R&P, p. 65.
R&P, pp. 69-73.
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wanted to make her Will, and requested Dr. Sethna to
'examine her as a Psychiatrist and certify
her testamentary capacity to make her
Will.'
In itself, this one sentence has catastrophic consequences to the
Plaintiff's case. It points unequivocally to a lack of testamentary
capacity; the Plaintiff's knowledge of it; and, too, the Plaintiff's
27.
Dr. Sethna goes on. At 6:45 pm, she went to Nergish's Lotus
Court flat. Nergish was in the bedroom. Dr. Sethna went in. They
exchanged 'some greetings'. Does this mean Nergish could
converse? Mr. Shroff's evidence points to the contrary. Dr. Sethna
does not expand on this in her examination-in-chief. She says that
28. Then Dr. Sethna says Nergish came to the dining table, and
Dr. Sethna accompanied her there. She (Dr. Sethna) was introduced
to Mr. Shroff. Dr. Sethna told Mr. Shroff that due to Nergish's
'partial paralysis', Nergish could not sign. To this, Mr. Shroff
'advised' that Nergish could affix her thumb impression, which Dr.
Sethna says Nergish did on each page and against the execution
clause. Then follow the usual confirmations of the witnesses'
signatures and Dr. Sethna's closing comment that Nergish was of
sufficient dispositive capacity.
29. This evidence, even with cross-examination, is very
problematic. Nergish apparently had a conversation with Dr.
Sethna; but to Mr. Shroff, a person with whom one can safely
presume some decipherable speech was necessary, she only nodded.
Dr. Sethna says she 'advised' Mr. Shroff that Nergish could not
sign; but Mr. Shroff says he already knew this, since he had
30. Under cross-examination, this evidence all but collapses. Dr.
Sethna admits to being Mahabanoo's first cousin (their parents were
siblings).22 She says she knew Nergish by sight alone, i.e., that she
had never previously examined her or ascertained her condition, and
that Nergish was never previously her patient, and that she had
never examined her before;23 she had never even spoken with her
before.24 When asked if it was true that Nergish could not speak
Qn. 12, p. 78.
Qn. 2, p. 76; Qn. 14, p. 78; Qn. 15, p. 79.
Qn. 20, p. 79.
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coherently and could only make sounds, Dr. Sethna asserted that
she could speak words, single words or two words together, but
could not form large sentences.25 Then we come to the matter of the
actual alleged execution of the Will. This is what Dr. Sethna has to
say:
were the heirs of the deceased
according to Parsi law?
Gujarati, whether she had any
relatives. She said she had
relatives, but she did not
elaborate.
Q. 33) Would it be correct to say that
you could not have ascertained
and did not ascertain whether the
deceased knew as to who were her
heirs?
Ans) Well, she said that she had
relatives, but then she shook her
head as if to say that she did
not want to leave them anything.
Q. 34) Since you did not have the Will
the deceased, would it be correct
to say that you did not ascertain
whether the deceased knew the
contents of the Will?
Q. 35) Similarly would it be correct to
say that you did not ascertain
whether the deceased understood
the contents and effect of the
Will?
Ans) After I finished the examination,
Mr. Harish Shroff read the Will
to her. There was the will I
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suppose with them and he read it
to her and she nodded very
vigorously that she agreed with
what was stated in the Will.
31. "Nodded very vigorously"; "single word 'flat'"; "single
word 'paisa'". On this, we are asked to believe that Nergish knew
sufficiently what it was precisely she was doing on that day. Leaving
aside Dr. Sethna's acerbic and possibly questionable understanding
questions and answers that are telling. She was asked if she
ascertained Nergish's capacity by putting questions to her. The
response was in the negative; that Dr. Sethna ascertained Nergish's
capacity by her 'behaviour and the little speech that she had'. 27 A
little later, questioned whether she (Dr. Sethna) had tried to find out
why the Will was required to be explained to Nergish after it was
read out to her, Dr. Sethna said that 'it was explained very
32. The Plaintiff, Mahabanoo, made two Evidence Affidavits,
dated 4th October 201228 and 18th October 2012.29 Mahabanoo says
she was close to Nergish, who was her aunt and that her mother
Mani took care of both Nergish and Keki. In paragraph 11 of her first
affidavit, she says servants were hired to take care of both Nergish
and Keki, including a part-time cook. Then she says that Nergish
Qn. 44, p. 84.
Qn. 47, p. 84
R&P, pp. 89-98.
R&P, pp. 99-105.
