Bombay High Court
Padmakar Hiroo Jadhav And Ors vs Mrs. Kumud Subhash Jadahv And Ors on 22 December, 2016
Bench: A.S. Oka
APPEAL-306-2009.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.306 OF 2009
IN
TESTAMENTARY SUIT NO.37 OF 1992
IN
TESTAMENTARY PETITION NO.603 OF 1990
1 PADMAKAR HIROO JADHAV )
7/14, Municipal Staff Colony, Sashmira )
Road, Prabhadevi, Bombay - 400 025. )
)
2 SMT.SUMITRA SURVE
ig )
nd
Mankar Building, 2 Floor, Room No.39, )
11th Lane, Khetwadi, Bombay - 400 004 )
)
3 SMT.MEGHNA VASANT SHINDE )
7/14, Municipal Staff Colony, Sashmira )
Road, Prabhadevi, Bombay - 400 025. )...APPELLANTS
V/s.
1 MRS.KUMUD SUBHASH JADHAV )
Widow of deceased original Petitioner )
No.1 / Plaintiff No.1, daughter-in-law )
of the deceased, Hindu, Inhabitant, )
Residing at B/15, Swapna Safalya Co-op.)
Housing Soc. Ltd., J.B.Temkar Marg, )
Prabhadevi, Bombay - 400 023 )
)
2 AKHILESH SUBHASH JADHAV )
Son of deceased original Petitioner No.1 )
/Plaintiff No.1, Hindu, Indian Inhabitant )
Residing at Block No.15, B-1, Swapna )
Safalya Co-op. Housing Soc. Ltd., J.B. )
Temkar Marg, Prabhadevi, Bombay - 23 )
Mr.H.S.S.Murthy, Advocate for the Appellants.
Ms.K.C.Nichani, Advocate for the Respondents.
avk 1/44
::: Uploaded on - 22/12/2016 ::: Downloaded on - 23/12/2016 01:55:50 :::
APPEAL-306-2009.doc
CORAM : A. S. OKA & A. M. BADAR, JJ.
DATE : Reserved on : 25th November 2016
Pronounced on: 22nd December 2016
JUDGMENT : (PER A.M.BADAR, J.)
1 By this appeal, appellants / original defendants / caveators
are challenging the judgment and order dated 25th March 2009 passed
by the learned Single Judge of this court in Testamentary Suit No.37 of
1992 between the parties, thereby dismissing the caveat filed by the
present appellants and decreeing the suit by declaring that the Will
dated 3rd December 1988 executed by deceased Hiroo @ Hiraji Laxman
Jadhav as his last Will and Testament. Consequently, by the impugned
judgment and order, the learned Single Judge ordered for issuance of
letter of administration as prayed for by respondents / original
plaintiffs by allowing the Petition No.603 of 1990 filed by them. For the
sake of convenience, parties shall be referred to in their original
capacity.
2 Plaintiffs Subhash Hirji Jadhav and his wife Mrs.Kumud
Subhash Jadhav filed Testamentary Petition bearing No.603 of 1990 for
seeking letter of administration by annexing a Will claiming that the
avk 2/44
APPEAL-306-2009.doc
said Will has been executed by Hiroo @ Hiraji Laxman Jadhav on 3 rd
December 1988 as his last Will and Testament. After service of citation
notice on other heirs of said Hiroo @ Hiraji Laxman Jadhav
(hereinafter referred to as the testator), a caveat came to be filed
jointly by appellants / defendants namely Padmakar Jadhav, Indira
Jadhav, Mrs.Sumitra Surve and Ms.Meghna Jadhav. Defendant no.1
Padmakar Jadhav filed an affidavit in support of the caveat jointly on
behalf of all defendants. Accordingly, the testamentary petition was
converted into the suit between parties.
3 In the affidavit filed in support of caveat, defendants raised
following points for opposing the petition for grant of letters of
administration :
a) All caveators / defendants are legal heirs having right and interest
to inherit the property of the testator.
b) Purported Will is not the Will of the testator and the same is not
executed according to law. It is not attested as per provisions of law.
c) The testator got first heart attack in the year 1986/87 and he was
bedridden for few months. Then the testator got paralytic attack and
he was unable to move from the year 1987. He was not in a sound
disposing state of mind at the time of execution of the alleged Will.
d) The testator was in complete control of his son i.e. plaintiffs Subhash
Jadhav and daughter-in-law Mrs.Kumud Jadhav. Therefore, the
avk 3/44
APPEAL-306-2009.doc
disposition does not appear to be the result of testator's free will and
mind.
e) The Will was got executed under force and by exercising coercion
by plaintiffs on the testator. The purported Will is a forged and
fabricated document.
f) Disposition shows that the purported Will is wholly unnatural,
improbable and unfair. There was no reason for the testator to deprive
the right of inheritance to his legally wedded wife Indira. There is no
provision for unmarried daughter of the testator.
During pendency of the suit, original plaintiff no.1
Subhash Jadhav expired and therefore his remaining legal heirs
namely, Akhilesh Jadhav was brought on record.
5 After framing issues, the parties went for trial. In support
of their claim, plaintiffs adduced evidence of Mrs.Kumud Subhash
Jadhav. Plaintiffs also examined Jayant Chandulal Kamani - attesting
witness to the purported Will dated 3 rd December 1988 as PW2. On
behalf of defendants, Padmakar S. Jadhav gave evidence as DW1.
Mrs.Sumitra Surve - daughter of the testator gave evidence as DW2.
She is described in the purported Will as Ms.Shubhangi, as at that time,
she was unmarried.
