Bombay High Court
Smt. Amita Kulinchandra Motiwala ... vs Rohini Pradyuman Kapadia on 22 December, 2016
Bench: A.S. Oka
1 appeal-526.07
pmw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORGINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.526 OF 2007
IN
TESTAMENTARY SUIT NO.116 OF 1998
IN
PETITION NO.275 OF 1998
Smt. Amita Kulinchandra Motiwala & Anr. ... Appellant
Versus
Rohini Pradyuman Kapadia ... Respondent
Mr. Dinyar Madon, Senior Counsel a/w Mr. H.J. Engineer i/by M/s.
Gordhandas & Fozdar for the Appellant.
Mrs. Uma K. Wagle for the Respondent.
CORAM : A.S. OKA & A.A. SAYED, JJ.
DATE ON WHICH SUBMISSIONS WERE HEARD : 21.07.2016
DATE ON WHICH JUDGMENT IS PRONOUNCED : 22.12.2016
JUDGMENT (PER A.S. OKA, J.):-
FACTS
1 By this Appeal an exception has been taken to the
judgment and order dated 6 th July, 2007 passed by the learned Single
Judge in Testamentary Suit No.116 of 1998 arising out of Testamentary
Petition No.275 of 1998. By the impugned judgment and order, the
Testamentary Suit has been dismissed. The Appellants are the Plaintiffs
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who filed a Testamentary Petition for grant of probate in respect of the
last will and Testament of Smt. Hirabai alias Hiraben Parmanand
Kapadia, widow of Parmanand Gordhandas. The alleged will was
executed on 25th September, 1996 (for short "the disputed will"). The
Plaintiffs are claiming to be the executors appointed under the disputed
will. The Testator Hirabai died on 24 th October, 1996. The Plaintiffs are
the daughters of the deceased. The Defendant is also a daughter of the
deceased. Apart from the said three daughters, the deceased has
another daughter by the name Bhanubai. It is stated in the
Testamentary Petition filed by the Plaintiffs for seeking Probate that the
husband of the Testator predeceased her. It is pointed out that the only
son of the deceased who was a bachelor died on 13 th January, 1966
leaving a will dated 23rd December, 1965 which has been already
probated.
2 A caveat was filed by the Respondent - Defendant. In the
affidavit in support of the caveat, the Respondent - Defendant
contended that the disputed will was invalid, illegal and was
fraudulently prepared by the Plaintiffs. It was stated that on all pages of
the will, there are no initials of the deceased Testator. It is pointed out
that the Schedules to the will are prepared on letter heads of the
deceased Testator and there appears to be a blank space between typed
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material and signatures of the deceased Testator on the said letter
heads. The allegation is that signatures of the deceased were taken on
blank papers and the disputed will was subsequently created by the
Plaintiffs by using the said papers. It is stated that deceased was
incapable of understanding the contents of the disputed will which is
written in English language. It is alleged that the contents of the will
were never explained to the deceased Testator and she has not signed
the same in presence of the witnesses. It is contended that the fact that
Schedules have been typed on letter heads is a suspicious circumstance.
In the affidavit in support of the caveat, the Defendant stated that she
has already filed a Suit in the City Civil Court in Mumbai. As a result of
the filing of the caveat, the Testamentary Petition filed by the Plaintiffs
was numbered as a Suit.
ISSUES
3 The following issues were framed in the Suit :-
"1. Whether the Plaintiffs prove the due execution of the
last will dated 25th September, 1996, by the deceased
Hirabai Permanand Kapadia in sound health and with
sound disposing mind?
2. Whether the Defendant proves that the will dated 25 th
September, 1996 of the deceased is invalid, illegal,
fraudulently prepared as stated in para 3 of the Affidavit
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in support of the Caveat?
3. Whether the Defendant proves that the signatures of the
deceased was taken on blank papers and the will has
been subsequently typed on the same as stated in para 3
of the Affidavit in support of the Caveat?
4. Whether the Defendant proves that the will has not been
signed in the presence of the Witnesses as stated in para
3 of the Affidavit in support of the Caveat?
Do the Plaintiffs prove that the Defendant by her
conduct has accepted the will and therefore she is
estopped from challenging the validity of the will?
6. Whether the Defendant proves that the Plaintiffs have
undervalued the estate left by the deceased?
7. What reliefs and order?"
IMPUGNED JUDGMENT
4 The first Plaintiff examined herself. She also examined Shri
Virendra G. Trivedi, Advocate who was the alleged attesting witness to
the disputed will. The Plaintiffs also produced documentary evidence.
The Defendant examined herself. The learned Single Judge amended
the settled issues and came to the conclusion that only following two
issues arose for consideration:-
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"1. Whether the Plaintiffs prove that the deceased
signed the will in presence of the Witnesses
after having understood the contents of the
will?
2. Whether the Defendant is estopped from
challenging the validity of the will because of
her conduct of receiving benefits and properties
under the will?"
The learned Single Judge in the impugned judgment held
that the Plaintiffs have not discharged the burden of proving that
deceased Testator has signed the disputed will in presence of the two
witnesses. He held that the evidence of Shri Trivedi needed
corraboration from the other attesting witness. The learned Single
Judge proceeded to dismiss the Suit.
