Bombay High Court
Jitendra Singh Rajendra Singh & ... vs Suresh Rajendra Singh Kushwaha on 23 March, 2016
Bench: G.S. Patel
TS-97-2011-KUSHWAHA-F2.DOC
SSM
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY & INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 97 OF 2011
IN
TESTAMENTARY PETITION NO. 832 OF 2010
1. JITENDRA SINGH RAJENDRA
SINGH KUSHWAHA
2. SUMAN JITENDRA SINGH
KUSHWAHA
3. NISHA JITENDRA SINGH
KUSHWAHA,
All of Mumbai, Hindu Inhabitants,
permanently residing at 381-A,
Kalbadevi Road, Narottam Wadi, 3rd
Floor, Room No. 31 to 35, Mumbai -
400002 and temporarily residing at
502, Rajdeep Apartments, 3/9 Tank
Lane, 5th Floor, Santacruz (West),
Mumbai - 400054, being the Executors
and Administrators named in the last
Will and Testament of the deceased. ... Plaintiffs
versus
SURESH RAJENDRA SINGH
KUSHWAHA,
Of Mumbai, Hindu Inhabitant, residing at
381A, Kalbadevi Road, Narottam Wadi, 3rd
Floor, Room No. 31 to 34, Mumbai - 400002 ... Defendant
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TS-97-2011-KUSHWAHA-F2.DOC
A PPEARANCES
FOR THE PLAINTIFFS Mr. Shailesh Shah, Senior Advocate,
with Ms. Mamta Sadh & Ms. Ujwala
Deshmukh, i/b M/s. Zohair & Co.
FOR THE DEFENDANT Mr. Zubin Behramkamdin, with Mr. Jacob
Kadantot & Mr. Ajit Shah, i/b Nitin
Parkhe
CORAM : G.S.Patel, J.
JUDGMENT RESERVED ON
ig : 25th June 2015
JUDGMENT PRONOUNCED ON :
JUDGMENT:
1. Rajendra Singh Kushwaha ("Rajendra"; "the Testator";
"the deceased") died in Mumbai on 18th December 2009. The
Plaintiffs are his elder son, Jitendra; Jitendra's wife, Suman; and
their daughter, Nisha. All three Plaintiffs are Executors named in
Rajendra's Will dated 10th May 2006. They seek probate to this
Will. They are opposed by Rajendra's younger son, Jitendra's
brother, Suresh.
2. Rajendra's wife, Damayanti, died before him in 1985. She
bequeathed her entire estate to Rajendra, her husband. Rajendra and
Damayanti had five children, three daughters and two sons. The
three daughters, Prafulla Devendrapal Singh Chauhan ("Prafulla"),
Aruna Dinesh Jayant ("Aruna") and Bina Nishikant Singh
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Chauhan ("Bina") are all married and have children. Jitendra and
Suman have four children: Nisha (Plaintiff No. 3), Ajit, Manisha
and Anjali. Suresh (Rajendra and Damayanti's younger son;
Jitendra's brother) is married to Nita Suresh Kushwaha ("Nita").
They have two children, Yashraj and Swati.
3. Rajendra was a practicing advocate till the 1960's, and it
shows: the alleged Will is punctilious, and meticulously organized. It
has eight sections, styled as paragraphs. The first paragraph, "Myself
and My Sound Mind", as its heading suggests, declares the document
to be his last Will, made in sound health and state of mind and
without any influence. Paragraph II, "I Have Not Made Any Will"
states that the document is his first and last Will. In paragraph III,
"All My Properties Are Self-Acquired", he makes it clear that all of his
property is capable of being bequeathed in his Will. He outlines in
IV, "Nobody Has Any Interest or Title in My Properties", the previous
gifts that he has made to his relatives, and reiterates that all of his
property is self-acquired. In paragraph V, "My Family", he lists his
immediate heirs. Paragraph VI, "My Properties" lists all of his
properties, both movable and immovable, a total of 13 entries. In
paragraph VII, "Appointment of Executors and Their Duties", he
appoints Jitendra, Suman and Nisha, the Plaintiffs, as the Executors
and Administrators of his Will, and lists their rights and duties. In
the eighth and final paragraph, "Directions", he makes his bequests.
4. Most relevant for our purposes are Clauses 5 and 6. In Clause
5, he states that he has given instructions to Jitendra about the
amounts to be given to each of his relatives; these amounts are not
set out in the Will itself. In Clause 6, he bequeaths all of his
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property, subject to the various conditions enumerated in paragraph
VI(2), to Jitendra; if Jitendra predeceases him or dies before he can
take charge of the properties, they are to go to Suman; and if both
predecease him, they are to go to Ajit, Jitendra's son.
5. The attesting witnesses to the alleged Will were one Dhirajlal
Ramaji Kothari ("Dhirajlal"), a Chartered Accountant, and one Dr.
Shashikant Rasikbhai Kothari ("Dr. Kothari"), a doctor. The
Plaintiffs say that the Will was registered before the Sub-Registrar of
Assurances under Serial No. 6489/2006.
6.
The Petition for probate was filed on 29th July 2010. Suresh
entered a Caveat on 23rd August 2011 with an accompanying
Affidavit in Support dated 29th August 2011. The Petition was then
renumbered as a suit, to be tried as such. Suresh was, for some
reason, also allowed to file a 'Written Statement' on 31st October
2011, though there is no such procedure prescribed. In any case, this
is verbatim his Affidavit in Support.
7. In his opposition (the Affidavit in Support of the Caveat and
the Written Statement), Suresh alleges that the signature on the
alleged Will is not that of Rajendra, his deceased father; that
Rajendra was not of sound mind; that the properties Rajendra
purported to distribute were not his self-acquired properties and
thus were not his to bequeath; and that the Will was procured by
undue influence.
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8. Issues were framed on 23rd August 2012. These are
reproduced below, with my findings against each. At that time, only
three issues were framed. Issues were not framed on the questions
of undue influence or of the Will being unnatural, though both these
grounds were specifically taken. Suresh's Affidavit in Support of the
Caveat has a specific plea of undue influence, and in his Affidavit in
Lieu of Examination-in-Chief filed on 18th March 2013 there is a
case set up of both undue influence and of the Will being unnatural.
I found that the parties had, in fact, proceeded to trial on the basis
that these issues did arise. Both Mr. Shah for the Plaintiffs and Mr.
Behramkamdin for the Defendant agreed that these issues did arise
and would have to be framed. They addressed me on these at some
length. I framed additional issues accordingly. The consolidated
issues finally framed are set out below, with my findings against
each.
SR. ISSUES FINDINGS
NO.
1 Whether the last Will and testament Yes.
of the deceased Rajendra Singh
Chhatrasal Singh dated 10th May, 2006
was validly executed?
2 Whether the deceased was in sound Yes.
state of mind at the time of
execution of the Will?
3A Whether the deceased's Will was No.
unnatural?
3B Whether the Defendant proves that the No.
deceased's Will was obtained by undue
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influence exercised by Plaintiff No.
1?
3 What relief, if any, is the Plaintiff Suit
entitled to? decreed.
Overview of Findings
9. I have heard Mr. Shah and Mr. Behramkamdin at length,
considered the material with their very able assistance and the
authorities they cited. I do not propose in this judgment to refer to
every single one of those; many are on well-established principles
and seem to be cited as a matter of course even when there is no
dispute about those principles. Both sides tendered detailed Written
Submissions. I have considered these as well.
10. The burden of proving Issues Nos. 1 and 2 is on the Plaintiffs.
They led the evidence of both attesting witnesses, who testified that
they saw the deceased sign the Will, and that they then signed it in
his presence. The Will was also registered. After an examination of
the evidence, I have answered Issue No. 1 in the affirmative.
11. With regard to Issue No. 2, both attesting witnesses testified
that the deceased was of sound mind at the time of the execution of
the Will. Plaintiff No. 1, Jitendra, chose not to step into the box and
lead any evidence in this regard. Mr. Behramkamdin said this was in
itself a suspicious circumstance. A substantial portion of the
arguments before me centred on this. Given that Rajendra had
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admittedly been living with Jitendra since 1982; i.e., for about 24
years preceding the Will, it seemed to be clear that Jitendra was in
the best position to give evidence about Rajendra's mental condition
and soundness of mind. He chose not to. Mr. Behramkamdin
therefore submitted that the best evidence was withheld; and,
consequently, invited an adverse inference. Mr. Shah's response was
that Jitendra's evidence was unnecessary. The Plaintiffs had
discharged their burden: they led the evidence of the two attesting
witnesses and also adduced certain additional materials, including
Consent Terms signed by the deceased in Court a mere five days
before the execution of his Will. That done, the burden then shifted
to the Defendant to prove unsoundness of mind. The Plaintiffs, Mr.
