Bombay High Court
Mr. Shirish Popatlal Shah & Anr vs 1. Arun P Shah on 28 March, 2016
Bench: G.S. Patel
TS18-2005-SHIRISH SHAH V ARUN SHAH-F.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY & INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 18 OF 2005
IN
TESTAMENTARY PETITION NO. 754 OF 2004
1. SHIRISH POPATLAL SHAH
of Mumbai Inhabitant, aged 65 years
residing at Salila, 15 Friend's Housing
Society, N.S.Road, 6 J.V.P.D. Scheme,
Vile Parle (W), Mumbai-400056
2. SUSHIL POPATLAL SHAH
of Mumbai Inhabitant, aged 56 years
residing at Salila, 15 Friend's Housing
Society, N.S.Road, 6 J.V.P.D. Scheme,
Vile Parle (W), Mumbai-400056 ... Plaintiffs
versus
ARUN POPATLAL SHAH
U.S. Citizen, aged 62 years presently, in
Mumbai, having address at Salila, 15
Friend's Housing Society, N.S.Road, 6
J.V.P.D. Scheme, Vile Parle (W), Mumbai-
400056 ... Defendant
A PPEARANCES
FOR THE PLAINTIFFS Mr. Ajay Panicker
FOR THE DEFENDANT Mr. Rajiv Narula, i/b M/s Jhangiani
Narula& Associates
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CORAM : G.S.Patel, J.
JUDGMENT RESERVED ON : 16th July 2015
JUDGMENT PRONOUNCED ON : 28th March 2016
JUDGMENT:
1. The Plaintiffs seek probate to the Last Will and Testament
dated 10th May 2003 of their mother, Lilavati Popatlal Shah ("the
deceased"; "the Testatrix"; "Lilavati"), who died in Mumbai on
28th November 2003. The Plaintiffs and the Defendant are
brothers. The Defendant opposes the grant of probate on several
distinct grounds.
2. The parties' father, Lilavati's husband, Popatlal Shah died in
Mumbai on 2nd January 1993. He was survived by the deceased,
their eldest daughter Vinodini Shah ("Vinodini") and three sons,
viz., the two Plaintiffs and the Defendant. The 1st Plaintiff is the
eldest son; the Defendant is the second son; the 3rd Plaintiff is the
youngest of the three. Popatlal left a Will dated 21st November
1992, bequeathing his entire estate to his widow, Lilavati.
3. Probate was also sought of Popatlal's Will. That, too, is
opposed, and it is the subject matter of Testamentary Suit No. 20 of
2005. The present suit is concerned only with Lilavati's Will.
4. In her Will, Lilavati supposedly appointed the Plaintiffs as
joint Executors. She is said to have divided her estate between her
daughter Vinodini, the two Plaintiffs (two of three sons) and her
grandson Asim Shah ("Asim"), the 1st Plaintiff's son.
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5. The Defendant is said to have been wholly excluded and
disinherited by Lilavati, on account of differences and quarrels
alleged to exist between the Defendant and other family members.
The Will provides some reasons for this disinheritance: that the
Defendant did not stay with her; that he did not take care of her;
that he did not act in the interests of the family; and that he
quarrelled with her on financial matters. The Will says that Vinodini
and the Plaintiffs looked after Lilavati, Popatlal and their family
interests. In the Will, Lilavati is said to have left her movables
equally to Vinodini and the two Plaintiffs. Lilavati then claims to
have a 25% share in her husband's HUF which is said to a one-fourth
interest in the Salila Building at Juhu and in its TDR. This is left to
Vinodini and Asim. The remaining 25% interest in the HUF was left
to Vinodini. The Will also makes a purported bequest of tenancy
rights in Flat No.14, Al-Sabah Court, 73, Marine Drive, Mumbai
400 021 to the Plaintiffs and Vinodini.
6. The execution of the Will in question was supposedly
witnesses by one R. R. Patel ("Patel") and one Dr. G. K. Mavani
("Dr. Mavani").
7. The Defendant entered a Caveat on 8th February 2005, and
filed an Affidavit in Support of it on 14th December 2005. He
disputed the due and proper execution of the Will. He alleged that
Lilavati made no Will, and the document propounded by the
Plaintiffs was forged and fabricated. He said the signature on the
Will was not Lilavati's; that the circumstances under which the Will
was allegedly executed were suspicious; that the contents of the Will
appeared to have been written/typed on a blank stamp paper on
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which Lilavati's signature was obtained in advance; that Lilavati did
not sign the Will of her volition and lacked the necessary dispositive
capacity at the time; that, assuming the signature was hers, she had
signed it without knowledge or understanding of its contents; and
that the will was unnatural in excluding the Defendant. The
Defendant also alleged that Lilavati had suffered from Alzheimer's
for four or five years before her death, and that her condition had
worsened in that time.
8. On the caveat and affidavit being filed, the petition was
renumbered as a suit and proceeded to trial.
9. Issues were struck on 25th June, 2015. These are reproduced
below, with my findings against each.
Sr Issue Finding
No
1. Whether the Petitioners prove that No
the deceased had executed the last
Will dated 10th May 2003?
2. Whether the Petitioners prove that No
the deceased had left the Will and
that the Petitioners are the joint
executors of the said Will?
3. Whether the Petitioners prove that No
the Caveator has filed the Caveat
with the mala fide intention merely
to delay the issuance of the
probate on the Will of the
deceased?