SUBMISSIONS
5 The learned Senior Counsel appearing for the Appellant has
taken us through the pleadings and notes of evidence. He invited our
attention to the law laid down by the Apex Court in the case of
H. Venkatachala Iyengar vs B. N. Thimmajamma & Others1.
6 Inviting our attention to the seven issues settled earlier, he
submitted that the learned Judge ought not to have re-casted the issues
while delivering the impugned Judgment.
1 AIR 1959 SC443
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7 He urged that in the facts of the case, the Plaintiffs have
discharged the burden on them by proving the execution of the
disputed will by the deceased Testator. He urged that there was no
reason for the learned Single Judge to have deleted settled issues which
had put burden on the Defendant. Inviting our attention to the evidence
of PW2 - Shri Trivedi, he urged that the said witness who was an
Advocate was an independent witness who had drafted the will and had
attested will. By pointing out his evidence, he urged that there is no
suspicious circumstances associated with the Schedules merely because
the same are typed on the letter head of the Testator. He urged that the
Schedules were in existence when PW2 - Shri Trivedi met the deceased
Testator on the first occasion. He urged that the learned Judge should
not have been influenced by some minor discrepancies in his evidence.
He pointed out from the testimony of the witness - Shri Trivedi that the
contents of the disputed will had been explained to the deceased in
Gujarati language and were understood by her. He submitted that
instructions were given to Shri Trivedi in Gujarati language to draft the
will. He submitted that there is nothing wrong if Shri Trivedi drafted
the will in English language as per the instructions of the deceased
Testator. He urged that there was contemporaneous evidence which
clearly shows that deceased has been signing on the documents in
English and in fact on letters of consent for undergoing surgery, she had
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signed in English. He submitted that the Defendant in the affidavit in
support of Caveat had not disputed signatures of the deceased on the
disputed will and her contention was that on blank papers, signatures
of the deceased were obtained by the Plaintiffs on which the will was
typed subsequently. He urged that the said contention has not been
proved by the Defendant though the burden was on her to prove the
said contention. He submitted that as the Plaintiffs have established
that will was drafted as per the instructions of the deceased Testator,
the execution of the will has been proved and that the Defendant has
not discharged the burden put on her under the issues earlier framed by
the Court. The learned counsel also pointed out that the Defendant
accepted certain movable property in terms of the will. He pointed out
that even her husband accepted legacy under the said will. He invited
our attention to the finding recorded by the learned Single Judge on the
re-casted issue No.2. He submitted that the learned Judge could not
have brushed aside the fact that the Defendant's husband who also has
signed a document after accepting the gold coins and an amount as a
legacy has not challenged the will. He invited our attention to the
various portions of the evidence of the witnesses. He urged that
evidence of the witness Trivedi examined by the Plaintiffs inspires
confidence. He urged that the impugned judgment is completely
erroneous. The learned counsel submitted that findings recorded by the
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learned Single Judge will have to be set aside and probate will have to
be granted.
8 The learned counsel appearing for the Defendant submitted
that the Plaintiffs have not discharged the burden to remove all the
doubts and to explain all the suspicious circumstances associated with
the disputed will. She invited our attention to the cross-examination of
both the witnesses examined by the Plaintiffs. She pointed out various
suspicious circumstances associated with the execution of the alleged
will and urged that the Plaintiffs have not explained these
circumstances. She also pointed out that the schedules to the disputed
will have been typed on letter-heads of the deceased Testator and bare
look at it will show that the signatures of the deceased appearing on the
blank letter heads have been used to create the schedules. She pointed
out that on the documents marked as Exhibits B and C, the reference to
the will has been added by the first Plaintiff after the documents were
signed by the Defendant. Moreover, the said documents do not show
that the articles as per the disputed will were given to the Defendant.
She urged that Defendant was even otherwise entitled to a share in the
estate of the deceased and therefore, there is nothing wrong if she
received gold and silver ornaments of her share. She pointed out that in
Exhibits D and E, there is no reference to the disputed will. She urged
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that the entire case of the Plaintiffs is suspicious. She pointed out
several discrepancies in the evidence of both the witnesses examined by
the Plaintiffs. She urged that no interference can be made with the
impugned Judgment.
CONSIDERATION OF SUBMISSIONS
9 We have given careful consideration to the submissions. It
will be necessary at this stage to make a reference to the assertions in
the affidavit in support of the Caveat filed by the Defendant. Paragraph
3 of the affidavit in support is the relevant paragraph which reads thus:-
"3. I say that the will dated 25 th September, 1996 in respect
of which the Probate is applied for under the aforesaid
Petition is invalid, illegal, fraudulently prepared and not
enforceable in law and the same was prepared by my
sisters being the Petitioners abovenamed. I say that I
have taken search of the original will lodged in the
Testamentary Department on 14th October, 1998 in the
presence of the Advocates for the Petitioners. It was
found that on all the pages of the will are not
initialled by the Deceased. Its is also found that the
Schedules are prepared on letter heads in the name
of the deceased and the signature is right at the
bottom of each page of the Schedule. Blank space
appears between the typed material and the
signature. It appears that the signatures of my
mother was taken on blank papers and the will has
been subsequently prepared and typed on the said
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paper. I say that the deceased was incapable in
understanding the contents of the said will which is
written in English language since the deceased was
not educated to the extent of understanding English
language fully. In the circumstances, I say that the
will is not a genuine will and the same is
subsequently prepared by my sisters without the
contents of the said will being explained to the
deceased. I say that the will is not signed in the
presence of the Witnesses.