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what she was saying; but since Mahabanoo was attached to her and
visited her regularly, she could decipher Nergish's speech. Later,
Mahabanoo says that, acting on Nergish's instructions, she
contacted Mr. Shroff, gave him a copy of the earlier joint Will,
instructed him to prepare a Will for Nergish along those lines and
later, got the draft approved by Nergish. She says that Nergish
pointed out the missing clause about Rohinton which Mahabanoo
relayed to Mr. Shroff. As to 7th February 1996, Mahabanoo
contradicts Dr. Sethna in at least one material particular: she says
that Mr. Shroff knew Nergish could not sign (meaning, therefore,
that there was no occasion for Dr. Sethna to 'advise' Mr. Shroff
about this). When Mr. Shroff was reading the Will (there is no
mention of it being explained), Mahabanoo was in the kitchen
preparing tea and snacks. When she came out, she saw Mr. Shroff
asking Nergish to put her thumb impression to the Will. In cross-
could understand Nergish.30 Apart from her say-so, there is no
evidence of this. In cross-examination, Mahabanoo denies that any
portion of the Will was on her instructions, and insists that she only
conveyed Nergish's instructions to Mr. Shroff. She confirms that
there were no others present at the time, the servants having been
given time off at that time of day.
33. Mr. Shah's submission is that there is no suggestion in the
cross-examination that Mahabanoo and her mother did not care for
Nergish. To the contrary: they engaged servants and domestic staff,
paid bills, managed bank accounts and therefore it is safe to
Qn. 61, p. 117.
conclude that Mahabanoo enjoyed Nergish's confidence. Beyond
this, he says, there is absolutely nothing to indicate that there was
any kind of undue influence; and, as to her testamentary capacity, in
his submission Dr. Sethna's evidence is unshaken and shows no
material error.
34. Of the witnesses whose evidence was led by the Defendants,
on these issues as to testamentary capacity and of the actual
execution of the Will, three witnesses are important. The first of
these is Kermeen, DW2, the daughter of the original 1st Defendant,
Fali and his wife Piloo, now Defendant No.1(a). The second is Dr.
Dhingra of the Parsee General Hospital, and the third is Dr. Kotwal,
Mahabanoo's estranged husband. Kermeen speaks not only of
Nergish's condition in later years, but of her background as well. 31
She says that Nergish had little schooling and 'very low mental
acumen'; that she had led a sheltered life in an orthodox home
where a female child's education was considered unimportant. She
was helpless and docile and dominated by Keki. Her orthodoxy
would not have allowed her to do something like make a fresh Will
during the mourning period following her husband's demise. Later,
in paragraph 15, she says that Nergish did not do any housework.
She never went shopping. Her daily routine involved a prolonged
bath, the odd visit to a Fire Temple and occasional evenings at the
Radio Club. Other than this, she could do next to nothing. She was
wholly incapable of independent thought and certainly not of
planning the disposition of her estate. Even in good health, she only
understood Gujarati and did not speak or comprehend much
English. In 1990 or thereabouts, Nergish suffered an acute paralytic
Affidavit, paragraph 8, p. 171.
stroke. She spent nearly four months in either the Breach Candy
Hospital or at the Parsee General Hospital. Kermeen claims to have
visited her at Bacha's Nursing Home at Marine Lines in early
November 1990 and later at the Parsee General Hospital as well. She
says Nergish was in the Parsee General Hospital from 22nd
November 1990 to 15th February 1991. These dates are confirmed
by Dr. Dhingra, DW3, who was summoned to produce documents.
He brought with him hospital registers. He was cross-examined, but
nothing very much turns on his cross-examination. I will, therefore,
proceed on the footing that Nergish was hospitalized. The fact that
she did suffer a stroke and was at least partially paralysed as a result
35. Returning to Kermeen's evidence, she says in paragraph 20 32
that following her stroke, Nergish's speech was slurred and only a
few who attended to her regularly over a long period could
understand what she was saying. Her right side was affected and her
right hand was unusable. By 1994 or 1995, her condition had
deteriorated. She was incoherent by then and reduced to making
sounds. She appeared to be wholly disoriented. She made sounds to
draw attention to her most basic needs for food or for aid with bodily
functions. She had suffered further strokes and was almost
immobile. She had to be carried from her bed to her chair. She could
not hold up her head. She was, to all intents and purposes, in a
R&P, p. 174.
R&P, paragraphs 22 and 23, p. 175.