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4. Whether the Caveator proves that Partly in
the deceased had not executed the the
will and the will produced in the affirmative
Petition is forged?
5 Whether the Plaintiffs prove that No
the deceased was in proper physical
and mental condition so as to make
the will bequeathing her estate?
6. Whether the Defendant proves that Yes
the alleged will is unnatural?
10. The burden of proof for Issues Nos. 1, 2, 3 and 5 lay on the
Plaintiffs. Issues Nos. 4 and 6 were required to be proved by the
Defendant. If the Plaintiffs did not discharge their burden, the
Defendant would still succeed, irrespective of whether or not the
Defendant was able to prove Issues Nos. 4 and 6. The two issues to
be proved by the Defendant are distinct, and proof of any one of
them would be sufficient to defeat the suit. On a consideration of
the evidence, and for the reasons that follow, I have held that the
Plaintiffs have not discharged their burden; that the Defendant has
shown the Will to be unnatural; and I have, accordingly, dismissed
the suit. Issue No.4 is in two parts; the first is as to whether the
deceased executed the Will. This is the same as Issue No.1, the
burden of which is on the Plaintiffs. Therefore, if the Plaintiffs fail in
proving Issue No.1, the Defendant succeeds in proof of the first part
of Issue No.4. I have therefore answered this Issue partly in the
affirmative.
11. The Plaintiffs examined four witnesses: Plaintiff No.1 (PW1);
Asim Shirish Shah, the 1st Plaintiff's son (PW2); Dr. Mavani (PW3)
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and R. R. Patel (PW4), the last two being the attesting witnesses.
The Defendant examined himself.
Re: Issues Nos. 1, 2 and 4: the due execution of the Will
12. These Issues are interlinked and are dealt with together. It is
well-settled that the burden of proving the valid execution of a Will
in accordance with Section 63 of the Indian Succession Act, 1925
lies on the Will's propounder. Proof of a Will 'in its solemn form'
has several distinct probanda. In H. Venkatachala Iyengar v B.N.
Thimmajamma and Ors.,1 the Supreme Court said:
"19. However, there is one important
feature which distinguishes wills from
other documents. Unlike other documents the
will speaks from the death of the testator,
and so, when it is propounded or
produced before a court, the testator who
has already departed the world cannot say
whether it is his will or not; and this
aspect naturally introduces an element of
solemnity in the decision of the question
as to whether the document propounded is
proved to be the last will and testament of
the departed testator. Even so, in dealing
with the proof of wills the court will
start on the same enquiry as in the case of
the proof of documents. The propounder
would be called upon to show by
AIR 1959 SC 443
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satisfactory evidence that the will was
signed by the testator, that the testator
at the relevant time was in a sound and
disposing state of mind, that he understood
the nature and effect of the dispositions
and put his signature to the document of
his own free will. Ordinarily when the
evidence adduced in support of the will is
disinterested, satisfactory and sufficient
to prove the sound and disposing state of
the testator's mind and his signature as
required by law, courts would be justified
in making a finding in favour of the
propounder. In other words, the onus on the
propounder can be taken to be discharged on
proof of the essential facts just
indicated."
(Emphasis added)
13. Before assessing the evidence of the witnesses led by the
Plaintiffs, I believe it is necessary to consider the document itself.
Often, a study of the manner of a Will's writing, its 'get up' as it
were, the placing of signatures, the kind of paper used and so on
yield important hints about the circumstances and nature of the
document's execution. To be sure, none of these factors may in
themselves be determinative. All may be explained. But yet there
may be aspects here that need to be addressed.
14. The Will dated 10th May 2003 is Exhibit "P-2" in evidence.
It is on Rs.20/- stamp paper. The stamp paper itself is dated 5th
May 2003 and is in the name of the deceased. The body of the Will
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is typed or prepared on a computer and printed out. The get up is
very peculiar: the document starts very close to the purchase stamp
and runs through part of it. The lines are single-spaced. On the first
page or face, the spacing between the paragraphs is reasonably
regular. On page 2, the reverse face, however, paragraphs 2 and 3
appear to have been placed close together in an irregular manner;
and the line spacing in the last two lines of the second paragraph on
page 2 is also irregular. There is the usual closing paragraph, directly
beneath which is a signature said to be of the deceased against a
small x or cross. Beneath that is the execution clause:
"Signed by the within named testator Smt
Lilavati Popatlal Shah as her last Will and
testament in our presence all being present
at the same time. Thereafter at the request
of the testator and in her presence we
subscribed our respective names."
Below this, to the left, is the word "WITNESSES" in all caps.
There are then two signatures side by side of the two attesting
witnesses, R. R. Patel to the left against the numeral "1)", and Dr.
Mavani to the right against the numeral "2)". Both seem to have
written their names and addresses beneath their signatures. Neither
seems to have put the date. The typing or printing from the front
face is seen to have come through in mirror image on the reverse
face.
15. The manner in which the deceased's signature is found
placed, tightly positioned between two paragraphs, and the
inexplicably inconsistent and awkward spacing of the paragraphs on
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the second page require explanation as to the preparation of this
document. For this reason, before I turn to the evidence of the two
attesting witnesses, I believe it is necessary to consider more closely
the evidence on record about the manner and circumstances in
which this document was brought into existence. The evidence for
this comes, of course, from the 1st Plaintiff, who gave evidence as
PW1.