It is very unnatural that the Schedule was prepared on
letter heads and one cannot believe the same to be
correct. It is absolutely clear that the typing is done
subsequently on the paper already signed by the
deceased."
(emphasis added)
10 In paragraph 6 of the affidavit in support of the Caveat, the
Defendant contended that the deceased Testator was suffering from
Cancer which was detected on 18th September, 1996. She stated that
when the alleged will was executed on 25 th September, 1996 the
deceased Testator was seriously ill and was under stress due to
detection of Cancer. It is the case made out in the affidavit in support of
the Caveat that by using blank papers and blank letter-heads signed by
the deceased Testator, the will was subsequently created. We have
already quoted the issues which were framed earlier and the issues re-
caste at the time of delivering the impugned Judgment.
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11 It will be necessary to consider the oral evidence. The first
Plaintiff filed her affidavit in lieu of examination-in-Chief. In paragraph
2 of her affidavit-in-lieu of examination-in-Chief, she stated that in
September, 1996 her mother (the deceased Testator) had been
diagnosed with lump in the breast which was suspected to be
malignant. She was advised to undergo various tests. She stated that
her age at the time was 84 years. She further stated that on or about
14th September, 1996 her mother (the deceased Testator) requested her
to contact a lawyer for preparation of the will. As she knew Shri V.G.
Trivedi, Advocate, she contacted Shri Trivedi, who had attended to
some matters of her husband. It is stated that on 15 th September, 1996
Shri Trivedi met deceased Testator at her residence when she gave
instructions to Shri Trivedi for drafting the will. In paragraph 6, it is
stated that on or before 18 th September, 1996, the medical examination
reports confirmed that she was suffering from Cancer. It is alleged that
notwithstanding the disease, she was carrying on all her routine
activities as set out in paragraph 6 of the affidavit. She further stated in
paragraph 7 of the affidavit that she used to visit her mother practically
everyday in the evening to help her in her financial matters. She stated
that her mother's premises was on the third floor and the deceased
Testator used to climb staircase everyday. It is further stated that the
deceased Testator had employed a driver and she used to visit many
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places as per her own wishes. Paragraph 8 of the affidavit discloses that
the first Plaintiff was not present at the time of execution of the
disputed will. She further stated that on 7th October, 1996 the deceased
Testator was admitted to Breach Candy Hospital for surgery. She
underwent a surgery on 8th October, 1996. Thereafter, she remained in
hospital till her death on 24th October, 1996.
12 Further case is made out in affidavit-in-lieu of examination-
in-chief is that on 25th December, 1996 the Defendant inquired with her
as to whether there was any will left behind by the deceased mother.
The first Plaintiff stated that she informed the Defendant about the
disputed will and stated that the will was kept in the safe at Govardhan
Bhavan, which was the residence of the deceased Testator. She further
stated that as the Defendant insisted upon looking at the will, on the
next date, she along with the Defendant and Defendant's husband
Pradyumna went to Govardhan Bhavan. The witness stated that she
opened the safe and showed the disputed will to both of them. Her
further case is that few days thereafter the Defendant and her husband
demanded that the ornaments, articles and money of the deceased
Testator should be distributed as per the said will. Though the Appellant
stated that the same can be done after Probate was obtained, the
Defendant and her husband informed the first Plaintiff that there was
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no necessity of obtaining Probate for distribution of the articles.
Therefore, the first Plaintiff stated that she decided to distribute the
ornaments, articles, etc. In what manner the distribution took place is
stated by her in paragraph 10 of her affidavit-in-lieu of examination-in-
chief. The relevant portion reads thus :-
"10. The distribution took place over a period of 3 days. On
12th January 1997 the gold ornaments were distributed.
