Bombay High Court
Prabhakar Bhagwan Satpute vs Vithal Yashwant Samant on 21 November, 2016
Bench: G.S. Patel
Dr. Prabhakar Satpute v Shamita S Galwankar & Anr
910-TS10-13.DOC
Atul
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 10 OF 2013
IN
TESTAMENTARY PETITION NO. 917 OF 2011
WITH
NOTICE OF MOTION NO. 10 OF 2013
AND
NOTICE OF MOTION NO. 11 OF 2013
DR. PRABHAKAR BHAGWAN
SATPUTE,
of Mumbai Hindu Inhabitant, residing at
307, Jay Sai Darshan, S.V. Road, Borivali
(West), Mumbai 400 092, being one of the
Executor named under the Will of the
deceased. ...PLAINTIFF
versus
1. SHAMITA SANJAY
GALWANKAR
residing at Block No. 301, 3rd Floor,
Ashirwad, Babhai Naka, L.T. Road,
Borivali (West), Mumbai 400 092
2. GEETA ASHOK SAMANT
residing at Block No. 12, Building No.
3, Mavalankar Nagar, Datta Mandir
Road, Malad (East), Mumbai 400 097 ...DEFENDANTS
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Dr. Prabhakar Satpute v Shamita S Galwankar & Anr
910-TS10-13.DOC
A PPEARANCES
FOR THE PLAINTIFF Mr. Neel G. Helekar.
FOR THE DEFENDANT None
CORAM : G.S.Patel, J.
DATED : 21st November 2016
ORAL JUDGEMENT:
1. The Petitioner in this probate action is a senior citizen. The
Petition itself was filed in 2011. Caveats were filed considerably later
in 2013, when the Petition was renumbered as a Suit. I notice from
the record that the matter has appeared on board, frequently before
me, since April 2015. During that time, the Defendants often have
been absent. Mr. Helekar for the Plaintiff points out that although
there was an order of 17th July 2015 by which documents were
marked and the Commissioner for recording evidence was
appointed, nothing progressed in the matter despite the efforts of
the Commissioner, Ms Geeta Sonawane, and Mr. Helekar himself.
The order of 1st September 2015 notes this. Paragraphs 1 and 2 of
that order are important. They read as follows:
"1. On 17th July 2015, the presence of the
Plaintiff and the 2nd attesting witness in Court
was noted. It was noted that both had filed their
Affidavits in lieu of examination in chief. I
appointed Ms. Geeta Sonawane as a
Commissioner and requested her to record the
cross-examination.
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2. Ms. Sonawane is personally present in Court.
She states that it has not been possible to
proceed because the Defendants have not
cooperated. She had personally called Mr. Tiwari
for the Defendants and informed him of dates
available. She states that Mr. Tiwari did not
communicate his agreement to proceed on those
dates. The matter has remained without any
progress for the last six weeks. This is completely
unacceptable. I am not prepared to delay this
matter or have references to commissioners used
as reasons for delaying the trial of the suit. The
reference to the Commissioner is withdrawn with
thanks to Mr. Geeta Sonawane for her efforts."
2. Even then, I granted indulgence to the Defendants. On 2nd
September 2015, Mr Tiwari for the Defendants said that he was
prepared to continue with the cross-examination. I fixed a schedule
appointing specific dates. This is noted in paragraph 2 of my order
of 2nd September 2015. On 22nd September 2015 and then again on
20th October 2015, I extended time.
3. Then there is an order of Mr. Justice A.K. Menon of 21st
December 2015, and this records that despite all that went before,
the Defendants had still not commenced cross-examination of the
Plaintiff's second witness. Mr. Justice A.K. Menon extended time
for the commission and specifically ordered that cross-examination
would have to be completed before 25th January 2016.
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4. This where the matter stood, i.e., with an incomplete cross-
examination of the Plaintiff's second witness right till 4th July 2016.
I then closed the trial and directed that the Suit be set down for
hearing and final disposal.
5. Mr. Helekar for the Plaintiff has prepared the record for final
hearing. The matter was listed on Friday, 18th November 2016.
When it was called out an Advocate appeared for the Defendants
and sought time. I stood the matter over till today on the
supplementary board.
6.
When this matter was called out this morning, none appeared
for the Defendants. This runs to a defined pattern where the
Defendants' only intention is to delay the completion of the trial at
any cost. Even so, I kept the matter back to the end of the
supplementary board. When called out a second time, even then
none appeared for the Defendants. I am, therefore, not adjourning
the matter any further and have proceeded to hear Mr. Helekar
finally at some length and, with his assistance, considered the
material on record.
7. The Petition was filed seeking probate to a Will dated 9th
September 1996 executed by one Mr. Vitthal Yeshwant Samant. At
the time when he executed this Will, the Testator was about 68
years old. He had by then retired from work and led what seems to
have been quiet life in Borivali, living in a house named "Prashant".
This was a bungalow initially of a ground and first floor. The
deceased and his wife Pramila had four children, two sons and two
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daughters. The elder son Prakash was permitted to put up an
additional floor on the Prashant Bungalow, and this is of some
significance because this relates directly to the dispositions in the
Will, and to which I will turn presently.
