Bombay High Court
C.S.Negandhi vs Hemkala @ M.M.Udeshi & Anr on 24 June, 2016
Bench: G.S. Patel
Chittaranjan N. Negandhi v Hemkala Udeshi & Ors.
6-TS9-94-NEGANDHI-F.DOC
ATUL
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY & INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 9 OF 1994
IN
TESTAMENTARY PETITION NO. 745 OF 1993
CHITTARANJAN NAROTTAMDAS
NEGANDHI,
of Mumbai, Hindu Inhabitant,
sole surviving Executor and Trustees of the
Will of the above deceased, residing at Green
Bungalow, Subhash Road, Vile Parle (East),
Mumbai - 400 057 ...Plaintiff
versus
1. HEMKALA ALIAS MEENAKSHI
MANSINGH UDESHI,
Hindu Indian Inhabitant, residing at
Nav Bharat Sector No. 2, 403A, New
Panvel, New Bombay.
2. YESVANT NAROTTAMDAS
NEGANDHI,
Hindu Indian Inhabitant, residing at
New Bharat Sector No. 2, 403A, New
Panvel, New Bombay.
3. KUMUD ANILKUMAR BHATIA,
Constituted Attorney and Daughter of
Mrs. Indumati @ Asha Anilkumar
Bhatia, residing at 27, Kunjvan, 2nd
Floor, Sir M.V. Road, Andheri (East),
Mumbai 400 069 ...Defendants
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Chittaranjan N. Negandhi v Hemkala Udeshi & Ors.
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A PPEARANCES
FOR THE PLAINTIFF Mr. Arzan Bulsara, with Ms. Neha Kodap,
i/b Tyabji Dayabhai, for the Plaintiff.
FOR DEFENDANT NO.1 Mr. M.M. Shah, i/b Mr. Amod Mulye &
Mr. Vivek Tambe, for Defendant No. 1.
FOR DEFENDANT NO.2 Ms. Dimple R. Joshi, i/b Ms. P.G. Bhatia,
for Defendant No. 2
ig CORAM : G.S.Patel, J.
DATE : 23rd & 24th June 2016
ORAL JUDGMENT:
1. The Plaintiff seeks probate of a Will dated 24th May 1973 left
by his mother, Bhanumati Narottamdas Chapsi ("Bhanumati").
Bhanumati's husband was one Narottamdas Negandhi, but it
appears that she did not take his surname. It is not disputed that
Bhanumati, born in 1919, was about 54 years old when she made the
Will in question, or that she lived for 19 years thereafter until her
death at the age of 73 on 14th May 1992. Narottamdas died before
she, on 24th July 1979. He was one of the two Executors named in
her Will; the Plaintiff is the other. The Plaintiff is, thus, the sole
surviving Executor of Bhanumati's Will.
2. Bhanumati and Narottamdas had six children: Pratapsingh,
born in 1936; Yaswant, the 2nd Defendant, born in 1941; Indumati,
the 3rd Defendant's mother, born in 1943; Hemkala, born in 1948,
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the 1st Defendant; Chittaranjan, the Plaintiff, born in 1950; and
Kirtikumar born in 1952. Of these six children, Pratapsingh and
Kirtikumar have not opposed this Petition. Hemkala, Yaswant and
Indumati, all filed Caveats and supporting Affidavits and are now
arrayed as Defendants Nos. 1, 2 and 3 respectively. For reasons that
are now not material, Indumati (the 3rd Defendant's mother)
withdrew her Caveat. For his part, Yaswant seems not to have
participated in these proceedings; he led no evidence. The solitary
opposition comes from the 1st Defendant, Chittaranjan's older
sister, Hemkala.
3.
The Will in question1 is a typed document prepared with
some degree of formality by M/s. Tyabji Dayabhai, an old and
reputed firm of Solicitors. The Will has four typed pages. There is a
docket at the reverse. There are no markings on pages 1, 2 and 3. I
note this because there has been some level of argument that there
are portions of the Will that are demonstrably erroneous to
Bhanumati's knowledge. These ought to have been corrected before
execution; the absence of corrections is, the Defendants submit,
itself a sufficiently suspicious circumstance to warrant a dismissal of
the Petition. Four pages of the Will are typed front and reverse. Page
4 has Bhanumati's signature in English in a running hand. This is in
blue ink. The handwriting is firm and the letters are well-formed.
From the signature alone, it is not possible to say that on the date of
this Will, 24th May 1973, Bhanumati suffered from such
impairment as would render her incapable of making a valid
testamentary writing. I note this at the beginning because there is
1 Exhibit "A" in evidence, p. 7 of the paper-book.
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not even a suggestion to this effect, although a case is attempted to
be made out of want of testamentary capacity.
4. Just above the execution is the date, and here we find the
expression "24TH" written in blue ink. Again, there are arguments
based on this, to which I shall return. There are then two signatures
and an endorsement at the foot of this paper. The first is in blue ink.
It reads "Chimanlal C. Vakil" and below that "Solicitor, Bombay".
Below that is the signature of "V.J. Ved", also in blue ink, and below
that, the words "his clerk". The last endorsement at the very foot of
the page says, "Read over and explained to the Testatrix before
execution. Chimanlal C. Vakil."