On 5th February 1997 the diamond and pearl ornaments
were distributed. On 4th March 1997 silver utensils were
distributed. At the time of distribution of the said
ornaments and silver articles I obtained the signature of
my sister Rohini. Since I did not think that the matter
would go to the Court distribution was done among the
family members I obtained the signatures of my sisters
in an old diary of 1992-93. In the said diary on the page
bearing printed dates of July 9 to July 12 I took my
sister Rohini's signature on the writings being list of
ornaments handed over to my sister. I produce the said
writings with my sister's signature and I tender the
same in evidence as Exhibit "A". I say that the first two
lines appearing on the top of the said page is in
Jyotsana's, my sister's handwriting. I identify her
handwriting. The rest of the writing appearing on the
said pages is in my handwriting. The signature
appearing on the bottom of the said page is that of my
sister Rohini. Similarly, in the diary on pages bearing
printed dates of August 27 to August 30, I took Rohini's
signature at the end of the writings being list of
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diamond and pearl ornaments handed over to her. I
produce the said writings with my sister's signature and
I tender the same in evidence as Exhibit "B". I say that
the writing appearing on the said pages is in my
handwriting. The signature appearing on the bottom of
the said page is that of my sister Rohini. Similarly, in the
diary on pages bearing printed dates of February 1 to
February 3 I took Rohini's signature on the writings
being list of silver utensils handed over to my sister. I
produce the said writings with my sister's signature and
I tender the same in evidence as Exhibit "C". I say that
the writing appearing on the said pages is in my
handwriting. The signature appearing on the bottom of
the said page is that of my sister Rohini. The said
signatures though different in form are in the
handwriting of my said sister Rohini and the said
signatures were made in the presence of me and my
other sisters namely, Jyotsna, Bhanuben and niece
Hemantini. I identify the same. After distributing the
ornaments, utensils etc. as per my mother's will, I gave
a sum of Rs.25,000/- and ten gold sovereigns (coins) as
stated in the will to Mr. Pradyuman, Rohini's husband
and also to my husband Mr. Kulinchandra Motiwala. On
5th March 1997 I handed over a cheque of Rs.25,000/-
to the said Pradyuman and my husband acknowledged
receipt of Rs.25,000/- and ten gold sovereigns (coins). I
obtained the signature of Pradyuman in writing on the
letterhead of the deceased. I say that the said writing is
of Pradyuman and the signature is that of Pradyuman
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and I identify the same. The signature was put by the
said Pradyuman in my, Jyotsna's, Bhanuben's and
Hemantini's presence. I tender the said document at the
time of evidence as Exhibit "D". Both, my sister and the
said Pradyuman have taken benefit of what was left by
my mother to them under the said will. At that time
neither my sister nor her husband raised any dispute or
objection to the said will. They accepted the will and
have taken benefits under the same."
13 In the further examination-in-chief of the first Plaintiff, the
relevant pages of the diary relied upon by the first Plaintiff were
marked as Exhibits - A, B and C subject to the proof of the contents.
The receipts dated 5th March, 1997 signed by the husband of the
Defendant were marked as Exhibit - 'D-1', 'D-2' subject to proof of
contents. Certain other documents were marked as Exhibits in the
examination-in-chief. She stated that Shri V.G. Trivedi, solved some
property matter of her husband in the year 1995 or 1996. She stated
that she contacted Shri Trivedi on 14 th September, 1996 on phone. She
stated that in the afternoon of 15 th September, 1996 she received a
telephone call from the deceased Testator informing her that Shri
Trivedi, Advocate had met the deceased Testator. She stated that on 25 th
September, 1996 when she visited house of the deceased Testator, she
was informed by the deceased Testator about execution of the will. She
was also questioned whether she knew Dr. Shukla who is the second
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attesting witness. She stated that she knew Dr. Shukla since her mother
started taking treatment from him. She stated that she had no occasion
to personally meet Dr. Shukla. She stated that her mother contacted Dr.
Shukla requesting him to become an attesting witness. She stated that
her mother had informed her that she would be visiting dispensary of
Dr. Shukla for signing the will. The witness was thereafter cross-
examined on various documents. She was cross-examined on Exhibit -
B which is a receipt admittedly signed by the Defendant on 5 th February,
1997 acknowledging receipt of various ornaments. We may note that
the list is in Gujarati language. On the top of the list, the name Rohini
appears in English language. Immediately above the name, following
portion has been handwritten "distributed as per clause 10 of the will
by mutual consent". The first Plaintiff admitted that the Gujarati
portion was in her own handwriting and the name Rohini has been
written by her. She was asked a specific question as to when it did occur
to her to write the aforesaid line starting from "distributed .....", her
answer was she does not remember. When she was asked whether a,
similar line is written in case of receipt signed by other two legatees,
she stated that "yes I think so".
14 The only other witness examined by the Plaintiffs is Shri
V.G. Trivedi, Advocate. In his affidavit-in-lieu of examination-in-chief, he
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stated that on or about 14 th September, 1996 he received a call from the
first Plaintiff who inquired whether he will be in a position to make a
will of her mother. He stated that the first Plaintiff requested him to
visit her mother's residence as she was 84 years old. He stated that he
contacted the deceased Testator on the telephone number provided by
the first Plaintiff. At that time, the deceased Testator informed him that
she had made an earlier will which she was intending to revoke. He
stated that on the same day in the afternoon, he visited the place of
residence of the deceased Testator. He stated that he jotted down the
instructions for preparation of will which were given by the deceased
Testator. He stated that the deceased Testator informed him that there
should be a reference to four schedules in the body of the will for
indicating the manner in which the ornaments and utensils were to be
distributed between her daughters and grand daughters. He stated that
the deceased Testator showed four schedules typed in English on her
letter heads. He stated that deceased Testator informed him that the
schedules were already ready and therefore, she wanted a reference to
be added in the will to the schedules. About her condition at the
relevant time, he stated thus:-
"4. ........................
However, for the sake of her understanding and
convenience she requested me to prepare the draft
of the will in Gujarati language. Throughout the
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period of my visit, she was clear about the
instructions that she gave me and was in full
control over her mental faculties. During my visit
she even offered me some tea. In the course of our
conversation she told me that she was not dependent
on any of her daughters in going around her day to
day affairs and that she had a car and a driver at her
disposal and visited the temple on her own by the said
car and also visited other relatives by the said car
without needing help from any servant or helper.
