Bombay High Court
Mahesh Govindji Trivedi vs Dipti Manoj Trivedi Anr on 8 July, 2016
Bench: G.S. Patel
Mahesh Govindji Trivedi v Dipti Manoj Trivedi & Ors.
5TS11-2012-F.doc
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY SUIT NO. 11 OF 2012
IN
TESTAMENTARY PETITION NO. 724 OF 2004
MAHESH GOVINDJI TRIVEDI
of Mumbai, Indian Inbahitant, Hindu,
residing at Uttam Villa. St. Mary Road,
Vile Parle (West), Mumbai 400 056, being
the sold Executor named in the Will of the
deceased ... Plaintiff
versus
1(a) DIPTI MANOJ TRIVEDI aged
43 years, occupation: Housewife,
Indian Inhabitant, Hindu residing
at 19/21, Kapol Bank Building,
Picket X Road, Opp. Small Causes
Court,
Mumbai 400 002
1(b) HARSHA SANJAY TRIVEDI,
aged 48 years, Occupation: Service,
Indian Inhabitant, Hindu
1(c) HEMANSHI SANJAY TRIVEDI
Minor aged 16 years, through her
Mother and natural guardian Mrs.
Harsha Sanjay Trivedi,
Nos. 2 & 3 both 1(b) and 1(c)
residing at 7, Trivedi Niwas,
Rashtriya Shala Road, Vile Parle
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(West), Mumbai 400 056
2. MUGATLAL GOVINDJI
TRIVEDI,
Adult, Indian Inhabitant, having
address at Ground Floor, Trivedi
Niwas, Rashtriya Shala Road, Vile
Parle (East), Mumbai - 400 056 ... Defendants
A PPEARANCES
FOR THE PLAINTIFF Mr. V.R. Dhond, Senior Advocate, with
Mr. Vishwajeet Sawant, Mr. Shailesh
Mendon & Mr. S. Phatale, i/b Ms.
ig Reena Salunkhe.
FOR DEFENDANTS Mr. Rajendra R. Mishra
NOS. 1(a) TO 1(c)
CORAM : G.S.Patel, J.
DATED : 7th & 8th July 2016
ORAL JUDGMENT:
1. The Plaintiff seeks probate to a Will dated 31st August 2001
that he claims was the last Will of his sister, Ramalaxmi Ravishankar
Trivedi ("Ramalaxmi"), who died on 3rd January 2004. The two
Defendants are also Ramalaxmi's brothers; i.e., also, therefore, the
Plaintiff's brothers. There were seven siblings, four brothers and
three sisters. Ramalaxmi was one of the three sisters. Her two sisters
have not challenged this Will. Of her four brothers, the Plaintiff,
Mahesh, is one. Another brother, Babulal, has also not challenged
the Will. The only challenge came from the original 1st Defendant,
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Bhagwanji Govindji Trivedi, since deceased, and whose heirs and
legal representatives are now Defendants Nos. 1(a) to 1(c); and the
2nd Defendant, Mugatlal Govindji Trivedi. It is the original 1st
Defendant, Bhagwanji, and, after him, his heirs, who have seriously
contested the matter. Mugatlal seems to have done little more than
file a Caveat to oppose the grant of probate.
2. It seems that Ramalaxmi lived in Mandvi, Gujarat but
frequently visited Mumbai. She also held property within Mumbai.
The Will itself was supposedly made in Mumbai, which is why the
present Petition came to be filed in this Court. There was also other
property at Mandvi. Both sides agree that Ramalaxmi had earlier
made a Will dated 25th July 1996. Mr. Mishra for the 1st Defendant
says that it is this earlier Will that is valid, and that the Will of 2001
that is now propounded by Mahesh is not the last Will of his sister.
3. The Will itself is typed in Gujarati. It is an eleven-page
document. Ramalaxmi's signature appears only once, and that is on
page 11 to the right of the execution clause. There are two witnesses.
They have signed. Neither has written his name or address. One of
the witnesses is one Mr. K.M. Bhatt. He passed away. The second
witness is one Mr. Narendra Joshi. His evidence was led in this trial.