5. Hemkala, Defendant No. 1, entered a Caveat dated 3rd
February 1994. In her Affidavit in Support, she alleged that the Will
was false, unnatural, got up and fabricated. She took a specific plea
that her mother, Bhanumati, suffered from an early age from what is
described in this Affidavit as 'hysteria'. In this context, paragraph
9(b) of the Affidavit in support of the Caveat merits reproduction:
"9(b). I say that since the age of about 22 years
i.e. since the year 1941, thereafter through out her
life, my said mother was suffering from Chronic
deceased of Hysteria. I say that frequent attacks
of Hysteria were coming to the said deceased. I
say that due to the said decease of Hysteria the
said deceased was not allowed to cook food,
kept away from any fire place and all other
precautionary measure were taken. I say that the
said deceased was not allowed to go out of the
house alone, any one of the family member used
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to accompanying her. I say that due to the said
decease of hysteria, the said deceased was not
in balance state of mind, her memory power was
very weak, she was not capable of
understanding, even minor things of life, she
used to nag her husband, beat the servants,
cooks and other family members of house, used
to throw all nearby things, used to scree loudly. I
further say that when the family Doctor used to
visit for the treatment of the said deceased, at
least three to four persons has to hold her. I say
that the said deceased also some-time used to
pass urine and toilet in bed. I say that the said
deceased was treated by the family doctors
namely K.K. Mankodi and G.K. Mankodi. I say that
in the year 1973 the said deceased was about the
age of 53 years and as stated hereinabove. She
was suffering from said decease of hysteria. I say
that my mother was not in a mental condition to
make any Will during her life i.e. after her age of
about 22 years, the said deceased was suffering
from the said decease of hysteria as stated
hereinabove."
6. The other ground made out is that the bequest in the Will
favoured Chittaranjan and Kirtikumar, and gave a miniscule amount
to Bhanumati's two daughters, Hemkala and Indumati. Thereafter,
there are allegations that the Will is not genuine because there are
typographical errors. Principal among these is that Hemkala is
referred to as Hemlata. It is also alleged that the Will has incorrect
narratives about immovable property. Before me, it is also argued
that the Will does not mention the given name of the substantial
property at Vile Parle, Mumbai.
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7. Having described the physical state of the Will, I will turn
now to its contents, before I proceed to the issues and the evidence.
In paragraph 4(a), the Testatrix sets out that she owns an immovable
property at Vile Parle. This is described in both area and location
and she says that there is a bungalow standing on that plot, though
she does not name the bungalow. She says, in this paragraph, that
her husband, Narottamdas, did not contribute any part of the
consideration for the acquisition of this property. In paragraph 4(b),
she speaks of the property at Station Road at Amreli in Saurashtra,
which she inherited from her father. She says that there is a
Laxminarayan temple on a portion of this, and this has been
dedicated to charity. There are then mentions of other properties in
paragraphs 4(c), 4(d) and 5. In paragraph 6, she names her children
and notes that two of her sons and both her daughters are married.
Paragraph 8 says that on their marriage, four of her children (two
sons and the two daughters), were given certain ornaments.
Paragraph 10 then contains certain modest monetary legacies. Each
of the daughters receive Rs. 1,000/-; their husbands receive Rs.
250/- each; and Bhanumati's grandchildren receive Rs. 101/- each.
8. The Vile Parle property is left to all four sons in equal shares.
The daughters are completely excluded from this. In paragraph 12,
Bhanumati bequeathed her other property to two of her sons,
Chittaranjan and Kirtikumar, in equal shares absolutely.
9. It is on this basis that a challenge was laid to this probate
Petition. Issues were struck on 14th March 2012. An additional issue
was framed very recently, by consent, on 10th February 2015. The
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issues as framed together with my findings thereon are set out
below:
Sr. No. Issues Findings
1. Does the Plaintiff prove that document
dated 24th May 1973 is the last Will and In the
testament of the deceased Mrs. affirmative.
Bhanumati Narottamdas Chapsi?
2. Does the Plaintiff prove that document
dated 24th May 1973 has been validly
In the
executed by late Mrs. Bhanumati
ig affirmative.
Narottamdas Chapsi as her last Will and
Testament?
3. Does the Defendant prove that late Mrs.
Bhanumati Narottamdas Chapsi was not
mentally sound on or about 24th May 1973 In the
and as such she was not competent to negative.
execute any document including
document of Will?
3A. Whether Defendants Nos. 1 and 3 prove In the
that the Will in question is unnatural? negative.
4. What order? As per final
order.
10. Before I deal with each of these issues, I must note that Issues
Nos. 1 and 2 are identical. They will be treated as one. As regards
Issue No. 2, I will take it, and Mr. Bulsara for the Plaintiff agrees,
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that the initial burden of proving sufficient testamentary capacity is,
as it must always be, on the Plaintiff. What Issue No. 3 does, as
currently framed, is to place the burden of proving a specific
medical condition sufficient to render the Testatrix completely
incapable of any testamentary writing on the Defendants. The
additional Issue No. 3A had to be framed because there is a specific
pleading to that effect.
TESTAMENTARY AND DOCUMENTARY EVIDENCE
11.
The Plaintiff led evidence of two witnesses. PW1 was the
Plaintiff himself. By the time the Suit came to trial, both attesting
witnesses had passed away. One of them, V. J. Ved, had filed an
Affidavit supporting the Petition as required under our Rules. He
did not, however, live to file an Affidavit of Evidence. There is,
therefore, no Affidavit in lieu of examination-in-chief filed by Mr.
Ved for the purposes of Order XVIII Rule 4 of the Code of Civil
Procedure, 1908. All parties have proceeded, as must I, on the basis
that Mr. Ved's Affidavit supporting the Petition would have been
substantially his Affidavit of Evidence. I have heard Mr. Bulsara for
the Plaintiff and Mr. Shah for the 1st Defendant on the question of
the probative value and evidentiary weight of Mr. Ved's Affidavit. I
will return to this presently.