I advised her that though she was physically and
mentally active and alert, since she was of advanced
age, it would be advisable if one of the attesting
witnesses to the will could be a doctor. I also told her
that she would need to sign her will in the presence of
atleast two witnesses. She told me that she would
request her family doctor to be one of the attesting
witnesses. She also requested me if I could be present
at the time of the said attestation of the will and be
one of the witnesses so that the formalities of
attestation take place under the supervision of a
lawyer."
15 In paragraph 7 he stated that he prepared a draft of the
will as per the instructions of the deceased Testator in Gujarati
language. He stated that it took him three to four days to prepare the
draft. He stated that the draft was got collected by the deceased
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Testator from him through a servant. He stated that after one or two
days, he received a call from deceased Testator stating that the draft
was prepared as per her instructions. She provided address of the clinic
of Dr. Shukla and requested him to remain present in the clinic of Dr.
Shukla at 11.00 am on 25 th September, 1996 for execution of the will.
According to the witness, the deceased Testator instructed him to
prepare the final will in English language exactly as per the Gujarati
draft approved by her. He stated that accordingly, he prepared the final
engrossment of the will in English in terms of the draft prepared by him
in Gujarati. He described as to how he visited the clinic of Dr. Shukla at
about 11.00 am on 25th September, 1996 and as to how the will was
executed. About the exact execution of the will, in paragraphs 9 and
10, he stated thus :-
"9. On 25th September 1996 I reached the clinic of Dr.
Shukla at about 11.00 a.m. with the engrossed Will and
the draft which had been prepared by me and approved
by her. I found that Hiraben had already reached the
clinic. I thereafter read over and explained to her in
Gujarati the contents of the final Will to confirm that
the final Will was as per the approved draft. She
handed over to me the four Schedules typed on her
letterheads and requested me to attach them to the
Will. The Schedules had already been signed by her.
I accordingly attached the said Schedules to the Will.
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10. Hiraben thereafter introduced me to Dr. Shukla. She
informed Dr. Shukla that I was a lawyer and that I had
prepared her will as per her instructions. Dr. Shukla
informed me that he had been the family doctor of
Hiraben for many years and that she had kept good
health all her life until recently when she had been
diagnosed with breast cancer. He further informed
me that inspite of her ill health she was mentally
alert and was well informed. Thereafter I handed over
the final will which I had prepared alongwith the
annexures to Hiraben and showed her the place where
she should put her signature and execute the will. The
said Hiraben signed the said will and put the date
"25.9.96" in her own hand in the presence of Dr. Shukla
and myself. Thereafter, Dr. Dilip Shukla put his name
and signature below the signature of Hiraben as an
attesting witness in the presence of Hiraben and myself.
Thereafter, I put my signature and rubber stamp below
the signature of Dr. Dilip Shukla as an attesting witness
in the presence of Hiraben and Dr. Shukla. I left the
clinic of Dr. Shukla thereafter."
(emphasis added)
16 In the cross-examination, he stated that he was not aware
as to who had provided four schedules and who had got it typed. He
accepted that the four schedules were not signed by the deceased
Testator in his presence. In the cross-examination, he claimed that the
deceased Testator's daughter was present when he went to take
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instructions from the deceased Testator. This statement is not consistent
with the case of the Plaintiffs. In response to the question of language of
the will, he stated that previous will executed by the deceased Testator
was also in English. We may note here that in the cross-examination,
there is no serious challenge to that part of the examination-in-chief
wherein he has deposed about sound mental and physical condition of
the deceased at the time when she gave instructions to him to draft the
will and at the time of the execution of the will. There is no serious
challenge in the cross-examination to the case made out by the Plaintiff
that the deceased Testator visited the clinic of Dr. Shukla and executed
the will.
17 The Defendant examined herself by filing her affidavit-in-
lieu of examination-in-chief. She claimed that signatures of the
deceased Testator on blank papers and blank letter-heads were obtained
and subsequently the disputed will has been created. She stated that
there are no signatures of the deceased Testator on each page of the
will. She has stated that her mother i.e. deceased Testator was not able
to understand English except for making signatures in English. In
paragraph 3, she stated that her mother was suffering from Cancer and
Dr. Praful Desai was consulted. As per Dr.Desai's advise, a surgery was
agreed to be performed in Breach Candy Hospital. The Defendant
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claimed that the deceased Testator had stopped visiting market or
temples last few months prior to her death. She claimed that her
mother was not looking after the affairs of Govardhan building where
she was residing and everything was handled by the first Plaintiff. She
stated that her mother used to spend most of her time in doing Pooja in
the house and she was unable to climb staircase without help. In
paragraph 6, it is claimed that after repeated requests, the first Plaintiff
showed the disputed will. She stated that she could only glance through
the will. She demanded a copy of the will from the first Plaintiff.
