Bombay High Court
B.V.Doshi vs H.V.Doshi & Anr on 22 July, 2016
Bench: G.S. Patel
Bhavesh Vinodrai Doshi v Hansaben Vinodrai Doshi & Anr.
TS37-1995-DOSHI V SHAH-F2.doc
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO.37 OF 1995
IN
TESTAMENTARY PETITION NO.242 OF 1994
BHAVESH VINODRAI DOSHI
of Indian Inhabitant, residing at Flat
No.905, Chandanbala Apartment, 4,
Ratilal R. Thakkar Marg, Walkeshwar,
Bombay 400 006. ig ... Plaintiff
versus
1 SMT. HANSABEN VINODRAI
DOSHI
Widow of the deceased residing
at 905, Chandanbala Apartment,
4, Ratilal R. Thakkar Marg,
Bombay - 400 006.
2 MRS. RITA AMIT SHAH,
Married daughter of the deceased,
Residing at - 26, "Niraj", 7th Floor,
70, Walkeshwar Road,
Bombay - 4000 006. ... Defendants
A PPEARANCES
FOR THE PLAINTIFF Mr. Naresh Ratnani, with Mr. A.
Sharma, i/b Ashwin Ankhad &
Associates.
FOR THE DEFENDANTS Mr. Yogesh Yagnik.
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CORAM : G.S.Patel, J.
JUDGMENT RESERVED ON : 14TH JULY 2016
JUDGMENT PRONOUNCED ON : 22ND JULY 2016
JUDGMENT:
1. The Plaintiff ("Bhavesh") propounds a testamentary writing
that he claims says was the Last Will & Testament of his father
Vinodrai Bachubhai Doshi ("Vinodrai").1 The Will is said to be
dated 7th January 1993. Vinodrai died on 23rd January 1993.
Bhavesh says his father made the Will at home, 905, Chandanbala
Apartments, 4, Ratilal Thakker Marg, Malabar Hill, Mumbai 400
006. The Petition is for Letters of Administration with Will
Annexed.
2. Vinodrai's only heirs were his son, the Plaintiff ("Bhavesh");
his widow, the 1st Defendant, Smt. Hansaben Vinodrai Doshi
("Hansaben"); and their married daughter, Mrs. Rita Amit Shah,
the 2nd Defendant ("Rita"). After her marriage, Rita lives not far
from the Chandanbala Apartments flat at Walkeshwar Road.
3. The Petition was initially opposed by both Hansaben and
Rita. It seems that Hansaben later attempted to withdraw her
Caveat.2 Rita opposed the Petition to the very end.
1 Paperbook, p. 6.
2 Paperbook, pp. 37 & 40.
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4. The Will in question, marked in evidence as Exhibit "A", is a
holograph, i.e., a handwritten Will in Gujarati. It has two pages.
Vinodrai is said to have signed it at the foot of its second page. His
name is written in English beneath his signature. To the left of his
signature are the signatures of the two persons said to be witnesses.
The first is one Manish Doshi. The second is one Dr. Mahesh J.
Kapadia, a physician. There is an official translation of the Will on
record.3
5. In the Will, the testator left his residential flat at Chandanbala
Apartments to Bhavesh. He also left to Bhavesh his office premises
at 50, Nagdevi Street, First Floor, Bombay 400 003. In Clause 3, the
deceased divided his ornaments equally between Bhavesh and Rita.
Clause 4 said that all other wealth was to be divided equally between
Hansa, Bhavesh and Rita.
6. The next Clause, with no number, lists five separate
properties in Navi Mumbai and Ahmedabad. These are said to be in
the names of Vinodrai with either Hansaben or Bhavesh. These are
all left to the person whose name appears second. Here again it
seems that Bhavesh has a share in all five properties and an exclusive
title in three of these five. In the other two, Hansaben has an
interest.
7. Hansaben filed a caveat and an Affidavit in Support.4 Rita
adopted it. The Affidavit in Support has several allegations. The
3 Paperbook, p. 8.
4 Paperbook, p. 24.
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Defendants say that the Will is unnatural; that the signature on the
Will is not Vinodrai's; and that if it is genuine, it was made under
undue influence at a time when Vinodrai wholly lacked testamentary
capacity. Specifically, the Affidavit in Support of the Caveat says
that on the day on which the alleged Will was executed, both Rita
and Hansaben were in the house.5 They have no knowledge of any
such execution. The Testator did not mention any such execution
either.6 They deny that either of the witnesses, or anybody else, ever
visited the house on 7th January 1993. As to the first attesting
witness, Manish Doshi, the Defendants say that not only is he
Bhavesh and Rita's first cousin (Manish Doshi's father, Umedbhai,
and Vinodrai were brothers), but that he is particularly close to
Bhavesh. The Defendants also say that the Will is entirely
suspicious: though written in Gujarati, it is allegedly signed in
English, but there is no mention that the Will was ever read over and
explained to Vinodrai.7 There is also no explanation as to how
Bhavesh came upon the Will, or when.