Shah argued, reserved the right to lead evidence in rebuttal, but the
Defendant gave them no cause to do so. I have found merit in this
response. The Defendant did not lead the evidence of any witness
but himself; he failed to provide any specifics of the incidents that
he claimed showed Rajendra's unsoundness of mind; and he did not
produce any medical records or the evidence of any doctors to
substantiate his case. I have therefore found that the Plaintiffs'
evidence was sufficient to discharge their preliminary burden, and
that the Defendant's evidence failed to shift that burden back in
such a manner as would have compelled Plaintiff No. 1 to lead his
evidence. Parties may have any number of personal reasons for not
wishing to enter the box, and so long as the burden is sufficiently
discharged through other means, this ought not to be made into a
fatal deficiency. I have therefore answered Issue No. 2 in the
affirmative.
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12. The burden of proving Issues Nos. 3A and 3B is on the
Defendant. The Defendant failed to lead any convincing evidence to
show that the Will is unnatural; rather, the evidence led by the
Plaintiffs demonstrates quite clearly that the relationship between
the Defendant and the deceased was strained. None of the three
sisters who are also excluded from the Will chose to file Caveats; the
Defendant is the sole Caveator. We also have some evidence from
the Will itself about Rajendra's reasons for the manner of his
dispositions. I have therefore answered Issue No. 3A in the negative.
I have also found that the Defendant failed to prove that the
Plaintiffs unduly influenced the deceased in the making of his Will.
Mr. Behramkamdin says there are some suspicious circumstances
concerning the execution of the Will; I will turn to these presently.
On considering closely his arguments and material, I am not
persuaded that these circumstances are such as would trouble a
judicial conscience. I therefore answer Issue No. 3B in the negative.
In the result, I have decreed the suit and granted probate.
Re: Issue No:1: Due Execution of the Will
13. The Affidavits in Lieu of Examination-in-Chief of the two
attesting witnesses are almost identical. Dr. Kothari's Affidavit is
dated 12th July 2012 and that of the Chartered Accountant,
Dhirajlal, is dated 13th July 2012. In these Affidavits, the attesting
witnesses say they were present at approximately 11 a.m. on 10th
May 2006 at Dr. Kothari's residence at Geeta Building, Gowalia
Tank Road, Mumbai 400 007 for the execution of the Will. They
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saw the deceased sign the Will and add the date on the last page of
the Will. Each of them then signed the Will, affixed their stamps,
and wrote their respective names, the date, and in the case of
Dhirajlal, his address (which was not a part of his stamp, as it was
for Dr. Kothari) in the presence of the deceased and of each other.
In the Affidavit he filed in Support of the Petition on 29th July 2010,
Dr. Kothari also said that the Will was registered before the Sub-
Registrar of Assurances in Bombay on 29th June 2006 under Serial
No. 6489/2006. This is not mentioned in either his or Dhirajlal's
evidence. But the Will does bear two stamps with the seal of the
Sub-Registrar and the serial number on each page.
14. An additional examination-in-chief of Dr. Kothari was taken.
His responses in this provide much grist to Mr. Behramkamdin's
mill: he says that in itself, this additional evidence points to
inconsistencies and suspicious circumstances never properly
explained. For instance: When asked to identify Rajendra's
signature on the Will, he identifies it as his own.1 When the question
is asked again, he answers, "I can identify my signature but I cannot
identify this signature", meaning the testator's.2 When asked about
his own signature on the Will, he first states then it is not his
signature, and then clarifies that it is.3 When asked who signed the
Will dated 10th May 2006, he says "The will must be signed by Mr.
Kushwaha... No?"4 He also says that he does not know who wrote
the date "10th May 2006" on the last page of the original Will under
Qn. 5, p. 70
Qn. 6, p. 70
Qn. 7, p. 71
Qn. 11, p. 71
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the typed name "Rajendra Singh Kushwaha",5 despite identifying it
as the testator's writing in his Affidavit in Support of the Petition
dated 29th July 2010. In his cross-examination, after confirming that
he signed the Will after the deceased signed the Will, he fails to
mention that Dhirajlal also signed it in response to the question,
"Did anything else happen on 10th May 2006 regarding this Will?"
and simply responds, "No."6 This is unfortunate, but I do not think
that too much needs to be made of it. At the time of his cross-
examination, six years after the execution of the Will, Dr. Kothari
was 83 years old. In his cross-examination, he reiterates that he saw
Rajendra sign the Will, and that he then signed the Will.7 He insists
on this again when the Defendant puts his case to him.8
15. We also have Dhirajlal's evidence in this regard, which is very
confident and thorough. He describes the entire process of
Rajendra's correction of mistakes on the Will, his medical
examination by Dr. Kothari, Rajendra's initialling of all of the pages,
Rajendra's signing of the Will, his own signing of the Will and Dr.
Kothari's signing of the Will.9
16. [REWORK AND EXPAND THIS] Mr. Behramkamdin
pointed out some inconsistencies in the evidence of Dr. Kothari and
Dhirajlal, both internal as well as by comparison with each other, to
do with whether or not the deceased read the Will on that day, the
Qn. 12, p. 71
Qn. 87, p. 85
Qn. 94, p. 85
Qns. 112-113, p. 87
Qn. 201, p. 108
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duration of Dr. Kothari's medical examination of the deceased, the
use of the chits by the deceased for making corrections on the Will,
and some others, but again, these are very minor and overall
inconsequential.
17. At this stage, I must note that while both attesting witnesses
spoke of the Testator's initials on each page and of his having
'signed' the Will on the execution page, neither of them explains
how it came to be that the execution page has not one but three
signatures said to be of the Testator. Mr. Behramkamdin makes
much of this fact: if there is one thing that demands an explanation,
he says, it is this. Neither of the two witnesses has a word to say
about this. There may be several possible explanations, perhaps
legitimate; but these needed to form part of the evidentiary record,
and the court cannot be expected to speculate why the testator
signed not once but three times. When were each of these three
signatures made? Was it because the Testator was unhappy about his
signature? Were one or more made earlier and already existed before
the witnesses signed the Will? There are no answers to these
questions, he submits; and that is sufficient to dislodge the Will
itself. Given the other factors, this is an important suspicious
circumstance.
18. Further, Mr. Behramkamdin submits, the defence taken by
Suresh in his Affidavit in Support of his Caveat and Affidavit in Lieu
of Examination-in-Chief, that the signatures on the Will are not
those of the deceased, must be seen in this context. The allegation is
not of forgery, but is something slightly lower: a dispute about the
genuineness of the signature. An allegation of forgery would involve
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evidence of some person having made a false signature. Suresh does
not go quite so far. He only says that the signatures are not proved to
be genuine. To my mind, this is an over-subtle distinction and is an
attempt to deflect the burden of proving a hard assertion squarely
made in the Affidavit in Support of the Caveat. That assertion,
repeated in Suresh's Evidence Affidavit, is that the signatures of the
deceased on the execution page are not his. Therefore, it was Suresh
to show this; and, indeed, Suresh himself understood his burden in
just this way, for he produced in evidence a certified copy of a Deed
of Indenture dated 22nd March 1984 that was signed by the
deceased for comparison. By an Order dated 11th March 2014, only
the signature was marked in evidence.10 For myself, I see no great or
glaring discrepancies between the signatures. To the contrary, they
seem to me to be very similar, with no more variation than might
reasonably be expected in the signatures of any person allowing for
differences in time and age. Suresh did not lead the evidence of any
handwriting expert; it is only his assertion that the two are markedly
different. I do not think this is at all correct. There are other
documents on record with the Testator's signature, such as the
Consent Terms dated 5th May 2006 between Jitendra, Suresh and
their father, the Testator. These Consent Terms have his signature
at the foot of each page.11 Even a cursory examination shows the
Testator's signatures on these pages to be very similar to those on
the Will, with no more than normal variations.
Exhibit D-1.
Exhibit P-4
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19. The Defendant also makes specific averments about the
differences between the three signatures on the Will in his
examination-in-chief:12
Q. 8 What do you want to say about the
signature on the purported Will of
the deceased?
A. I say that there are three different
signatures. My father never used to
sign "R.C. Kushwaha". He always used
to sign "RCKushwaha" in running
writing. There were never any full
stops in his signatures between the
letters R and C and C and K.
20. It appears that two out of the three signatures on the Will are
in the cursive writing to which the Defendant refers as the norm.
The third -- the one directly above the name of the deceased -- has
full stops, but still appears to be in his hand. I do not think Mr.