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36. This is strongly worded and unsparing. Predictably, Kermeen
was subjected to a prolonged cross-examination.34 For all its length,
this cross-examination was not particularly effective: in many cases,
it succeeded in eliciting a confirmation and a reaffirmation of her
case. For instance, she maintained that Nergish was orthodox and
always lacked any great acuity;35 that she had a very low level of
education;36 made no independent decisions37 or even did the
household chores or shopping.38 Kermeen was confronted with
some certificates from the Trinity School of Music to counter this
37.
I turn lastly to the evidence of Dr. Kotwal, DW4,
Mahabanoo's estranged husband. I approach this evidence warily
and with great unease. In late 2011 or early 2012, Dr. Kotwal filed
for divorce. That divorce proceeding in the Parsi Chief Matrimonial
Court is still pending, with Mahabanoo having filed a Counter-
Claim. It is most acrimonious indeed. I have had the somewhat
dubious distinction of having presided over part of that trial; the
animosity was plain to see. The struggle seems to be chiefly over
property and money. In this case, there is some evidence of a
dispute between Dr. Kotwal and Mahabanoo relating to certain UTI
bonds and allegations of forgery by Dr. Kotwal. There is also the
added complication of his having been named an executor of
Nergish's Will and of not having renounced executorship; but, on
R&P, pp. 182-246, running into nearly 173 questions.
Qn. 51, pp. 195-196; Qn. 56, p. 197.
Qn. 52, p. 196.
Qn. 55, p. 197.
Qn. 55, p. 197
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Probate. He was summoned to give evidence and this, Mr. Shah
says, is proof enough of illicit motive and connivance between Dr.
Kotwal and the Defendants; there is no other reason for Dr. Kotwal
to have given evidence in the way he did. In his Affidavit in lieu of
Examination-in-Chief,39 Dr. Kotwal said a very great many things.
Not all were admissible or to his knowledge. Some were directed to
be excised; and further questions were ultimately allowed in Appeal.
He offers some sort of explanation in paragraph 11 about why he yet
filed an affidavit reserving his right to come in and apply for Probate,
and he is by no means so innocent or gullible as to have been
unaware of his rights. That explanation is unconvincing. But he also
says something important in the last part of paragraph 6 of his
Affidavit of Evidence,40 and this is vital on the aspect of the events
of 7th February 1996. He says:
I say that on 07.02.1996 Mahabanoo phoned
me at my clinic and asked me to bring Mr.
Harish Shroff to Lotus Court later that
evening. On reaching Lotus Court along with
Mr. Harish Shroff I saw Mahabanoo seated
across her dining table with her cousin
(father's sister's daughter) Dr. Katie J.
Sethna. For the first time I saw Dr. Sethna
in the Lotus Court Flat of Nargis and Keki
Cassad. In a few minutes Nargis was brought
to the dining table supported by her ayah
and nurse and made to sit next to Dr.
Sethna. Mr. Harish Shroff seated himself
next to Mahabanoo. Mahabanoo asked me to go
and sit on a sofa a few feet away from the
R&P, pp. 268-273.
R&P, p. 271.
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dining table. Mr. Shroff showed Nargis a
paper supposedly a copy of the Joint Will
and told her that "I have prepared your
Will on the basis of this paper handed to
me by Mrs. Mahabanoo Kotwal." Thereafter
Mr. Shroff proceeded to seek Nargis's
approval when Nargis was simply motionless.
Thereafter either Mr. Harish Shroff or
Mahabanoo reached across and proceeded to
take Nargis's hand and place her thumb
impression on the new Will after which Mr.
Shroff and Dr. Sethna endorsed their
respective signatures.
38. There is no point in adding emphasis to any of this. It is
clearly critical. For the first time in the narrative, we have evidence
of persons other than Nergish, Dr. Sethna and Mr. Shroff present at
the time: we now have Dr. Kotwal, an ayah and a nurse all said to be
present. No one else says this. We have evidence of Mahabanoo
saying that she had got a Will prepared for Nergish. Finally, we have
evidence of something utterly damning, of either Mr. Shroff or
Mahabanoo, the Plaintiff (not Dr. Sethna), taking Nergish's hand in
one of theirs and placing her thumb impression on the Will sought
to be propounded.
39. This evidence absolutely had to be assailed. It had to be
destroyed in its entirety. If even a portion of it remained unchecked,
the consequences to the Plaintiff would be calamitous across the
board, on all issues.
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40. Dr. Kotwal's cross-examination was taken in Court, before
me.41 A very large part of that cross-examination was devoted to an
attempt to establish that Dr. Kotwal's testimony was motivated.
Another segment focussed on the previous Joint Will. The only
questions put to Dr. Kotwal on paragraph 6 which I have extracted
above are these:42
38. Q. (Shown paragraph 6 of the
evidence affidavit, page 4,
portion beginning with the words
"I say that on 07-02- 1996...
respective
ig signatures.") Other
than your bare word, have you any
material on record to establish
what you have said in the portion
of your affidavit that is now
shown to you?