8. More importantly, the Affidavit says that at that time, and
ever since 1988, Vinodrai suffered from cirrhosis. He had extensive
liver damage. He contracted malarial fever in December 1998. This
led to jaundice. On 22nd December 1992, he was admitted to the
ICU at Harkisondas Hospital. The doctors said that his liver was
completely destroyed. It was because he expressed a wish not to die
in hospital that he was brought home on 4th January 1993. Given his
medical condition of advanced liver damage, he was very nearly
5 Affidavit in Support of Caveat, paragraph 6, p. 26.
6 Affidavit in Support of Caveat, paragraph 3, p. 25.
7 Affidavit in Support of Caveat, paragraph 6, p. 27.
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comatose. Hansaben says she was by his side throughout those last
days. His health deteriorated daily. It was not possible to move him
back to hospital at that time: the city was under a curfew following
the riots of that year. Ultimately, he was taken back to hospital, but
that was only on 14th January 1993. He died a few days later, on 23rd
January 1993.8
9. In the Affidavit, Hansaben also says (and Rita reiterates this in
her Evidence) that the Will is completely unnatural. It leaves
nothing to Rita or to her, though she, Hansaben, devoted her life to
her husband and their home, and they lived a happy married life.
Hansaben herself does not speak English. She has no source of
income. She never has had, and was always dependent on the
deceased. As recently as 1991, Vinordrai executed a nomination in
respect of the Chandanbala Apartments flat. Hansaben was his sole
nominee of this flat. That nomination form is marked in evidence as
Exhibit "B1".9 In the Affidavit, therefore, Hansaben questions why,
given all this, Vinodrai would have excluded her so totally from the
Will and made no provision for her at all.
10. She also says that Vindorai was very fond of their daughter
Rita. If he did have any disagreement, it was with Bhavesh, not Rita;
and these disagreements became more frequent after Bhavesh's
marriage. She specifically accuses Bhavesh of harassing her and of
8 Defendant's Evidence Affidavit, paragraphs 3-5, pp. 125-126.
9 Paperbook, p. 448.
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trying to usurp the flat of which it was she, Hansaben, and not he
who was the nominee.10
11. I may only note that there is on record an Affidavit filed by
Hansaben for leave to withdraw the Caveat saying that she was
pressured in to filing it by her daughter, Rita.11 I do not find any
formal order allowing this withdrawal. In fact, till as late as 7th
September 2010, when issues were framed, Hansaben was shown as
one of the Defendants. In later orders, her name is not shown. In
any case, this makes a little difference given that both the Plaintiff
and Rita, the 2nd Defendant, went to trial on this understanding.
12. Issues were framed on 7th September 2010. Before me, both
Mr. Ratnani for the Plaintiff and Mr. Yagnik for the 2nd Defendant
agreed that those issues needed to be recast, as they did not
correctly reflect the understanding and basis on which the parties
proceeded to trial. Grounds specifically taken in the Affidavit in
Support of the Caveat appear to have been missed out as issues
though they clearly arise. Hence, at their request, I proceeded to
frame issues afresh. These are set out below with my answers noted
against each.
Sr. ISSUES FINDINGS
No.
1 Whether the Plaintiffs prove that the
writing dated 7th January 1993 was duly In the negative
and validly executed and attested in
10 Affidavit in Support of Caveat, paragraph 9, p. 30.
11 Paperbook, pp. 37-38.
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accordance with law as the last Will and
Testament of the deceased, Vinodrai
Bachubhai Doshi?
2 Whether the Plaintiffs prove that at the
time of the said alleged Will, the
deceased was of sound and disposing In the negative
state of mind, memory and
understanding?
3 Whether the Defendant proves that the
ig In the affirmative.
alleged Will is unnatural?
4 Whether the Defendant proves that the
alleged Will was procured by undue Does not survive.
influence and pressure?
5 What reliefs and what orders? As per final order.
13. The Plaintiff examined both attesting witnesses. The Plaintiff
did not, however, examine himself. This is a matter that will have a
significant bearing on the outcome of this particular contest. For her
part, the Defendant, Rita, examined herself and a handwriting
expert, one Mr. Neerav Vasa, DW2.
14. I heard Mr. Ratnani for the Plaintiff at some length on 14th
July 2016 and Mr. Yagnik briefly, to the extent I thought necessary.
By the time the hearing concluded, it was 5:00 pm. Rather than
proceed to dictate judgment in open Court, as I would otherwise
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have done, I reserved it and posted it to today, 22nd July 2016, for
pronouncement. In the meantime, before the judgment was
pronounced, the Plaintiff moved Chamber Summons No. 112 of
2016 inter alia seeking to reopen the evidence and for leave to lead
his own evidence, that of Pravin Mehta, who played a role in the
making of the Will and, to my very great surprise, of Hansaben,
though she is still a Defendant. By an order dated 20th July 2016, I
dismissed that Chamber Summons. I am therefore proceeding to
pronounce this judgment.