There are no other markings on the document. There is a docket,
which is also typed in Gujarati. There is a handwritten date in
Gujarati on that docket. The docket bears the stamp or imprint of a
typing or typing agency at Picket Road, Kalbadevi, Mumbai 400
002. The document itself is prepared with some degree of formality,
in the sense that it is on ledger paper with double red lines. The
typewritten text is set within these double red lines.
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4. The Will has been marked in evidence as Exhibit "P1". There
is a translation of the Will on record as well. In the Will, the entirety
of Ramalaxmi's estate is left to the Plaintiff, Mahesh. This is
apparently a significant departure from her previous Will, one that
divided her estate between the four brothers equally. Mahesh is also
the executor of this Will.
5. Bhagwanji and Mugatlal entered Caveats. They also filed
their respective separate Affidavits in Support. Bhagwanji's
Affidavit in Support is dated 14th November 2005.1 Mugatlal's
Affidavit in Support is dated 2nd December 2005.2
6. Since the contest is by Bhagwanji, I do not think it is
necessary to refer to Mugatlal's Affidavit. He has led no evidence.
He has not cross-examined the Plaintiff's witnesses. For all intents
and purposes, he was a mere spectator in these proceedings. The
original 1st Defendant, Bhangwaji, passed away during the pendency
of these proceedings. His heirs are on record as Defendants Nos.
1(a) to 1(c).
7. In his Affidavit in Support of his Caveat, Bhagwanji says two
things. First, that the Will is bogus and forged. Second, he sets up
an affirmative case: viz., that on 31st August 2001, Ramalaxmi was
not in Mumbai at all. She was paralysed. Bhagwanji was looking
after her. She was unable to move. She was more or less bed-ridden
in her home in Mandvi, Gujarat. There was no possibility, therefore,
1 Trial record, pp.78 to 90.
2 Trial record, pp.98 to 102.
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of Ramalaxmi signing or executing this Will in Mumbai on 31st
August 2001. Bhangwanji reiterates his contention that the earlier
Will of 25th July 1996 is the last and only Will left by Ramalaxmi. He
makes reference to certain legal proceedings filed in the District
Court in Bhuj, Kutch.
8. On these pleadings, issues were framed on 5th December
2013. These are set out below with my findings against each.
Sr. ISSUES FINDINGS
No.
1.
Whether the last Will and
Testament of the deceased
In the
Ramalaxmi Ravishankar Trivedi
affirmative.
dated 31st August 2001 was validly
executed?
2. Whether the deceased was in
In the
sound state of mind at the time of
affirmative.
the execution of the Will?
3. Whether the above Will is bogus In the
and forged? negative.
4. What relief, if any, is the Petitioner As per final
entitled to? order.
EVIDENCE AND DOCUMENTS ON RECORD
9. The Plaintiff led the evidence of three witnesses. PW1 is the
surviving attesting witness, Narendra Joshi. His further examination
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in chief and cross examination were taken in Court. PW2 is one Dr.
Jitendra P. Trivedi. He is said to have medically examined
Ramalaxmiben on the date in question, or at about that time. PW3 is
the Plaintiff himself. The 1st Defendant led no evidence at all. The
2nd Defendant stayed out of the proceedings. Apart from the Will in
question marked as Exhibit "P1", there are some other documents
marked in evidence. I will refer to these as necessary while
discussing the evidence.
10. The burden of proving the first two issues is clearly on the
Plaintiff. The burden of proving the third issue is on the Defendant.
11. I will deal with both of these issues together, since they seem
to me to be two constituent elements of what is required in the proof
of any Will. One aspect is covered by Section 59 of the Indian
Succession Act, 1925 and that relates to the deceased's testamentary
capacity. The second aspect is covered by Section 63 of the Indian
Succession Act. This tells us what is required for the due execution
and attestation of a Will. Read together, these sections mean that the
person making the testamentary disposition must be of sound mind,
i.e., he or she must not be under any such impediment as would
impair his or her testamentary or dispositive capacity. As to the
execution, the testator must sign in the presence of at least two
witnesses. Both need not be present at the same time, but each must
see the testator sign, or see someone sign at the testator's behest
and instruction, or receive an indication from the testator of his
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having signed the Will. In addition, there is Section 61. This section
says that if the making of the Will, or any part of it, is shown to have
been caused by forgery, coercion or such importunity that takes
away the free agency of the testator, then such a Will is void. There
is no such case of fraud or undue influence pleaded, and I note this,
therefore, only in passing. The case of the 1st Defendant is simply
that Ramalaxmi was not in Mumbai at all on the date of the Will;
and that she could not have been in Mumbai because her physical
condition of paralysis did not permit her to travel.