Ans. My word is enough.
39. Q. Since you said that you were
present on 7th February 1996, did
you inform Mr. Harish Shroff that
the signatures of Mr. Kothawala
and Mr. Todywala had been
obtained on Exhibit "P2" at the
Racecourse?
Ans. I would have thought that
Mahabanoo would have informed
him. I had no reason to inform
Harish Shroff myself. Mahabanoo
always told me not to interfere.
R&P, pp. 276-295.
R&P, pp. 289-290.
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41. This is all. There is nothing at all put to Dr. Kotwal about the
others he said were present (the ayah and the nurse), a statement
that directly contradicts Mahabanoo's testimony that the domestic
help were given the time off; or to contradict his assertion that he,
too, was present at that time on 7th February 1996. There is not a
suggestion put to him in regard to his evidence that either Mr.
Shroff or Mahabanoo took Nergish's hand and placed her thumb
impression on the document. I confess that I am unable to
comprehend why this cross-examination was quite so listless. There
is very little here to lead me to believe that Dr. Kotwal's credibility is
so shaken as to render this evidence worthless. Indeed, the further
cross-examination causes the Plaintiff even more damage. He was
asked this:
53. Q. When you visited Lotus
Court, did you see Nergish
reading newspapers?
Ans. No, never.
56. Q. Did you or Mahabanoo, or
both of you, taking Nergish out
shopping?
Ans. Nergish was in no condition
to be taken shopping.
42. This, too, is damaging to the Plaintiff; and then, in response
to questions 59 and 60, when it is suggested to him that he is
deposing falsely on account of his matrimonial disputes with
Mahabanoo and to deprive her of her 'shelter' at Lotus Court, Dr.
Kotwal emphatically denies the suggestion.
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43. It is in this context that I must see Mr. Shah's submission that
the due execution of the Will and Nergish's testamentary capacity
both have been sufficiently established. I find it exceedingly difficult
to come to any such conclusion on this material. It is of very little
consequence, in my view, that the Will has a charitable bequest;
there is also, on the other hand, a very substantial bequest to
Mahabanoo and additional ones to her children. As I have noted,
there is now a fair deal of doubt about who was present on 7th
February 1996; Dr. Kotwal's evidence on this remains untested.
There is also overwhelming evidence of Nergish's physical and
mental incapacity and of her limited education and cloistered
background and life. Mahabanoo herself says she is unaware of
Nergish's schooling. There is very little evidence of literacy and no
effective cross-examination of Kermeen on her evidence of
Nergish's life and state before her stroke. There is also nothing at all
to show a severance of ties with other family members; and in this I
will ignore as largely inconclusive the evidence in the form of
photographs by either side taken at various functions, and, too, the
generalised statements of paying visits and so on. What is not,
however, in any manner of doubt is Nergish's condition, one that
steadily worsened, following her stroke. By the end of 1995, I think it
is reasonable to conclude that she had no cognitive abilities
remaining to her and was indeed vegetative. Even Dr. Sethna does
not attribute to her any great ability of speech. Mahabanoo
contradicts herself: on the one hand, she says that being close to
Nergish, she could understand her and 'read' her wishes. But at the
time when the Will was supposedly explained and read over to
Nergish by Mr. Shroff, Mahabanoo says she was in the kitchen. How
then might she have known of Nergish indicating her understanding
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to Mr. Shroff and Dr. Sethna? And how would either of them have
comprehended Nergish's comprehension, if any? Dr. Kotwal speaks
of the ayah and the nurse, two who Mahabanoo says were off duty at
the time. Perhaps; but that is certainly most convenient to the
Plaintiff and, given Nergish's condition, hardly credible. What is
critical here is, however, what is not mentioned. Mahabanoo tells us,
as does Kermeen, that Mahabanoo's mother, Mani Mody, had more
or less moved in to Nergish's flat and was, to all intents and
purposes, her primary care-giver. If that was so, where was Mani in
the evening of 7th February 1996? Not one who was present at that
time tells us; and, of those present, Dr. Kotwal, Dr. Sethna and Mr.
Shroff could not have known. Only Mahabanoo could have known;
and she does not say.