RE: ISSUES 1 AND 2
15. It is now well settled that these two issues are the necessary
components of constituents that must be established if a Will is to
be duly proved. They are covered respectively by Section 63 and 59
of the Indian Succession Act, 1925. The first aspect speaks to the
manner and mode of execution. There must be two witnesses and
each must have seen the testator sign or received from him an
acknowledgement of his having signed the Will, or must have seen
some persons sign at the testator's request and on his behalf. The
two witnesses need not both be present at the same time. Section 59
speaks soundness of mind and it says that any adult may make a Will
provided that he is not of unsound mind. The initial burden
therefore is squarely on the Plaintiff to establish both these facts.
Now establishing the first, it must be shown that the witnesses were
actually present at the time when they say the Will was signed and
executed.
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16. To establish this, the Plaintiff first led the evidence of the first
attesting witness, Manish Umedbhai Doshi, PW1. He filed an
Evidence Affidavit12 on which he was then extensively cross
examined.13 He says in his Evidence Affidavit that one Pravin
Mehta, his father's sister's husband (i.e., his uncle) informed him
on 5th January 1993 that Vinodrai had asked Pravin Mehta to
prepare his Will, and that he had done so. Manish Doshi does not
say in his Affidavit why Vinodrai asked Pravin Mehta to do this, or
why Pravin Mehta spoke to Manish about it. He does say that it was
Pravin Mehta who told him that he would have to be present at
Vinodrai's house at Chandanbala Apartments, Nepeansea Road on
7th January 1993 at about 12.30 p.m. as an attesting witness.
17. The next sentence of paragraph 1 is important. It reads thus:14
"1. ... ... ... The said Pravinbhai also asked me to
inform Dr. Mahesh Kapadia the family Doctor of the
deceased to remain present on the said day at the
same time to sign the said Will as the second attesting
witness. I accordingly informed the said Doctor."
I note this because something turns on whether or not any of this
was possible on that date, and also because we see here no evidence
of Vinodrai ever asking Pravin Mehta to draw up the Will, or of
Vinodrai asking either Manish Doshi or Dr. Mahesh Kapadia to be
witnesses. Indeed, I imagine that a very great deal of this Affidavit is
inadmissible in evidence.
12 Paperbook, pp. 44-46.
13 Paperbook, pp. 47-74.
14 Paperbook, p. 44.
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18. To begin with, paragraph 1 of this Affidavit itself raises
several questions. PW1, Manish Doshi, the first attesting witness to
the Will, has himself no personal knowledge whether Vinodrai ever
asked Pravin Mehta to draw up the Will. Second, the entire chain of
events is very peculiar. Vinodrai does not seem to have spoken to
PW1 or PW2 directly. All that we are told is that PW1 was informed
by Pravin Mehta that Vinodrai had spoken to him; asked him to
prepare the Will; asked him (Pravin Mehta) to ask PW1 (Manish
Doshi) to be a witness and apparently told Pravin to tell PW1 to tell
PW2 to be the second witness. This is altogether too far-fetched.
19.
I should also note that P.W. 1 says that on 7th January 1993, he
went to Vinodrai's house between 12.30 and 1 p.m. He claims that
apart from himself and Vinodrai, P.W. 2 Dr. Mahesh Kapadia and
P.W. 1's uncle, Pravin Mehta, were both present.15 This latter fact is
of some consequence because it is admitted that Pravin Mehta lived
in Ghatkopar and the Defendant has been able to demonstrate that
during this time most of Mumbai was under a curfew due to the
riots of January 1993. This is also to be read with the 2nd
Defendant's testimony, to which I will presently turn, that she and
Hansaben were home at that time and that nobody came to the
house at Chandanbala Apartments. The Defendant also says that
Vinodrai was, by this time, nearly in a coma. He was throwing up
blood. He was in no condition to move about. He died a few days
later.
15 PW1's Evidence Affidavit, paragraphs 2 and 3, pp. 44-45; Qn. 48, p. 96.
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20. Under cross examination, P.W.1 admits that he also lives in
another wing of Chandanbala society.16 He says, however, that he
does not remember the flat numbers, including his own17. He admits
that he and the Plaintiff are first cousins18. They had other brothers
as well. He provides their names.19 That the flat itself is valuable is
not disputed: PW1 puts the value at Rs.8-9 Crores.20 As to the
relations between Bhavesh and Hansaben, he says that they were
good,21 but that relations between Bhavesh and Rita were not.22
More importantly, PW1 admits that Vinodrai was suffering from
liver disease for several years.23 We then come to the question of
preparation of the Will. Here questions 130 to 137 are important.