avk 4/44
APPEAL-306-2009.doc
6 After hearing the parties and on considering the oral as
well as documentary evidence adduced on record, the learned Single
Judge by the impugned judgment and order was pleased to hold that
the Will dated 3rd December 1988 is the last Will and Testament of
Hiroo @ Hiraji Laxman Jadhav. The same was legally and validly
executed by him. It is further held that defendants failed to prove that
the said Will is a forged and fabricated document. The learned Single
Judge considered evidence of PW1 Kumud and PW2 Jayant as well as
cross-examination of DW1 Padmakar to come to the conclusion that
plaintiffs have proved the execution of the Will. The learned Single
Judge further held that non-examination of Advocate A.G.Shah cannot
be termed as suspicious circumstance in view of evidence of PW1
Kumud and PW2 Jayant. The learned Single Judge placed reliance on
statement of deceased Hiroo @ Hiraji Laxman Jadhav recorded by
police on 30th September 1988 under Section 161 of the Code of
Criminal Procedure (Cr.P.C.) and by reading that statement in evidence,
it was held that DW1 Padmakar, his family members as well as
Mrs.Indira - wife of the testator and Shubhangi - unmarried daughter
of testator left the house on 30 th September 1988 without any
justification. Evidence of DW1 Padmakar was also relied for coming to
this conclusion and it was held that the testator was not happy with
avk 5/44
APPEAL-306-2009.doc
quarrel and he was impressed by the fact that his son Subhash and
daughter-in-law Kumud (PW1) were taking his care and therefore the
entire property was bequeathed to them. It was held that the testator
was working as a Clerk in BMC and therefore there is no reason to hold
that he could not read English language. The learned Single Judge
further held that the Will is a registered document, evidence of the
attesting witness is sufficient and therefore the Will cannot be
discarded merely because the Sub-Registrar has not disclosed the
testator that the document of which he was admitting execution was a
Will disposing of his property. The learned Single Judge further held
that no material was pointed out to show that the testator did not
possess necessary mental ability for executing the Will. Change of
nomination in respect of membership of the Co-operative Housing
Society where the bequeathed flat was situated prior to execution of
the Will was held to be a circumstance to show that the testator had
planned to bequeath the flat to his son Subhash and daughter-in-law
i.e. PW1 Kumud with a reason that the testator was staying at his flat
with his son Subhash and daughter-in-law i.e. PW1 Kumud. It was held
that there is nothing in evidence of DW1 Padmakar in respect of
keeping the testator under his control by his son Subhash and PW1
Kumud. The complaint made by defendant Indira - widow of the
avk 6/44
APPEAL-306-2009.doc
testator was discarded on the ground that she had lodged it after
twenty days, and that, said Indira had left the house of the testator and
had not taken any steps to establish her right to reside in the house of
the testator. It was further held that PW1 Kumud had not played any
substantive role in making the Will. Feeling aggrieved by this judgment
and order, this is an appeal by unsuccessful defendants.
7 We have heard the learned counsel appearing for
appellants / original defendants / caveators. The learned counsel for
appellants argued that deceased plaintiff Subhash and his wife plaintiff
Kumud had taken active part in preparation of the Will as well as in
getting the Will executed. They are the sole beneficiaries under the
Will executed by the testator. The disposition is also in favour of
unborn child of propounders of Will namely deceased plaintiff Subhash
and plaintiff Kumud. The only attesting witness examined is close
friend of the propounders of the Will. The learned counsel further
argued that disposition under the Will is unnatural, improbable and
unfair. The testator lived happily with his family for a period of more
than 40 years and as such in normal circumstance, he would not have
preferred to exclude all his natural successors and to bequeath his
property exclusively to his one son Subhash and family members of
avk 7/44
APPEAL-306-2009.doc
Subhash. The learned counsel submitted that just prior to two months
from the alleged execution of the Will, all family members of the
testator were staying with the testator and therefore there was no
reason to bequeath the entire property in favour of only one son
Subhash and family members of Subhash. Our attention was also
drawn to the fact that nothing was bequeathed in favour of his
unmarried daughter by the testator. Antecedents of legatee Subhash
were also pointed out to show that he was addicted to alcohol and was
suspended from the job, in order to demonstrate that he and his family
would not have been preferred in exclusion of the wife, another son
and two daughters.
8 The learned counsel for appellants further argued that the
testator was suffering from illness and was bedridden for a quite long
period even prior to alleged execution of the Will and therefore he was
not in a sound disposition state. The learned counsel for appellants
further submitted that propounders of the Will somehow wanted the
property to be transferred in their name and therefore they got
nomination of membership of the flat in the Housing Society changed
even prior to alleged execution of the Will. Even Indira - widow of the
testator by letter dated 20th October 1988 pointed out the conduct of
avk 8/44
APPEAL-306-2009.doc
deceased plaintiff Subhash to police. According to the learned counsel
for appellants, the Sub-Registrar is not examined by propounders of the
Will and therefore the mere fact that the Will is a registered Will is of
no consequence. With this, the learned counsel for appellants
submitted that though heavy onus was on propounders of the Will to
remove all suspicious circumstances by adducing clear and cogent
evidence, this onus is not discharged by propounders of the Will. To
buttress these submissions, the learned counsel for appellants placed
reliance on following rulings :
a) H. Venkatachala Iyengar vs. B.N.Thimmajamma & Ors.
reported in AIR 1959 Supreme Court 443
b) Rani Purnima Debi & Anr. vs. Kumar Khagendra Narayan
Deb & Anr. reported in AIR 1962 Supreme Court 567
c) Kalyan Singh vs. Smt.Chhoti and Others reported in AIR
1990 Supreme Court 396
d) Ram Piari vs. Bhagwant and Others reported in AIR 1990
Supreme Court 1742
e) Balkrishna Das Agarwal vs. Smt. Radha Devi & Others
reported in AIR 1989 ALLAHABAD 133
f) B. Venkatamuni vs. C.J.Ayodhya Ram Singh & Ors.
reported in AIR 2007 Supreme Court 311
g) Bharpur Singh & Ors. vs. Shamsher Singh reported in AIR
2009 Supreme Court 1766
avk 9/44
APPEAL-306-2009.doc
9 As against this, the learned counsel for respondents by
taking us through the evidence has argued that in the year 1988, wife
of the testator and other family members all of a sudden deserted the
testator causing anguish in his mind. The learned counsel for
respondents argued that plaintiff Kumud was taking due care of the
testator who was ill from the year 1985. According to the learned
counsel for respondents, infact, deceased plaintiff Subhash and his wife
Kumud were assaulted by rest of the family members which required
them to rush to the hospital and on return they found that except the
testator, all other family members had left the house without any
reason. This, according to the learned counsel for the respondents, is a
reason for exclusion of remaining family members. The learned
counsel for respondents further argued that evidence on record does
not show any active part played by plaintiffs in execution of the Will.
Role attributed to deceased plaintiff Subhash was just to fetch Advocate
Shah and to call the Sub-Registrar. The learned counsel further argued
that if the incident dated 3r September 1988 was trivial, then there was
no reason for remaining family members to leave the house. In
submission of the learned counsel for respondents, the statement of
testator recorded by police which is at Exhibit D2 shows that he was in
sound disposing condition. The learned counsel for respondents placed
avk 10/44
APPEAL-306-2009.doc
reliance on the judgment of the Apex Court in the matter of
Smt.Malkani vs. Jamadar and Ors. reported in AIR 1987 SC 767.