16. In his Affidavit in lieu of Examination-in-Chief, Plaintiff No.1
says that at the time of her death, Lilavati, the Testatrix, lived at 14,
Al Sabah Court, 73, Marine Drive, Mumbai 400 020. He then
identifies Lilavati's signature on the document, as also those of the
two attesting witnesses and says that Lilavati signed the Will in the
present of the two attesting witnesses and that they attested it in her
presence. Paragraph 3 of this Affidavit is crucial. It is best set out in
full:
"3. I say that the said WILL was dictated
by the deceased herself to me and my
brother Sushil Popatlal Shah. We in turn
told our auditor Mr. Dilip Thakkar of her
the said last wish. The auditor prepared
the same and I got it typed which was given
to my mother at the residence of the
deceased at 14, Alsabha Court, 73, Marine
Drive, Mumbai - 400 020, some where in May,
2003. I say that the said draft Will
approved by the deceased was then engrossed
on Stamp Paper of Rs.20/-. I had given the
said WILL prepared on Stamp paper a day
earlier and the following day same was
executed by the deceased in the presence of
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2 witnesses Dr. G. K. Mavani and Shri R.R.
Patel who were present at her Marine Drive
residence when my mother the testator
subscribed the signature on page 2 of the
WILL and also initialled on page 1."
(Emphasis added)
17. Reading this passage with the two dates that appear on the
document itself gives us something of a time-line. The Will is
supposedly dated 10th May 2003, a Saturday. The Stamp Paper on
which it is drawn up has a date of 5th May 2003, the previous
Monday. PW1, the 1st Plaintiff tells us that the stamp paper was
purchased after Lilavati 'approved' the Will; and that the draft was
given to Lilavati 'some where in May 2003'. Therefore, the dictation
of which PW1 speaks was evidently a few days before 5th May 2003,
for after it was supposedly dictated, it was taken to Thakkar, who
drew it up; and then PW1 got it typed. But this time-line gets
confused when PW1 says the final Will was drawn up on the Stamp
Paper just the day before, i.e., Friday, 9th May 2003. Yet, the Stamp
Paper was purchased in Lilavati's name four days earlier. Therefore,
we do not know when the so-called dictation took place. The
dictated version is not produced. We do not know what was
conveyed to Thakkar or how. We do not know what he drew up, or
when. We do not know when the draft was typed up, where and by
whom exactly. We do not know when exactly it was approved by
Lilavati or who took it to her for approval and who was present at
the time. PW1 says he 'had given' (to whom we are not told) the
Will on stamp paper the day before, i.e., 9th May 2003. This means
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it was typed in its final version on or before that day, i.e., between
5th and 9th May 2003.
18. PW1 was extensively cross-examined on this aspect of the
matter. He confirmed that when she died on 28th November 2003, a
few months after the date of the Will, she was 86 or 87 years old.
She supposedly died of natural causes. This cross-examination
starts from Question 56.2 When asked how long before the alleged
execution did Lilavati 'express her desire to make a Will', the 1st
Plaintiff says this was 10 days to two weeks earlier. This therefore
puts the beginning of the Will-preparation process at about the end
of April 2003. PW1 is then asked how he communicated Lilavati's
wishes to Thakker. He replies by saying that Lilavati dictated her
wishes in Gujarati. Sushil, Plaintiff No.2, took down points. Then
Sushil and PW1 made an English draft and sent it to the auditors.
19. This is immediately a point of concern, as both Plaintiffs, as
propounders, are by the 1st Plaintiff's own admission in cross-
examination, direct participants in the creation of the Will being
propounded.
20. PW1 then says he needs to check if Sushil's notes are
available. He later confirms that they are not. 3 He then says that
Thakkar sent the draft Will to him about two or three days after
these 'notes' were sent to him.4 There is nothing in writing to
From p. 65 onward.
Qn. 105, p. 74.
Qn. 59, p. 66.
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evidence this.5 He insists that his man went to Thakkar's office and
collected the draft. PW1 was then asked if Lilavati was shown the
draft prepared by Thakkar or some other draft. In response, he says
the draft was handwritten and it was typed at his office, i.e. that of
the 1st Plaintiff, PW1.6 The 'final Will' was also prepared at his
office, possibly by the computer operator or by his son, PW2, Asim
Shah.7 Question 64 is important. The 1st Plaintiff is asked if the date
of execution was decided in advance; he says yes, and further that
his computer operator was told of this.8 Thakkar advised the 1st
Plaintiff to purchase stamp paper.9 At first, he does not know if the
draft received from Thakkar is available;10 later, he confirms it is
not.11
21. That the Will bears a typed date of 10th May 2003 and that it
was so prepared (with this date) on 9th May 2003 necessarily means
that both attesting witnesses were informed no later than 9th May
2003 that they were required on 10th May 2003. In fact, both
attesting witnesses say something far more interesting in their
Affidavits in lieu of Examination-in-Chief. Those Affidavits are
almost identical. In both, the two attesting witnesses say that "in the
first week of May 2003", Lilavati contacted them and requested
them to witness the execution of her Will and, 'accordingly', they
Qn. 60, p. 66.
Qn. 61, p. 66.
Qns. 63, 65, p. 67.
Qns. 65, 67, p. 67.
Qn. 67, p. 67.
Qn. 68, p. 67.
Qn. 105, p. 74.