According to the Defendant, the first Plaintiff informed her that there is
no need to go as per the will and she would distribute the assets of the
mother equally amongst the four sisters. She stated that on 12 th
January, 1997 in the house of the mother Gold Jewellary was handed
over to her by the first Plaintiff. She stated that on one of the pages in
her diary, the first Plaintiff had written the description of the items of
Gold Jewellary. Accordingly, she put her signature below the same. She
stated that on 5th February, 1997 she received diamond and pearl items.
She stated that a list thereof was prepared by the first Plaintiff on a
page in her diary on which she signed. She claimed that the words
"distributed as per clause 10 of the will by mutual consent" were not
written when she signed the page in the diary. She further stated that
on 4th March, 1997, she received Silver Items from the first Plaintiff. She
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signed a list of Silver articles written by the first Plaintiff in her diary.
She stated that the words "distributed as per clause 10 of the will by
mutual consent" were not written when she signed the page. The
Defendant further stated that on 4th March, 1997 her husband
Pradyumna received a cheque in the sum of Rs.25,000/-. She stated
that the first Plaintiff dictated the form of the receipt to her husband
which was written by him on a letter-head of the deceased Testator. She
stated that on 4th March, 1997 her husband received 10 gold coins and
as per the dictation of the first Plaintiff, her husband wrote a receipt on
the letter-head of the deceased. Further case made out by the
Defendant is that the jewellary and other items were not distributed as
per wishes of the mother. She stated that on 25 th September, 1996 the
deceased Testator was not in a position to understand contents of the
will and that she was not in disposing state of mind.
18 The Defendant was extensively cross-examined by the
learned Counsel for the Plaintiffs. She stated that her husband was
B.Com. She stated that on various dates between 24 th January, 2007
and 21st February, 2007, when the cross-examination of the first Plaintiff
was going on, she was not present before the Commissioner appointed
for recording evidence. However, she accepted that her husband was
present at each of the meetings before the Commissioner along with her
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Advocate. She accepted that the will shown to her by the first Plaintiff
was also seen by her husband. In response to question No.47, the reply
of the Defendant is material. Question No.47 and answer read thus :-
"47. Q Can you tell us what part of the estate of you
mother was distributed after you and your husband
were shown the will?
A Jewellery, silver utensils and Rs.25,000/- was
given to my husband alongwith gold coins."
19 In response to specific question No.52 as to who are the
legal heirs of her mother (deceased Testator) on her death as per the
Law of Succession, her answer was she along with her sisters and her
legal heirs were the the legal heirs of the deceased Testator. In response
to a further question, she stated that her legal heirs were her husband
and daughter. She was confronted with a statement made in the
affidavit dated 13th April, 1998 filed by her in the proceedings of her
suit filed in the City Civil Court in which she has stated that the
Plaintiffs and Defendants therein were the only legal heirs and legal
representatives of the deceased Testator. She stated that she was the
Plaintiff in the said Suit and the Defendants were her three sisters. In
answer to another question, she claimed that her opinion that her
husband and daughter were also legal heirs of her deceased mother is
based on her knowledge. She was asked questions on the issue whether
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she or her husband had noticed from the will the bequest made to her
husband, her answer was that she hurriedly glanced at the will without
going into the details.
20 In response to a question, she stated that she was not
aware of the name of the family doctor of her mother. In the cross-
examination, a specific question was asked to her whether she was
relying upon any medical record except the documents of Breach Candy
Hospital which were on record to show that her mother was not in
sound state of mind on the date of the execution of the disputed will.
Her answer was "no". After referring to the documents of the Breach
Candy Hospital, she stated that her mother was admitted to the hospital
on 7th October, 1997.
21 Thereafter, she was questioned on receipts at Exhibits - D
and E executed by her husband acknowledging the receipt of a cheque
in the sum of Rs.25,000/- and 10 gold coins. She stated that she was
present when the receipts were signed by her husband. She admitted
that she did not object to the act of giving the cheque and gold coins to
her husband. She accepted that it was correct that whilst signing the
receipts, her husband stated that he has received Rs.25,000/- and 10
gold coins as a legacy from her mother. Her explanation was that the
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contents of the receipt were dictated by the first Plaintiff. She accepted
that she did not protest about the contents of the receipts which were
written and executed by her husband. She denied the correctness of the
suggestion that her husband accepted the legacy under the will of the
mother because she herself and her husband had accepted the disputed
will. In response to Question No.217, she accepted that as per the
disputed will, her husband was given bequest of Rs.25,000/- and 10
gold coins. She accepted that the said amount and gold coins were
given to the husband as a legacy of her mother. The attention of the
Defendant was invited to pages 54 and 55 of the Breach Candy Hospital
record. She stated that she has signed the said two documents. The said
documents are of the consent given by the deceased Testator. She stated
that her mother had put her signature before she put her signature. She
accepted that she had explained to her mother the contents of the said
documents before she signed it. She accepted that she herself and her
mother knew the contents of the said two documents. The said two
documents were marked as J-1, J-2. The said documents in English are
in relation to grant of consent for surgery and blood transfusion.