44. The previous Joint Will dated 26th October 1995,43 is used to
lend probability to the present Will sought to be propounded. Aban
and Homa Petit, both well known figures in the city's Parsi
community, were legatees with discretion to donate to the Parsee
General Hospital. This has been removed in the final Will. On this,
DW1 was Kothavala, whose evidence is more than a little bizarre:
Kothavala says he signed the document on 26th October 1995 on the
third floor of the Members' Enclosure at the Mahalaxmi
Racecourse. He says he did this at Mahabanoo's instance and on her
assurance that the signatures on those documents were those of
Keki and Nergish. It is true that a Will has no fixed form and no pre-
determined venue; but the noisy effervescence at Mumbai's
Mahalaxmi Racecourse on a racing day is hardly the kind of place
one would expect to have been used for a document of some gravity
Ex. "P-2", p. 316.
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and solemnity. Now if the Plaintiff wished to rely on this previous
Will, one might have reasonably expected her to summon the
witnesses to it; she did not. They came as witnesses for the
Defendants, and it is easy to see why. To the present Will, the value
of the previous Will is insignificant; to the question of undue
influence, it is far more material, especially given Kothavala's
testimony.
45. Let me return for a moment to the Will itself. It is supported
by the evidence of Mahabanoo, Mr. Shroff and Dr. Sethna. There
are no other witnesses led by the Plaintiff. Mahabanoo's own
evidence is, as we have seen, evasive and self-contradictory. Mr.
Shroff's testimony points to her very considerable involvement in
the preparation of the Will, something that is further contradictory.
Both attesting witnesses claim to have communicated fairly
elaborately with Nergish, of her being of sound mind,
comprehending the full extent of her estate, the identity of her heirs
and the persons to whom she wanted to leave her assets, providing
detailed instructions, being perfectly mobile and so on to the end of
the chapter. But all this disintegrates in cross-examination. Now we
have an image of an old and enfeebled lady, incoherent, unable to
use her right hand on her own and wholly unable to communicate.
The sum total of her communication is two words: 'flat' and 'paisa'.
Mr. Shroff himself never spoke with Nergish. He moves from no
conversation at all at page 57 to hardly any conversation, and then
Nergish's understanding of what she was doing is said to have been
gleaned from a nod; or a vigorous nod. I cannot lose sight either of
the fact that Dr. Sethna is Mahabanoo's cousin. Then we come to
the evidence of Dr. Kotwal, which I have already analysed. I
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expected a far more thorough cross-examination. There is, indeed,
no challenge to his testimony, one that puts the Plaintiff's entire
version in doubt. Let us put all aside and consider only this: how did
Nergish communicate her understanding of her actions? All we have
before us is some testimony of a nod. Let us assume even that; for
Dr. Sethna says she did have a conversation with Nergish and it was
about property. Nergish told her, she says. How was this done? How
could this be done? It was not even possible, even on Dr. Sethna's
showing. Then comes the all-important Question 29 in Dr. Sethna's
cross-examination.
Q. 29)
What did she tell you?
Ans) She said a single word,
'flat'. She said a single word,
'Paisa'.
46. That is all. That is the whole of it. That is the 'conversation'.
That is the extent of Nergish's communication of her estate. From
the perspective of classical cross-examination, this was a remarkably
adventurous question to pose. The cross-examiner was running a
very great risk indeed, for any answer was possible. Counsel then
seems to have taken the plunge: Dr. Sethna was given a chance to
correct course. She was asked if this was all that she was told about
the properties. "Yes", she replied; and was then asked if it was
correct that she, Dr. Sethna, had at that time no way of knowing if
Nergish had knowledge of all the properties she owned. Dr. Sethna
agreed; there was no way she could have known, she said. It may be
argued on this that all this establishes Dr. Sethna's truthfulness; but
I do not question that. I do however question the legal validity of
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these responses. Combined with her testimony that the explanation
of the Will was very perfunctory and the lack of any mention in her
examination-in-chief of the Will ever being read out or explained,
what emerges, clearly and beyond a shadow of doubt, is that Nergish
was in absolutely no condition to convey her understanding of
anything, and that she had no understanding at all of what she was
being made to do.
47. Mr. Shah is undoubtedly correct in saying that 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 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. 44 Indeed, the very
decision that Mr. Shah then cites, A.E.G. Carapiet v A.Y. Derderian,45
usually referenced (and usually wrongly46) on the issue of the need
of 'putting one's case' is against him on this aspect of the matter:
16-19. The question of a sound mind is a
dominant question in a court of probate.
Numerous decisions of high authorities have
laid down from time to time tests by which
to judge a sound disposing mind. It is not
Kanwar Sain v State & Ors., AIR 1976 Del 11; Gordhandas Nathalal Ptel
v Bai Suraj & Ors., AIR 1921 Bom 193 (DB)
AIR 1961 Cal 359
2015 (1) BomCR 361
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an absurd test. Nor is it the test of a
perfectly healthy and perfect mind. Indeed
most of the wills are not made by persons
young and vigorous and glowing in health.