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were present on 10th May 2003.12 There is no evidence that Lilavati
spoke with either of them after the first week of May 2003 to fix a
date. This can only mean that in the first week of May 2003, the
date of 10th May 2003 had been settled. But that is difficult to
accept since, at that time, the Will had not been finalized. Mr.
Panicker submits, on a consideration of these dates, that the Will
was fully ready on 5th May 2003, the date of the Stamp Paper. But
that is directly contradicted by the 1st Plaintiff's evidence, which
does not say this at all, but instead suggests that the final document
was not got ready till 9th May 2003. This is a material discrepancy
and, till the end, remains unresolved.
22. I turn now to the events of 10th May 2003 and the actual
execution of the Will. As I have noted, both attesting witnesses say
they were called by Lilavati in the first week of May 2003 and asked
to attest her execution of her Will. In his evidence, Patel, PW4, says
he was 'accordingly' present on 10th May 2003. How he knew the
time when he was to be present is unexplained in his Evidence
Affidavit. In that Affidavit, he also says that those present when he
arrived were Dr. Mavani, the two Plaintiffs and Asim, PW2, the 1st
Plaintiff's son. In other words, three of the four beneficiaries to the
Will were also present at the time.
23. Patel's cross-examination is most interesting. For one thing,
he first gives his residential address throughout his cross-
examination as being at Poonam Apartments, Dr. Annie Besant
Mavani, PW3, Affidavit in lieu of Examination-in-Chief, para 3, pp. 125-
126; Patel, PW4, Affidavit in lieu of Examination-in-Chief, para 3, pp.
142.
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Road, Worli, Mumbai. This is some distance from Al-Sabah Court.
In cross-examination, he says he has been living at the Worli address
since 2006 or 2007, i.e., some years after the date of the Will.13 He
then says that in 2003, he was staying at Al-Sabah Court at Marine
Drive, previously known as Ishwar Niwas. 14 He says too that when
he saw a draft of his Affidavit, he corrected the address to show it at
Poonam Apartments at Worli.15 Later, he is asked why he gave his
address at Poonam Apartments if he was staying at Al-Sabah Court.
His answer is that at that time, both houses were functional: his
mother stayed at Al-Sabah Court and he sometimes stayed at one
and sometimes at the other. Now this is of consequence because in
his Evidence Affidavit he says Lilavati called him in early May 2003
and asked him to attest her Will. What he says in cross-examination
is, however, different. First, asked how long before the signing of the
Will he was informed he would have to come, he does not reaffirm
his version in the Evidence Affidavit. Instead he says that he would
come home from his factory at around 5 pm, and park his car below
the Al-Sabah Court building. He speculates that 'they' must have
seen him there and called him upstairs.16 No particular message was
conveyed to him. He was simply asked to come up.17 This does not
reconcile with the assertion in the Affidavit in lieu of Examination-
in-Chief that Lilavati had called him in early May 2003 and asked
him to witness the execution of her Will. Indeed, in cross-
examination, Patel abandons this assertion altogether:
Qn. 1, pp. 145-146.
Qn. 14, p. 148.
Qn. 10, p. 147.
Qn. 25, p. 150.
Qn. 30, p. 150.
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Q.23 Who informed you that your
presence is required for
witnessing the execution of the
Will?
A) I do not remember who called
me up.
Q.24 Were you informed personally
or by telephone?
A) I was informed personally it
may have been a servant or a
child I do not remember.
Q.25 How long before signing of
the said Will were you informed
that you will have to come?
A) Normally I used to come from
my factory at around 5 o'clock
and park my car down below and
they must have seen me there and
called me up. This a presumption
I do not exactly know how I was
called.
. . .
Q.30 What was the message
communicated to you when you were
called up to the residence of the
deceased as you have said?
A) I was simply called up.
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24. That is not all. Patel is specifically asked when his mother
passed away; he says that was some time earlier, possibly in 1995. 18
Therefore, read with his answer that he unpredictably visited the
Marine Drive address, this necessarily means that he did not come
there on 10th May 2003 to visit his mother, but entirely by chance;
and this is a further contradiction to his evidence in chief that he
was asked to come there specifically on that day.
25. Patel is then asked who were the ones present at the time of
the execution of the Will. In his Affidavit in lieu of Examination-in-
Chief, he clearly says in paragraph 319 that those present were Dr.
Mavani, the two Plaintiffs and the 1st Plaintiff's son, Asim. Now in
cross-examination, he is given an opportunity to reaffirm this.
Instead, this is what he says:
Q.31 When you went up to the
residence of the deceased who all
were present there at that time?
A) Shirish was present Assem
was present and Sushil was
present and one maid servant was
present.
Q.32 Was any advocate present at that
time?
A) I do no recollect and I do
not think so.
Qn. 40, pp. 152-153.
At p. 142.
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Q.33 The persons named above were
the only ones present?
A) Yes. These were the people
whom I came across if there
anybody else in the flat I am not
aware.
26. There is no mention here of Dr. Mavani's presence at all. I
notice that in Q.33, Patel was given an open-ended opportunity to
correct course. He maintains here, though, that the two Plaintiffs,
Asim and the maid were the only ones there; he still does not
mention Dr. Mavani. He is given yet another opportunity:
Q.36 Can you please narrate as to
what happened after you were
asked to sign on the said Will?
A) Shirish read the Will and
explained it to Lilabhabi.