12. Mr. Dhond for the Plaintiff submits that as far as issues Nos. 1
and 2 are concerned, the due execution and the testamentary
capacity are sufficiently established. He has taken me through the
evidence of Mr. Narendra Joshi, the surviving attesting witness. He
filed an Affidavit of Evidence.3 He was further examined in chief in
Court on 1st December 2014 and cross examined directly thereafter.
He was asked in cross examination whether he knew that Ramalaxmi
lived in Mandvi, Kutch. His answer to this was yes, and then he
added that she regularly shuttled between Mandvi and Mumbai. He
was then asked how Ramalaxmi requested him to witness her Will.
Again, he answered this convincingly by saying that she approached
him through one Kanubhai Bhat. Questions 13 to 16 of this cross-
examination are material:
13. Q. I put it to you that Ramalaxmiben was
paralysed on the day when you say she
executed a Will. Is that correct?
3 Paper book pp.175-177.
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Ans. No, that is not correct. She was in good
health.
14. Q. I put it to you that on the day you say
she signed the Will, Ramalaxmiben was
in Mandvi, Kutch?
Ans. No. She was in Mumbai.
15. Q. I put it to you that on that day she was
ig not well and bedridden. Is that true?
Ans. No, that is not true.
Witness volunteers: She signed the Will
sitting up in a chair.
16. Q. In paragraph 3 of your affidavit you
have said that Ramalaxmiben was of
sound and disposing mind, memory and
understanding. On what basis have you
said this?
Ans. I could make out from her general
appearance.
13. It is obvious from this that Mr. Joshi was able to counter the
case put to him by Mr. Mishra for the Defendant. Given his answer
to questions 15 and 16 extracted above, there is no question that the
Defendant has not been able to disturb this witness's testimony.
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14. P.W.2 was Dr. Jitendra P. Trivedi. He filed an Affidavit in lieu
of examination in chief. He also attested to various documents.
These came to marked Exhibit "P2" collectively. They included his
recommendations or advice for certain tests, a prescription for the
deceased, lab reports signed by his technician, and the payment
receipt. In his Affidavit in lieu of examination in chief he deposed
that Ramalaxmi had been his patient for almost 30 years.4 She used
to visit him whenever she came to Mumbai. She was his next-door
neighbour and stayed with her brother, the Plaintiff, in Vile Parle.5
He also recollects seeing Ramalaxmi on 27th July 2001 in the
morning.6 Then follow Questions 6 and 7:7
6. Q. Did she come to your clinic on foot or by a
vehicle?
Ans. She came on foot. Her own place was close
to my clinic.
7. Q. Did you on 27th July 2001 conduct any
special test to asses her mental condition
and cognitive abilities?
Ans. When a witness comes to the clinic walking,
as professionals, our expertise and
experience as also our intuition tell us about
the patient's mental condition and abilities.
4 Qn. 1, p.199.
5 Qns. 2 & 3, pp. 199-200.
6 Qn. 5, p.200.
7 Trial record, p.200.
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In such a situation no special tests are
necessary.
15. The same suggestions are put to Dr. Trivedi, viz., that on 27th
July 2001, Ramalaxmi was not in Mumbai at all, but in Mandvi. The
date of 27th July 2001 is important because it is proximate to the
date of the Will a month later. Dr. Trivedi's answer to questions 6
and 7 make it clear that just a month before the date of the Will,
Ramalaxmi was in sufficiently good health to go to Dr. Trivedi's
clinic on foot.
16.
The final witness for the Plaintiff was the Plaintiff himself. He
also deposes in his examination in chief that Ramalaxmiben stayed
with him from July 2001 for about a month.8
17. At this stage, I must refer to a contradiction that was put to
Plaintiff. In paragraph 4 of his first Evidence Affidavit,9 the Plaintiff
said that Ramalaxmi prepared her Will and handed the original to
him. In paragraph 3 of a subsequent Affidavit of 2nd December
2014, he said that in the first week of August 2001, Ramalaxmi
desired to prepare a Will. She sought the Plaintiff's assistance in
finding a lawyer. The Plaintiff then approached Advocate Mr.