12. Since neither of the attesting witnesses were available, the
Plaintiff led evidence of Mr. Jayant Chimanlal Vakil, a partner of
M/s. Tyabji Dayabhai, and a Solicitor in his own right. Mr. Vakil was
a partner of the firm at the time when the Will was executed,
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although he was not himself an attesting witness to it, or in any way
involved in its making. His evidence was limited to identifying the
signatures of his father, Mr. Chimanlal Vakil, the other partner of
the firm, and Mr. Ved, the firm's clerk. The Plaintiff led in evidence
several documents. Six of these are marked Exhibits "A", to "F"
evidence. Exhibit "A" is, of course, the Will in question. Exhibit
"B" is a motorcar registration policy.2 It was produced by the
Plaintiff essentially to show that a few weeks or months after the
execution of the Will, Bhanumati herself signed this motorcar
registration document. Exhibit "C" (page 172) is a LIC Policy.3
Exhibit "D" is the death certificate of Narottamdas.4 Exhibits "E"
and "F" are the original death certificates of Chimanlal Vakil,5 and
V.J. Ved.6
13. Part of the cross-examination of PW 1, the Plaintiff, was
before a Commissioner, Ms. J.M. Sidhwa, an Advocate of this
Court. While I am at this stage, I must note my appreciation of the
exemplary manner in which those notes of evidence were recorded
and the cross-examination conducted on commission. It is
absolutely faultless, and it has made my task much simpler. I must
record my thanks to Ms. Sidhwa for her assistance in the matter. I
urge the Bombay Bar Association to ask Ms. Sidhwa and some of
her colleagues who take up these assignments, including Mr. Salil
Shah, Mr. Farhan Dubash and Mr. Phiroze Colabawalla, whose own
2 Paperbook, p. 171.
3 Paperbook, p. 172.
4 Paperbook, p. 130.
5 Paperbook, p. 266.
6 Paperbook, p. 267.
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work is of just such a high standard, for their assistance in
developing a framework of guidelines or a set of templates for use in
all commissions. I refer specifically to the presentation of the final
report, the collation of documents, the recording of objections and
the adoption of consistent page and question/answer numbering, as
also the salutary practice of recording all examination only in
question and answer form.
14. Before Ms. Sidhwa, the Plaintiff introduced several
documents during their cross-examination of the Defendant. These
were photographs and they have been marked in evidence as Exhibit
"G" to Exhibit "X".7
15. The 1st Defendant, Hemkala, led her own evidence. She
introduced no documents. She led no other evidence.
16. The first issue, on the due execution of the Will, has two
elements. Before I turn to the evidence on record, it is necessary to
note the provisions of Sections 59 and 63 of the Indian Succession
Act, 1925:
"59. Person capable of making Wills.-- Every
person of sound mind not being a minor may
dispose of his property by Will.
7 Paperbook, pp. 308-325.
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Explanation 1.-- A married woman may dispose
by Will of any property which should could
alienate by her own act during her life.
Explanation 2.-- Persons who are dear or dumb
or blind are not thereby incapacitated for making
a Will if they are able to know what they do by it.
Explanation 3.-- A person who is ordinarily
insane may make a Will during interval in which
he is of sound mind.
Explanation 4.-- No person can make a Will while
he is in such a state of mind, whether arising
from intoxication or from illness or from any
other cause, that he does not know what he is
doing.
63. Execution of unprivileged Wills.-- Every
testator, not being a soldier employed in an
expedition or engaged in actual warfare or an
airman so employed, or engaged or a mariner at
sea, shall execute his Will according to the
following rules:--
(a) The testator shall sign or shall affix his
mark to the Will, or it shall be signed by
some other person in his presence and by
his direction.
(b) The signature or mark of the testator, or
the signature of the person signing for
him, shall be so placed that it shall appear
that it was intended thereby to give effect
to the writing as a Will.
(c) The Will shall be attested by two or more
witnesses, each of whom has seen the
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testator sign or affix his mark to the Will or
has been some other person sign the Will,
in the presence and by the direction of the
testator, or has received from the testator
a personal acknowledgement of his
signature or mark, or of the signature of
such other person; and each of the
witnesses shall sign the Will in the
presence of the testator, but it shall not be
necessary that more than one witness be
present at the same time, and no
particular form of attestation shall be
necessary."
ig (Emphasis added)
17. Read together, these two sections have two distinct
requirements. Section 59 demands proof of sufficient testamentary
capacity. Section 63 speaks to the manner or mode of a valid
execution of a Will. As to testamentary capacity, it is always for the
Plaintiff to show that the person making the testament was
possessed of sufficient capacity as required in law. Soundness of
mind must be established. There may be a variety of ways to do this.
Important to our discussion are the explanations to Section 59, for
they make it clear that certain impediments such as hearing, speech
or sight impediments do not constitute testamentary incapacity. For
our purposes, Explanation 3 is crucial. This speaks of persons who
are, to use the unfortunate expression of the statute, "insane". I will
read this to include any one or more of the well-known medical
mental health disorders that are known to medical science today.
What Explanation 3 says is that even if a person ordinarily suffers
from any such established pathology, one that renders him or her
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momentarily incapable, he or she may still validly make a Will
during an interval of lucidity. Consequently, it is never enough
merely to say, for instance, that a Testator suffered from this or that
ailment. It is unreasonable to expect a Testator to be in a most
complete and perfect state of health. Nobody ever is. That is most
emphatically not mandate of the law, as the Privy Council itself
noted in Judah v Isolyne Shrojbashini Bose & Anr,8 a view followed by
this Court in Dr. Feroze Homi Duggan v Jean Duggan,9 and by the
Delhi High Court in K.L. Malhotra v Sudershan Kumari & Anr.10
The law does not require every testator to be in peak physical and
mental condition, or to be possessed of 'sound and disposing mind
and memory' in the highest degree. Were it so, few would be able to
make testaments at all. It is not even necessary for a testator to be in
the same state as once he used to be, for even this would disable
most in the inevitable decline of life. Enfeeblement with age and a
degree of debilitation is to be expected. So long as the testator has
enough to discern and discreetly to judge the matters that enter into
a rational, fair and just testament, that is surely enough.11
18. Given the pleadings in the Caveat, it would then fall on the
Defendant to establish the existence of a disabling mental condition.