Behramkamdin's submission is correct. There are, as he himself
agrees, several plausible reasons for the appearance of not one but
three signatures. On their own, the fact that there are three is
inconsequential when both attesting witnesses repeatedly assert that
the Testator did sign the Will in their presence. I do not find any
suggestion put to either of the two attesting witnesses that any of
the three signatures existed before 10th May 2006. In any event,
more importantly, the Defendant did not lead the evidence of a
handwriting expert. This would have been necessary to establish the
defence squarely taken. Mr. Behramkamdin cites a judgment of the
Qn. 8, p. 133
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Kerala High Court in Kanakku Veettil K.P. Sankarankutty Menon v
Malathy Amma and Ors.13, in which, although the Will contained
three signatures, the attesting witnesses spoke only to one signature.
The Court observed that without proof of all of the signatures, the
proof of execution is itself incomplete. That case clearly turned on
its own very peculiar facts: the will therein was not registered; there
was no reason given for the disinheritance of some of the heirs of
the deceased in the will; the signatures on the will bore no
resemblance to the admitted signatures of the testator; and the
propounded in that case had practically admitted to having forged
the signature of the testator on another document. I have already
held, particularly in the absence of the evidence of a handwriting
expert, that all three signatures are of the deceased; in that context, I
do not think it a compelling argument that simply because a testator
signs multiple times, and the attesting witnesses do not specifically
depose to this, that I must find that a will was improperly executed.
Nowhere in their cross-examination is this case actually put to them;
they are not asked how many times the deceased signed, or why he
chose to sign three times, or why they failed to mention the multiple
signatures in their evidence. The deceased may simply have done so
by way of abundant caution; one signature is to the left of the name
"Rajendra Singh Kushwaha" and the remaining two are above it. In
any event, it is unclear what advantage two additional signatures
would give to a forger of the Will; it would only serve to draw
unwanted attention to the document. If this is a forgery (and there is
no case expressly placed of it being one), then it is a remarkably
clumsy one. I believe Mr. Shah is on sure footing in relying on the
AIR 1991 Ker 123
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decision of the Supreme Court in Hazara Bradri and Ors. v Lokesh
Dutta Multani,14 in which it was held quite clearly that the fact that a
testator had signed some pages twice is not a good ground to hold
that the will is suspicious and should be set aside. The Plaintiffs only
need to prove one signature for the Court to hold that the Will was
properly executed.
21. The first issue must be answered in the affirmative.
Re: Issue No. 2 -- As to soundness of mind
22. Suresh claims that at the time of the Will, 10th May 2006, the
testator was not of sound mind. Both attesting witnesses say to the
contrary. The initial burden of proof to show that a testator was of
sound mind is undoubtedly on the propounder of a will. If this is
discharged, the burden of showing unsoundness of mind shifts to
the Caveator. Both Mr. Shah and Mr. Behramkamdin drew on much
learning, but I take this principle to be too well settled to justify
reference to authorities.
23. However, before I turn to the evidence led by the Plaintiffs, I
must briefly mention one of the Defendant's arguments on this
issue, as I reject it outright. The Defendant's contention is that
several of the properties enumerated in paragraph VI are not capable
of being bequeathed in a Will; some because they are ancestral
AIR 2006 SC 370: (2005) 13 SCC 278
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properties, and not self-acquired, as the deceased states in his Will;
and some because they do not belong to the deceased. This, the
Defendant alleges, shows the testator's unsoundness of mind,
because he made statements that were patently incorrect and
bequests that could not be carried into effect. The Defendant
provides extensive details of the history, character and ownership of
these properties in his Affidavit in Lieu of Examination-in-Chief and
in his further oral Examination-in-Chief to substantiate this
submission. This is untenable. It is now far too well settled that
testamentary matters do not decide questions of title. Accordingly,
by an Order dated 29th October 2013, the learned Single Judge of
this Court held that Paragraphs 3, 4, 13, 14, 15, 16 and 17 of the
Defendant's Affidavit, which advance this argument, were not to be
read in evidence.15 An appeal failed.16 So did a review petition.17 It is
very unfortunate that there were attempts to re-introduce the facts
and submissions contained in those paragraphs in the further oral
Examination-in-Chief of the Defendant conducted on 14th March
2014, 21st April 2014 and 16th June 2014.18 They are not relevant to
the case at hand. The inclusion of any particular property is not,
except perhaps in a truly egregious case, evidence of lack of
testamentary capacity. A probate court will not investigate title,
even for such a collateral purpose.
Order dated 29th October 2013 (R.D. Dhanuka J).
Order dated 10th December 2013 in Appeal (L) No. 474 of 2013; I was a
member of that Appeal Bench with S.J. Vazifdar J, as he then was.
Order dated 8th April 2014 in Review Petition (L) No. 1 of 2014 (R.D.
Dhanuka J).
Qns. 4-7, pp. 131-132; Qns. 10- 17, pp. 136-148; Qns. 24-28, pp. 145-146.
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24. It is an admitted position that the deceased was living with the
Plaintiffs at the time of the execution of the Will and had been living
with them since 1982. It is then indisputable that the Plaintiffs were
in the best position to prove the soundness of mind of the testator.
Only they were able to lead evidence of his daily routines, his
medical check-ups, his hospital visits, and the overall mental acuity
evidenced in their interactions with him. Only they would have been
able to supply the detail and colour missing from the evidence of the
attesting witnesses. There is no argument advanced that Plaintiff
No. 1 was too ill to give evidence; in fact, he was present in person at
most of the hearings before the Court Commissioner. There is no
explanation whatsoever. Section 114 of the Indian Evidence Act,
1872 says:
Section 114: Court may presume existence
of certain facts
The Court may presume the existence of any
fact which it thinks likely to have
happened, regard being had to the common
course of natural events, human conduct
and public and private business, in their
relation to the facts of the particular
case.
Illustrations
(a) ...
(b) ...
(g) That evidence which could be and
is not produced would, if
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produced, be unfavourable to the
person who withholds it;
25. Thus, an adverse inference may be drawn by a Court when a
party does not lead the best evidence available to it. I will consider
first whether the Plaintiffs have discharged their burden of proving
the soundness of mind of the testator through the other evidence
that is led by them; and then, if they do, whether I should still draw
an adverse inference from their failure to examine any one of
themselves.
26.
The Plaintiffs led the evidence of the attesting witnesses, Dr.
Kothari and Dhirajlal. The latter states in his Evidence Affidavit that
the deceased was of sound and disposing state of mind. He confirms
this in his cross-examination. His response to Q. 254 is particularly
relevant:
Q. 254) I put it to you that on 10th May
2006, the deceased was of
unsound mind.
Ans: I deny. He was of sound mind. We
talked during the journey. He
used his brain by bringing a
chit to make the corrections and
he wants us to witness him
making the corrections.
27. The journey to which Dhirajlal refers to is the drive to Dr.
Kothari's residence with the deceased and Jitendra on 10th May
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2006 for the execution of the Will.19 Dhirajlal lives in Prabha Devi;20
Dr. Kothari lives in Gamdevi, at Gowalia Tank21 Such a journey
would likely have taken half an hour to an hour at 10 or 11 a.m.,
especially on a weekday.22 This, I think, is an adequate length of
time for determining, with a fair degree of certainty, whether or not
an individual is of sound mind, especially given that Dhirajlal
specifically says that they talked during the drive. The reference to
the making of corrections is also relevant. Both Dhirajlal and Dr.
Kothari say in their Evidence Affidavits that the deceased made
corrections on the Will and affixed his initials next to each
correction in the margin. Dhirajlal states in his cross-examination
that the deceased carried out these corrections in his and Dr.
Kothari's presence.23 Dr. Kothari does not volunteer that he
witnessed the corrections himself; but there is no specific question
put to him on this either, and Dhirajlal's evidence mentions both of
them. There were twelve corrections in all, the majority spelling or
typographical errors. Dhirajlal states in his cross-examination that
Rajendra had written down his corrections on a chit because he
wanted Dr. Kothari and Dhirajlal to witness him making the
changes:
Q. 244) So according to you, the
deceased read the Will,
identified the mistakes, carried
out the corrections and
Qn. 199, p. 108
Qn. 200, p. 108
Qn. 196, pp. 107-108
10th May 2006 was a Wednesday.
Qn. 201, p. 108; Qn. 244, p. 115
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initialled the same all in a
span of 5-10 minutes?
Ans: No. He did not read the Will at
that time. He had brought a chit
on which the required
corrections were states and he
wanted to make the corrections
in our presence.