Lilabhabi stated that all was
fine. Thereafter I signed the
Will I was asked to.
Even now there is no mention of the other attesting witness, Dr.
Mavani, or of his having attested the Will.
27. This is hardly a minor or irrelevant discrepancy. This is
insufficient proof of due execution and attestation of the Will. This
is, after all, the evidence of not someone who was merely present at
the time, but someone who is said to have actually attested the
execution of the Will. I do not think Mr. Panicker is correct in saying
that no opportunity was given to this attesting witness to explain the
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discrepancy or contradiction between his Evidence in Chief and his
answers in cross-examination. To the contrary: Patel was afforded
ample opportunity; not once but at least twice. The questions put to
him, as Mr. Narula correctly says, were sufficiently open-ended to
allow him to give an answer consistent with this examination-in-
chief. If he chose not to, that is surely enough for the Defendant.
28. What of the other attesting witness, PW3, Dr. Mavani? His
Affidavit in lieu of Examination-in-Chief matches that of Patel's
almost verbatim. He too says that Lilavati called him in the first week
of May 2003 and requested him to attest the execution of her Will.
He is confronted with this directly in cross-examination. 20 He says
he does not recall whether Lilavati phoned him or told him
personally when she was in Juhu. Later, he says that when she made
the request, Lilavati told him the date and time. 21 In other words,
when Lilavati asked Dr. Mavani to be a witness to the execution of
her Will (either on the telephone or personally), in early May 2003,
she already knew that it would be done on 10th May 2003. But this
disrupts any rational time-line, for in early May 2003, the draft Will
was not ready; Thakker had yet to draw it up, and the 1st Plaintiff
had yet to get it approved from Lilavati. At the time, Dr. Mavani was
attached to the Bharatiya Arogya Nidhi Hospital at Juhu. He says, in
response to the very first question in cross-examination, that he
attends this hospital seven days a week, unless out of town. 22 His
timings are usually from 10:00 am to 1:30 pm and from 6:00 pm to
10:30 pm. Yet, when asked how it was then that he was available on
Qn. 19, p. 133.
Qn. 38, p. 138.
Qn. 1, p. 130.
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10th May 2003, a Saturday, at 5:30 pm for attestation, he responds
by saying that there are no consultations on Saturdays. 23 But what is
troubling about Dr. Mavani's evidence is that he has no established
professional relationship with the deceased at all. That he is
attached to the Bharatiya Arogya Nidhi hospital in Juhu is
something he deposes to in his examination-in-chief. He claims to
have been Lilavati's family doctor,24 and to have been appointed to
that hospital in 1987 by Lilavati's husband, Popatlal. In cross-
examination, he says that his only practice is at this hospital, 25
though he sometimes has patients admitted to the Sujay Hospital. 26
He maintains no records at all of his patient consultations, 27 or even
an appointment diary,28 a completely fantastic assertion for any
physician. As to Lilavati's medical history, Dr. Mavani seems only to
know that she had a mild cardiac illness for which she was taking
some medicines and that she once had a major episode of
pancreatitis. He does not claim to have treated her for either. 29 What
he does admit that there was another doctor, one Dr. Ramesh L.
Shah, who had a nursing home at Gamdevi, closer to Lilavati's
residence, and who was also affiliated with the Bharatiya Arogya
Nidhi hospital; and who, more importantly, was the doctor that the
family consulted for all serious ailments.30 Confronted with this, he
volunteers that he was the 'main treating doctor'. He is asked later
Qn. 39, p. 139.
Examination-in-chief, paragraph 1, p. 125.
Qns. 3-4, p. 130.
Qns. 5-6, pp. 130-131.
Qn. 8, p. 131.
Qn. 25, p. 135.
Qn. 11, pp. 131-132.
Qns. 16-17, pp. 132-133.
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what he means by this,31 and says that this is a reference to the
doctor who ultimately takes the decision regarding the treatment to
be administered. He then claims to have seen Lilavati once or twice
a month from 1998 to 2003, but of course has no records of this at
all. He recalls only treating her respiratory illness and sometimes an
abdominal illness.32 This is about as generalized and vague as it is
possible to be. He has, however, treated the 1st Plaintiff and his
family regularly including for cardiac disease, neurological issues,
diabetes and so on.33 There is nothing specific in Dr. Mavani's
evidence about Lilavati's medical condition. He has not issued a
fitness certificate as to her condition or state on that day and he does
not claim to have examined her then either.
29. The difficulty in the Plaintiffs' way is that both attesting
witnesses are more closely tied to the 1st Plaintiff than they were to
the deceased. The 1st Plaintiff was a trustee of the Bharatiya Arogya
Nidhi Hospital,34 apart from having treated the 1st Plaintiff and his
family in the past. The other attesting witness, Patel (PW4) is even
more closely linked. It was the 1st Plaintiff who brought him a
lawyer for preparing his Evidence Affidavit. The 1st Plaintiff was
also present when Patel made his Affidavit. He admits to having
travelled overseas with the 1st Plaintiff around three times. 35 He also
admits that the 1st Plaintiff was close to his younger brother.
Qn. 27, p. 135.
Qns. 28-29, p. 136.
Qns. 30-31, p. 136.
Qn. 42, p. 139.
Qns. 14-15, p. 148.