It is not for the Plaintiff to have to disprove that condition. It is
enough for the Plaintiff to show that at the time of the Will,
Bhanumati was of sufficiently sound mind.
AIR 1945 PC 174
(2011) 6 Mah LJ 516.
(2008) 149 DLT 783.
Kanwar Sain v State & Ors., AIR 1976 Del 11; Gordhandas Nathalal Patel
v Bai Suraj & Ors., AIR 1921 Bom 193 (DB)
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19. The second aspect is the mode of execution of the document.
The section requires that there be at least two witnesses. Each must
be present. Each must sign in the presence of the testator. Each
must have seen the testator sign, or seen someone sign at the
instance of the testator, or have received from the testator a personal
acknowledgement of his signature. Both witnesses need not be
present at the same time.
20. In this case, it appears that the Will was executed and attested
at the offices of M/s. Tyabji Dayabhai. One of the partners was
present. So also was his clerk. The Testatrix signed in their
presence.
21. The Plaintiff filed two Affidavits in lieu of examination-in-
chief.12. There followed a long and debilitating cross-examination
spread over nearly three years. Not all of this is relevant given the
narrow issues at hand.
22. As to the question of epilepsy, PW 1, in fairness, does not
dispute this at all. He admits that his mother had epilepsy and that
she had it from an early age.13 He also accepts that during these
epileptic episodes she had tremors, indicating, I think, that she was
not able to go about her normal life during those times. I notice that
PW 1 avoided directly answering whether during these epileptic
episodes Bhanumati fell unconscious or into a semi-conscious
12 Paperbook, pp. 109-110 and 121-123.
13 Qs. 396 to 402, pp. 242-243.
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stage;14 but this matters little. He admits that she was under
medication for this condition, that that he does not know the exact
medication that she was taking.15 In response to Question 419, PW 1
says that he learnt of his mother's epilepsy from his father.
23. Yet, there are two questions in this long and somewhat
tiresome cross-examination that have consequence especially in
regard to Bhanumati's condition between her epileptic episodes.
Questions and answer 403 and 420 read as follows:
403. Q. When she suffered from 'epileptic' fits
ig was she conscious or unconscious?
Ans. For a few seconds she used to suffer
from trembling and thereafter she
would be alright and lead a normal life.
420. Q. Would it be correct to say that till 1991
you made no attempt to personally
know what disease your mother was
suffering from?
Ans. She used to take her medication and
she used to live her life normally."
24. Both answers indicate that it has been elicited as a question of
fact that while Bhanumati did suffer epileptic episodes, for the
period between them she lived a perfectly normal life.
14 Qs. 403 to 408, pp. 243-244.
15 Qs. 409 to 413, p. 245.
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25. Part of this cross-examination of PW 1 was then continued in
Court on 10th February 2015, when it was closed. There is one
question in the cross-examination of PW1 on that date which is
material. That is Question No. 4, which reads thus:
4. Q. Your mother Bhanumati made a Will in
1973. Was she suffering from epilepsy
before that date?
Ans. Yes, she was.
(Emphasis added)
26.
The wording of this question is of significance. It is, to my
mind, a categorical admission in cross-examination on behalf of the
1st Defendant that the Will was duly made in 1973. The only
surviving question was whether Bhanumati suffered from epilepsy
before that date.
27. Given the way this question is framed, therefore, there can be
very little room for doubt or debate as to the due execution of the
Will. However, if any proof is needed, I imagine it is sufficiently
provided by the two Affidavits filed by PW 2, Mr. Jayant Vakil.16 In
these two Affidavits, Mr. Vakil identifies the signatures on the Will.
He also says that Mr. Ved worked with the firm till he passed away, a
few years later. Mr. Vakil was cross-examined in Court.17 This cross-
examination, conducted on behalf of both the 3rd Defendant and the
1st Defendant does nothing to disturb or shake Mr. Vakil's
16 pp.253-261 & 262-265 of the paper-book.
17 pp. 268-273 of the paper-book.
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testimony-in-chief. Indeed, Questions Nos. 11 and 12 of Mr. Vakil's
cross-examination put to rest any doubt there might be about the
execution of the Will.
11. Q. Was it the practice in your firm to
always endorse in handwriting when a
document was read over and
explained to a testator or testatrix?
Ans. Yes, in cases where the testator or
testatrix was not conversant with
English.
12. Q.
ig Ordinarily where in that document
would such an endorsement be
placed?
Ans. It would be at the foot of the
document."
28. At this stage, I must note an argument Mr. Shah attempted
but which I did not allow him to pursue. He suggested that the
signature of Mr. Ved that appears on his Affidavit supporting the
Petition and the one that is seen on the Will are discrepant. I do not
know what is sought to be suggested by this. There are several
possibilities. First, that the signature of Mr. Ved is forged either on
the Will or on the Affidavit. The 1st Defendant does not say which.
Second, that Mr. Vakil has perjured himself in the witness box by
identifying the signature of Mr. Ved on the Will. In fairness, Mr.
Shah does not go quite this distance, and advisedly so. What is
absent, however, and this is of significance, is that at no point was
Mr. Vakil, though made available for cross-examination, confronted
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with these two signatures and asked to explain why they were
discrepant, if indeed they are. I do not think it is possible for the 1st
Defendant to now urge that an adverse inference must be drawn in
some unknown manner for some unstated purpose and for an
unclear result by inviting this kind of a comparison. The 1st
Defendant had more than enough opportunity to precisely place her
case as regards Mr. Ved's signature. If she chose not to do so, there
is not very much more that can be said for this particular argument.
After all, Mr. Vakil was present, and he was best placed to be able to
answer such a question about any so-called discrepancy in Mr. Ved's
signature.
29. The principle, one that was clearly enunciated by the Division
Bench of the Calcutta High Court in A.E.G. Dederian v A. Y.
