
answer obtained by the Plaintiff, the correctness of everything that
the Defendants said.
23. It is impossible on this evidence to hold in favour of the
Plaintiff on Issues Nos.1 and 2. Both are answered in the negative.
The Will is not proved.
RE: ISSUES NOS. 3 AND 4: FRAUD, FORGERY,
FABRICATION, UNDUE INFLUENCE, COERCION
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24. This being the case, and given the findings on Issues Nos. 1
and 2, it matters not a whit whether the Defendants succeed in
proving forgery, fraud, undue influence, coercion and so on. That
the Will is false and fabricated is sufficiently established.
25. There is no separate evidence on 'fraud', 'undue influence'
and 'coercion' except as I have noted above: viz., that the Plaintiff
forced the discharge of Mukund, then critically and terminally ill
from cancer, from Bombay Hospital and took him to Asha Hospital
at Malad and then, allegedly, to Dr. Savla's Jay Polyclinic. Both
Wagle and the Plaintiff claim to have known each other for many
decades. All these are at the least, and particularly in context,
unacceptably suspicious circumstances. None are explained.
26. I would have to hold that undue influence, coercion and fraud
are all established. That the Will is false and fabricated is also
established. Forgery, technically, may not be proved, but that
matters little. Issue No. 3 is answered partly in the affirmative. Issue
No.4 is answered in the affirmative.
RE: UNFRAMED ISSUE: WHETHER THE WILL IS
UNNATURAL
27. No such issue was ever framed, but parties went to trial and
gave evidence on precisely such an aspect of the matter. The caption
I give is for convenience. The discussion under this head overlaps in
many ways the previous issues Nos. 3 and 4. I deal with it separately
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for convenience and because the evidence, particularly of the
Defendants, is separate on this.
28. Of course every Will disrupts the natural line of succession;
were it otherwise, no Will would be necessary. But that is beside the
point. This Will supplies a reason for the exclusion of the other
children; it says that the other two says (Chandrakant and Atmaram)
had filed false suits against Mukund and harassed him. It implies
that relations between Narsingh and his father were close. There is
nothing to show this. To the contrary: the evidence shows he lived
apart from Mukund and the other family.24 Ashwini said differently.
She said that she, her husband Atmaram, and his brother
Chandrakant and his wife Rohini tended to Mukund.25 The Plaintiff,
on the other hand, she said, was much given to drink, was
quarrelsome and a spendthrift. He filed litigations in the father's
name, of which the father was never aware. He demanded money
from the father, and tried to snatch the father's hotel and printing
business.26
29. There is no cross-examination on any of this.
30. Ashwini also says there was a Deed of Family Settlement
executed on 6th July 1978 between the deceased and Narsingh. In
this, Narsingh relinquished all his right, title and interest to all the
joint family properties in consideration for Rs. 80,000. The
Vol. C-1, Qn. 143, p. 80, cross-examination of the Plaintiff.
Vol. C-1, paragraphs 9-11, pp. 262-265, Evidence Affidavit of
Defendant No.2(a).
Vol. C-1, paragraph 8, pp. 258-262, Evidence Affidavit of
Defendant No.2(a).
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intention was to preserve peace in the family. Narsingh was cross-
examined on this. He accepted there was such a Deed and that he
had received the Rs.80,000 but under cross-examination persisted
in parroting rote answers.27 Now there is no mention of this Deed in
the Will, and its provisions are directly contrary to the arrangement
expressed in that Deed.
31. Ms. Nichani for the Defendants submitted that that Narsingh
filed Suit No. 1814 of 1985 in the City Civil Court by allegedly
procuring a Conducting Agreement dated 28th February 1985 from
the deceased which claimed to reverse the Family Settlement Deed
and put Narsingh in charge of the said Hotel Prabhu Niketan. The
hotel was apparently in possession of the Defendants in early 1985.
He filed the Suit for an injunction against the Defendants from
disturbing his alleged possession. Narsingh's Notice of Motion for
injunction was dismissed and the ad-interim earlier granted was
vacated.28 Narsingh's appeal in the High Court was withdrawn.
Narsingh then coerced Mukund to file a Suit No. 5854 of 1986
against the Defendants again in the City Civil Court for a
declaration inter alia that Narsingh was the conductor of the Hotel
Prabhu Niketan business and for a restraint against the Defendants.
This Suit was filed the very next day after the Notice of Motion in
Suit No. 1814 of 1985 was dismissed. The merits do not concern.