The chit is not produced in evidence, but this is hardly remarkable,
and certainly not suspicious. Mr. Behramkamdin submits that the
making of corrections from a chit shows that the testator was acting
on somebody else's instructions, but the changes are so innocuous
that this does not seem tenable. The bringing of the chit and the
making of such corrections in front of the attesting witnesses does
demonstrate a certain presence of mind.
28. Dr. Kothari also states in his Affidavit dated 12th July 2012
that he examined the deceased prior to the execution of the Will;
this is corroborated by Dhirajlal's evidence. In his cross-
examination, he explains why he did so and what he did:
Q. 52) Can you tell us why the deceased
would have asked you to examine
him on 10th May 2006?
A. I examined him on my own as I
wanted to give a certificate of
fitness.
Q. 53) Why did you want to give a
certificate of fitness?
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A. Because he had come to me for
signing the Will.
Q. 54) What examination did you conduct
on the deceased?
A. Full examination i.e. pulse,
blood pressure, chest and
abdomen.
29. The medical certificate dated 10th May 2006 is on Dr.
Kothari's letterhead, is signed by him, and was annexed to the Will.
It states as follows:
This is to certify that Mr. RAJENDRASINGH
KUSHWAHA is known to me since last 50
years. He is of 85 years old aged. This is
to further certify that he has made a Will
dated 10.5.2006 with his sound and
conscious state of mind, in my presence.
30. However, Dr. Kothari admits that he ceased medical practice
some seven years before the date of the Will.24 This does not per se
imply incompetence to conduct a thorough medical examination,
but he also admits that he had met the deceased only five or ten
times over the last decade.25 He was therefore admittedly unaware
of the medical history or condition of the deceased. There is also
some confusion about whether or not he was, in fact, Rajendra's
family doctor: as Mr. Behramkamdin points out, he states in his
Affidavit that he had been the family doctor of the deceased for the
Qn. 56-57, p. 80
At p. 74
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40 years26 but admits in his cross-examination that the deceased
never came to him as a patient27 and that he was treating the
deceased's wife, not the deceased.28 I therefore do not think that
much evidentiary value need be attached to the medical certificate.
Mr. Behramkamdin attempts to argue that the failure to secure a
medical certificate from a practicing doctor is a suspicious
circumstance; but this is going entirely too far. Suffice it to say that
the certificate is not very relevant in the overall scheme of things.
Similarly, the Plaintiffs produced seven photographs of the
deceased.29 As evidence, these may be inconclusive and no part of
this decision turns on those.
31. We have one final piece of evidence from the Plaintiffs: the
Order of the learned Single Judge in this very Court dated 5th May
2006 in Suit No. 1830 of 2000,30 recording Consent Terms entered
into between the deceased, Plaintiff No. 1 and the Defendant,31 a
mere five days before the execution of the Will. Jitendra, the present
Plaintiff No. 1 was the Plaintiff in that suit. Suresh, the present
Defendant, and the Testator were Defendants Nos. 1 and 2. The suit
was for dissolution of a partnership firm, M/s Ramchandra Lalji &
Company. Jitendra and Suresh had lawyers. The Testator, Rajendra,
appeared in person. The order of 5th May 2006 (S. C.
Dharmadhikari J) notes this in part of paragraph 2:
Para 3, p. 66
Qn. 50, p. 79
Qn. 78, p. 83
Marked collectively as Exhibit P-9
Exhibit P-3
Exhibit P-4
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"2. ... Defendant no. 2 appearing in
person, is present in the Court. The terms
have been explained to him and he is
agreeable to them. He has signed the
same."
32. Suresh does try to dispute this in his cross-examination.
When asked whether his father was present at the time of the
passing of the Order, he simply says "Yes."32 It is only ten questions
later,33 and after his advocate has raised objections to the questions
concerning the Consent Terms, that he volunteers:
(Witness
Volunteers) "My father was
brought to Court by Plaintiff No. 1 and he
was asked to sign the Consent Terms. At
that time he did not know what was
happening and he was asking weird
questions to me and to Plaintiff No. 1 and
at that moment Plaintiff No. 1 told my
father, not to ask questions and pointed
out where to put the signature."
This comes entirely too late, and the Defendant admits in response
to Q. 81 that he did not report this to the Mr. Justice Dharmadhikari
at the time.34
33. The recording in the Order of the explaining of the terms to
the deceased, and his comprehension and acceptance of them, is, I
think, an important piece of evidence as to soundness of mind for
Qn. 71, p. 158.
At p. 161
Qn. 87, p. 163
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the execution of the Will a mere five days later. Is this evidence
sufficient to prove the soundness of mind of the testator? I think it
is. Both Dhirajlal and Dr. Kothari testify to the soundness of mind of
the deceased. Their evidence also contains details of the deceased's
corrections on the Will and a conversation during a reasonably long
car journey. We have objective evidence in the form of the Order
dated 5th May 2006 that records the deceased's presence in a court
of law and his comprehension of and agreement with certain
consent terms, five days before he executes his Will. This evidence,
I think, when examined in totality, is adequate. In Dr. Feroze Homi
Duggan v Jean Duggan35, the propounder of the will led only the
evidence of one of the attesting witnesses, and chose not to examine
himself. The attesting witness's testimony was recorded as follows:
"37. She further deposed that from the
behaviour and talk of the deceased it was
clear to her that the deceased was in a
sound state of mind, memory and
understanding and executed her Will
voluntarily."
34. This Court ultimately held, inter alia on this evidence, that
the propounder succeeded in proving the will. Now in Duggan, the
propounder only lived with the deceased for a few days, whereas in
the instant case, the Plaintiffs lived with the deceased for 24 years.
The evidence of an attesting witness as to the soundness of mind of
the testator is in a given case sufficient proof of soundness of mind
for a testamentary purpose. In the Supreme Court's decision in
2011 (5) All MR 497
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Shashi Kumar Banerjee & Ors. v Subodh Kumar Banerjee,36 one of the
reasons cited for holding that the testator was of sound mind was
that he had executed documents as recently as six months prior to
the execution of the will.
35. Am I still bound to draw an adverse inference against the
Plaintiffs? Mr. Behramkamdin says I must because the 1st Plaintiff,
Jitendra, is not just a beneficiary but also a 'participant', for he was
present at the time of execution of the Will. The failure to give
evidence is unexplained and, in Mr. Behramkamdin's submission, is
fatal.37
36. To begin with, this conflates two separate issues. The
question of 'adverse inference' arose in the context of the issues
framed as to testamentary capacity, not as to undue influence. In the
first, as to testamentary capacity, I follow the submission: after all,
the Testator lived with the Plaintiffs for many years and they were
best placed to depose to his state of mental and physical health right
up to the date of his death. But undue influence is another thing
altogether, and a defendant who sets up such a plea cannot cover up
a lacuna in his own evidence and escape the consequences of his
own failure to prove it by claiming that an adverse inference should
be drawn only because the plaintiff led no evidence. That is surely
putting the cart before the horse. The burden of proving undue
influence is on the defendant who takes the plea. It is only if he
discharges that burden that the onus shifts to the plaintiff, and the
AIR 1964 SC 529
Ashok Kashinath Deshmukh v Gopala Kashinath Deshmukh & Ors., 2008
(1) Mh LJ 768
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plaintiff's evidence may be necessary. If the defendant altogether
fails to prove undue influence, then the mere failure of the plaintiff
to lead evidence cannot assist the defendant or, by an invocation of
Section 114 and the principles governing adverse inference, furnish
evidence that the defendant failed to provide though bound to do so.
There is no question of invoking this principle on the issue of undue
influence.
37. In any case, as the Supreme Court said in Municipal
Corporation, Faridabad v Siri Niwas,38 no law or rule requires that an
adverse inference must be drawn; on given facts, a Court may be
invited to draw such an adverse inference; it is not compelled to do
so:
"15. A Court of Law even in a case where
provisions of the Indian Evidence Act
apply, may presume or may not presume that
if a party despite possession of the best
evidence had not produced the same, it
would have gone against his contentions.
The matter, however, would be different
where despite direction by a court the
evidence is withheld. Presumption as to
adverse inference for non-production of
evidence is always optional and one of the
factors which is required to be taken into
consideration in the background of facts
involved in the lis. The presumption,
thus, is not obligatory because
notwithstanding the intentional non-
(2004) SCC (LS) 1062
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production, other circumstances may exist
upon which such intentional non-production
may be found to be justifiable on some
reasonable grounds. In the instant case,
the Industrial Tribunal did not draw any
adverse inference against the Appellant.
It was within its jurisdiction to do so
particularly having regard to the nature
of the evidence adduced by the
Respondent."