22 It will be necessary to briefly refer to the findings recorded
by the learned Single Judge. While referring to the evidence of witness
Shri Trivedi, the learned Judge observed that there were discrepancies
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in the deposition of the witness about the time he received instructions
from the deceased and about the execution of the will. The learned
Judge has not completely discarded the version of Shri Trivedi. He
observed that considering the contradictions in his evidence, without
corroboration, his evidence cannot be accepted. The learned Judge
referred to the affidavit of Dr. Shukla filed along with Probate Petition
in which he stated that the deceased Testator signed at the bottom of
each page of the disputed will. He observed that the said statement was
factually incorrect. About the documents executed by the husband and
the receipt of sum of Rs.25,000/- and 10 gold coins, the learned Single
Judge observed that had the husband of the Defendant challenged the
will, estoppel would have operated against him. The learned Judge
observed that estoppel cannot operate against the Defendant because of
the conduct of her husband. The learned Judge observed that the
Defendant was entitled to receive ornaments of her mother as per her
share even without a will and therefore, no significance can be attached
to receipts at Exhibits - A, B and C especially when the portion on the
top of Exhibits - B and C which mentions that the articles mentioned
therein were distributed as per the will was not written by the
Defendant.
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23 Now, coming to the execution of the will, we have minutely
perused the evidence of witness Mr. Trivedi. Firstly, we must note that
he is not an interested witness. It is not the case of the Defendant that
either the witness was interested in favouring the Plaintiffs or he had a
specific reason to depose against the interest of the Defendant. There
may be some discrepancy in his evidence as regards the time at which
he received instructions from the deceased. We have already quoted the
material portion of the affidavit-in-lieu of examination-in-chief of the
witness Shri Trivedi. Going by his case, the draft of the will was
prepared in Gujarati language in September, 1996. Probate Petition was
filed in the year 1998. He deposed in the year 2007. Therefore, there
are bound to be some discrepancies in the evidence recorded after the
span of 11 years from the date of the execution of the disputed will. As
an Advocate, he was not under an obligation to preserve the draft
prepared in Gujarati language. Shri Trivedi was 72 years old when he
first deposed on 7th March, 2007. By that time, he had put in 43 years in
legal profession. When the alleged will was executed, he had already
put in 31 years of practice. He has stated that as per the instructions of
the deceased Testator, he made a draft of the will in Gujarati which was
approved by the Testator and thereafter, as per the instructions of the
Testator that he prepared final will in English language. He stated that
her first will was also in English. He deposed that the deceased was
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present in the clinic of Dr. Shukla. Thus, the disputed will was not
executed in the house of the Testator or in the house of the plaintiffs but
at an independent place. In fact, the material portion of his
examination-in-chief which we have quoted above has virtually gone
unchallenged in the cross-examination. He accepted that Dr. Shukla told
him that the deceased was suffering from Cancer but she was well,
mentally and in all other respects. He reiterated in the cross-
examination that the deceased was in full control at the time of
execution of the will. The case of the Defendant is that the deceased
was not in disposing state of mind on 25 th September, 1996 when the
will was executed. We have perused the will. The deceased Testator
appears to have signed in English on the will and schedules. She has put
the date below her signature on the will. It is true that four schedules to
the will are on letter-heads of the deceased Testator. However, we find
nothing wrong or suspicious merely because the schedules were typed
on the letter-head of the deceased Testator. In fact Shri Trivedi stated
that when he met the deceased Testator for taking instructions from the
deceased Testator, the schedules were already ready. It is true that there
is a gap between the last typed line on the pages in the schedule and
the signature of the deceased Testator. That by itself does not become
suspicious in the light of the testimony of Shri Trivedi, who is not at all
an interested witness. After having carefully perused the evidence of
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Shri Trivedi, we do not find any material discrepancies and
contradictions in his evidence which is sufficient to discard or discredit
his testimony. As stated earlier, a senior member of the Bar who had put
in more than 40 years in the profession had no reason to depose falsely.
The learned Single Judge has found fault with his evidence by
observing that in the affidavit of Dr. Shukla filed along with Probate
Petition, Dr.Shukla has stated that the deceased signed at the foot of
every page of the will. The original will does not bear her signature on
every page. We find that the said affidavit of Dr. Shukla is filed along
with the Probate Petition is exactly in terms of Form No.102 provided in
the Bombay High Court Original Side Rules. The paragraph No.4 of the
Form contains the statement regarding signatures on every page which
is exactly reproduced in the affidavit of Dr. Shukla. The affidavit is
exactly in terms of Form No.4. Therefore, the said affidavit of Dr.Shukla
cannot affect the veracity of the version of the evidence of Shri Trivedi.
24 As regards the disposing state of mind and the physical and
mental condition of the deceased, the Defendant in the her deposition
has stated that the deceased was diagnosed with Cancer on 18 th
September, 1996. She stated that her mother used to spend most of her
time in doing Pooja in the house and she did not go out alone. It is not
stated in the examination-in-chief that in September 1996, the deceased
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Testator was bedridden. It is not the case that the deceased Testator
was not in her senses or was not in position to look after herself. In fact
on 25th September, 1996, the will was executed not at her place of
residence, but at the clinic of her family doctor. The only thing stated
by the Defendant in the evidence is that though her mother used to sign
in English, she was not in a position to read or write English. In the
cross-examination, she accepted that on 7th October, 1996 her mother
was admitted in the hospital. She also stated that she explained the
contents of the consent forms in English to her mother and after
understanding the same, her mother signed the same. This was
admittedly the state of mind of the deceased Testator few days after the
execution of the disputed will. This statement shows that the deceased
Testator was in a position to understand the contents of the consent
form of surgery after she was admitted to the hospital for undergoing a
surgery. This is the version of the Defendant herself. On the other hand,
there is evidence of Shri Trivedi who has stated that after meeting the
deceased Testator, he prepared the draft of the will in Gujarati as per
her instructions. After the said draft was approved, he made final
engrossment in English as per the instructions of the deceased Testator.