10 Before adverting to the merit of the matter, it would be
apposite to put on record the undisputed position. It is not in dispute
that deceased Hiroo @ Hiraji Laxman Jadhav was residing in a flat
bearing no.B/15, Swapna Safalya Co-op. Hsg. Soc. Ltd., Prabhadevi,
Mumbai, with his two sons Padmakar and Subhash, families of those
two sons, his wife Indira, and unmarried daughter Shubhangi up to 30 th
September 1988. It is not in dispute that Hiroo @ Hiraji Laxman
Jadhav died on 20th September 1990. Undisputedly, deceased Hiroo @
Hiraji Laxman Jadhav was survived by his wife Mrs.Indira Hiraji
Jadhav, two sons namely - Padmakar Jadhav and Subhash Jadhav, as
well as one married daughter namely, Mrs.Meghna Surve and one
unmarried daughter namely Shubhangi Jadhav. Similarly, parties are
not disputing the fact that plaintiff Kumud married deceased plaintiff
Subhash in the year 1985, and that, at about the year 1985, testator
Hiroo @ Hiraji Laxman Jadhav suffered a paralysis stroke which had
affected left side of his body. During pendency of the suit, Shubhangi
Jadhav married. She is defendant no.4. It is not in dispute that
plaintiff Kumud is wife, whereas, plaintiff Akhilesh is son of deceased
plaintiff Subhash Hiraji Jadhav, who died during pendency of the suit.
avk 11/44
APPEAL-306-2009.doc
11 By claiming that deceased Hiroo @ Hiraji Laxman Jadhav
had executed his last Will and Testament on 3 rd December 1988,
plaintiffs had prayed for issuance of letter of administration with the
Will annexed. For better appreciation of the subject matter, it is
necessary to put on record relevant contents of the Will allegedly
executed by Hiroo @ Hiraji Laxman Jadhav on 3 rd December 1988.
The alleged Will of Hiroo @ Hiraji Laxman Jadhav contains a recital
that the testator was suffering from paralysis in left side of his body and
is bedridden. The alleged Will also contains a recital that the testator
has his wife Indira, elder son Padmakar, younger son Subhash, married
daughter Meghna as well as unmarried daughter Shubhangi. The
alleged Will contains the reason for bequeathing the property in favour
of younger son Subhash and family members of Subhash to the
exclusion of all other legal heirs. The alleged Will states that eldest son
Padmakar, wife Indira and daughter Shubhangi started residing
separately against wishes of the testator and they have chosen not to
look after or to take care of the testator, though the testator has not
been keeping well. With this reason, the alleged Will contains a recital
that the testator does not desire to bequeath anything to his elder son
Padmakar, wife Indira and unmarried daughter Shubhangi. The
alleged Will also contains a recital that the testator had given enough
avk 12/44
APPEAL-306-2009.doc
to his married daughter Mangal (defendant Meghna) at the time of her
marriage and therefore he does not desire to bequeath anything to her.
The alleged Will contains recital that younger son Subhash and family
of Subhash looked after the testator very well and they all had taken
his proper care and therefore the testator desires to bequeath them all
his property. With these recitals, it is stated in the alleged Will that the
testator is bequeathing all his assets and estate to his younger son
Subhash Jadhav, daughter-in-law Kumud Subhash Jadhav and
grandson Akhilesh Subhash Jadhav equally to get 1/3 rd share by each
of them in the estate. It is also stated in the alleged Will that in case of
birth of male children to Subhash and Kumud, 1/3 rd share of Akhilesh
will be divided amongst them equally and in case of birth of a female
child, marriage expenses of Rs.20,000/- to each female child should be
earmarked.
12 Now let us examine whether the alleged Will dated 3 rd
December 1988 is duly proved and whether propounders of the said
Will had removed all suspicious circumstances making it worth to act
upon. A Will is a solemn document by which a dead man entrusts to
the living, the carrying out of his wishes. It is an instrument by which a
person makes a disposition of his property to take effect after his death.
avk 13/44
APPEAL-306-2009.doc
Will obstructs natural inheritance. Therefore, while examining the
Will, the court is required to see whether the testator signed the Will,
after understanding the nature and effect of the disposition in the Will,
condition of mind of the testator, his mental capacity as well as whether
the testator was in sound disposing state. The court for examining
proof of Will is also duty bound to see whether disposition under the
Will is unnatural, improbable or unfair in the light of relevant
circumstances. These aspects are to be looked into while construing
the Will even without raising such plea by the other side. The duty is
cast upon propounders of the Will to remove all legitimate doubts
regarding suspicions circumstances and this initial onus on the part of
the propounders is very heavy. At this juncture, it is apposite to quote
relevant observations of the Hon'ble Supreme Court in the matter of H.
Venkatachala Iyengar (supra) found in paragraph 18 to paragraph 20
which reads thus :
"18 .............Thus the question as to whether
the will set up by the propounder is proved to be the
last will of the testator has to be decided in the light
of these provisions. Has the testator signed the will ?
Did he understand the nature and effect of the
dispositions in the will ? Did he put his signature to
the will knowing what it contained ? Stated broadly
avk 14/44
APPEAL-306-2009.doc
it is the decision of these questions which determines
the nature of the finding on the question of the proof
of wills. It would prima facie be true to say that the
will has to be proved like any other document except
as to the special requirements of attestation
prescribed by s.63 of the Indian Succession Act. As in
the case of proof of other documents so in the case of
proof of wills it would be idle to expect proof with
mathematical certainty. The test to be applied would
be the usual test of the satisfaction of the, prudent
mind in such matters.
19 However, there is one important feature
which distinguishes wills from other documents.
Unlike other documents the will speaks from the
death of the testator, and so, when it is propounded
or produced before a court, the testator who has
already departed the world cannot say whether it is
his will or not; and this aspect naturally introduces
an element of solemnity in the decision of the
question as to whether the document -propounded is
proved to be the last will and testament of the
departed testator. Even so, in dealing with the proof
of wills the court will start on the same enquiry as in
the case of the proof of documents. The propounder
would be called upon to show by satisfactory
evidence that the will was signed by the testator, that
avk 15/44
APPEAL-306-2009.doc
the testator at the relevant time was in a sound and
disposing state of mind, that he understood the
nature and effect of the dispositions and put his
signature to the document of his own free will.
Ordinarily when the evidence adduced in support of
the will is disinterested, satisfactory and sufficient to
prove the sound and disposing state of the testator's
mind and his signature as required by law, courts
would be justified in making a finding in favour of
the propounder. In other words, the onus on the
propounder can be taken to be discharged on proof
of the essential facts just indicated.
20 There may, however, be cases in which the
execution of the will may be surrounded by
suspicious circumstances. The alleged signature of
the testator may be very shaky and doubtful and
evidence in support of the propounder's case that the
signature, in question is the signature of the testator
may not remove the doubt created by the appearance
of the signature; the condition of the testator's mind
may appear to be very feeble and debilitated; and
evidence adduced may not succeed in removing the
legitimate doubt as to the mental capacity of the
testator; the dispositions made in the will may
appear to be unnatural, improbable or unfair in the
light of relevant circumstances; or, the will may
avk 16/44
APPEAL-306-2009.doc
otherwise indicate that the said dispositions may 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 removed
before the document is accepted as the last will of
the testator. The presence of such suspicious
circumstances naturally tends to make the initial
onus very heavy; and, unless it is satisfactorily
discharged, courts would be reluctant to treat the
document as the last will of the testator. It is true
that, if a caveat is filed alleging the exercise of undue
influence, fraud or coercion in respect of the
execution of the will propounded, such pleas may
have to be proved by the caveators; but, even
without such pleas circumstances may raise a doubt
as to whether the testator was acting of his own free
will in executing the will, and in such circumstances,
it would be a part of the initial onus to remove any
such legitimate doubts in the matter."