They read:
"Q.130 According to your affidavit the Will was prepared
on 5th January 1993 by Mr. Pravin Mehta as per
your affidavit. Is it correct?
A. According to my affidavit Mr. Pravin Mehta
informed me on 5th January. I do not know the
exact date on which he has prepared the Will.
(Shown paragraph 1 of the Affidavit of the
Witness)
16 Qns. 20-22, p. 52.
17 Q. 39 p. 54.
18 Qs. 73 and 74 p. 58.
19 Qs.76 and 77 p. 58
20 Q. 88 p. 60.
21 Q.113 p .165.
22 Q.114 p. 165
23 Q.120-121 p. 166
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Q. 131 You have said in your affidavit that the Will was
prepared on 5th January 1993. Is it correct?
A. In my affidavit, I have mentioned that Pravin
Mehta informed me on 5th January 1993. I have
not mentioned 5th January 1993 as the date of
preparation of the Will.
Q. 132 So according to you, the Will was not prepared on
5th January 1993?
A. Nowhere I have stated when it was prepared.
Q. 133 You were informed about the Will by Mr. Pravin
Mehta. Is it true?
A. Yes.
Q. 134 He also informed you that the Will is parepared. Is
it true?
A. Yes.
Q. 135 He also informed you to remain present for
signing the Will. Is it true?
A. Yes.
Mr. Mody objects to the line of questioning on the ground
that all this has been stated in the affidavit of the witness.
Q. 136 Mr. Pravin Mehta informed you to inform Mr.
Mahesh Kapadia for signing the Will. Is it true or
false?
A. True.
Q. 137 If I say that the Will dated 7th January 1993 was
prepared on 5th January 1993. Is it true?
Mr. Mody objects to the question on the ground that the
witness has already stated that he does not know when the
Will was prepared.
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A. I do not know the exact date on which the Will
was prepared.
21. For some strange reason, PW1 says that it was he who was in
possession of the Will after it was executed.24 If this be so, this raises
a question about when and how the Plaintiff obtained a copy of it.
PW 1 says that before the Will was signed, it was with Pravin Mehta;
after it was signed, the Will was with PW1; and thereafter it was
with the Plaintiff.25 When this was handed over to the Plaintiff is
again not stated. If there was any doubt that it was he who called Dr.
Mahesh Kapadia, PW2, and did so at the instance of Pravin Mehta,
this is put to rest by his answers to questions 178 and 179,26 where he
admits this. The Will itself has a blank for the age of the deceased.
This was filled in later. However, PW1, although he claims that he
was present at the time when it was signed, says he does not know
who filled in this blank or when.27 PW1 does admit that the Will is in
the handwriting of Pravin Mehta.28 In further cross-examination he
was shown a nomination form in respect of the flat in favour of
Hansaben. This was taken on record.
22. The evidence of PW2 does not assist matters. He says that
PW1 is his patient as was the deceased. He confirms that he was
informed by PW1 to remain present on 7th January 1993 at
Chandanbala Apartments to be a witness to the execution of a Will
24 Qn.163, p.171
25 Qn. 232, p. 84
26 Paperbook, p. 176.
27 Qns. 206-208, p. 79.
28 Qn. 46, p. 85.
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by Vinodrai. He claims that he agreed because he was a family
doctor of the deceased. He says that PW 1 and Mr. Pravin Mehta
were present at that time and that Vinodrai was lying on the bed in
the bedroom when he was there. He claims to have spoken to
Vinodrai at that time.29
23. PW2 was cross-examined at his clinic from 16th December
2013 onwards.30 I find his conduct in cross-examination most
unacceptable. He seems to have been under the impression that the
questions were irrelevant; at some point he stopped answering
them, and retreated into a sulken and taciturn mood. He does,
however, say that it was he who detected Vinodrai's liver
condition.31 However, from Question 19 onward his evidence
deteriorates. There is a note by the Commissioner32 to the effect
that the witness appeared upset and exasperated due to his
impression that the questions were personal and were "nonsense",
and that he expressed this during his cross-examination. Perhaps as
a result of this, from Question 29 onwards, the witness kept
answering in the vaguest of the terms, saying that he did not
remember and so on.33 He was asked a general question as to what
he noticed when he went to Vinodrai's residence.34 His answer was
that "he must have seen Vinod Doshi either sitting or lying on a
bed". This answer not only contradicts his examination-in-chief but
29 PW2's Evidence Affidavit, paragraphs 1 and 2, pp. 102 and 103.
30 Paperbook, pp. 106-123.
31 Qn. 8, p. 111.
32 Paperbook, p. 114.
33 Paperbook, p. 114.
34 Qn. 31, p. 114.
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is no answer at all. It continues in this vein with more denials of
remembering anything. Questions 29 to 46 read thus:35
Q.29 Is it correct that Mr. Amit Shah who is present
today, was present on that day?
Ans. I do not remember.