Thus, it is impossible to come to a conclusion that the deceased was not
at all in disposing state of mind when the will was executed. Moreover,
in the affidavit in support of the Caveat, the Defendant has not disputed
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that there are signatures of the deceased mother appearing on the will
and on its annexures. The case is that on blank papers the signatures of
the deceased were taken and thereafter, the disputed will was prepared.
The contention cannot be accepted as the evidence of Shri Trivedi
inspires confidence.
25 There is another aspect of the matter. The Defendant accepted
that her husband under the separate receipts dated 5 th March, 1997
written in his own handwriting on the letter-heads of the deceased,
received a cheque in the sum of Rs.25,000/- and 10 gold coins. Both the
receipts specifically record that the husband of the Defendant received
the same as a legacy from the deceased Testator. The Defendant in her
testimony accepted that on the dates fixed for cross-examination of the
first Plaintiff before the Court Commissioner, her husband was always
present along with her Advocate. Thus, her husband was taking part in
the probate proceedings by remaining present on behalf of the
Defendant. Thus, the husband was aware of the fact that the Plaintiffs
were relying upon the receipts signed by him. He was aware of the
contents of the disputed will under which a bequest was made by the
deceased Testator of a sum of Rs.25,000/- and 10 gold coins to him.
The Defendant accepted that she was present when the said receipts
were signed by her husband. She claimed that the draft of the receipts
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was dictated by the first Plaintiff to her husband. However, she
admitted that neither her husband nor she herself made any protest
about the contents of the receipts while accepting the cheque and 10
gold coins.
26 Thus, the husband of the Defendant was attending the
proceedings on her behalf and that is why his non-examination becomes
vital especially when the Defendant accepted that her husband signed
the receipts which are written in his own handwriting and received a
cheque of Rs.25,000/- and 10 gold coins as a legacy. Both the receipts
specifically mention that the amount and gold coins were received as a
legacy from the deceased Testator. Therefore, an adverse inference will
have to be drawn against the Defendant for non examination of her
husband as a witness though he was very much available for giving
evidence. Only he could have explained as to why he signed the
receipts.
27 Though the Defendant admittedly claimed in her cross-
examination that her husband is also a legal heir of the deceased
mother, the deceased Testator was Hindu and therefore, as per the
Hindu Succession Act, 1956 the husband of the Defendant cannot be a
legal representative of the Defendant's mother. Thus, all along, her
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husband was aware that he has received the amount of Rs.25,000/- and
10 gold coins only on the basis of bequest made in the will. The
husband was attending the proceedings. It is not the case of the
Defendant that the husband returned the cheque/ amount and 10 gold
coins to the first Plaintiff even after noticing that the wife had taken a
stand that the will was not executed by the deceased Testator.
28 It is not the case of the Defendant that she and her
husband are not residing together. Her husband regularly attended the
proceedings on her behalf. There may not be any question of applying
estoppel against husband. But what is material and vital is the non-
examination of the Defendant's husband.
29 As far as the law on proof of wills is concerned, the same is
very clear. There are various leading decisions on the said issue starting
from H. Venkatachala Iyengar. The tests laid down has been repeatedly
approved by several other decisions. In paragraph 9 of the decision of
the Apex Court in the case of Ramabai Padmakar Patil (D) and Ors. vs.
Rukminibai Vishnu Vekhande And Ors2., the Apex Court observed that
the fact that by excluding other daughters the property was given only
one daughter could not be a ground to cast any doubt regarding the
authenticity of the will.
2 (2003) 8 SCC 537
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30 Even if one of the two attesting witnesses proves the
execution of the disputed will, the examination of the other attesting
witness is not necessary. The finding of the learned Single Judge that
corroboration to the evidence of Shri Trivedi was necessary is erroneous
as we have accepted that the evidence of Shri Trivedi is reliable. In our
view, the findings recorded by the learned Single Judge are completely
erroneous. The execution of the will was duly proved by the Plaintiffs.
The Defendant failed to discharge the burden on her. Therefore, the
Appeal must succeed and accordingly, we pass the following order :-
ORDER
(i) The judgment and order dated 6th July, 2007 passed by
the learned Single Judge is hereby set aside.
Testamentary Suit No.116 of 1998 (Testamentary
Petition No.275 of 1998) is hereby decreed;
(ii) Accordingly, the Prothonotary and Senior Master is
directed to issue Probate to the Plaintiffs as prayed for;
(iii) This Judgment and order shall not be acted upon and
the probate shall not be issued for the period of two
months from today;
(iv) There will be no order as to costs.
(A.A. SAYED, J ) (A.S. OKA, J )
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