13 In paragraph 17 of its judgment in the matter of
Bharatsingh and Others (supra) the Hon'ble Apex Court has set out
suspicious circumstances warranting cogent and convincing
explanation from the propounders of the Will even in absence of
specific plea to that effect. It reads thus :
"17. Suspicious circumstances like the following may be
avk 17/44
APPEAL-306-2009.doc
found to be surrounded in the execution of the Will:
i) The signature of the testator may be very shaky and
doubtful or not appear to be his usual signature.
ii) The condition of the testator's mind may be very
feeble and debilitated at the relevant time.
iii)The disposition may be unnatural, improbable or
unfair in the light of relevant circumstances like
exclusion of or absence of adequate provisions for
the natural heirs without any reason.
iv) The dispositions may not appear to be the result of
the testator's free will and mind.
v) The propounder takes a prominent part in the
execution of the Will.
vi) The testator used to sign blank papers.
vii) The Will did not see the light of the day for long.
viii) Incorrect recitals of essential facts.
14 We have already set out contents and provisions of the
alleged Will which makes it clear that the sole legatee under the Will is
deceased plaintiff Subhash and his family members to the exclusion of
widow, elder son and daughters of the testator. As such, one will have
to examine whether they being propounders of the Will of the testator
Hiroo @ Hiraji Laxman Jadhav have explained this unnatural,
improbable and unfair disposition of the property under the Will by
removing all legitimate doubts regarding suspicions circumstances
surrounding the Will. This initial onus on the part of the propounder is
very heavy. As plaintiffs are propounders of the Will, it is apposite to
avk 18/44
APPEAL-306-2009.doc
look into evidence of PW1 Kumud (daughter-in-law of the testator and
wife of deceased plaintiff Subhash) in order to seek explanation in
respect of unnatural and improbable disposition of the Will. Her
evidence makes it clear that she married deceased plaintiff Subhash in
the year 1985, and as an employee of the Stock Exchange having office
timings from 11.30 a.m. to 6.30 p.m., she was leaving house at 10.30
a.m. Her evidence indicates that she used to be away from the
residential place from 10.30 a.m. to about 7.30 p.m. on each working
day. At this juncture, one will have to keep in mind that from cross-
examination of DW1 Padmakar it is brought on record by plaintiffs that
DW1 Padmakar and his brother i.e. deceased plaintiff Subhash were
both in employment of Bombay Municipal Corporation. From cross-
examination of DW1 Padmakar it is brought on record by plaintiffs that
deceased plaintiff Subhash was posted in Slums Department at Head
Office of the Bombay Municipal Corporation, but he was not attending
office from the year 1985-86. These aspects will have to be considered
by keeping in mind the undisputed position that from 3 rd September
1988, defendant Padmakar, Indira - his mother and Shubhangi -
unmarried sister started residing separately by leaving Flat No.B/15 of
Swapna Safalya Co-op. Hsg. Society, and that the Will contains the
recital that they failed to look after the sick testator.
avk 19/44
APPEAL-306-2009.doc
15 PW1 Kumud in her evidence claimed that as testator Hiroo
@ Hiraji Laxman Jadhav was suffering from paralysis since 1985, she
was looking after his needs, serving food to him and bathing him. As
per her version, on 30th September 1988, defendant Padmakar
assaulted his brother i.e. deceased plaintiff Subhash leading to filing of
the FIR by Subhash and from that day, defendant Padmakar and his
family, defendant Indira and defendant Shubhangi left the house. PW1
Kumud in her chief examination stated that thereafter they never came
back to the flat of testator Hiroo @ Hiraji Laxman Jadhav. PW1
Kumud deposed that Hiroo @ Hiraji Laxman Jadhav requested Subhash
to arrange his meeting with Advocate A.G.Shah. Accordingly, Advocate
A.G.Shah attended their flat, took instructions from Hiroo @ Hiraji
Laxman Jadhav for preparing Will. She further deposed that Advocate
A.G.Shah then handed over the draft of the Will which was approved
by Hiroo @ Hiraji Laxman Jadhav. Then Advocate A.G.Shah engrossed
the same and brought to their residence on 3 rd December 1988 for
execution of the same. As per version of PW1 Kumud, Hiroo @ Hiraji
Laxman Jadhav went through contents of the endorsed Will. At that
time, Jayant Kamani was present at the request of Hiroo @ Hiraji
Laxman Jadhav. Thereafter, Hiroo @ Hiraji Laxman Jadhav signed that
Will in presence of Advocate A.G.Shah and Jayant Kamani. PW1
avk 20/44
APPEAL-306-2009.doc
Kumud testified that then Advocate A.G.Shah attested the Will by
putting his signature and then second witness also signed that Will in
her presence. PW1 Kumud further deposed that then she went to Old
Custom House for fetching the Registrar at the request of Hiroo @
Hiraji Laxman Jadhav. Accordingly, the Registrar attended their
residence in presence of attesting witnesses. PW1 Kumud in her chief
examination itself has stated that on death of Hiroo @ Hiraji Laxman
Jadhav, defendants Padmakar, Indira, Meghna and Shubhangi
(described as Sumitra) attended his funeral.
16 PW1 Kumud was subjected to cross-examination by
defendants. Her evidence as a whole reflects the following position :-
At about the time of marriage of plaintiff Kumud with deceased
plaintiff Subhash in the year 1985, her father in law Hiroo @ Hiraji
Laxman Jadhav suffered a mild paralytic attack and as such was unable
to use the left side of his body. In the year 1988, Hiroo @ Hiraji
Laxman Jadhav suffered severe paralytic attack. Therefore, defendant
Padmakar i.e. elder son took his father Hiroo @ Hiraji Laxman Jadhav
to the hospital. At that time, all family members of Hiroo @ Hiraji
Laxman Jadhav were jointly residing in Flat No.B/15, Swapna Safalya
Co-op. Hsg. Society, Mumbai. During hospitalization of the testator
avk 21/44
APPEAL-306-2009.doc
Hiroo @ Hiraji Laxman Jadhav in the year 1988, all family members
including two daughters of Hiroo @ Hiraji Laxman Jadhav and his
wife Indira were attending him by visiting the hospital by rotation.