Q.30 Is it correct that Mrs Rita Amit Shah, who is
present today, was present on that day?
Ans. I do not remember anything.
Q.31 When you went to the residence of the Testator,
what did you notice?
Ans.
I must have seen Mr. Vinod Doshi sitting or lying
down on the bed.
Q.32 Who were by the side of his bed?
Ans. I do not remember.
Q.33 Do you know which was the hospital from where
the deceased was last discharged?
Ans. I do not remember.
Q.34 Do you know how many times was the deceased
admitted and readmitted in the hospital?
Ans. I do not remember.
Q.35 Do you know the reason why the deceased was
discharged from the hospital on the last
occasion?
Ans. I do not remember.
Q.36 Can you tell us how many times you have paid
visits to the Testator while he was admitted in
the hospital?
35 Paperbook, pp. 114-118.
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Ans. Generally, I visit the patient at least once when
he is hospitalised.
Q.37 What would you do generally if there is a curfew
in the area whether you will stay home or you will
go out?
Ans. If there is a curfew I will be where I am.
Q.38 I put it to you that the Testator was discharged
from the hospital due to there being a riotous
condition and curfew in the area so that Doctors
also were not in a position to attend to the
patient/hospital. What do you have to say about
Ans.
this?
I do not remember anything like this.
Q.39 I put it to you that on 7th January, 1993, there
was a curfew in the area. What would you say
about that?
Ans. I do not know.
Q.40 Are you aware that on 7th January, 1993, the
Testator vomited blood and thereafter he
became unconscious?
Ans. I do not remember.
Q.41 As a Doctor do you agree that if the condition of
the patient is such as is mentioned in the above
question, it cannot be said that the patient is in a
proper state of health and mind?
Ans. In the field of medicine, if a patient has vomited
blood that does not mean that he is
unconscious. If a person is unconscious, then I
cannot say anything more.
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Q.42 Are you aware how many family members are
there in the family of the deceased Mr. Vinod
Doshi?
Ans. I know that the family of Mr. Vinod Doshi
comprised of Mr. Vinod Doshi himself, his wife
Hansa Doshhi and his son Bhavesh and daughter
Rita,
Q.43 Are you aware that as on 7th January, 1993, Mr.
Bhavesh Doshi was married and that his wife was
also there in the family?
Ans. I do not remember.
Q.44
Would it be correct to say that after vomiting
blood and becoming unconscious, the person
would not be in a position to walk around or get
out of the bed?
Ans. If the person is unconscious, he would not be
able to walk.
Q.45 I put it to you that on 7th January, 1993, Mr. Vinod
Doshi was in the same condition and he was not
in a position to walk or get out of the bed.
Ans. I do not remember.
Q.46 Will it be correct to say that if a person is
suffering from liver cirrhosis, he can vomit blood
and become unconscious?
Ans. Yes. Any person can be unconscious or semi
unconscious.
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24. In my view, this cross-examination is fatal to the Plaintiff's
case. The second attesting witness, PW2, a medical doctor, seems to
have all but abandoned any pretence of confirming his testimony in
chief. The next set of questions, to do with the signatures on the
Will, is the final nail in the coffin.36 This is what the witness says:
Q. 47 Can you identify the signature now shown to you?
Ans. After looking at the signature, it looks to me that it
is either "U.B. Doshi" or "V.B. Doshi".
(Attention of the witness is drawn to Exhibit PW3(a)
which is contained on Exhibit PW3.)
Q. 48 Can you identify the signature now shown to you?
Ans. After looking at the signature, it looks to me that it
is either "U.B. Doshi" or "V.B. Doshi".
(Attention of the witness is drawn to Exhibit PW4(a)
which is contained on Exhibit PW4.)
Q. 49 Can you identify the signature now shown to you?
Ans. After looking at the signature, it looks to me that it
is either "U.B. Doshi" or "V.B. Doshi".
(Attention of the witness is drawn to the Will from
the custody of the Court and the signature
appearing above words "Vinodrai B. Doshi".)
Q. 50 Can you identify the signature now shown to you?
Ans. It is either "U.B. Doshi" or "V.B. Doshi".
(Attention of the witness is simultaneously drawn to
the Will from the custody of the Court and the
signature appearing above words "Vinodrai B.
36 Paperbook, pp. 118-119.
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Doshi" and the signature which is marked Exhibit
"4A")
Q.51 After comparing the signatures now shown to you,
what do you have to say about the signatures?
Ans. There is a difference in the manner of writing the
letter "B" in both the documents shown to me.
25. This is important because clearly PW2 is unable to identify
the signatures. In question 51, he clearly accepts a difference in
signature. If this is so, then this puts a cloud over the proof of the
Will and over this witness's evidence.