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Though he claims to have been close to Lilavati, he does not know if
she had any siblings.36
30. The result is that as regards Patel's testimony, there are
unexplained contradictions: as to when he was told he would have to
be an attesting witness and by whom, the persons present at the
time, his unexplained presence at the Marine Drive residence and so
on. Dr. Mavani's evidence is hardly satisfactory either. Given his
evident association with the Plaintiffs, it remains unexplained why
he should have been called all the way from Juhu when the physician
who regularly attended to her lived much closer by. There is also the
contradiction between the testimonies of the two attesting
witnesses: Patel mentions the presence of a maid servant; Dr.
Mavani does not.
31. Even more peculiar is the 1st Plaintiff's and his son's lack of
familiarity with the deceased's handwriting, though they claim to
have been close to her, and the 1st Plaintiff claims to have visited her
almost daily,37 while Asim stayed at the Marine Drive flat
intermittently and helped her with her accounts.38
32. Finally, although the witnesses insist that the Will was
explained to Lilavati in Gujarati, none explain why this was
Qn. 22, p. 149.
Cross-examination of the 1st Plaintiff, Qns. 22-24, p. 52, read with Qn.
13, p. 50;
Cross-examination of Asim, PW2, Qns. 31 and 33-35, p. 101 and p. 102,
read with Qn. 16, p. 98.
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necessary, given the 1st Plaintiff's evidence that she was educated in
English at SNDT University and graduated with a degree in arts. 39
33. There are altogether too many inconsistencies and
imponderables in this evidence, starting with the get up of the
testamentary document itself, the manner of its preparation and
continuing to its execution. Section 63 of the Indian Succession Act
tells us of the manner in which a valid Will is to be made. Though it
need not have a particular form, its execution must be attested by at
least two witnesses; each must attest the Will in the presence of the
testator, though both do not have to be together at the same time. In
this case, though both Dr. Mavani and Patel claim to have attested
the execution of the Will, there are far too many gaps and lacunae in
their respective accounts. The execution of the Will, and its
preparation, are surrounded by circumstances that it is impossible to
describe as innocuous or irrelevant. They are downright suspicious.
These suspicious circumstances must be explained and removed
before the Will can be said to have been proved. That burden lies on
the propounder, and it is heavier still when the propounder is a
participant in the making of the testamentary instrument; and
heavier yet when the propounder is a significant beneficiary. 40 The
role of the Court in such cases is to adopt a reasonable scepticism,
not disbelief or impenetrable incredulity. The Court must be
vigilant, cautious and circumspect. Ultimately, it is the Court's
conscience that must be satisfied.41
Qn. 10, p. 50; paragraph 4, p. 42.
H Venkatchala Iyengar v B. N. Thimmajamma & Ors., supra.
Surendra Pal v Dr. Saraswati Arora, (1974) 2 SCC 600; Madhukar D.
Shende v Tarabai Aba Shedage, (2002) 2 SCC 85; Sridevi v Jayaraja
Shetty, (2005) 2 SCC 784.
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34. I find it impossible to hold that the due execution of the Will
has been proved. The evidence of the two attesting witnesses admits
of no reconciliation. The manner in which the document was
brought into existence is itself suspect, and this is never properly
explained. There is the constant involvement of the Plaintiffs and of
the 1st Plaintiff's son, from start to finish; and all of them are among
the only beneficiaries (the other being the sister, Vinodini). The
argument postulated by the Defendant, that the deceased's
signature was previously taken in blank on a stamp paper, and that
the entire document was then created around it, with the two
signatures being taken later, may not have been strictly proved by
the Defendant. But it is more than plausible; and, given the
evidentiary lacunae, eminently probable. This becomes more
apparent when read with the discussion under Issue No. 6 (whether
the Will is unnatural).
35. Issues Nos. 1 and 2 are both answered in the negative. Issue
No.4 is in two parts: the first part, whether the Defendant proves
that the deceased had not executed the will is perhaps incorrectly
phrased and almost certainly unnecessary. If Issues Nos. 1 and 2 are
answered in the negative, this part of Issue No. 4 must be
automatically answered in the affirmative; there is nothing further
for the Defendant to prove. The second part of Issue No.4, whether
the Will produced in the Petition is forged, is rendered unnecessary.
To this limited extent this part of Issue No.4 will need to be
answered in the negative, for the Defendant led no evidence of
'forgery', properly so called, i.e., of the signature of the Testatrix
having been done by somebody else. In any case, given the answers
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to Issues Nos. 1 and 2, and the first part of Issue No.4, this makes no
difference at all to the final outcome.
Re: Issue No.6: Whether the Will is unnatural?
36. The Defendant's case is simple: there was no call for the
Testatrix to have completely excluded him from the Will. The Will
itself supplies reasons but these, the Defendant says, are not reasons
the Testatrix could ever have herself given; all have been supplied by
the Plaintiffs.
37. The Plaintiffs claim that the Defendant owed Rs.13.5 lakhs to
the deceased. This was originally repayable to their father, Popatlal,
and, after he died, the Defendant assured the deceased that he
would repay it to her. This he did not do, and this explains the
deceased's ire.