38. Thus, whether or not to draw an adverse inference is in the
Court's discretion. I cannot exercise that discretion for the asking. I
must address myself to the question of whether such an adverse
inference is warranted at all. This means that it must be shown, in
the first place, that were such sufficient suspicious circumstances
left unexplained, or such a worthy case set up by the Defendant, that
the onus, previously discharged, shifted back to the Plaintiffs. The
mere failure to lead his own evidence, absent any requirement
established by contrary evidence, is not enough to warrant an
adverse inference.
39. We must, therefore, examine the evidence led by the
Defendant to see if he has at all been able to set up a sufficient case
against the Plaintiffs. Suresh makes some references in his cross-
examination to incidents of the deceased not being able to recognize
people39 and of him losing his way while travelling,40 but he is unable
to provide specific dates. He provides some general evidence of the
Qns. 150-151, pp. 175-176
Qn. 21, p. 142
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deceased's admission into hospitals, but is unclear on the details and
again cannot pinpoint dates.41 Mr. Behramkamdin points out that
Dhirajlal stated in his cross-examination that the deceased was
admitted to a private nursing home between 2000 and 2006,42 but
that is hardly proof of lack of dispositive capacity. Beyond a certain
age, we should all expect ourselves to be frequent inmates of some
hospice or the other. There is no mention of any mental
deterioration. The Defendant produces no medical records, and
leads no evidence of any doctor who tended to the deceased; this is
despite the fact that he says that the deceased was operated on for a
brain clot.43
40. 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
41. It is within this matrix, then, that the Plaintiffs chose not to
lead evidence themselves. The Defendant's evidence was scanty
Qns. 140-146, pp. 174
Qns. 175-177, p. 103
Qn. 145, p. 174
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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and unconvincing. He did not lead sufficient evidence to shift the
onus back to the Plaintiffs. There was nothing to rebut. The
Plaintiffs closed their case. In this context, I do not think that I am
bound to draw an adverse inference against them for this. I should
note that though the Plaintiffs did file a Chamber Summons (L)
No.71 of 2015 in the middle of final arguments for leave to lead
rebuttal evidence, this was withdrawn, leaving all contentions
open.45
42. A Will is to be proved in accordance with Section 63 of the
Indian Succession Act read with Section 67 and the proviso to
Section 68 of Indian Evidence Act. The law does not insist on the
propounder giving evidence in each and every case. If the other
evidence is sufficient, be it of a single attesting witness,46 nothing
more is needed.47
43. I see no evidence at all of want of soundness of mind. The
Testator was a trained lawyer, very much of the old school, given to
paying close attention to detail and labouring over his material.
There is much to be said for this ethic, one that seems to have
become unfashionable now and replaced with an altogether more
slapdash and unthinking approach. The Will is organized and
detailed. It has the necessary ingredients. The fact that it makes
Order dated 30th April 2015.
Ramabai Padmakar Patil v Rukminibai Vishnu Vekharde, AIR 2003 SC
Savita Dattatraya Karandikar v Nishikant Sadashiv Karandikar, 2009 (6)
Mh LJ 431
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dispositions that do not favour the Defendant is not evidence of lack
of capacity.
44. On the issue of testamentary or dispositive capacity, the
testimony of both attesting witnesses is undisturbed in cross. We
know, for instance, that the Testator travelled all the way from his
house at one end of the city to Dr. Kothari's at virtually the other.
Both attesting witnesses say that the Testator made corrections to
the Will in their presence. This is, I think, ample evidence of his
capacity. Read with the Testator's personal presence before this
Court a mere five days earlier, when he told the Court that he had
read and understood certain Consent Terms, I do not believe that
there is the slightest doubt about his testamentary capacity.
45. Before I part with this section, I must address one question:
what is it precisely on which an adverse inference would have to be
drawn? It cannot be on the contents of the Will, for the Plaintiffs
had nothing to do with that, and that is not shown. It cannot be on
the question of execution of the Will, because there, too, the
evidence of the two attesting witnesses is unshaken. Therefore, it
can only be on the question of dispositive capacity, and here, as we
have seen there is ample evidence aliunde of sufficient testamentary
capacity, and no counter-evidence from the Defendant such as
would serve to shift the onus back on the Plaintiffs. No question
therefore arises of drawing any adverse inference merely on account
of their failure to lead their own evidence, something that is, in any
case, not an absolute requirement of law.
46. Issue No.2 is also answered in the affirmative.
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Re: Issue No. 3A: Whether the will is unnatural
47. The plea of unnaturalness is raised for the first time in the
Defendant's Evidence Affidavit dated 18th March 2013. Paragraph
18 of that Affidavit says:
"18. I say that the said alleged Will is
unnatural Will as by the said Will the
properties are distributed exclusively
between the Plaintiffs rather than to the
other children of the deceased i.e. to me
and to three daughters without any
apparent reason."
48. The burden of proof for Issue No. 3A is clearly on the
Defendant. He points to the fact that all of the Testator's children
and grandchildren, save the Plaintiffs, are disinherited in the Will,
and that no reasons are given for this exclusion. Mr. Behramkamdin
drew my attention to the cheque book counterfoils marked as
Exhibit P-6 and Exhibit P-7, in which the deceased is shown to have
made payments to Plaintiff No. 1; Plaintiff No. 2; his sister, Aruna;
his niece, Chetna; and Ajit, Anjali and Manisha, the children of the
first Plaintiff. This, he argues, shows that the testator loved all of his
children and grandchildren equally, and that the dispositions
contained in the Will are suspicious and unnatural. I do not think
this is so. By definition, every Will disrupts the natural line of
succession, and no law demands that a Will must follow, and always
only follow, the natural order of succession. Were that so, Wills
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would be unnecessary. The exclusion, therefore, of an heir or a
number of heirs in a Will is not in and of itself sufficient to make it
unnatural.48 We must remember that the testator had five children:
two sons and three daughters. The three daughters, Prafulla, Aruna
and Bina did not enter any Caveats. Only the younger son did. Only
one of the five children contested the Will. This is hardly evidence
of the Will being unnatural.
49. Moreover, reasons in a Will for the exclusion of certain heirs
render that exclusion a non-suspicious circumstance (and vice
versa).49 While the deceased's reasons for excluding the Defendant
and his sisters are not explicitly spelled out, there is intrinsic
evidence of them in the Will. He takes care to state in his paragraph
IV:
"IV. NOBODY HAS ANY INTEREST OR TITLE IN
MY PROPERTIES
Whatever I have wished to give to my
elders, relations my wife and
children, grand children, great grand
children, daughters-in-law and sons-
in-law I have given. I have fulfilled
my duties in educating my family
members and I will continue to look
after their well being. Similarly, I
Rabindra Nath Mukherjee & Anr. v Panchanan Banerjee & Ors., AIR 1995
SC 1684; Pentakota Satyanarayana & Ors. v Pentakota Seetharatnam &
Ors., (2005) 8 SCC 67
Ammu Balachandran v Mrs. O.T. Joseph & Ors., AIR 1996 Mad 442;
Leela Rajagopal v Kamala Menon Cocharan, AIR 2015 SC 107; Ram Piari
v Bhagwant & Ors., (1990) 3 SCC 364
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have fulfilled all obligations
whatsoever I have felt and was
capable of towards my relations. I
had given Rs. 3,50,000/- (Rupees
Three lakhs fifty thousand only) to
my daughter-in-law Nita Suresh
Kushwaha to purchase a house at
Ramesh Mahal, Juhu where he resides
with his family. My son Suresh being
Swedish Citizen cannot purchase
properties in India. Thought my son
Suresh had given consent in
transferring
ig tenancy rights of
Kalbadevi residence he has filed a
suit against me in Small Causes Court
in Bombay vide Case No. 2250/1995
which is still pending. I distributed
sarees of my wife after her death
which were in good condition and her
ornaments, silver utensils to my
daughters and daughters-in-laws."
50. In the Will, therefore, the deceased first states that he made
inter vivos such dispositions or gifts as he desired to his relatives. He
then makes specific reference to the fact that he has already given
ornaments and utensils to his daughters, and that he has given Rs.