The test of a sound disposing mind is in
law a workable test. It means in plain
language an appreciation of the fact that
the man is making a will, an appreciation
of the contents of that will and an
appreciation of the nature of disposition
that he is making having regard to the
claims of affection and family relationship
and claims of the society or community to
which he belongs. It is not a hypothetical
nor an impracticable test. It is not the
test of a psychologist or a psycho-analyst
or a psychiatrist who in the modern age is
prone to consider all human mind to be
inherently unsound by nature and abnormal.
Nor is it the too Scientific test which
would satisfy the highest technical medical
examinations. Some idea of what this sound
disposing mind in testamentary law is, can
be gathered from Section 59 of the
Succession Act and the statutory
Explanations thereunder. In Explanation 2
of Section 59 of the Succession Act it is
expressly stated that persons who are deaf
or dumb or blind are not thereby
incapacitated for making a will if they are
able to know what they do by it. Similarly
under Explanation 4 of Section 59 of the
Succession Act no person can make a will
while he is in such a state of mind whether
arising from intoxication or from illness
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or from any other cause that he does not
know what he is doing. The illustrations
make it clear that a mere perception of
what is going on in the immediate
neighbourhood and an ability to answer
familiar questions but without competent
understanding as to the nature of his
property or the persons who are kindred to
him or in whose favour it would be proper
that he should make his will, will not be
enough proof of a sound mind within the
meaning of Section 59 of the Succession
Act. These Statutory Explanations are not
intended to be exhaustive but they give
practical illustrations to explain a sound
disposing mind.
(Emphasis added)
This seems to me to apply squarely to the facts of this case.
48. Mr. Rustomjee is, I think, correct in his reliance on Section 59
of the Indian Succession Act, 1925 and the illustrations to it:
Section 59 -- Person capable of making Wills
Every person of sound mind not being a
minor may dispose of his property by Will.
Explanation 1. A married woman may dispose
by Will of any property which she could
alienate by her own act during her life.
Explanation 2. Persons who are deaf or dumb
or blind are not thereby incapacitated for
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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 an 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.
Illustrations
(i) A can perceive what is going on in his
immediate neighbourhood, and can answer
familiar questions, but has not a competent
understanding as to the nature of his
property, or the persons who are of kindred
to him, or in whose favour it would be
proper that he should make his Will. A
cannot make a valid Will.
(ii) A executes an instrument
purporting to be his Will, but he does not
understand the nature of the instrument,
nor the effect of its provisions. This
instrument is not a valid Will.
(iii) A, being very feeble and
debilitated, but capable of exercising a
judgment as to the proper mode of disposing
of his property makes a Will. This is a
valid Will.
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49. Illustrations (i) and (ii) apply to the case at hand. In the case
of a testator in such a condition as was Nergish, the initial burden on
the propounder of that Will is very heavy; the more so, when the
person receiving a benefit played a leading part in the making of that
Will.47 All suspicious circumstances must be removed, and an active
interest and participation in the making of the Will is indeed
suspicious.48
50. An interesting decision cited by Mr. Rustomjee comes from
the Supreme Court of Sri Lanka: Meenadchipillai v S. Karthigesu &
Ors.49 Here, too, arose the question of the testator's apparent lack of
the ability of speech and an alleged understanding by others of the
testator's intentions despite that impediment. The Court observed:
Another circumstance of suspicion is the
testator's condition at the time of
execution of the will. One feature of his
condition, which has been admitted by all
who saw him at that time, was his inability
to speak. All he could do, apparently, was
to nod his head. The witnesses have chosen
to interpret the fact that he nodded his
head three or four times to mean that he
assented to the three or four questions
that were addressed to him by the Notary.
Nothing more seems to have passed between
the testator and the witnesses on that
occasion. The question arises whether it is
satisfactory to construe the nodding of his
H. Venkatachala Iyengar v B. N. Thimmajamma & Ors., AIR 1959 SC 443.
Ram Piari v Bhagwant & Ors., (1990) 3 SCC 364
(1958) 61 NLR 320 : 19587 SCC Online 58
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head as a sign or approval. Whether the
testator heard all that the Notary said,
and also understood what he heard, is by no
means clear. His hand trembled so much that
he could not hold the pen which was offered
to him. The Notary and the petitioner say
that the testator showed his thumb and they
interpreted this to mean that he wanted his
thumb impression taken. When all these
matters are taken with the proved fact that
the testator died within seven hours, the
exact condition of the testator is left in
grave doubt.