38. The Defendant refutes this entirely. There was no such debt,
he insists; and, in any case, since the money was already sufficiently
accounted for and available, the deceased could have withdrawn it at
any time, especially since the deceased had access to the
Defendant's accounts. He points out that 1st Plaintiff was at one
point entrusted with managing the 1st Defendant's accounts and
affairs in India. There is correspondence to suggest that the 1st
Plaintiff asked the Defendant for money for the deceased, and that
this was provided. The correspondence also indicates a more than
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sufficient bank balance being maintained. In addition, the deceased
held a power of attorney from the Defendant; this was later
withdrawn, but the reason, the Defendant says, was his belief that
the deceased was pressured by the Plaintiffs into signing some
documents relating to TDR in respect of the family property at
Juhu. The Defendant says that in 2001-2002, the deceased herself
told him that the 1st Plaintiff and his son Asim were coercing her
into signing papers in blank. That led to the withdrawal of the Power
of Attorney.
39. In addition, the Defendant claims that he regularly sent
money to the deceased to meet her daily expenses through their
joint account in the Bank of Baroda. Bank statements are produced.
These show cash withdrawals in excess of Rs.10 lakhs over time. In
addition, there are cheques written by the Defendant to the
deceased on 19th July 2002 and 17th April 2003; the second of
these, for Rs. 1 lakh, was less than a month before the alleged Will.
The Defendant also produces a statement from Citibank to show
availability of sufficient funds. Mr. Panicker insists that all this
money was the deceased's, and that these were investments made
by the Defendant for the deceased, but this is not proved. It is not in
doubt that the 1st Plaintiff too had access to the Defendant's bank
statements and bank accounts. It is difficult, given all this material,
to accept the Plaintiffs' version that the Defendant had neglected
the deceased and had never supported her, and that the statement to
this effect in the Will is, therefore, correct and deserving of
acceptance.
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40. The Plaintiffs however argue that the Defendant quarrelled
often with the deceased and other family members. This, too, seems
difficult to accept at face value. After all, every testamentary
disposition, by definition, disrupts the natural line of succession. 42
Where there is evidence of an ongoing relationship and evidence of
the Defendant having lent financial and other support, it is difficult
to accept that his estrangement from the deceased was so complete
and so final that she would have totally cut him out of her Will. To
the extent that the burden lies on the Defendant, it is enough for
him to show that he continued to maintain close relations with the
deceased till her death, and that there was nothing of the kind of
distancing or estrangement as would justify so complete a
testamentary exclusion. The Defendant claims to have visited India
often between 1994 and 200443 and to have kept in touch with his
mother over the phone at other times.
41. The Defendant has tendered some letters in evidence. These
are in Gujarati and were sent to the Defendant in the United
States.44 Mr. Narula is also correct in saying that when the
Defendant produced a statement of expenses45 by the Defendant for
the deceased, this went entirely uncontroverted. The Defendant
also referred to the 1st Plaintiff's letter dated 7th September 1995, 46
which not only establishes that the 1st Plaintiff was managing
Rabindra Nath Mukherjee & Another v Panchanan Banerjee & Ors., AIR
1995 SC 1684
The passport details are on record and are not controverted.
Exs D-15 to D-21, from 11th May 1990 onward. Some of these are
undated.
Paragraph 3, p. 156.
Ex.D-1, p. 292.
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financial affairs in India but, more importantly, seeks a cash
withdrawal cheque for the deceased. The Defendant was not cross-
examined on this letter at all. Similarly, there is no cross-
examination on the letters dated 9th May 199647 and 28th May
199748 from the 1st Plaintiff to the Defendant. There is also a letter
dated 21st February 2005 from UTI Bank to the Defendant
confirming the clearances of two cheques issued to the Defendant. 49
Both cheques were of Rs.1 lakh. The second of these was dated 17th
April 2003 -- barely a month before the alleged Will, and only two
weeks or so before the deceased allegedly 'gave instructions' to the
Plaintiffs to draw up a Will excluding the Defendant inter alia
because he did not provide for her. This letter is not controverted.
There is no cross-examination on it at all. In fact, the 1st Plaintiff
actually admits this in response to Question 27. 50 The 1st Plaintiff
also admits that the deceased withdrew cash from the joint account
she held with the Defendant at the Bank of Baroda; and that on
several occasions, the 1st Plaintiff's own staff made these
withdrawals.51 His attempt at denying knowledge of why the
deceased made these withdrawals is futile; there is no suggestion
that she was independently running a business of her own. That the
funds came from a joint account she held with the Defendant and
which was seeded by the Defendant is not in dispute. There is some
dispute about a Citibank statement that contains the endorsement
'BA' on it. The Plaintiffs claim that this means that the money in
this account belonged to the deceased and that this is the loan
Ex. D-2, p. 293.
Ex. D-3, p. 295.
Ex. D-28, p. 393.
Qn. 27, p. 52.
Qns. 28-32, p. 53.
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account. The Defendant says this is only a tracking of his investment
account in India. When cross-examined, he says he cannot explain
the endorsement but it does not represent any loan account. He also
says that he never referred to the deceased as 'Ba' but only ever as
'mummy'.52 In any case, this argument of the Defendant owing the
deceased Rs.13.5 lakhs and this being adequate reason to disinherit
him is hardly compelling when weighed against the remaining
evidence of his continued support for her almost to the very end.
Mr. Narula is correct, I think, in saying this is all a red herring; no
demand for return of this alleged loan was ever made. The parties'
father died in 1993; and till 2003 there was not a whisper of it. It also
does not stand to reason, he says, and I think correctly, that the 1st
Plaintiff and supposedly the deceased would ask the Defendant for
money again and again but not for a return of the so-called loan.