3,50,000/- to the Defendant's wife for the purchase of a house in
Juhu. Now, for whatever reason, the Defendant strongly contests
this, but these denials are unconvincing. He denies that the
deceased gave his wife Rs. 3,50,000/- for buying a house in Juhu,50
but Exhibits P-6 and P-7 clearly show three payments made to Nita
Qn. 53, p. 155
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of Rs. 3,00,000/- on 16th July 1988, Rs. 10,000/- on 4th August
1988, and Rs. 30,000/- on 15th July 1988.51 No other reason for
these payments is suggested. Suresh denies that his wife purchased
an apartment in Juhu sometime in 198852 and denies that there is a
flat in Juhu with which he is concerned,53 but then admits that Flat
No. 17 in the building Juhu Ramesh Mahal Cooperative Housing
Society stands in his wife's name.54 It is irrelevant for our purposes
if or when he resided there with his family, although it is worth
mentioning that he is evasive about this;55 what matters is that the
evidence clearly indicates that an amount of Rs. 3,50,000/- did in
fact flow from the deceased to Nita, and that Nita did own a house
in Juhu; the vociferous denial of this by the Defendant is, in fact,
downright suspicious.
51. Second, the deceased deliberately refers in his Will to RAD
Suit No. 2250/1995 filed by Suresh against him in the Small Causes
Court, despite the Defendant having consented to the transfer of
tenancy rights in the Kalbadevi residence. He mentions it a second
time under paragraph V, "My Properties"; stating that it is because
of the Defendant that he is unable to stay in his home at Kalbadevi:
"4) (a) I am residing at 381-A Kalbadevi,
Narottam Wadi, 3rd floor, Room No.31, 32,
There seems to be a difference of Rs. 10,000/-, but this is not very
significant.
Qn. 47, p. 153
Qn. 48, p. 153
Qn. 49, p. 153
See Qns. 91-99, pp. 164-165; and p. 267 of P-8, which is the Defendant's
evidence on 9th December 1997 in Case No. 225/P/95, where he admits
to living in Juhu.
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33, 34 with my elder son Jitendrasingh
Kushwaha and his family. This is a
tenanted premises and rent bill stands on
my name. Previously my wife Damyanti
Kushwaha made a note in her will regarding
this premises and as per her wish tenancy,
with consent of my all children, was
transferred on my name. Since 1985, the
said premises were in depleted conditions
requiring heavy repairs, risky for life of
people residing therein. After that we
decided to stay at our flats at Rajdeep
Apartment, 319, Tank road, Santacruz (W)
and the building was undertaken for
repairs under supervision of MAHDA.
Meanwhile, my son Suresh filed a suit
against me for this property. So even
after repairs of flooring and walls,
interior could not be made as matter
became sub-judice. We could not stay there
even when we had been given possession
thereof and for the same reasons stated
above, we continue to stay at Raj Deep
Apartment."
52. This is clear evidence of strained relations and would explain
the exclusion of the Defendant from the Will. By contrast, the same
paragraph in the Will also mentions that several of his bank
accounts, share certificates, and fixed deposits are held jointly with
Plaintiff No. 1.56 Mr. Shah relied on various authorities in support of
his proposition that the disinheritance of a close relative does not
always per se render the will unnatural. In Seth Beni Chand v Smt.
At p. 15-19
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Kamla Kunwar & Ors.57, the Supreme Court held that because the
relationship between the mother and son had deteriorated
substantially over 30 years, it was not unnatural for the mother to
exclude him from her Will. Similarly, in Naresh Charan Das Gupta v
Paresh Charan Dad Gupta,58 the testator practically disinherited his
son, and recorded in his will that he was doing so because his son
had married a woman from a different caste; the Supreme Court
held that this was not an unnatural Will. Finally, in Arnold Dominic
Rodricks v Sunder Vinayak Navalkar & Anr.,59 this Court held that a
mother's disinheritance of her son was not unnatural because she
had recorded in her Will that there was a dispute between them with
regard to his father's Will; that her son was not behaving in a loving
and dutiful manner; and that she was therefore leaving her property
to her daughter instead of her son.
53. We cannot see matters in isolation. When we assess a ground
such as this, that the Will was 'unnatural', we are asked to turn the
judicial minds to an evaluation, to the extent possible from the
material on the record, to the nature of the relationships, the
manner in which the parties led their lives and so on. We are
required to see these lives not in the aridity of legal submissions, but
fleshed out with context and texture; things that might be irrelevant
in law might nonetheless be powerful motivating factors
determining how a person chose to conduct his or her affairs.
Conversely, matters that assume great proportion to lawyers are
sometimes of no moment in the daily rounds and common tasks of
AIR 1977 SC 63 : (1976) 4 SCC 554
AIR 1955 SC 363
AIR 1956 Bom 404
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people. We know, in this case, that the testator chose to live with the
Plaintiffs. There is no hint that he was compelled to do so. We also
know that there were litigations between the Defendant, Suresh, and
the testator. We also know that Suresh filed a Criminal Complaint
No. 225/P/95 against Jitendra, the 1st Plaintiff in respect of an
incident on 20th February 1995 under Section 325 of the Indian
Penal Code, 1860. Jitendra was ultimately acquitted on 3rd March
1999.60 In that order, the Court referred Suresh was cross-examined
in that case. , and this cross-examination is annexed to the present
suit as Exhibit P-8. In the Order, the Court referred to another Suit
No. RAD 3027/95 filed by Suresh against his father, the testator,
and Jitendra regarding their partnership firm. The testator filed an
Affidavit on 31st January 1996 in Suit No. RAD 3027/95. A portion
of this was put to Suresh in his cross-examination in the present
case:61
"I say that on 20.2.95 I was sitting in my
room i.e. suit premises with my son
Jitendra Singh Rajendra Singh i.e. No. 7.
The plaintiff (present witness) was there
along with Shri Bakul Shah and asked me to
give his half share in respect of my
property. I refused and thereupon he
abused me and I therefore, slapped him.
Then plaintiff took a wooden chair lying
in the said room and tried to hit me. I
strongly defended his assault with my hand
and one of the handles of the chair which
Exhibit P-5
Exhibit P-8, pp. 273-274
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he holded was broken and during the tussle
his finger might have been injured."
(Emphasis added)
When confronted with this, Suresh in his cross-examination says:
"I cannot say why my father has mentioned
the above referred facts in his affidavit
regarding the said incident. He might have
done this as I filed the civil suit
against him."
54.
While this suit and incident do not find specific mention in
the Will, they do serve to further illustrate the poor relationship
between the deceased and Suresh. Thus, on the one hand, we have a
son who initiated several litigations against the deceased, and who,
it appears, was violent with the deceased on at least one occasion.
There is no evidence led whatsoever to demonstrate such love,
closeness and affection between the deceased and the Defendant as
would make the bequests in the Will unnatural. On the other hand,
we have the Plaintiffs, with whom the deceased lived from 1982; i.e.,
for the 24 years preceding the execution of his Will. The Defendant
makes some vague references to the deceased's mistreatment62 at
the hands of the Plaintiffs, but this is unsubstantiated, and he
admittedly made no effort to bring his father to live with him,
instead; his reasons for not doing so are flimsy.63 Added to this is the
fact that the three excluded sisters chose not to file Caveats.
Qns. 107-109, pp. 167-168
Qns. 165-168, p. 185
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55. The Will is not unnatural, and Issue No.3A is answered in the
negative.
Re: Issue No. 3B: Undue Influence
56. The burden of proving undue influence is on the Defendant.
In his Evidence Affidavit in Lieu of Examination-in-Chief dated
18th March 2013, Suresh says that when he used to visit his father
prior to 2003, his father used to tell him that the Plaintiffs were not
behaving properly with him, and that he was under the control,
domination and influence of Plaintiff No. 1 and his family. He states
that the deceased told him that he did not want to pursue the
litigation against the Defendant, and was only doing so because of
pressure from Plaintiff No. 1 and his family.64 He also states that he
had spoken to Plaintiff No. 1 several times about taking the deceased
to a doctor, but Plaintiff No. 1 did not allow him to do so; in fact, in
the year prior to the deceased's death, the Plaintiffs did not allow
him into their home to meet the deceased.65 In his further oral
Examination-in-Chief conducted on 21st April 2014, Suresh says:
Q. 21) Could you give instances of
undue influence exercised by
Plaintiffs on the deceased and
the unsound mind of the
deceased?
Paragraph 7, p. 126
Paragraph 8, p. 126
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Ans. The deceased was not able to
recognize people whenever they
visited him. He was not even
able to recognize me, I had to
remind him who I was. Many times
he used to go down on the road
and was unable to find his way
home. On several occasions,
while travelling he got down at
Bhopal or Gwalior thinking that
he has reached his destination
Agra. And of undue influence I
barred me to visit the deceased
at his residence i.e. Santacruz
one year prior to his death and
that the deceased also told me
that Plaintiff No. 1 had
forcibly taken him to some
places and made him to sign some
documents on two or three
occasions.
Q. 22) Did you ask the deceased as to
what the documents were?