Plaintiff Kumud accepted the fact that relationship of all family
members were good, meaning thereby that Hiroo @ Hiraji Laxman
Jadhav had no grudge against anyone, at that time.
17 Evidence of PW1 Kumud also shows cause of quarrel
between the family members on 30th September 1988 which resulted in
separate residence of her mother-in-law Indira, brother-in-law
Padmakar and sister-in-law Shubhangi. She accepted in cross-
examination that this quarrel took place because of shortage of water
for household use. As per her version, on that day, defendant
Padmakar assaulted his brother deceased plaintiff Subhash leading to
filing of the FIR and from that day, Padmakar with his family, Indira
and Shubhangi (described as Sumitra) started residing separately. PW1
Kumud also accepted the fact that testator Hiroo @ Hiraji Laxman
Jadhav was not at all concerned with this dispute between his two sons
and their wives. She also accepted the fact that there was no dispute
between Hiroo @ Hiraji Laxman Jadhav and his wife Indira. This
evidence proves the fact that up to atleast September 1988, ailing
avk 22/44
APPEAL-306-2009.doc
father Hiroo @ Hiraji Laxman Jadhav was being looked after and
attended by his family which apart from his wife, also included his two
sons and unmarried daughter Shubhangi. Even his married daughter
was visiting him during his hospitalization for taking his care.
18 What happened after defendants left the Flat No.B/15 is
also brought on record from cross-examination of PW1 Kumud. Her
cross-examination shows that even after leaving the flat of Hiroo @
Hiraji Laxman Jadhav, his wife Indira used to attend Hiroo @ Hiraji
Laxman Jadhav by visiting the flat. PW1 Kumud also stated that
because of suffering the stroke, Hiroo @ Hiraji Laxman Jadhav was
answering nature's call in the bed itself because of his illness.
19 Totality of material reflected from evidence of PW1 Kumud
as such shows that up to 30th September 1988, everything was going on
smoothly in the family of testator Hiroo @ Hiraji Laxman Jadhav
which was joint in residence. On 30 th September 1988, there was
quarrel between his two sons over petty domestic issue with which
Hiroo @ Hiraji Laxman Jadhav was not at all concerned. Till that time,
all family members of Hiroo @ Hiraji Laxman Jadhav were looking
after him during his prolonged illness by taking his care even during his
avk 23/44
APPEAL-306-2009.doc
hospitalisation. Even after 30th September 1988, defendant Indira -
wife of Hiroo @ Hiraji Laxman Jadhav was attending his residence at
Flat No.B/15. This implies that Indira must have been taking every
care of her husband Hiroo @ Hiraji Laxman Jadhav even after 30 th
September 1988 because PW1 Kumud used to remain away from the
flat from 10.30 a.m. to 7.30 p.m. of each working day, and as because
of his illness Hiroo @ Hiraji Laxman Jadhav was compelled to answer
nature's call in the bed itself. Relations of other family members of
Hiroo @ Hiraji Laxman Jadhav were cordial with him even after
separation as can be seen from the fact that Hiroo @ Hiraji Laxman
Jadhav was not at all concerned with the dispute between his sons
which took place on 30th September 1988 and that they all attended his
funeral.
20 At this juncture, it needs to be put on record that even
from cross-examination of DW1 Padmakar it is brought on record by
plaintiffs that after leaving Flat No.B/15, owned by his father Hiroo @
Hiraji Laxman Jadhav, Padmakar used to visit Hiroo @ Hiraji Laxman
Jadhav. This material do indicate that even defendant Padmakar was
concerned with health of his bedridden father Hiroo @ Hiraji Laxman
Jadhav, till the death of his father.
avk 24/44
APPEAL-306-2009.doc
21 DW1 Padmakar while in the witness box proved letter
dated 25th October 1988 issued by Advocate Gujar and addressed to the
Commissioner of Police on instructions of defendant Indira. He also
proved letter of his mother defendant Indira issued on 28 th October
1988 and addressed to the Commissioner of Police. These documents
are at Exhibits A and B. Reason for leaving the Flat No.B/15 of his
father Hiroo @ Hiraji Laxman Jadhav by defendant Padmakar is also
brought on record from his cross-examination. DW1 Padmakar has
stated in his cross-examination that he left the house of his father as his
brother - deceased plaintiff Subhash had threatened to kill him. In
answer to court questions, DW1 Padmakar has stated that his mother /
defendant Indira was not allowed to stay in the flat of her husband
Hiroo @ Hiraji Laxman Jadhav by deceased plaintiff Subhash and she
was being assaulted by deceased plaintiff Subhash. Considering the
fact that this material is brought on record by plaintiffs from cross-
examination of defendant Padmakar as well as by his answers to court
questions, there is no reason to disbelieve this evidence. Moreover,
contemporaneous documents in the form of complaints to the
Commissioner of Police by defendant Indira and her advocate which
are at Exhibits A and B show that defendant Indira was assaulted by
deceased plaintiff Subhash requiring her to leave house of her husband
avk 25/44
APPEAL-306-2009.doc
Hiroo @ Hiraji Laxman Jadhav. These contemporaneous documents
reflect apprehension of defendant Indira that after driving out other
family members, taking advantage of the fact that Hiroo @ Hiraji
Laxman Jadhav is suffering from paralysis, her son Subhash and his
wife Kumud (plaintiffs), may grab the property of her husband Hiroo
@ Hiraji Laxman Jadhav by getting the flat transferred in their name
and by misappropriating bank balance of Hiroo @ Hiraji Laxman
Jadhav.
22 DW2 Sumitra Surve nee Shubhangi who is youngest
daughter of the testator has deposed that her relations with her parents
were cordial and relations of her father Hiroo @ Hiraji Laxman Jadhav
with DW1 Padmakar were also cordial. She has also stated that her
relations with deceased plaintiff Subhash and plaintiff Kumud were
also cordial. There is nothing on record to disbelieve this version of
then unmarried daughter of the testator, in the light of evidence of PW1
Kumud also.
23 The evidence on record as such does indicate that the
testator was being looked after by his wife and son Padmakar
throughout. It cannot be inferred from the evidence on record that
avk 26/44
APPEAL-306-2009.doc
they were not taking care of the testator. Similarly, it cannot be said
that from 30th September 1988, defendants Indira, Padmakar and
Shubhangi i.e. wife, son and unmarried daughter of the testator left his
house without his wish, despite the fact that he was unwell.