What is of relevance is that it seems from this that it was Narsingh
throughout who attempted to grab the business and was embroiled
in litigation, not the Defendants; and there is no evidence at all of
the Defendants having filed any suits against the father. The reason
Vol. C-1, Qns. 97-105, pp. 73-78, cross-examination of the Plaintiff.
Vol.D, Exh.D1, p. 338
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in the Will for the exclusion of Chandrakant and Atmaram is clearly
false, and could not have been intended by Mukund. This not only
shows that there was, evidently, importunity and the lack of free
agency in the making of the Will, but that its terms are themselves
suspicious and contrary to the now established record. The
provisions of the Will are certainly unnatural given the material that
is now before me.
THE SUBMISSIONS ON LAW
32. Mr. Vora submits that the present Defendants have not filed
any independent Caveat, and the only Caveat filed is of one Kamala
Prabhu, who never led evidence. That is surely irrelevant at this
stage. All proceeded to trial on the basis that the heirs of the original
Caveators were brought on record and were pursuing the original
Caveators' cause. It is too late in the day now to take such a hyper-
technical argument, particularly when I see no sign of any protest at
the extended cross-examination on behalf of these Defendants, or
the leading of evidence by Ashwini, Defendant No.2(a).
33. Mr. Vora is also wrong when he says that the Defendants have
not demonstrated a lack of testamentary capacity. Indeed, I think he
has very much the wrong end of the stick. It is for the propounder to
show dispositive capacity; that is not an assumption; it is a matter of
proof. Given the facts, and the admitted ailment and condition of
the Testator, I have absolutely no hesitation in rejecting this
submission and holding that it is the Plaintiff who has not showed
the necessary dispositive capacity, and that the Defendants have
more than sufficiently discharged their burden. The second limb,
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regarding the ownership of the properties purportedly bequeathed,
is not something that should detain us, simply because these
proceedings do not, it is well-settled, determine or decide questions
of title. Even if the title had been shown by evidence one way or the
other, this would have had no impact on proof of due execution of
the Will (except perhaps tangentially as additional corroborative
evidence of the Testator's dispositive capacity or want thereof ).
The Plaintiff cannot possibly succeed on this. What is material are
the huge lacunae and failings in the Plaintiff's cross-examination
and the contradictions, indicated earlier, in the Plaintiff's and his
witnesses' testimony. These it is impossible to ignore, as Mr. Vora
would have me do.
34. Mr. Vora refers me to a considerable amount of learning in the
matter of proof of Wills. None of this is necessary, given our facts
and the evidence. Much of it is against him. For instance, the ratio
in Pendock Barry v James Butlin,29 puts the onus of proving a Will
firmly on the propounder, and says that this is generally discharged
by proof of capacity and the fact of execution. Consequently, a
plaintiff who fails to show any one of these must fail.30 A plaintiff
who fails to show both must most certainly fail; this Plaintiff, for
instance. Similarly, M. B. Ramesh v K. M. Veeraje URS,31 is against
Mr. Vora: since regard must indeed be had to attendant
circumstances, I must assess whether those attendant circumstances
establish or disprove the Plaintiff's case. It is not enough to say only
that one must have regard to attendant circumstances. Which
II MOORE, 480 [1838]
Arvind & Ors. v Indirabai & Ors., 2008 (5) Mh.L.J. 185.
(2013) 7 SCC 490
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particular attendant circumstances assist the Plaintiff in this case
remains unclear to the end. Every one of them seems to support the
Defendants. Similarly, Leela Rajagopal & Ors. v Kamala Menon
Cocharan & Ors.32 requires that an overall view is to be adopted and
emphasis cannot be placed on a single feature or circumstance in the
execution of the Will. I believe this is just what I have done; and it is
Mr. Vora who would have me blind myself to a whole host of the
oddest and most inexplicable circumstances, all of them most
suspicious. On any fair overall assessment, the finding must be
against the Plaintiff.
35. Where there are suspicious circumstances, and here they
abound, the matter is really one of satisfying the judicial conscience
that there is nothing untoward.33 I find it difficult to conceive of a
case where there is more that is untoward than in this one. It is true
that this is not a jurisdiction of circumspection, but one of caution
and circumspection,34 but that circumspection speaks to, and only
to, an assessment of whether or not the plaintiff before the Court
has been able to satisfy its conscience that there is a good and
legitimate explanation, perhaps less than perfect, but satisfactory
even so for every such circumstance that is alleged to be suspicious.