Manubhai Upadhyay and gave him instructions and property details.
Ramalaxmi then approved a draft prepared by Mr. Upadhyay in the
second week of August. The Plaintiff was asked which of these two
8 Qn. 3 read with Qn. 11 of examination in chief, pp.205-206.
9 Trial Record, p.134.
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statements was correct. He answered that the second, in his
Affidavit of 2nd December 201410 was the correct statement.
18. Mr. Mishra on behalf of the Defendants submits, and this is
really the centre of his argument, that this in itself shows that the
Will is bogus. The Plaintiff, who is its propounder, clearly played a
role in the making of the Will. This is, according to him, a
suspicious circumstance. Further, there is the contradiction between
the two Affidavits. I am unable to appreciate the submission. In
cross-examination, all that Mr. Mishra did was to ask the Plaintiff
which of the two statements was correct. The Plaintiff pointed to
one, i.e., his later statement. There was no further cross-
examination on this aspect of the matter. There ought to have been.
There were conceivably several questions that ought to have
followed to carry this matter to its logical conclusion. None were
asked. The Plaintiff can hardly be faulted for this. In any case, I find
that there is some sort of plausible reason and it occurs much later
in the cross- examination in question 19.11 Here, the Plaintiff was
asked whether he read the first Affidavit before he signed it. The
Plaintiff answered that he does not fully understand English. Again,
there was no further cross-examination.
19. Mr. Dhond submits, and I think he is correct, that there is
absolutely nothing shown by the Defendant to invalidate the Will.
We have the evidence, after all, of the Doctor who examined
Ramalaxmi just a month before the Will. She walked to his clinic. He
10 Trial Record, p. 140.
11 Vol.B, p.211.
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saw nothing wrong with her condition. Certainly she did not have
the paralysis and immobility that the Defendant claims. The
Plaintiff says she was in Mumbai. It is the Defendant who claims
that she was never in Mumbai and could not have travelled to
Mumbai. However, he has led no evidence to show this.
20. As to the question of the Plaintiff's participation in the
making of the Will, I do not think that very much can be made of
this either. It would not be so very unusual for Ramalaxmi to have
asked her brother for help and for him to have provided it. The fact
that she was staying with him also establishes the closeness of their
relationship.
21. I am, therefore, unable to agree with Mr. Mishra when he says
that the Will is surrounded by suspicious circumstances and that its
due execution and attestation are not proved. Issues Nos.1 and 2 are
answered in the affirmative.
22. The onus of proving this issue is on the Defendant. He had
led no evidence whatsoever. The difficulty for the Defendant is that
this issue indirectly affects issues Nos. 1 and 2 also. The reason is
obvious. Had the Defendant led any evidence to prove that the Will
was either bogus or forged, the answers to issues Nos.1 and 2 would
have been different. I will treat forgery separately from the
allegations that the Will is bogus. These are in generalities and they
take us nowhere. A specific case is set out in paragraph 3 of the
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Affidavit in Support of the Caveat, and it is to this now we must
look. Here, the Defendant sets up a specific case that has three
distinct elements. First, that Ramalaxmi was never in Mumbai on
that day; second, that she was paralysed and almost bed-ridden and
could not possibly have travelled to Mumbai; and third, that it was
the Defendant who was looking after her in Mandvi. If this so, then
these are matters that are, or must be deemed to have been, specially
within the knowledge of the Defendant within the meaning of
Section 106 of the Evidence Act 1872. A failure to lead evidence to
prove these issues means either that the best evidence has been kept
from the Court or that the Defendant has made a false statement
knowing that he is unable to prove it. In either case, an adverse
inference must be drawn against the Defendant, and I do draw that
adverse inference. Issue No.3 is answered in the negative.
CONCLUSION & ORDER
23. In the result, the Suit succeeds and is decreed. The Registry
will proceed to issue probate at the earliest, acting on an
authenticated copy of this order.
24. At Mr. Mishra's request, the issuance of Probate is stayed for
a period of three weeks from the date of this order when it is
uploaded.
(G.S. PATEL, J.)
7th & 8th July 2016