24 While construing the Will, "arm chair rule" is required to
be applied and the court is expected to place itself in the arm chair of
the testator to find out his intention. Intention of the testator is
considered to be a polar star by which the court is guided. In the case
in hand, as seen from the evidence discussed in foregoing paragraphs,
testator Hiroo @ Hiraji Laxman Jadhav was being looked after during
his prolonged illness by all his family members including defendants
and he was being attended by his wife Indira and elder son Padmakar
even after 30th September 1988 i.e. the day from which they started
residing separately. Wife of Hiroo @ Hiraji Laxman Jadhav namely
Indira (defendant) had looked after him for a long span of her
marriage life with cordial relations all along. Evidence also shows that
the Will in question was allegedly executed on 3 rd December 1988. Till
30th September 1988, i.e. about two months prior to alleged execution
of the Will, all family members of testator Hiroo @ Hiraji Laxman
Jadhav were staying together with him. Hiroo @ Hiraji Laxman Jadhav
avk 27/44
APPEAL-306-2009.doc
was looked after by all of them till that time and even thereafter by his
wife Indira and son Padmakar. Relations of all family members with
Hiroo @ Hiraji Laxman Jadhav till his death were cordial and the petty
family dispute which took place on 30 th September 1988 did not affect
relations of other family members i.e. defendants with testator Hiroo
@ Hiraji Laxman Jadhav. In the light of this evidence, recitals
attributed to testator Hiroo @ Hiraji Laxman Jadhav in alleged Will to
the effect that his elder son Padmakar, wife of the testator Indira and
unmarried daughter Shubhangi separated from him against his wishes
and have not chosen to look after him or to take care of him, even
though he is not keeping well; does not appear to be correct and
probable. The recitals to this effect in the Will obviously appears to be
false in the wake of material brought on record from evidence of
parties. The position reflected in the ocular evidence is fundamentally
contradictory to the recitals in the Will of Hiroo @ Hiraji Laxman
Jadhav. This raises a serious doubt as to whether the testator was really
aware about the contents of the Will or not. Instead of clearance and
removal of all legitimate doubts regarding suspicions circumstance of
unnatural, improbable and unfair disposition of the property under the
Will, evidence of PW1 Kumud as such shrouds the Will in grave
suspicion. By applying "arm chair rule" it cannot be said that a testator
avk 28/44
APPEAL-306-2009.doc
who was looked after by all his family members during prolonged
period of his illness will disinherit them by conferring his entire estate
on his one son and family of that son. This disposition of property
under the Will, as such, does not appear to be result of free will and
mind of the testator. It is most unlikely that a person having wife,
another son, one married and another unmarried daughter, all sharing
cordial relations with him, would make a Will which would practically
disinherit them all. For these reasons, it is not possible for us to agree
with submission of the learned counsel for respondents that as the wife,
son and unmarried daughter all of a sudden deserted the testator and
as PW1 Kumud was looking after him, the property is bequeathed in
favour of PW1 Kumud, her husband and son.
25 At the cost of repetition, it needs to state that evidence on
record shows that testator Hiroo @ Hiraji Laxman Jadhav was unable
to use left side of his body right from the year 1985 because of
paralytic attack and thereafter in the year 1988 he suffered massive
paralytic attack. This is clear from evidence of PW1 Kumud. Because of
this, he was literally bedridden, as cross-examination of Kumud shows
that he was required to answer nature's call in the bed itself. He died
because of heart attack in the month of September 1990 i.e. within a
avk 29/44
APPEAL-306-2009.doc
period of two years after alleged execution of the Will by him.
Evidence on record does not show that testator Hiroo @ Hiraji Laxman
Jadhav, prior to his death or at or about alleged execution of the Will
was in sound state of mind. There is nothing on record to show that he
was interacting with other residents of the locality or friends. On the
contrary, it appears that he was confined to bed because of paralytic
stroke which rendered his entire left portion of the body immobile.
Paralytic stroke is caused when there is a disturbance to the blood
supply to the brain, due to lack of blood or leakage of blood. The
affected area of the brain stops functioning normally. This results in
inability to move limbs on one side of the body, to formulate speech or
to see one side of the visual field. Paralytic stroke causes neurological
damage which leaves patient incapacitated for life. In the case in hand,
evidence of PW1 Kumud shows that the testator had suffered the
massive paralytic stroke. Naturally, therefore, he must be taking
medical treatment, as at the time of alleged execution of the Will he
was bedridden. In the wake of the disease suffered by the testator
which was causing neurological damage and adversely affecting the
capacity to speak, it was incumbent on the part of prepounders of the
Will to examine a doctor to prove that the testator was in sound
disposing state at the time of alleged execution of the Will. However,
avk 30/44
APPEAL-306-2009.doc
this was not done by plaintiffs. Having suffered from such a physical
condition from the year 1985, it is hard to believe that the testator
while in bedridden condition was in sound disposing state in
September 1988. On the contrary, with such prolonged serious
ailment, condition of his mind must be very feeble and debilitated.
Heavy burden was on plaintiffs who are the propounders of his Will to
bring on record clear, cogent and trustworthy evidence to show that
testator Hiroo @ Hiraji Laxman Jadhav was having mental capacity
with sound disposing state of mind to execute the Will. However, no
such evidence is forthcoming. Unproved photocopy of police statement
at Exhibit D2 pointed out by the learned counsel for respondents
cannot be read in evidence to infer that the testator was in sound state
of mind at the relevant time.
26 Provisions in the Will set out in foregoing paragraphs show
that the testator had made provisions even for unborn child of deceased
plaintiff Subhash and his wife plaintiff Kumud. However, at the same
time, no provision whatsoever was made for his grandchildren from
another son i.e. defendant Padmakar. Mental frame of Hindus towards
his siblings is noted by the Hon'ble Supreme Court in the matter of
Ram Piari (supra) in these words :
avk 31/44
APPEAL-306-2009.doc
"Soft corner for grand-children or like ability for a
son or daughter or their issues is not uncommon to
our society. Rather at times it becomes necessary
either to provide for the lesser fortunate or to avoid
the property from passing out of the family. But
when disputes arise between heirs of same degree,
and the beneficiary even chooses to deny the blood
ties, and that too unsuccessfully, then court's
responsibility of performing its duties carefully and
pains-takingly multiplies."
No provisions whatsoever was made in the Will in respect of grand-
children of the testator from his another son Padmakar. Undoubtedly,
there is absolute freedom to bequeath one's own property and legatee
can also be a stranger. However, in order to demonstrate testamentary
capacity or disposing state of mind of the testator, prepounders of the
Will are required to establish that the testator at the time of disposition
knew and understood the property he was disposing and persons who
were to be beneficiaries of his disposition. To satisfy the test of a
prudent person, there must be satisfactory reasons for denying benefits
to those who are also entitled for the estate of the testator, as they had
similar relations with him. Absence of such reasons shrouds the Will
with suspicion and indicates that the disposition of property under the
avk 32/44
APPEAL-306-2009.doc
Will was not the voluntary act of the testator. In the case in hand,
exclusion of grandchildren from another son i.e. defendant Padmakar
and at the same time making provisions for even unborn child of
another son Subhash cast a serious shadow of doubt on the Will.