In this case, I find that explanation wholly missing. It is pointless
multiplying authorities in this vein. 35 Cases like Subhash Hirji
2014 (6) All MR 419 (SC)
Smt. Jaswant Kaur v Smt. Amit Kaur, AIR 1977 SC 74.
Dr. A. Ravikumar v. M. Savithiri & Ors., (2006) 4 M.L.J. 113
Madhukar D. Shende v Tarubai Shende, (2002) 2 SCC 85;
Daulatram & Ors. v Sodha & Ors., (2005) 1 SCC 40; Sridevi & Ors. v
Jayaraja Shetty & Ors., (2005) 2 SCC 784; Mahesh Kumar v Vinod
Kumar & Ors., (2012) 4 SCC 387.
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Jadhav & Anr. v Padmakar Hiroo Jadhav & Ors.,36 Max Cajeton
Travasso of Bombay v Mrs. I. Fernandes,37 and Lalita Krishnaraj
Parekh & Anr. v Kirti Jagdish Mulani,38 turning narrowly as they did
on the narrow facts of those cases do not set out any different
universal standard.
36. My own decision in Madhuri Pukharaj Baldota v Omkarlal
Daulatram Banawat & Ors.,39 is, I fear, misread by Mr. Vora at least
on the question of the relations between the parties. In our case, the
Plaintiff propounded a Will that gave reason for the exclusion of the
Caveators. Those reasons were found on evidence being taken to be
wholly incorrect and self-serving to the Plaintiff. There is ample
uncontroverted material on record to show that what the Will
purports to say could only have been inserted by the Plaintiff to suit
his own ends, ones he had been chasing for the longest time, even
during the Testator's lifetime.
37. I am also unable to see how Mr. Vora's reliance on
Meenakshiammal & Ors. v Chandrasekaran & Anr.,40 Pentakota
Satyanarayana & Ors. v Pentakota Seetharatnam & Ors.,41 and
Savithri & Ors. v Karthyayani Amma & Ors.,42 in any way assists him.
Apart from bolstering my view that parties did address themselves
to the issue of the Will being unnatural, whether framed formally or
2009 (4) Mh.L.J. 266
2009 (5) Mh.L.J. 837
2010 (5) Bom.C.R. 364
2015 (4) Mh.L.J. 327
(2005) 1 SCC 280
(2005) 8 SCC 67
(2007) 11 SCC 621
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not, on a fair reading of any of these decisions, it must be held that
the evidence before me does not show the kind of estrangement
between the Testator and the Caveator that the Plaintiff alleges
when propounding the Will.
38. To the contrary: as I have noted, the Plaintiff has done
nothing to establish any such estrangement, and he has wholly failed
to even minimally cross-examine Defendant No.2(a) on her quite
comprehensive and elaborate evidence of the Plaintiff's attempt to
hijack the Testator's business, his own estrangement, his wayward
character and so on. Added to this is the Plaintiff's rampant
involvement in the making of the Will at a time when, to put it
bluntly, his father was dying. Then there is the incredible story of
the events of the day of the Will itself. None of this, as they say,
'adds up'.
CONCLUSION
39. It is impossible to find for the Plaintiff on these facts and on
this evidence. The suit must fail.
40. In the circumstances of the case, the dismissal must be
accompanied by an order of costs. It would be wholly remiss on my
part not to do so. The manner in which the Plaintiff has conducted
himself not only on the question of propounding of the Will but also
vis-à-vis his father in his last days is shocking and lacking in even the
most minimal decency. When Ms. Nichani describes this as an
utterly false suit, like the ones initiated or instigated by the Plaintiff
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in the City Civil Court, she is not wrong. In all this, the Defendants
have been put through much trauma, expense and anguish. Parties
like this Plaintiff cannot be allowed to take courts for granted or to
play fast and loose with the judicial system.
41. The suit is dismissed with costs quantified at Rs. 50,000/- to
Rohini, the heir of Chandrakant; Rs. 25,000/- each to Akash Prabhu
and Ujwala Prabhu; and Rs. 2 lakhs to Mrs. Ashwini Prabhu, she
being the one who carried the burden for all the Defendants. Costs
to be paid within eight weeks.
42. Mr. Vora requests a stay of order of costs. Since I have given
eight weeks' time to make payment, the request is declined.
(G.S. PATEL, J.)
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