Carapiet,18 is now firmly established. Carapiet was also a
testamentary case. A very similar situation arose: one set of
witnesses deposed to a certain state of the testator's health. This
state of affairs was not put to the next witness. An adverse inference
was invited on the basis of a contradiction. The Division Bench held
that it was a salutary principle that where such a contradiction is
sought to be used, it must be put to a witness so that the witness is
given an opportunity to affirm or deny it. I am in most respectful
agreement with this and, in any case, it is now far too well-
established to admit of any distancing.
30. In what is presumably a last-ditch effort, Mr. Shah seeks to
argue that the evidence given by Mr. Jayant Vakil should be
18 AIR 1961 Cal 359, paragraphs 8,9 & 10
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disregarded since he, being the advocate-on-record, could not have
been a material witness in the same case. He places reliance on two
cases of this Court, in R.K. Agarwal v Rana Harishchandra
Ranjitsingh and Ors.19 and Vincent Joseph Konath and Ors. v Jacintha
Angela Vincent Konath and Ors,20 in support of this contention. I do
not think it is fair for Mr. Shah to raise this contention at this stage,
so late in the day. This objection ought to have been taken before the
cross-examination. However, on merits too this argument fails; I do
not see how these judgments assist Mr. Shah. Stated briefly, these
cases hold that professional ethics prohibit an advocate from
accepting a brief in case in which he is likely to be a material witness;
that an advocate who knows, or has reason to believe, that he will be
an important witness in a particular case has the option of appearing
either as a witness or as an advocate. If he chooses the latter, he
cannot then appear as a witness by seeking a discharge from the
case. I do not see how such knowledge or belief can be attributed to
Mr. Jayant Vakil in the present case. He is not an attesting witness to
the Will. His evidence was led only for the limited purpose of
identifying the signatures of the two deceased attesting witnesses.
This is precisely the procedure prescribed under Section 69 of the
Indian Evidence Act for such a contingency: non-availability of the
attesting witnesses. This is the thrust of the judgment of this Court
in Nooruddin v Mahomed Oomer,21 which Mr. Bulsara cites in
response.
AIR 1994 Bombay 117
AIR 1994 Bombay 120
AIR 1956 Bom 641
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31. This leaves the question of what, if anything, is to be made of
Mr. Ved's Affidavit. At the cost of repetition, it must be noted that
this is an Affidavit of Evidence within the meaning of Order XVIII
Rule 4 of the Code of Civil Procedure, 1908. Assuming for the
purposes of argument, that it is an Affidavit of Evidence, or is liable
to be treated as one, and Mr. Ved has not been available for cross-
examination because he passed away before his cross-examination
could commence, then that puts us in a situation squarely covered
by Section 32 of the Evidence Act, 1872. In this context, the
decision of Mr. Justice H.R. Khanna sitting singly in the Delhi High
Court is one that clearly and succinctly elucidates the correct
position in law.22 Such an Affidavit is not to be lightly disregarded.
What weight is to be attached to it in such circumstances must
depend on an assessment of all the surrounding factors. It may or
may not be accepted in its entirety. In a given case, a Court may
require further corroboration. Certainly it is not one to be discarded
out of hand. Now, there is no inconsistency in what Mr. Ved says in
his Affidavit and what Mr. Vakil says in his testimony (in a proper
Affidavit of Evidence under Order XVIII Rule 4) and in his cross-
examination. If this be so, then what emerges from the evidence,
viz., that Bhanumati executed the Will in question, and that she did
so on 24th May 1973 in the offices of M/s. Tyabji Dayabhai in the
presence of Mr. Chimanlal Vakil and Mr. Ved, remains completely
unshaken. Read with Question 4 put to PW 1 when cross-examined
in this Court, in my judgment, this is sufficient to prove the due
execution of the Will in its solemn form. Both Affidavits filed by the
Plaintiff make a specific assertion that when she made the Will in
Krishan Dayal v Chandu Ram, ILR (1969) Del 1090, 1096
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question, Bhanumati was of a sound state of mind, memory and
understanding. In paragraph 6 of his second Affidavit, PW 1 adds to
this by saying that this is evident from the fact that she signed the
car registration a few months after the date of execution of her Will.
He produces the document in question. There is no meaningful
cross-examination on this, and his testimony is undisturbed.
32. As a result of this discussion. I do not think that there can be
any doubt about the due execution of the Will and proof of the Will
in its solemn form. Accordingly, Issue Nos. 1 and 2 are answered in
the affirmative.
33. This then takes us to whether the Defendant has been able to
establish that Bhanumati lacked the necessary dispositive capacity at
the time when she made her Will, i.e., on or about 24th May 1973,
and that, as such, she was not competent to execute any document
including the document of Will. This is the exact phrasing of the
issue frame. The way this issue has been framed indicates the
burden that was placed on the Defendants, and that it is with this
understanding that the parties went to trial.
34. What is the evidence required of DW 1 to discharge this
evidentiary burden, i.e., to show this level of incapacity? She must
be able to show either that Bhanumati was, on account of her
admitted condition of epilepsy never, i.e., at no point in time, in a
sufficiently lucid state of mind to make a testamentary instrument;
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or, alternatively, that on 24th May 1973 she was so incapacitated that
she could not have possibly made that Will.
35. What DW 1 gives instead is truly a strange assertion. This is
to be found in her Affidavit of Evidence. Here, in paragraph 10, of
an Affidavit made in May 2015,23 Hemkala recalls in very great
detail events of 42 years earlier in May 1973. This is what she says:
"10. I say that I got married in the year 1968. I
had three daughters. My elder daughter Nina
was born on 8.3.1972 at Vile Parle. My all three
daughters were born at Vile Parle and that I
stayed at my mother's home at Green Bunglow
for a period of one and half month during my 3
daughters' birth. My relationship with my parents
was cordial and affectionate. I used to
accompany my parents on various Tourists
places even after my marriage. My mother was
being taken care by me during my visits at my
parents' place. I used to visit my mother's home
on every Sunday and that I had stayed at my
mother's bunglow during every summer vacation.