27 Now let us examine whether prepounders of the Will of
testator Hiroo @ Hiraji Laxman Jadhav had taken a lead role in
preparation of the Will and in its execution. As deceased plaintiff
Subhash and his family is the only legatee under the alleged Will of
testator Hiroo @ Hiraji Laxman Jadhav, the onus lied heavily on them
to remove the suspicion attending the execution of the Will and to
demonstrate that they were neutral and had not taken any role in its
making and execution. We have already pointed out what PW1 Kumud
has stated while in the witness box. Her version shows that it was her
husband Subhash who allegedly arranged meeting of Advocate
A.G.Shah with testator Hiroo @ Hiraji Laxman Jadhav for initially
preparing a draft and then for approving the same. Evidence of PW1
Kumud also shows that she arranged for visit of the Sub-Registrar to
her house for registration of the Will. This happened in the backdrop
of the fact that testator Hiroo @ Hiraji Laxman Jadhav was immobile
avk 33/44
APPEAL-306-2009.doc
and bedridden due to paralytic stroke right from the year 1985.
Evidence of PW1 Kumud shows that she as well as her husband
Subhash were very much present in the house with the testator on 3 rd
December 1988 when the Will was allegedly engrossed, executed and
then registered. There is nothing in evidence of PW1 Kumud to show
how the testator was acquainted with Advocate A.G.Shah since the
beginning. This witness was not even knowing that her father-in-law
Hiroo @ Hiraji Laxman Jadhav had ever met Advocate A.G.Shah at any
point of time prior to execution of the Will. Evidence of PW1 Kumud
further shows that the only attesting witness examined by plaintiffs
namely Jayant Kamani was friend of her husband Subhash. With this
evidence, let us have a look at the Will at Exhibit D1.
28 The Will (Exhibit D1) has been typed on three full scape
papers on both sides and the typed portion runs into five pages. It is
obviously drafted by a lawyer named A.G.Shah. The Will is in legal
language with all legal jargon. The lawyer who has drafted the Will
and then engrossed it after alleged approval to the draft by the testator
has also acted as attesting witness to it. Cross-examination of PW1
Kumud - the propounder of the Will shows that Advocate A.G.Shah
avk 34/44
APPEAL-306-2009.doc
was very much alive during the course of recording of evidence in the
suit. Chief examination of PW1 Kumud reveals that her husband i.e.
deceased plaintiff Subhash had called Advocate A.G.Shah for meeting
the testator on request of the testator. Then, initially after instruction
from the testator, the draft was prepared and on its approval, the same
was engrossed by Advocate A.G.Shah. PW1 Kumud claims to have
witnessed these events. PW1 Kumud admitted that another attesting
witness Jayant Kamani is the best friend of her husband - deceased
plaintiff Subhash. It is also elicited from cross-examination of DW1
Padmakar that PW2 Jayant Kamani - an attesting witness had attended
birthday party of son of deceased plaintiff Subhash and plaintiff
Kumud. This points out the fact that he is close friend of deceased
plaintiff Subhash. Evidence of PW1 Kumud reveals that it was she who
had been to the Office of the Sub-Registrar and undertook necessary
formalities and brought the Sub-Registrar to their residence for
registration of the Will on 3rd December 1988.
29 It is, thus, seen that the prepounders of the Will of testator
Hiroo @ Hiraji Laxman Jadhav who are sole legatee under the said Will
have taken lead and played a prominent role in preparation and
avk 35/44
APPEAL-306-2009.doc
execution of the Will in question. This evidence does not justify the
finding of the learned Single Judge that the Will had been duly
executed by the testator by understanding the nature and effect of the
disposition under the Will. Viewed from the context of apprehension of
Indira - widow of the testator, reflected from her complaints dated 25 th
October 1988 and 28th October 1988 (Exhibits A and B) to the effect
that her son Subhash is making all possible efforts for grabbing the flat
and money of the testator, this position of taking lead role in preparing
the Will of the testator by plaintiffs does not allow us to hold that the
Will was duly executed by the testator for conferring his estate on
plaintiffs. To crown all this, cross-examination of PW1 Kumud shows
that initially there was nomination in respect of Flat No.B/15, Swapna
Safalya, of Hiroo @ Hiraji Laxman Jadhav in favour of his wife Indira.
However, evidence on record shows that this nomination was got
changed even prior to alleged execution of the Will by the testator
Hiroo @ Hiraji Laxman Jadhav, in favour of deceased plaintiff Subhash.
This is a circumstance to indicate that prepounders of the Will anyhow
wanted to mutate the flat owned by testator Hiroo @ Hiraji Laxman
Jadhav in their name.
avk 36/44
APPEAL-306-2009.doc
30 We have mentioned the effect of paralytic stroke on the
testator making him immobile right from the year 1985. A paralytic
stroke impairs mental faculty as well as speech of a person. PW1
Kumud claims that on instructions of the testator, Advocate A.G.Shah
attended, took his instructions, prepared a draft of the Will and
thereafter on approval of the draft, Advocate A.G.Shah engrossed the
same. In the wake of objections raised by defendants, pointing out
suspicious circumstances surrounding the Will, in their caveat, and
when the testator was suffering from paralytic stroke from the year
1985 itself, impairing his speech, it was incumbent on the part of the
plaintiffs / propounders of the Will to examine Advocate A.G.Shah,
who allegedly drafted the Will and subsequently engrossed it apart
from acting as an attesting witness thereto. This was necessary to
dispel the suspicion as to whether really the testator was in a position
to give instructions while his ability to speak was impaired as a
consequence of suffering a paralytic stroke. Examining Advocate
A.G.Shah was also necessary in order to ascertain whether really the
testator had instructed him in the matter and whether the testator had
really asked him to engross the Will bequeathing his entire property to
one son and family members of that son. When other evidence
adduced by plaintiffs in support of the Will is wholly unsatisfactory, the
avk 37/44
APPEAL-306-2009.doc
fact of non-examination of Advocate A.G.Shah assumes importance and
gives an indication that he was deliberately not examined by
propounders of the Will as his evidence might not have supported their
cause. Capacity of the testator could have also been brought on record
by examining the Sub-Registrar who registered the Will on 3 rd
December 1988. A draft which was allegedly approved by the testator
ought to have been placed on record to demonstrate validity of the Will
and to remove the suspicion. However, this is not done by the plaintiffs
for the reasons best known to them, particularly, when the Will sought
to be propounded is totally unnatural as plaintiffs are sole legatee
under the Will.