What is more telling, perhaps, is the fact that very soon after the
deceased passed away, the 1st Plaintiff withdrew the amounts she
held in fixed deposit.53 The amounts were distributed between the
two Plaintiffs and their sister.54 Clearly, as Mr. Narula says, this is
nothing but an attempt to usurp the estate. Then there is evidence
that in 2002, the Defendant did come to India but his wife was
almost immediately hospitalized. The Defendant could not see his
mother; but his mother did go to visit the Defendant's wife at their
house. The 1st Plaintiff says so himself. 55 Then there is a letter from
Qns. 48-57, pp. 192-193.
Qns. 83-87, p. 70; Qns. 89-92, p. 71.
Qn. 88, pp. 70-71.
Cross-examination of the 1st Plaintiff, Qn. 100, p. 72.
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PW2, Asim, the 1st Plaintiff's son, thanking the Defendant for
letting him use the house at Parla.56
42. I find it difficult to accept Mr. Panicker's argument that if the
Defendant could, as he alleges, have 'supported' the deceased, then
he ought to have repaid her. That argument assumes there was an
admitted loan to begin with; and it is in any case irrelevant for what
is being contested here is not the loan recovery but proof of the Will
being unnatural; i.e., an assessment of whether or not there was a
falling out between mother and son. Mr. Panicker also claims that
the deceased was 'very rich'. He points to certain tax returns. 57 The
first, for the FY 2002-2003, shows a total annual income of only
Rs.2,07,128 and tax paid of Rs.10,339. The next shows a taxable
income of Rs.60,855 till Lilavati passed away. There is evidence of
income from mutual funds, but these are negligible.
43. Overall, therefore, what we have is this: a Will that speaks
with bitterness of the Testatrix's younger son's estrangement, and
his fall from grace and favour; and, as against this, considerable
evidence of continued financial and emotional support, concern,
constant communication, a sharing of bank accounts, and no
demonstration of any severance of ties during the deceased's life
time. The ostensible reasons in the Will are sought to be justified on
what appears to me to be one single, solitary ground: the non-
payment of a loan debt, one that is never proved. None of this points
to the kind of estrangement that the Plaintiffs claim existed; and I
Cross-examination of the 1st Plaintiff, Qns. 102-103, p. 73, read with
letter dated 25th April 1999, Ex. D-24, p. 381.
Ex. P-12, p. 267; Ex. P-13, p. 269.
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think, conversely, this is more than sufficient evidence from the
Defendant in discharge of his burden of proving that the Will is
unnatural; and that the reasons purportedly given in it are not those
of the Testatrix herself. They cannot have been.
44. Certainly there is evidence of litigation disputes between the
Plaintiffs and the Defendant; but these seem all to be of 2004 and
2005, after Lilavati's passing in November 2003, not during her life
time.58 There is no evidence that these suits were brought in
Lilavati's lifetime or that she was in any way involved in any
litigation. When Mr. Panicker therefore speaks of the Defendant
'quarrelling' with his family, he is referring to a period after
Lilavati's death, not during her lifetime. Given that these disputes,
following her demise, seem to have been acrimonious it is not wholly
unreasonable, regard being had to all factors, including the physical
aspect of the Will and the extraordinary story of its being brought
into existence, that the Will itself is a document that followed
Lilavati's demise, not preceded it. This may be surmise; but cogent
evidence of post-death fabrication will undoubtedly be impossible.
Yet this seems the only possible result when the evidence of the due
execution (and the very creation) of the Will is so very suspect.
45. Issue No.6 will have to be answered in the affirmative. The
Will is unnatural in its exclusion of the Defendant.
Affidavit in lieu of Examination-in-Chief of PW2, Asim Shah, pp. 86-87.
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46. With Issues Nos. 1, 2, 4 and 6 answered, there remain only
Issue No.3 and Issue No.5. Issue No.3 is not strictly an issue; its
answer has no bearing on the outcome of the suit. Why the
Defendant filed the caveat is wholly irrelevant. In any case, no
evidence is led on this; it is answered in the negative.
47. This leaves Issue No.5, a stand-alone issue as to the
deceased's dispositive capacity. The burden of this lies on the
Plaintiffs. The Defendant alleges that the deceased suffered from
Alzheimer's disease for four or five years before her death and her
condition steadily worsened. The Plaintiffs produced no
documentary evidence; there was only the evidence of Dr. Mavani,
without any supporting certificate or evidence of any examination
having been done, and the say-so of the 1st Plaintiff and his son.
There is no real evidence either way; except that it is undisputed
that the deceased was indeed hospitalized in April and May 2002,
just a year earlier. I simply cannot presume that the deceased was in
a sufficiently sound state of mind, memory and understanding.
Once the due execution of the Will itself is not proved, and there is a
significant doubt, never dispelled, that the deceased did not ever
sign the document as drawn up, it is impossible to conclude that on
that day she had the necessary capacity to do so. Something more
was required from the Plaintiffs to prove this, and it is not
forthcoming.
48. Issues Nos. 3 and 5 are answered in the negative.
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Conclusion and Order:
49. Given these findings, the result can only be that the suit must
fail. There is no proof at all of the due execution of the Will, i.e.,
proof of the Will in its solemn form.
50. The suit is dismissed. There will be no order as to costs.
ig (G.S. PATEL, J.)
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