I had also stayed one week every month during
my periods as per the customs prevailing to sty
at my mother's home. I say that in the year of
May, 1973 I was at Vile Parle Bunglow and stayed
with my mother's home in entire Summer
vacation of May, 1973. I say that my mother
suffered Epileptic attacks in the second or third
week of May, 1973 and that she was not in a
proper sense. I had taken utmost care of my
mother during my stay with her. I say that my
23 pp. 277-278 of the paper-book.
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mother had never made the purported Will. The
contents of the purported Will are never made as
per my mother's instructions. I say that my
mother had never taken any independent
decision in her life. My mother was always under
care and supervision of my father and that after
the death of my father on 24th May 1979, my
other was under supervision of my brother
Chittaranjan. My two elder brothers got
separated after the marriage of my brother
Chitaranjan due to quarrels between wife of my
brothers. My mother was under the influence of
my brother Chitaranjan, his wife and elder
brother's daughter Lina and that they used to
torture my mother if she made telephone calls to
me and my sister Induben. They used to quarrel
with my mother after our visit at our mother's
place. They did not like our visits to my mother's
place."
36. Hemkala claims that Bhanumati suffered epileptic attacks in
the second or third week of May 1973 and then says that she was not
in a proper sense. But there is no evidence to show that because of
her epileptic episodes Bhanumati was always in a state of incapacity.
PW 1, while admitting that she had epileptic episodes, said in cross-
examination that she was in the intervening periods perfectly
normal. This is a situation contemplated by Explanation 3 to Section
59 of the Succession Act, 1925. There is no evidence whatsoever
from Hemkala to show that throughout that period of the second half
or third quarter of May 1973 Bhanumati was at all times in this
condition. In fact, there is nothing to show what she says is true.
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Hemkala ends her Affidavit with the following assertions in
paragraph 19:
"19. I say that as stated hereinabove, my
mother was suffering from the chronic disease of
epilepsy and Hysteria since the age of about 22
years throughout her life. My other got frequent
epileptic attacks at regular intervals in her life.
She was not competent to take any independent
decisions during her life time because of her
sickness. My mother was under constant care of
my father and thereafter my deceased mother
was under constant care, control and supervision
of my brother Chittaranjan. My brother
Chittaranjan always quarrelled with my deceased
mother if she accompanied with her daughters
for outdoor visits."
37. Thus, the evidence led by Hemkala is that on account of
epilepsy and hysteria, Bhanumati was at no time competent to make
a Will.
38. Hemkala was extensively cross-examined, inter alia, on these
assertions. Mr. Bulsara points to the cross-examination from
Question 10 to Question 14. It reads as follows:
"Witness's attention is drawn to
paragraphs 9 and in particular to the
sentence "during the epileptic attacks
my mother used to become very dull" and
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in paragraph 11 to the first sentence of
the said paragraph of her Affidavit of
Evidence.
11. Q. Which of your two statements are
correct?
Ans. At times she would become very dull
and at times violent also.
Witness' attention is drawn to paragraph
10 and in particular to the sentence "I
say that in the year May 1973 ........
ig vacation of May 1973." of her Affidavit of
Evidence.
12. Q. Whose summer vacation are you
referring to?
Ans. During my daughter's summer vacation
and when my sisters and her children
used to visit the Vile Parle bungalow.
13. Q. Is it correct to say that in May 1973 your
daughter was only one year old?
Ans. Yes.
14. Q. I put it to you that your daughter was
not in school in May 1973 and therefore
what you have stated in your Affidavit of
Evidence is incorrect?
Ans. I did not mean during my daughter's
summer vacation. I meant during my
sister's children's vacation."
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39. Clearly, Hemkala's memory is not quite as unerring as she
makes it out to be.
40. If what Hemkala says is correct, then I think it would be
reasonable to presume that Bhanumati would be on heavy doses of
medication to keep her calm and stable. In cross, Hemkala says that
she was given just one tablet once a day24 and that it was her father
who would give her this medication while he was alive.25 She then
admits that after her father's death, it was the Plaintiff and his
daughter who administered medication to Bhanumati.26 Read as a
whole, this evidence suggests that Hemkala herself is quite unaware
of Bhanumati's exact medical condition. Indeed, she admits that it is
Chittaranjan who is best placed to know her medical condition, even
if he does not today recall the name of that medication. This
admission from the 1st Defendant, that it was the Plaintiff who
administered the medicine to Bhanumati, is crucial.
41. The Plaintiff has not rested at this. In order to show that
Bhanumati had otherwise lived a normal life, Hemkala was shown
several photographs.27 For each of these photographs she was asked
to identify the persons in the photograph and where it was taken. To
her credit, Hemkala did not hesitate or prevaricate in her answers.
The photographs are at Exhibit "G" to Exhibit "X" in evidence.
They are the kind of photographs that one typically finds in old
family albums: marriages, outings, picnics, travel and so on. Some of
24 Q. 50, p. 300.
25 Q. 51, p. 300.
26 Q. 52, p. 300.
27 Q. 58 to Q. 77, pp. 302-306.
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these photographs, such as the ones at Exhibit "H",28 Exhibit "I",29