Ans. Yes, I did ask.
Q. 23) In answer to Q. 22, you have
stated that you did ask the
deceased as to what the
documents were. What did he
answer you?
A. The deceased told me that he was
not allowed to read and explain
about the document and he was
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asked to sign the document. He
also told me that Plaintiff No.
1 told him not to tell anybody
about this document and in
future also, not to disclose
where the deceased had put his
signature.
57. As I have mentioned previously, the Defendant also stated in
cross-examination that at the time of the signing of the Consent
Terms dated 5th May 2006, Jitendra told the deceased not to ask
questions, and told him where to sign.66 This, however, as I have
said, comes too late and is wholly unsupported by the order itself.
58. There is also the likelihood that the 1st Plaintiff was present at
the time of the execution of the Will. This comes from the cross-
examination of Dr. Kothari and Dhirajlal. Dhirajlal states that
Jitendra and the deceased picked him up and accompanied him to
the residence of Dr. Kothari for the signing of the Will:
Q. 197) On 10th May 2006, did you come
to the residence of Dr. Kothari
on your own or did you come with
Jitubhai?
Ans: I came with Rajendra Singh
Kushwaha accompanied by his son
Jitubhai.
Q. 199) So did you get picked up by
Rajendra and Jitubhai from your
residence and then all of three
Page 161
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of you came together or did you
pick them up?
Ans: They picked me up.
59. Dr. Kothari's responses to Q. 66-70 are quite clear:
Q. 66) Who fixed this meeting at your
residence on 10th May 2006?
A. Deceased's son Mr. Jitubhai.
Q. 67) What did Jitubhai tell you when
he fixed the meeting?
A. He wanted my signature on the
Will as a witness.
Q. 68) Anything else?
A. No.
Q. 69) Who else were present at your
residence on 10th May 2006 at 11
a.m.?
A. My family members were there.
Q. 70) Anybody else?
A. Somebody came with Jitubhai as
his C.A.
60. Moreover, when he is asked in Q. 95 if the 1st Plaintiff signed
the Will, he simply answers "No";67 he does not deny the
suggestion that Plaintiff No. 1 was present. Since he and his family
At p. 85
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are the sole beneficiaries under the Will, the Supreme Court tells us
that Jitendra's presence at or significant involvement in its execution
is a suspicious circumstance that needs to be explained by the
propounder.68 But merely being present without anything further
elicited from the attesting witnesses in cross-examination is surely
insufficient. We have nothing that shows that Jitendra was in any
way involved in the preparation of the Will or its contents; and we
do not even have firmly established his presence at the very place
(i.e., the room, chamber or desk) at which the execution took place.
He accompanied his father to Dr. Kothari's residence; that is all that
is established. I do not think this is sufficiently 'suspicious' to
dislodge the Will.
61. But Mr. Behramkamdin does not stop at that. He turns to
paragraph VIII of the Will, "My Directions":
"5) I have given instructions what amount
be given to each of my relations to
my son Jitendra."
This is also said to be suspicious, because no evidence has been led
about the deceased's instructions or whether the first Plaintiff
carried them out. But this takes us nowhere. It is an argument that
relates to the contents of the Will or the probity of a particular
disposition, something with which this Court is not concerned
unless it is demonstrable evidence of importunity or unsoundness of
mind. It is neither. What the Defendant seeks is information or
evidence of what those instructions might have been; that, surely, is
H. Venkatachala Iyengar v B.N. Thimmajamma & Ors., AIR 1959 SC 443.
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not a suspicious circumstance. As a general rule, Courts tend not to
lean to interpretations that would result in intestacy;69 and certainly
not on so thin a thread.
62. Undue influence cannot be presumed. It must be pleaded and
proved. I have been generous as regards the pleading; I framed the
issue on the basis of the Evidence Affidavit and because both sides
say the issue as arising. But proof of undue influence surely required
something more than this. The Defendant needed to show that the
Testator was wholly under Jitendra's domination, and acted on his
dictates at least in the matter of the making of the Will; and that, but
for this undue influence, the Testator would not have been moved to
make such a Will. Of course the evidence will be largely
circumstantial and inferential; but evidence there must be.
63. I think it noteworthy that there is no attempt to hide or
obfuscate the fact that Jitendra was present at the time of the Will's
execution, at least in Dr. Kothari's house and possibly in the room.
Both witnesses answer whatever is asked in cross-examination
truthfully. There is no mention anywhere in their evidence of
Jitendra compelling the deceased to sign the Will, or in any way
exercising some form of force or influence or coercion over him; nor
is such a case put to either of the attesting witnesses. There is no
evidence of importunity. The Defendant seeks in his cross-
examination to show that both of the attesting witnesses are friends
of Jitendra rather than the deceased, but this is not borne out; the
Pearey Lal v Rameshwar Das, AIR 1963 SC 1703; Bajrang Factory Limited
& Anr. v University of Calcutta & Ors., (2007) 4 SC 513.
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ages of both witnesses are closer to that of the deceased; they both
give accounts of how they know him and the long length of their
relationship;70 and Dhirajlal specifically denies that he was friends
with Jitendra rather than his father, Rajendra.71
64. We do know that the deceased was 85 or 86 years old at the
time of the execution of the Will, and that he had been living with
Plaintiff No. 1 and his family since 1982. It seems plausible that he
could not have travelled alone and that Jitendra accompanied him
for that reason. I have held that the Will is not unnatural; this, by
necessary consequence, makes the exercise of undue influence
significantly less likely and more difficult to prove, because for
influence to be undue, it must be something more than mere
persuasion; it must the exercise of such force as compels the testator
to do something that he does not wish to do. As pointed out in a
judgment of this Court cited by Mr. Shah, Arvind s/o Bhaurao
Gangashettiwar & Ors. v Smt. Indirabai W/o Balkrishna
Gangashettiwar:72
"26 ...Mere presence of motive and
opportunity for playing fraud or
exercising undue influence are not
sufficient to draw any inference in this
respect."
See, for example, Qns. 17, 21 and 24 of Shashikant's cross-examination
at p. 73-74 and Qn. 170 at p. 102-103.
Qns. 188-193 of Dhirajlal's cross-examination at p. 105.
2008 (5) All MR 651
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Similarly, in Naresh Charan Das Gupta v Paresh Charan Das Gupta,73
the Supreme Court held:
"13. It is elementary law that it is not
every influence which is brought to bear
on a testator that can be characterised as
"undue". It is open to a person to plead
his case before the testator and to
persuade him to make a disposition in his
favour. And if the testator retains his
mental capacity, and there is no element
of fraud or coercion - it has often been
observed that undue influence may in the
last analysis be brought under on or the
other of these two categories - the will
cannot be attacked on the ground of undue
influence."
Finally, in a recent decision of this Court in Charulata @ Renuka
Haresh Lulla v Gul Khanchand Gidwani & Ors.,74 this Court held:
"24. The principle of the ambit of undue
influence which can be practiced upon a
testator has been considered for the last
more than a century in England and later
also in the Indian cases. The authority
under the said subject is the case of Hall
v Hall (1868) LR 1 P & D 481 which held
thus:
Even a reprehensible placing of
pressure on a testator will not
AIR 1955 SC 363
2013 (2) All MR 261
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always be undue influence so as to
avoid the will: "To make a good will
a man must be a free agent. But all
influences are not unlawful.
Persuasion, appeals to the affection
or ties of kindred, to a sentiment of
gratitude for past services, or pity
for future destitution, or the like -
these are all legitimate, and may be
fairly pressed on a testator. On the
other hand, pressure of whatever
character, whether acting or the
fears or the hopes, if so exerted as
to overpower the volition without
convincing the judgment, is a species
of restraint under which no valid
will can be made. Importunity or
threats, such as the testator has not
the courage to resist, moral command
asserted and yielded to for the sake
of peace and quiet, or of escaping
distress of mind or social
discomfort, these, if carried to a
degree in which the free play of the
testator's judgment, discretion or
wishes is overborne will constitute
undue influence, though no force is
either used or threatened." And thus
Sir Wilde concludes:
"In a word a testator maybe led
but not driven and his must be
the off-spring of his own
volition and not the record of
someone else's."
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28. The defendants have not made out any
case of fraud. They have not shown such
coercion practiced by the plaintiff upon
the deceased as to make him sign on the
dotted line under her influence. They
have, therefore, not shown any such
misrepresentation made by the plaintiff.
The fact of the plaintiff living with the
deceased which led the deceased to make a
will in her favour shows the course of the
behaviour of the plaintiff. The deceased
himself with a free mind decided to give
her his properties under the will. The
deceased had no other closer, better
relative to bequeath his properties unlike
in the cases cited above in which close
family members themselves were
disinherited."