31 The Will in question is a registered Will. However, mere
registration of a Will is not a fact to prove its genuineness. In the
matter of H.Venkatachala Iyengar (supra) and Balkrishna Das
Agarwal (supra) it is settled that even in absence of raising a plea, the
prepounders of the Will is enjoined to explain all suspicious
circumstances to satisfy conscience of the court. Perusal of the Will at
Exhibit D1 shows that though it is a registered document, internal page
six thereof bears a rubber stamp probably put on it by the Sub-Registrar
avk 38/44
APPEAL-306-2009.doc
while registering the Will, which merely contains the material that the
executor of the document admits that a Will Deed has been executed.
Other rubber stamps impressed on it are in respect of receipt of
payment of fees of registration. The Will does not reveal that the Sub-
Registrar had disclosed the contents of the Will to the testator or the
fact that the document of which he was admitting the execution is a
Will disposing of his property in favour of his only one son and family
members of that son. Perusal of the Will at Exhibit D1 does not show
that the Officer registering it had read over the contents thereof to the
testator and then after knowing the disposition, the testator admitted
the execution of the Will. The learned counsel for appellants rightly
relied on the judgment of the Hon'ble Apex Court in the matter of Rani
Purnima Debi (Supra) and relevant portion of paragraph 23 of that
report reads thus :
"If the evidence as to registration on a close
examination reveals that the registration was made
in such a manner that it was brought home to the
testator that the document of which he was
admitting execution was a will disposing of his
property and thereafter he admitted its execution
and signed it in token thereof, the registration will
dispel the doubt as to the genuineness of the will.
avk 39/44
APPEAL-306-2009.doc
But if the evidence as to registration shows that it
was done in a perfunctory manner, that the officer
registering the will did not read it over to the
testator or did not bring home to him that he was
admitting the execution of a will or did not satisfy
himself in some other way (as, for example, by
seeing the testator reading the will) that the testator
knew that it was a will the execution of which he
was admitting, the fact that the will Was registered
would not be of much value."
These observations applies with full force to the case in hand as in the
instant case also the registration appears to have been done in a
prefunctory manner indicating that the testator may not be knowing
what he was registering. As such, the mere fact that the Will is
registered Will is not sufficient to dispel suspicion which is attached to
the execution and the attestation thereof.
32 The learned Single Judge has placed reliance on photocopy
of the statement of testator Hiroo @ Hiraji Laxman Jadhav recorded on
30th September 1988 by marking it as Exhibit D2 with an observation
that the said statement is read in evidence at the request of both the
counsel appearing for the parties. Perusal of the photocopy of the
statement at Exhibit D2 shows that the same appears to be recorded by
avk 40/44
APPEAL-306-2009.doc
Police Sub-Inspector of Worli Police Station under Section 161 of the
Cr.P.C. The Police Sub-Inspector who has recorded this statement is not
examined as witness by the parties to the suit. What was filed on
record of the suit is the photocopy of the police statement of Hiroo
Jadhav. The record does not indicate that the same was admitted by
the contesting parties. Chapter XII of the Cr.P.C. deals with information
to police and their powers to investigate. Sections 161 and 162 of the
Cr.P.C. falls under Chapter XII in the Cr.P.C. As per Section 161 of the
Cr.P.C., prescribed Police Officer can examine orally any person
supposed to be acquainted with the facts and circumstances of the case
under investigation. He may reduce into writing any statement made
to him in the course of examination of such person. Section 162 of the
Cr.P.C. deals with use of such statements recorded by the prescribed
Police Officer under Section 161 of the Cr.P.C. Such statements
recorded by the Police Officer can be used by the accused and with
permission of the court, even by the prosecution in order to contradict
such witness in the manner provided by Section 145 of the Indian
Evidence Act, 1872. Police statement recorded under Section 161 of
the Cr.P.C. cannot be used as substantive evidence.
avk 41/44
APPEAL-306-2009.doc
33 Section 162 of the Cr.P.C. creates bar for use of such
statement except for the limited purpose set out in the proviso to said
section, at any inquiry or trial in respect of the offence which was
under investigation, at the time when such statement was recorded.
However, this bar is not applicable in a civil proceeding and a
statement made before a Police Officer in the course of investigation
can be used as evidence in civil proceedings, provided the same is
otherwise relevant under the Indian Evidence Act. Section 145 of the
Indian Evidence Act permits cross-examination of a witness as to his
previous statement made in writing or reduced into writing and
relevant to the matter in question, without such writing being shown to
him or being proved. Section 145 of the Indian Evidence Act nowhere
exclude statement made by witness in writing or reduced to writing
during investigation, inquiry or trial. However, though police
statement of a witness can be used in civil proceedings, the same is
required to be duly proved by adducing necessary evidence. In the case
in hand, even certified copy of police statement of Hiroo @ Hiraji
Laxman Jadhav was not placed on record and photocopy of his
statement placed on record by defendant Padmakar Jadhav was not
proved by taking necessary steps in that regard. Maker of this
statement i.e. the testator is not available for confronting him with his
avk 42/44
APPEAL-306-2009.doc
alleged previous statement recorded under Section 161 of the Cr.P.C.
Therefore, the learned Single Judge ought not to have read the
photocopy of police statement of the testator in evidence. It is, thus,
seen that inadmissible evidence was considered by the learned Single
Judge by reading the photocopy of the police statement for coming to
the conclusion that there was justification for excluding other legal
heirs from the estate of the testator.
We have carefully perused the ruling in the matter of
Smt.Malkani (supra) cited by the learned counsel for the respondents.
That matter proceeded on its own facts. The learned trial court in that
matter had held on consideration of evidence that due execution of the
Will as well as its attestation were proved and that there were no
suspicious circumstances surrounding its execution which creates doubt
as to testamentary capacity of the testatrix, or tend to show that she did
not make the disposition of her own free will. The appeal was
dismissed by the High Court and the Hon'ble Supreme Court held that
it is difficult to interfere with the findings of fact reached by the trial
court and confirmed by the High Court. It was observed in that matter
that evidence on record justifies that the testatrix was determined in
bequeathing the property to her husband's brother's sons to the
avk 43/44
APPEAL-306-2009.doc
exclusion of the plaintiff. However, case in hand is totally different and
we have found that there are several suspicious circumstances
surrounding the execution of the Will, even creating doubt as to
testamentary capacity of testator Hiroo @ Hiraji Laxman Jadhav.
35 For all these reasons, we are unable to concur with the
view expressed by the learned Single Judge while holding that the
testator had duly executed the Will bequeathing the property in
favour of his son Subhash and family members of Subhash, to the
exclusion of other legal heirs. For reasons quoted in the foregoing
paragraphs, we allow the appeal with costs throughout and set aside
the impugned judgment and order of the learned Single Judge.
Consequently, the Testamentary Suit No.37 of 1990 is dismissed.
(A. M. BADAR, J.) (A. S. OKA, J.)
avk 44/44