51. Nergish's testamentary capacity is not established. The
making of the Will is not proved.
52. The question of undue influence, the burden of which is on
the Defendants, is actually wholly unnecessary in view of the
preceding discussion; but since it is taken together with the question
of Nergish's volition, I will proceed to answer it. On this aspect of
the matter, there are a few broad indicators: Dr. Kotwal's
unchallenged testimony that either Mr. Shroff or Mahabanoo took
Nergish's hand and placed her thumb print on the Will is perhaps
the least important of them. What we do know, however, from the
Plaintiff's own witnesses is that it was she, and she alone, who
throughout communicated with Mr. Shroff. She says she did so on
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Nergish's instructions, but given Nergish's condition, that she was
capable of communicating any instructions or wishes even to
Mahabanoo required far more proof than is made available to us.
Mahabanoo speaks of her and her mother's closeness to Nergish; of
Mahabanoo's mother we learn next to nothing. She remains a figure
in the shadows. But this so-called closeness is perhaps itself
somewhat hollow. Mahabanoo did not attend Keki's funeral.50 She
says she was at work. She claims Keki died on 15th December 1995.
Within just a few days, Nergish was said to be 'screaming' to have a
Power of Attorney made.51 By 20th December 1995, the Power of
Attorney was complete, with Nergish's thumb print on it. The
Power of Attorney itself is on record.52 It is on Rs.50/- non-judicial
stamp paper. That stamp paper was purchased in the name of N.K.
Cassad, Nergish. The date of purchase is 16th December 2015. The
difficulty with Mahabanoo's testimony is that she seems to have
worked backward from the date of this stamp paper to arrive at the
date of Keki's death. His death certificate, however, shows that he
died on 16th December 1995, not 15th December 1995. This is the
oddest of circumstances, and it also shows that though she was away
on work and could not attend Keki's funeral, she had time enough to
relay or give instructions regarding this Power of Attorney. This
Power of Attorney is said to have been needed to deal with the
awkward relative, Rohinton. But that, too, seems incorrect: consent
terms with Rohinton were filed in 1997, only two years later. In
response, Mahabanoo says in cross-examination that this Power of
Attorney was not in fact meant to handle the situation with
Qn. 48, p. 195.
Paragraph 14, examination-in-chief, p. 94.
Ex. "P-1", pp. 304-315.
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Rohinton at all,53 but only generally. This completely jettisons her
version in examination-in-chief.
53. Three documents: the earlier Will; the Power of Attorney;
and the present Will; and over all three there looms the figure of
Mahabanoo Kotwal, the Plaintiff. It was she who asked for the
earlier joint Will to be attested (at the races, no less). It was she who
said that the signatures on it were of Keki and Nergish. It was she
who gave instructions for a Power of Attorney to be prepared to Mr.
Shroff. It was she who acted on it. It was she who allegedly relayed
instructions for the present Will to Mr. Shroff. It was she who
conveyed the approval of the draft. It is she who claims to have
been, with her own mother, Nergish's principal care-giver. It is on
her behalf that that most telling suggestion is put to her estranged
husband, that he has come to depose only to deprive her of her
shelter. And it is she who is the single largest beneficiary in real
terms of the bequests in the Will. It is impossible in these
circumstances not to conclude that the Will sought to be
propounded is not proved to have been made by Nergish of her own
volition; and, further, that there is proof enough of the exercise by
Mahabanoo of undue influence on Nergish at a time when she was
utterly within Mahabanoo's control and powerless to resist her.
54. As to undue influence, Mr. Shah is again correct in saying that
the burden lies on the Defendants who allege it, and to invalidate the
Will, must amount to coercion or fraud. Its existence must be
factually established by evidence. It must be shown that it was
Qn. 84, p. 121.
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actually exercised.54 But again, this is against Mr. Shah on the facts
of this case; and this case is also not one of those of 'mere'
influence, or of a party pleading his case before a testator. 55 Nor is it
a case of Mahabanoo merely being in a position to exercise undue
influence without evidence of her having actually done so. 56
55. Mr. Rustomjee is, on the other hand, correct in citing Section
61 of the Succession Act and some of its illustrations:
Section 61 -- Will obtained by fraud,
coercion or importunity
A Will or any part of a Will, the making of
which has been caused by fraud or coercion,
or by such importunity as takes away the
free agency of the testator, is void.
Illustrations
(i) ...