Exhibit "J"30 and others are significant not only because of their
evident vintage, but because they show Bhanumati in a completely
normal state going about various activities. Sometimes she is seen at
a temple, sometimes at the sacred tank; at other times in a boat on a
river and even on camel back. In Exhibit "O",31 she is seen in a field
gathering what I presume is corn. In another photograph, identified
by Hemkala as one of her parents, Exhibit "P",32 she is seen in what
appears to be a foreign land. This is evident from the dress of the
person who is to Bhanumati's right and the image of the cable car to
the left in that photograph. There are also photographs of
Bhanumati and Hemkala in Kashmir, Exhibit "R",33 and Bhanumati
with Hemkala's three brothers and sister in a boat on a lake. There is
also a photograph of Yaswant, Chittaranjan, Hemkala, Kirtikumar
and Bhanumati taken at Amarnath, Exhibit "U",34 and of her in
Amreli playing garba, Exhibit "W".35
42. Mr. Shah refers to a decision of the Himachal Pradesh High
Court in State of H.P. v Ranjeet Singh36 in regard to the question of
epilepsy. He relies on paragraph 25 of this decision. This was a
criminal case. I find that the Court refers to certain text books on
28 Paperbook, p. 309.
29 Paperbook, p. 310.
30 Paperbook, p. 311.
31 Paperbook, p. 316.
32 Paperbook, p. 317.
33 Paperbook, p. 319.
34 Paperbook, p. 323.
35 Paperbook, p. 324.
36 (2008) 2 Cur LJ (HP) 303: (2008) 2 HLJ 1335
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toxicology and jurisprudence and it quotes a paragraph from Modi's
Medical Jurisprudence and Toxicology, 22nd Edition page 73, which
reads:
"The disease is generally characterized by short
transitory fits of uncontrollable mania followed by
complete recovery. The attacks however become more
and more frequent. There is general impairment of the
mental faculties with loss of memory and self control.
At the same time hallucinations of sight and hearing
occur and are followed by delusions of a persecuting
nature. They are deprived of all moral sensibility, are
given to the lowest form of vice and sexual excesses,
and are sometimes dangerous to themselves as well as
to others. In many long standing cases there is
progressive dementia or mental deficiency ... ... Post
epileptic insanity: In this condition stupor following the
epileptic fits is replaced by automatic acts of which the
patient has no recollection. The patient is confused,
fails to recognize his own relatives, and wanders
aimlessly about. He is terrified by visual and auditory
hallucinations of a religious character and delusions of
persecution, and consequently may commit crimes of a
horrible nature, such as thefts, incendiarism, sexual
assaults and brutal murders. The patient never
attempts to conceal them at the time ... but on
regaining consciousness, he tried to conceal them out
of fear."
43. Now this, apart from assisting Mr. Shah, is against him. It
establishes that epilepsy is characterised by its transitory nature
followed by complete recovery. I am not even entirely certain about
the accuracy of this text because of its unscientific use of the words
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such as "vice" and "sexual excesses". Moreover, the accused in that
was acquitted due to lack of evidence establishing identity, rather
than the plea of unsoundness of mind. This decision is of little avail
to Mr. Shah, nor can the reference be taken to be authoritative.
There is also no evidence of Bhanumati's degeneration to this
extent; to the contrary, the evidence shows otherwise.
44. Mr. Shah also tenders in his compilation of cases, another
judgment of the Himachal Pradesh High Court in Piar Singh v
Union of India37 to support his argument on the question of epilepsy.
This was a Writ Petition under Articles 226 and 227 of the
Constitution of India. The Petitioner was discharged from military
service on account of his suffering from epilepsy. He sought a writ
of mandamus directing the respondents to grant him disability
pension. After discussing the various causes of epilepsy, Vaidya J.,
in paragraph 24, notes the effects of epilepsy. I fail to see how this
case in any manner assists Mr. Shah. The effects of epilepsy are not
in dispute. The burden on Mr. Shah is to show that Testatrix was
perpetually suffering from these effects or, at the very least, at the
time when she made the Will. This he is unable to do.
45. What the Plaintiff has produced in contrast, including the
admitted photographs and his own testimony, is compelling
material. The photographs were introduced by the Plaintiff. They
were acknowledged by the 1st Defendant. The evidence, taken as a
whole, does not in any way substantiate 1st Defendant's case on
complete and utter testamentary incapacity. To the contrary, it
(1995) 2 Shim LC 118
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establishes precisely what Plaintiff candidly admits, that Bhanumati
had epileptic episodes but that she was otherwise unimpaired in her
faculties. This issue is, therefore, answered in the negative.
RE: ISSUE NO. 3A
46. I am unable to understand the manner of pleadings or what it
is that Hemkala is attempting in proof of this issue. It is true that the
Will excludes both sisters. But the other sister has withdrawn her
opposition. It is not enough, when alleging that the Will is
unnatural, to show that the Will is unfair or one-sided or that it
favours one person over another. By definition, every Will disrupts
the ordinary line of succession. If it did not, there would be nothing
to contest; indeed, there would be no call for a Will at all. When,
therefore, it is stated that the Will is unnatural, it must be shown
that the purported Will makes a disposition that the testator or
testatrix in question could never have made on account of his or her
closeness to the person challenging the Will. The defendant must
show that he or she was so close to the testator that in the ordinary
course of normal human conduct, there would have been no cause
for an exclusion. I have taken a similar view in Madhuri Baldota v
Omkarlal Banwat & Ors38,cited by Mr. Bulsara. Hemkala has been
unable to put forth any evidence to suggest that such an exclusion
was inconceivable. The Will says, and this is undisputed, that at the
time of the marriages of four of her six children several ornaments
were given to them. The bequest of the Vile Parle house is to all four
2015 (4) Mah LJ 327, paragraphs 11 and 12
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sons equally, and of the Amreli property is to the two of the four
sons. It can hardly be argued by Hemkala that something should
have been left to her father: that is not for Hemkala to say. Hemkala
must establish by cogent evidence that her relations with her mother
were not just cordial, but were of such depth or intensity that her
mother would never have contemplated any such exclusion in the
Will. Of this, there is simply no evidence. A mere exclusion of one
heir or even class of heirs is not by itself evidence that the Will is
unnatural. This issue must also, therefore, be answered in the
negative.
RE: OTHER ARGUMENTS
47. At this point I must mention that Mr. Bulsara tendered a
compilation of judgments only after the judgment was reserved. I
will not be dealing with these judgments, as that would be most
unfair to Mr. Shah, who has had no opportunity to deal with them.