26. On its own, this evidence was most unsatisfactory. This was
actually the entirety of the Plaintiff's case. The Plaintiff himself
never set foot in the witness box. He also never led the evidence of
Pravin Mehta. How the Will came to be drawn up by Pravin Mehta
in the first place, and when; how the Plaintiff came into possession
of it; how it was that Pravin Mehta travelled from Ghatkopar to
Malabar Hill in a riot-torn city (hardly disputable; and very much a
matter of public record); how the Plaintiff came to have possession
of the Will and when, were all matters specially within the
knowledge of the Plaintiff and Pravin Mehta. They remained
unexplained. Who else was present at the time when the Will was
made at Vinodrai's house, where the Plaintiff lived, is also unclear.
When the best evidence, though available, is withheld, an adverse
inference must be drawn, and in this case it must be drawn against
the Plaintiff. There are far too many suspicious circumstances
surrounding this will. None are explained. The first two issues are
answered in the negative.
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27. The Plaintiff's case is damaged even further by the decidedly
peculiar cross-examination of the 2nd Defendant, Rita. She filed a
substantial Affidavit of Evidence.37 In this, she not only said that the
area was under curfew but she also made specific allegations in
paragraph 2 against the Plaintiff. Paragraph 2 of her Affidavit of
Evidence reads thus:
"2.
I hereby further say that in fact after the death of
my father, my brother was harassing my mother and my
brother was threatening my mother to drive her out of
the house and my brother and his wife has been ill-
treating my mother. I say that my brother, the petitioner
herein, was pressurizing my mother to give consent for
transfer of said flat in his exclusive name and when my
mother refused to do so, after the expiry of about 12
months of my father's death, in or about February or
March 1994, for the first time, my brother, the petitioner
herein disclosed to us (to me and my mother) that my
deceased father has made a WILL in his favour and till
that point of time, I and my mother were never informed
about any such WILL. Even we were given copy of the
said WILL or shown to us copy of the said WILL. I say
that thereafter my mother and myself went to an
Advocate and as per advise of Advocate, my mother
also filed a Suit bearing No. 2882 of 1994 in the Bombay
City Civil Court to ensure that the said flat is not
transferred by the society in the exclusive name of my
brother, the Petitioner herein. I hereby further say that
37 Paperbook, pp. 124-156.
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only thereafter my brother preferred the probate
petition before this Hon'ble Court. In that petition also
my mother has filed an Affidavit in this Hon'ble Court
narrating the true and correct facts of the entire matter
and objected to grant of probate to him."
28. As to evidence of 7th January 1993, she in terms said that she
was at home at the Chandanbala Apartments flat on that day and
that neither PW1 nor PW2 nor any other person had come there on
that dy. Paragraph 4 of her Affidavit of Evidence reads thus:
"4. I say that day by day condition of my father was
deteriorating. He was vomiting blood and he was
becoming unconscious or semi unconscious. I hereby
further say that on the alleged date of preparation of
WILL i.e. 7th January, 1993, infact, I myself and my
mother, Smt. Hansaben Vinodrai Doshi only were at
home, accompanying my father, the said testator at
Chandanbala flat. On the said date, infact, in the
morning, the testator had vomited blood and there
upon, I gave the medicine prescribed by Dr. Snehal
Sanghavi, under whose treatment my father was, at the
Harkisandas Narrotamdas Hospital. Thereafter, he was
asleep in deep, rather, he was in semi unconscious
stage for whole day and therefore, there is no question
of his preparing the alleged WILL on that day, as
claimed by the plaintiff. On that day there was a curfew
in our area as well as in the area of Harkisandas
Narrotamdas Hospital and, therefore, even we could not
move the testator to the hospital also. I hereby further
say that the plaintiff, my brother, is even suppressing
the medical records of my father and not giving even
the copy of the same to me. I say that on that day i.e.
on 7th January 1993, neither Dr. Mahesh Kapadia, nor
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Manish U. Doshi or any other person had come to our
residence for attesting the alleged WILL or for any
other purpose. They are deposing falsely to do undue
favour to my brother, the plaintiff, for their personal
relations with my brother, the plaintiff."
29. In her evidence, she also said that the signature was not that
of her father; and then went on to say that after his marriage in 1990,
the Plaintiff was constantly fighting with Vinodrai. In paragraph 9,
she said that Will was forged and fabricated. She said there was a
large property at Virar worth several crores, which finds no mention
in the Will.
30. The 2nd Defendant's cross-examination was conducted in
Court. The first four questions of this cross-examination on 3rd July
2014 are critical. This is how they read:
Q.1. Will it be correct to say that you were a favourite
with your father?
Ans. Yes
Q. 2 Will it be correct to say that you have a son, who
was born on 8th July 1991?
Ans. Yes.
Q.3. Will it be correct to say that your son was also
your father's favourite?
Ans. Yes.
Q.4. Will it be correct to say that your father used to
carry your son and take him for a stroll?
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Ans. Yes.
31. I must confess that I am at a loss to understand why there
should have been any such suggestions put to the 2nd Defendant.