(v) A, being of sufficient intellect, if
undisturbed by the influence of others, to
make a will yet being so much under the
control of B that he is not a free agent,
makes a Will dictated by B. It appears that
he would not have executed the will but for
fear of B. The Will is invalid.
(vi) A, being in so feeble a state of
health as to be unable to resist
importunity, is pressed by B to make a Will
Mt. Gomtibai v Kanchhhedilal & Ors., AIR 1949 PC 272.
Naresh Charan Das Gupta v Paresh Charan Das Gupta, AIR 1955 SC 363
Totaram Maharu v Ramabai & Ors., AIR 1976 Bom 315.
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of a certain purport and does so merely to
purchase peace and in submission to B. The
Will is invalid.
56. Both illustrations may validly be applied to the present case.
In addition, every single one of the probanda in paragraph 7 of the
Supreme Court's decision in Surendra Pal & Ors. v Dr. Mrs.
Saraswati Arora & Anr.57 applies to this case.
7. The propounder has to show that the
Will was signed by the testator; that he
was at the relevant time in a sound
disposing state of mind, that he understood
the nature and effect of the dispositions,
that he put his signature to the testament
of his own free will and that he has signed
it in the presence of the two witnesses who
attested it in his presence and in the
presence of each other. Once these elements
are established, the onus which rests on
the propounder is discharged. But there may
be cases in which the execution of the Will
itself is surrounded by suspicious
circumstances, such as, where the signature
is doubtful, the testator is of feeble mind
or is overawed by powerful minds interested
in getting his property, or where in the
light of the relevant circumstances the
dispositions appear to be unnatural,
improbable and unfair, or where there are
other reasons for doubting that the
dispositions of the Will are not the result
of the testator's free will and mind. In
(1974) 2 SCC 600
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all such cases where there may be
legitimate suspicious circumstances those
must be reviewed and satisfactorily
explained before the Will is accepted.
Again in cases where the propounder has
himself taken a prominent part in the
execution of the Will which confers on him
substantial benefit that is itself one of
the suspicious circumstances which he must
remove by clear and satisfactory evidence.
After all, ultimately it is the conscience
of the court that has to be satisfied, as
such the nature and quality of proof must
be commensurate with the need to satisfy
that conscience and remove any suspicion
which a reasonable man may, in the relevant
circumstances of the case, entertain.
(Emphasis added)
57. What the Plaintiff had to show was full comprehension, and it
mattered not if the Will was foolish or heartless. The evidence in
this case, however, points in the other direction. It is impossible to
resist the conclusion that the Defendants have established undue
influence as well.
F. Conclusion & Order
58. To summarize: on Issues Nos.1, 2 and 4, taken together, I
must find against the Plaintiff. The Plaintiff has not proved that
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Nergish executed the propounded Will, or that she was possessed of
sufficient dispositive capacity at the time she was said to have
executed it. I have also found that the Plaintiff has not proved that
Nergish was in any condition to give any instructions to her attorney
and that any instructions given to prepare that Will were given by
the Plaintiff, Mahabanoo.
59. As to the second set of issues, viz., Issues Nos. 3 and 5, the
Plaintiff was required to prove Issue No.3, that Nergish made the
Will freely and of her own volition. It was only if she did so that the
Defendants would be required to prove Issue No.5, whether Nergish
was subjected to undue influence in the making of the Will. I have
found that the evidence does not establish Nergish's free Will and
volition to the extent required by law, and have therefore answered
Issue No. 3 in the negative. I have also found, having regard to the
manner of execution of the Will and the circumstances that
preceded it, that the Defendants have been able to establish undue
influence.
60. Consequently, the action fails. The suit is dismissed. There
will be no order as to costs.
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G. Envoi
61. Finally, something not often done but essential in this case:
mea maxima culpa. It has been nearly a year since I reserved
judgment. The fault is mine, in letting other cases intervene. I must,
of course, thank Mr. Shah and Mr. Rustomjee for their very
considerable assistance in this matter, but to the parties I offer both
apology and thanks for their gentle patience. I should note that I did
hesitate for some time in delivering this judgment on account of the
pending matrimonial cases between the Plaintiff and her husband,
Dr. Kotwal. In fact, I once even put it to the parties if I should defer
this judgment till at least the trial in that action was complete. The
only reason for this was my reluctance to be forced to a finding for or
against one of them and which might have had some bearing on the
trial in the divorce action. Both sides took instructions, and finally
asked me to proceed.
(G.S. PATEL, J.)
Note: This order is modified as per order dated 22nd March 2016
passed on a praecipe for speaking to the minutes of order.
These corrections are shown in bold, italicize and underline
in this order.
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