48. I have allowed Mr. Shah to address me on certain other
aspects, though I am unable to see how they relate to any one of
these issues. I have allowed him to do so on the footing that he has
raised questions that the Will is shadowed in suspicious
circumstances. He provides me a list of these. I have considered that
list. None of the matters that he points to me compel me to
disbelieve the Plaintiff's case or to discredit the Will. For instance,
Mr. Shah would have it that there is no explanation of the insertion
of the date '24TH' on the fourth page of the Will. Perhaps not. At
this distance in time -- and I am mindful of the fact that I am in
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June 2016 disposing of a Testamentary Petition filed 23 years ago --
it would be difficult for anybody to recollect every single such detail
with precision. Mr. Shah is also not correct when he says that the
names of Mr. Vakil and Mr. Ved are not signatures but merely their
names written out. PW 2, Mr. Jayant Vakil, says otherwise, and
there is no reason to disbelieve his evidence.
49. Some of Mr. Shah's arguments seem to me to be ones of
desperation: for instance to say that the docket bears no date is a
matter that is surely irrelevant. The Will can hardly be invalidated
for this reason. Similarly, saying that the signature of the deceased
on the Will is "extremely close" to a closing bracket in that portion
of the Will leads us nowhere.
50. Mr. Shah also make much of the fact that the Will makes no
mention of the bungalow's name on the Vile Parle plot, and that it
consistently refers to Hemkala as Hemlata. On the Will being read
over and explained to Bhanumati, Mr. Shah says, surely these
mistakes would have been corrected. It is unknown, he insists, in
what language the Will was read over and explained to her. There
are perhaps some things about the wordings of the Will which we
will now never know for certain. There is, however, no reason to
doubt Mr. Vakil, PW 2, when he identifies his father's and partner's
signature and handwriting on the Will or to doubt the correctness of
that assertion. Mr. Vakil's cross-examination is largely unsuccessful.
Even if Hemkala's name is misspelled, what of it? There is no
doubting the identity of the person to whom the Will refers. Merely
because the name of the bungalow is not mentioned does not make
that a suspicious circumstance. I must assume that Mr. Chimanlal
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Vakil, a solicitor of some standing, would have taken care to explain
the Will to Bhanumati in a language with which she was familiar.
Perhaps, this was English; or perhaps, it was Gujarati. It matters
little. The reason is that PW 1 in cross-examination was asked about
Bhanumati's educational qualifications, and in answer to Question
193 he said that she could read and write in Hindi, Gujarati and
English. To the next Question, Q. 194, he said that she used to read
letters and newspapers in English as well. These are answers elicited
by the Defendant in cross-examination. To say, therefore, today that
this is a suspicious circumstance is not a submission that commends
itself.
51. In furtherance to his argument on suspicious circumstances,
Mr. Shah tenders decisions of the Supreme Court in Gurdial Kaur v
Kartar Kaur39 and Bharpur Singh v Shamsher Singh40 on what is
already a well-established principle of law. These decisions, in brief,
hold that the onus of dispelling the suspicious circumstances
surrounding a Will lies on the propounder. As I have said earlier,
Mr. Shah does not make out a persuasive case of the existence of
suspicious circumstances to begin with, and therefore these
decisions do nothing to further his case. In support of his argument
on an inequitable or unnatural disposition, Mr. Shah tenders a
decision of the Calcutta High Court in the case of Sushma Bala &
Ors v Anantnath Tarafdar & Ors.,41 but again to no avail I might add.
That decision said that while untrue statements and inequitable
(1998) 4 SCC 384.
(2009) 3 SCC 687.
AIR 1976 CAL 377
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dispositions by themselves are not grounds to make a Will invalid,
the confluence of such with unexplained suspicious circumstances
add to the volume of suspicion on the genuineness of a Will. It
follows, therefore, that this decision is against Mr. Shah; for, absent
proof of any suspicious circumstances, incorrect statements and
inequality in the dispositions in the Will do not per se operate to
invalidate it.
52. Mr Shah rounds up his compilation of cases with the
judgment of this Court in Usha Shrikant Rege v Gauri Gajanan
Rege.42 I am not certain to what end he includes it, since it is squarely
against him. The case reiterate a already well-established principle:
the procedure to prove due execution of a Will under Section 63 of
the Indian Succession Act, 1925 read with Section 68 of the Indian
Evidence Act 1872, and the procedure to be followed to prove a Will
in case of death of the attesting witnesses. As discussed in the
preceding paragraphs, the Petitioner has proved the due execution
of the Will.
CONCLUSION & ORDER
53. The Testamentary Court's jurisdiction is not a jurisdiction of
suspicion. It is a jurisdiction of circumspection and caution. The
conscience of the Court must be satisfied. The test is, as well-settled
by the decision of the Supreme Court in H. Venkatachala v B.N.
2014 (6) Mh. L.J.
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Thimmajamma,43 the satisfaction of a prudent mind, not
mathematical certainty. Suspicious circumstances, where in
existence, must be removed. But where there are no suspicious
circumstances, and the execution of the Will has been sufficiently
proved, a probate Court would be failing in its duty if it merely
proceeded on speculation and surmise. This is what the 1st
Defendant asks me to do.
54. In the result, the Suit succeeds and is decreed. The Petition
will proceed to the grant of probate. Registry to act on an
authenticated copy of this order. Given the fact that the Petition was
filed in 1993, the Registry is directed to give this matter priority.
55. At Mr. Shah's request, issuance of probate is stayed for a
three weeks from the date when this judgment is uploaded.
56. It remains only to thank Mr. Bulsara and Mr. Shah for their
assistance in the matter. Both have conducted their respective cases
with exemplary restraint and precision.
(G. S. PATEL, J.)
AIR 1959 SC 443
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