8. The Will appointed the Petitioner, a practising physician, Dr.
Prabhakar B. Satpute ("Dr. Satpute") as his executor. Dr. Satpute
was also the second attesting witness to the Will. The first attesting
witness was one Mr. Subhash Achyut Abhyankar. The Will was
registered on 1st October 1996.
9.
Vitthal Yeshwant Samant lived good for 14 years after the Will
was executed. He died on 5th August 2010 in Mumbai.
10. I will turn now to the contents of the Will. This is in Marathi.
It is typewritten. The Will itself is of five pages and the signature of
the Testator appears in English on the fifth page, as do the
signatures of the two attesting witnesses. Clauses (1) to (4) make
dispositions that are particularly related to the Testator's wife and
two sons. Clause (1) sets out that at the time of the Will, Vitthal
Samant lived and occupied the ground and first floor of the
"Prashant" Bungalow with his wife and younger son Prashant, after
whom the bungalow was apparently named. Clause (2) sets out that
the second floor was constructed by the elder son Prakash and
mentions an agreement dated 23rd October 1987. It also mentions
that Prakash paid some compensation to the contractor under that
agreement with the Testator. Clause (2) also contains certain
directions to Prakash to pay the municipal taxes for the second floor
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and half the expenses for repairing and painting the bungalow.
Prakash is directed not to object if any additional construction is to
be put up. In essence, the Testator left the first floor, motor car
garage and terrace above that garage to the younger son Prashant;
the second floor to the elder son Prakash and the entire plot as a
whole to his widow Pramila along with directions that she be
supported by her sons and be allowed to occupy the ground floor.
11. Clause (5) mentions that the Testator had two daughters
Geeta and Shamita. These are the two Caveatrixes. In this clause,
the Testator specifically points out that he has not only adequately
provided for both of them at the time of their marriage and even
thereafter but, more materially, for both he has purchased
residential accommodation. For Geeta Ashok Samant (née Leena
Vitthal Samant), he purchased Block No. 12, Building No. 3 at
Malad (East), Mumbai where she resides even now. Although that
flat was in the deceased's wife's name, he directed that it be left to
Geeta. The second daughter Shamita Sanjay Galvankar (née Sarita
Vitthal Samant) was given Flat No. 301, Ashrwad Building, Babhai
Naka, L.T. Road, Borivali (West), Mumbai. It was on account of this
that the Testator left nothing else to either of the two daughters.
12. Clause (6) refers to his company M/s. Leena Industries and
directs that it be left to his wife Pramila exclusively. In the event that
she predeceased the Testator, it was to go to Prashant. A similar
provision was made in regard to the fixed deposits in clause (7).
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13. In clause (8), there is a disposition in respect of another
industry, M/s. United Metal Ware and Plastic at Bhainder,
Shantinagar and this was left to the other son Prakash. The third
industry M/s. Maruti Industries at Borivali (West) was left to
Prashant.
14. The Petition was filed on 27th March 2011. Citations were
issued and served thereafter. There is an Affidavit of Service on file.
The widow Pramila consented to the grant of probate. Neither of
the sons filed Caveats or challenged the Will in any way. Both
daughters Geeta and Shamita filed nearly identical Caveats dated
30th January 2013 and the Petition was renumbered as a Suit.
15. The Caveats contain no objection of substance. Paragraph 4
of both the Caveats filed by Geeta Ashok Samant and Shamita
Sanjay Galwankar contain a peculiar submission directed not to the
Will in question but to Pramila's consent or no-objection to the
probate petition. It reads:
"4. I say my mother was not in sound mind at
the time of execution of consent affidavit dated
27/3/2011 and my younger brother and Petitioner
forcibly took her signature by misrepresentation. I
say my younger brother and Petitioner are
business partners and therefore have colluded
with each other to usurp the property of our joint
family with ulterior motives."
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16. This is, of course, wholly irrelevant to the question of proof
of the Will in its solemn form. has never been explained. The
reference in this paragraph does not relate to the Testator's
testamentary capacity. Paragraph 5 contains an allegation that
Prashant, the younger son placed the Testator under undue
influence and that the Will is, therefore, fraudulent. That, therefore,
is the single issue of substance.
17. It was on these pleadings that the issues were struck and
settled on 23rd April 2015. These issues are set out below with my
response against each of them :
Sr. Findings
ISSUE
No.
1. Whether the Plaintiff proves that the
writing dated 9th September 1986 was
duly and validly executed by the
deceased Vitthal Yashwant Sawant and YES
duly and validly attested in
accordance with law as the deceased's
last will and testament?
2. Whether the Plaintiff proves that at YES
the time of writing the deceased was
of sound and disposing state of mind,
memory and understanding?
3. Whether the Defendants prove that the
alleged Will was obtained by undue NO
influence or undue pressure?
4 Whether the Defendants prove that the NO
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Sr. ISSUE Findings
No.
alleged Will was obtained by fraud
and misrepresentation?