(Emphasis added)
65. The Defendant does not lead convincing evidence of such
coercion, fraud or importunity. The armchair of the testator is our
vantage point. The mere presence of the 1st Plaintiff does not
establish undue influence.
Conclusions and Final Order
66. Vast amounts of authority and precedent do not substitute for
evidence. Ultimately, in matters such as this, every case will turn on
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its own facts; and, too, on whether the judicial conscience is so
outraged by the document in question that it cannot possibly uphold
it. A probate Court's jurisdiction is not a jurisdiction of suspicion; it
is a jurisdiction of caution, a very different thing. It is also, I think, a
mistake too often made to use this phrase 'suspicious circumstance'
to mean that every contested Will must be seen, merely by virtue of
there being a contest, as unproved unless otherwise established.
When the weight of established authority uses this phrase, I believe
it does so not to imply that every single circumstance, taken in
isolation, is sufficient to dislodge an otherwise properly made Will,
but to indicate that the propounder of a contested Will has to
discharge evidentiary burdens, varying in degree depending on the
circumstances of each case, that he would not otherwise have to do
if there was no contest. There are, of necessity, degrees of this
'suspicion'; and, again, when we use this phrase we must remember
that we refer to circumstances that require explanation, not to
assume that axiomatically all those circumstances are fatal. Regard
must be had to the evidence overall; to the context of the lives
before us. We must draw for ourselves an image or portrait of the
testator, his family, his life, his work, his relationships, and his
approach. We seat ourselves in his armchair. We have before us a
man approaching his ninth decade, one who was a practicing lawyer
some thirty years earlier, with an eye for detail. We have evidence of
him being closer to one son and his family, and of having had to put
some considerable distance between himself and his other son.
There is evidence of acrimony between the Defendant and the
testator, of suits filed, criminal proceedings and trials. None of this
can have endeared the Defendant to the testator. Given this
distancing, it is expected that the Defendant would not be close to
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the testator and it is as unreasonable as it is unsafe to assume any
affinity or closeness; indeed, none is shown. We have no material to
show that the Defendant had anything of the kind of intimate
knowledge of the testator's life, daily routine, affairs, health or well
being as might be expected had they been close. We also have,
conversely, no evidence at all of the Plaintiffs conducting themselves
in such a way as to dominate the testator. That the testator lived
with the Plaintiffs is not disputed. That they were his care-givers in
his old age is also undisputed. Why then should the Testator not
have favoured the Plaintiffs? The Testator's three daughters seemed
to have accepted this. The only person who did not was the son with
whom he had an established record of adversarial litigation. In this,
we cannot ignore either the Defendant's prevarications about the
statement of the Testator having given an amount to the
Defendant's wife for the purchase of a house in Juhu; or the
horrifying testimony given by the testator of an actual physical
altercation between father and son over a property dispute. What
shocks the conscience, at least mine, is not anything in the Will
itself, but in the conduct of the Defendant, one that I find nothing
more that incessantly grasping, rapacious and avaricious. What
explanation have we of the testator's affidavit as to the Defendant's
conduct? Only that this might have been the result of a litigation
acrimony. That surely is sufficiently eloquent testimony about the
Defendant's relationship with the Testator.
67. The so-called suspicious circumstances to which Mr.
Behramkamdin refers and which he set out in a long chart, much of
it needlessly repetitive, is unpersuasive. I find no evidence of
importunity. I find no evidence of the Testator having been
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influenced, duly or otherwise, or of being of unsound mind. Quite
the contrary. There is then the fact that the Will is registered, a
cautionary step that is not without its own evidentiary weight. I also
find nothing so very fatal in the circumstances regarding the
execution of the Will itself. As Mr. Shah says, the evidence of the
two attesting witnesses, both disinterested and independent, is
sufficient as to execution and also as to testamentary capacity. I note
that no suggestion was ever put to either that they had any vested
interest in the estate. Once it is shown that the Will was signed by
the testator; he was at the relevant time in a sound and disposing
state of mind; he understood the nature and effect of the
dispositions; he put his signature to the testament of his own free
will; and the Will is witnesses in accordance with the provisions of
Section 63(c) of the Indian Succession Act, 1925, the propounder's
onus is discharged.
68. In the result, the suit is decreed and the Petition is made
absolute. There is no substance to the opposition to probate. The
Registry shall proceed to issue probate. No order as to costs.
69. At the request of Mr. Behramkamdin, the operative part of
this order is stayed for a period of four weeks.
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About the Affidavits of Attesting Witnesses
70. A word about the evidence Affidavits and the Affidavits of the
attesting witness accompanying such Petitions. Rule 374(c) says that
a probate petition must be accompanied by the Affidavit of an
attesting witness, if available, in Form 101 of the Bombay High
Court (Original Side) Rules.75 That form is materially incorrect. It
says in sub-clause (3) that both attesting witnesses were present at
the same time and saw the testator sign the will in their presence
and that they did, in his presence, and in each other's, all being
present at the same time, 'set and subscribe' their respective names
and signatures at the foot of the testamentary paper as witnesses
thereto. The Form suggests that this simultaneous presence of both
witnesses is a requirement of law. It is not. Section 63(c) does not
require both witnesses to be present at the same time. To the
contrary, it specifically says that:
it shall not be necessary that more than
one witness be present at the same time
71. The wording of Form 102 to the O.S. Rules cannot possibly
supplant the substantive law in Section 63(c), nor can it add a
restriction, limitation or requirement that is not to be found in that
Section. What if both witnesses were not present at the same time?
This would still be perfectly in accordance with Section 63(c), but
not in accordance with Form 102. It can hardly be suggested that
non-conformity with that Form, despite conformity with the
Rule 375(c) makes a similar provision for Petitions for Letters of
Administration with Will Annexed.
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substantive statutory provision, would defeat a petition for Probate
or Letters of Administration With Will Annexed. To the extent that
Form 102 insists on a statement not to be mandated by Section
63(c), it is incorrect and contrary to law; and Rules 374(c) and 375(c)
of the High Court (O.S.) Rules are also incorrect and contrary to law
to the extent that they demand Affidavits in conformity with Form
102. Interestingly, Rules 374 and 375 say that the petition is to be in
Form 97 "with such variations as the circumstances of each case
may require", but this qualification is missing in reference to Form
102. The Form shall have to be read as being a template, and as
permitting such variations or modifications as may be necessary.
72. Indeed, the Registry cannot possibly insist on an affidavit in
any particular form. The substantive law of succession and evidence
does not require any particular form. There is also no reason at all
why this Affidavit should say anything less than might be said in an
Affidavit in lieu of Examination-in-Chief of the very same attesting
witness. The two are required by our processes at different stages,
but there is in law no distinction between the two. In the past, this
has create needless controversies, with a particular attesting witness
being asked in cross-examination why his or her Affidavit in lieu of
Examination-in-Chief does not exactly match his Affidavit filed
along with the Petition. There is no reason at all why the two should
be different. They serve exactly the same purpose, and this purpose
is compliance with Section 68 of the Evidence Act: proof of
execution of a document required in law to be attested. If a
document is required by law to be attested, it cannot be used as
evidence until one attesting witness at least has been called for the
purpose of proving its execution. Whether the application is
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contested or uncontested, the execution of the Will must be proved.
If there is an attesting witness available, his evidence is required; if
not, both the Evidence Act and our Rules make provision for other
evidence. This is the only reason for insisting that the Affidavit of at
least one Attesting Witness be filed along with the Petition; and,
consequently, there is no distinction at all between such an Affidavit
and an Affidavit in Lieu of Examination-in-Chief. Both serve exactly
the same purpose. Therefore, the affidavit supporting the Petition
should be as close as possible to an affidavit that the same witness
might file of his examination-in-chief.
73.
Therefore, till such time as this Form is rectified and the
Rules amended, it shall be sufficient if the Affidavit complies with
the requirements of Section 63(c), irrespective of whether or not it
conforms exactly to Form 102. Fact-dependent variations and
modifications are legitimate, and Rules 374 and 375 as also Form 102
are to be read as permitting such variations. An Affidavit
accompanying a petition under Rule 374 or 375 may (and should)
contain all the details that the attesting witness in question might be
required to be place in an Affidavit in lieu of Examination-in-Chief if
the matter is contested.
74. A copy of this portion of the order should be sent to the
Prothonotary & Senior Master and the Additional Prothonorary &
Senior Master for placing before the Administrative Committee of
Hon'ble Judges for a suitable amendment to the Rules and the
Form.
(G.S. PATEL, J.)
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