Perhaps the intention was to establish that on the day in question
Vinodrai was in a sound state of health. The questions do not, in
fact, achieve that purpose: the questions do not specify any period
or time-frame at all. In fact, these questions on their own clearly
further the 2nd Defendant's case that the Will is unnatural; for it is
now the Plaintiff's own case that the 2nd Defendant was their
father's favourite and that he was very fond of the 2nd Defendant's
young son. If this be true, there was no question of the 2nd
Defendant being completely cut out of the Will in question.
32. The remaining cross-examination was also conducted in
Court. I turn now to Questions 30 to 32 of the cross-examination. I
cannot begin to understand why this line of cross-examination was
pursued; but it was, and it is fatal to the case of the Plaintiffs.
Q.30 Can you tell the Court when did you last meet
your mother?
Ans. It was long time back may be approximately five
years back.
Witness volunteers: my brother and sister-in-law
are not allowing me to meet my mother.
Q.31 Have you filed any complaint with the Police that
your brother and sister-in-law are not allowing
you to meet your mother?
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Ans. No.
Attention of the witness is drawn to paragraph 2
of her Affidavit of Evidence dated 7th June 2014.
Q. 32 Can you tell the Court in what manner your
mother is pressurized and/or ill-treated by your
brother and sister-in-law?
Ans. They were mentally torturing her by telling her
that since they are taking care of her and her
needs, she should listen only to them.
33.
I cannot accept Mr. Ratnani's argument that merely because
the Defendant filed no police complaint therefore there is no
substance to this evidence. What is telling, however, is not what the
2nd Defendant was asked in cross-examination, but what she was
not. There is no cross-examination at all of the Defendant on
paragraphs 2, 3, 4, 5, 6, 7, 8 and 9 of the Affidavit of Evidence. This
is critical. It means that the 2nd Defendant's version has gone
completely uncontroverted in cross-examination. It has not even
been tested in cross-examination.
34. The 2nd Defendant also led the evidence of one Mr. Nirav
Vasa, a graphologist or handwriting expert. He submitted a report.
This was taken on record. He also filed two Affidavits of Evidence
dated 12th August 201438 and 12th November 2014.39 He was cross-
examined on commission.40 The cross-examination is entirely
38 Paperbook, p. 454.
39 Paperbook, p. 470.
40 Paperbook, p. 480.
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ineffective. Mr. Ratnani relies on the answer to Question 20, to the
extent that Mr. Vasa agreed that a signature may vary over time and
on account of the physical, mental or medical condition of the
signatory at any given point, saying that this is possible. That is a
completely correct and honest answer. It does not take the Plaintiff
anywhere. A re-examination of sorts was conducted before the
Commissioner. I refer to it only because it was taken by consent.
This was Question 34. The whole of the re-examination is
reproduced below:41
Re-examination of the witness by Advocate Mr. Yogesh
Yagnik
Q. 34 With reference to question No. 20 above, can
you tell us in what manner can a signature vary
and in what circumstances such signature does
not vary because of said reason?
The Learned Advocate for the Plaintiff objects to the
above question being asked in re-examination on the
ground that the question does not pertain to any
ambiguity in the answer to Question 20 which requires
any explanation or clarification. And therefore, the
question is not relevant and should be disallowed.
Advocate Yagnik in response states that the answer
given to question No. 20 is incomplete and requires
41 DW2's Cross-examination, pp. 484.
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more clarification and explanation from the expert
witness and therefore, the question be allowed.
Per Commissioner:
By consent of the Learned Advocates, the witness is to
answer this question subject to the objection raised by
the Learned Advocate for the Plaintiff, which objection can
be decided by the Hon'ble Court.
A. A person signature / handwriting has certain
fixed traits or unfixed traits. Some of the fixed
traits which remain constant are articulation of
the alphabets, the shape and size, pressures,
slant of the alphabets. These traits do not
change in general/normal conditions. When a
person is ill or not in conscious state or is under
influence of dugs or alcohol the handwriting of
such a person in that condition will become
sloppy, very slanting from one direction to
another with no thythm in it at all. Such
handwriting will be easily diagnosed or analysed
to conclude that such handwriting, is not
produced under the normal circumstances.
35. Now this answer is certainly one that demanded a further
cross-examination. In this, the expert clearly deposes to the
signature not being that of the deceased.
36. As to the probative value of a handwriting expert's testimony,
Mr. Ratnani's submission that this can never be accepted without
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further corroboration seems to me to be an entirely incorrect
statement of the legal position. The law relating to the probative
value of an expert's opinion is fairly settled now. In Murari Lal s/o
Ram Singh v State of Madhya Pradesh,42 the Supreme Court held that
while dealing with the opinion of a handwriting expert, the court
must proceed cautiously, probe the reasons for the opinion, consider
all other relevant evidence and decide finally whether to accept or
reject it. The science of handwriting analysis is not a perfect
science. An expert's opinion is also likely to have errors, like any
other witness. Therefore, it must be backed by cogent, scientific
reasons and corroborated with other circumstances surrounding the
writing in question. Further, nothing prevents the court from
comparing the disputed writing with the admitted writing and then
coming to a conclusion of its own. If there is an opinion of an expert,
or of any witness, the court may apply its own observation by
comparing the signatures, or handwriting for providing a decisive
weight or influence to its decision.
37. In any case, there is no need to rely only on the evidence of
the handwriting expert. The trial record includes a nomination form
signed by the deceased.43 The deceased's signature appear at pages
449, 451 and 453. The barest look at these signatures and the one on
the Will shows that the two are entirely different.
38. Mr. Ratnani relies on the decision in the case of Ryali
Kameswara Rao v Bendapudi Suryaprakasarao & Ors.44 and Rajesh
42 (1980) 1 SCC 704.
43 Paperbook, 448-453.
44 AIR 1962 Andhra Pradesh 178.
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Arora v State & Ors.45 These decisions do not assist Mr. Ratnani in
any way. It is hardly possible to contend that no suspicious
circumstances have been pleaded or proved. To the contrary, they
have been expressly pleaded. The 2nd Defendant has deposed to
them. The Plaintiff has not cross-examined the 2nd Defendant on
these aspects, and her case is proved. The Plaintiff's own attesting
witness, PW2, has been unable to recognize the signatures. The
Plaintiff has led neither his own evidence nor that of Pravin Mehta.
The 2nd Defendant's case stands proved. In fact, the decision in
Ryali Kameswara Rao is against the Plaintiff because it clearly states
that the onus lies upon a plaintiff to satisfy the conscience of the
Court that the instrument propounded is the last Will of a free and
capable testator. The fact that the Plaintiff takes a benefit is a
circumstance that generally excites the suspicion of Court and calls
for vigilance in examining the evidence. The suspicion must be one
that arises from the transaction.
39. I have considered the various circumstances cited by the 2nd
Defendant to establish that the Will was unnatural and obtained by
undue influence and pressure, which cast significant doubt on the
veracity of the Will. Where such circumstances exist, the Plaintiff
must explain them to the satisfaction of the Court. The Supreme
Court held in H. Venkatachala Iyengar v. B. N. Thimmajamma and
Ors.:46
45 AIR 2009 Delhi 111.
46 AIR 1959 SC 443.
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The presence of such suspicious and doubtful
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.
40. There is one final factor to be considered. The 7th of January
1993 was during one of the darkest periods in this city's history. The
2nd Defendant has put on record a copy of the Justice Srikrishna
Report. This was hardly necessary. That much of the city was under
curfew and that this extended on some days to the northern suburbs
is a historically established fact. The Defendants say the situation
was so bad that they could not shift Vinodrai to a hospital;47 they
were able to do so only three or four days later. There is no cross-
examination on this at all. She also says Vinodrai was comatose.
Apart from general questions about the Justice Srikrishna Report
and whether she knew there was a curfew that day, the 2nd
Defendant was asked nothing. That report is on record. Paragraph
1.10 says that on 7th January 1993, violence and riots spread to
several parts of the city. There was trouble in several places. The
report mentions Gamdevi, very close to the Chandanbala
Apartments flat, and suburbs as far away as Jogeshwari.48 Paragraph
1.11 speaks of 8th January 1993, and this clearly says there were
communal riots in many places including Gamdevi, Worli, NM
Joshi Marg and Ghatkopar. There is, therefore, the high degree of
improbability of Pravin Mehta ever bringing the Will -- assuming
that he had drawn it in the first place -- from Ghatkopar to Malabar
47 DW1, 2nd Defendant, Evidence Affidavit, paperbook, p. 126.
48 Paperbook, p. 192.
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Hill. His evidence, though available (as is now evident from the
Chamber Summons filed two days ago), was withheld.
41. The entire version propounded by the Plaintiff is unworthy of
the slightest credence. Apart from the mismatching signature, there
is the question of how such a Will ever came to be prepared and at
whose instance and for whose benefit. Not only is the failure to
cross-examine the 2nd Defendant on critical parts of the testimony
fatal, but the suggestions put to her establish her case that the Will is
unnatural. As to the question of undue influence, this arises only if it
is proved that any such Will was executed in the first place. That is
not proved.
42. Issue No. 3 is answered in the affirmative. Issue No. 4 does
not survive.
CONCLUSION AND ORDER
43. It is impossible to hold that in such circumstances the Will
can ever be said to be proved. The Suit is dismissed. In the
circumstances of the case, and given the conduct of the Plaintiff, the
dismissal will be accompanied by an order of costs against the
Plaintiff and in favour of the 2nd Defendant.
(G.S. PATEL, J.)
22nd July 2016