5. What relief and what order? Suit
decreed
ISSUES NOS. 3 AND 4:
18. These must be immediately negatived. The burden of proving
these two issues was on the Defendants. They led no evidence.
They did not cross-examine the second attesting witness, PW2.
They have brought out nothing in support of these two issues in the
cross-examination of PW1, the Plaintiff. These two issues are
therefore answered in the negative.
19. The evidence in question is principally that of the Petitioner
since he was both the executor and the attesting witness. He filed an
Affidavit of Evidence dated 12th June 2015. 1 He was cross-examined
before the Commissioner Ms. Geeta Sonawane. The
Commissioner's Report is meticulously maintained.
20. The cross-examination is entirely ineffective. As to the
second issue of testamentary capacity, other than a suggestion that
the deceased suffered from blood pressure, hypertension and
1 Vol B ,pp. 52-54.
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diabetes, there is nothing to indicate the lack of testamentary
capacity. These ailments in themselves do not point to any one of
testamentary capacity. They are not such as would render a Testator
incapable of understanding that which he was doing when he made
his Will. The law does not expect a Testator to be in complete and
perfect physical health and wholly ailment free when making a
disposition. The explanations to Section 59 make it clear that certain
impediments such as hearing, speech or sight impediments do not
constitute testamentary incapacity. Under Explanation 3 even
persons who are, to use the unfortunate expression of the statute,
"insane" -- afflicted by any one or more of the well-known medical
mental health disorders that are known to medical science today --
he or she may still validly make a Will during an interval of lucidity.
Consequently, it is never enough merely to say, for instance, that a
testator suffered from this or that ailment. It is unreasonable to
expect a testator to be in a most complete and perfect state of health.
Nobody ever is. That is most emphatically not mandate of the law,
as the Privy Council itself noted in Judah v Isolyne Shrojbashini Bose
& Anr,2 a view followed by this Court in Dr. Feroze Homi Duggan v
Jean Duggan,3 and by the Delhi High Court in K.L. Malhotra v
Sudershan Kumari & Anr.4 The law does not require every testator to
be in peak physical and mental condition, or to be possessed of
'sound and disposing mind and memory' in the highest degree.
Were it so, few would be able to make testaments at all. It is not even
necessary for a testator to be in the same state as once he used to be,
for even this would disable most in the inevitable decline of life.
2 AIR 1945 PC 174
3 (2011) 6 Mah LJ 516.
4 (2008) 149 DLT 783.
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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.5 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. A.E.G. Carapiet v A.Y. Derderian,6 a
decision frequently (and usually wrongly7) cited on the issue of the
need of 'putting one's case' also deals with this issue:
16-19. The question of a sound mind is a
dominant question in a court of probate. Numerous
decisions of high authorities have laid down from
time to time tests by which to judge a sound
disposing mind. It is not an absurd test. Nor is it the
test of a perfectly healthy and perfect mind. Indeed
most of the wills are not made by persons young
and vigorous and glowing in health. The test of a
sound disposing mind is in law a workable test. It
means in plain language an appreciation of the fact
that the man is making a will, an appreciation of the
contents of that will and an appreciation of the
nature of disposition that he is making having
regard to the claims of affection and family
relationship and claims of the society or community
to which he belongs. It is not a hypothetical nor an
impracticable test. It is not the test of a
psychologist or a psycho-analyst or a psychiatrist
5 Kanwar Sain v State & Ors., AIR 1976 Del 11; Gordhandas Nathalal Patel
v Bai Suraj & Ors., AIR 1921 Bom 193 (DB).
6 AIR 1961 Cal 359.
7 2015 (1) Bom CR 361.
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who in the modern age is prone to consider all
human mind to be inherently unsound by nature
and abnormal. Nor is it the too Scientific test which
would satisfy the highest technical medical
examinations. Some idea of what this sound
disposing mind in testamentary law is, can be
gathered from Section 59 of the Succession Act
and the statutory Explanations thereunder. In
Explanation 2 of Section 59 of the Succession Act it
is expressly stated that persons who are deaf or
dumb or blind are not thereby incapacitated for
making a will if they are able to know what they do
by it. Similarly under Explanation 4 of Section 59 of
the Succession Act no person can make a will while
he is in such a state of mind whether arising from
intoxication or from illness or from any other cause
that he does not know what he is doing. The
illustrations make it clear that a mere perception
of what is going on in the immediate
neighbourhood and an ability to answer familiar
questions but without competent understanding
as to the nature of his property or the persons
who are kindred to him or in whose favour it would
be proper that he should make his will, will not be
enough proof of a sound mind within the meaning
of Section 59 of the Succession Act. These
Statutory Explanations are not intended to be
exhaustive but they give practical illustrations to
explain a sound disposing mind.
(Emphasis added)
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21. Questions 16 and 17 of the cross-examination read thus:
Q. 16 What chronic medical problems the
deceased was suffering from?
Ans. In initial 80's, the deceased was not
suffering from any chronic medical
problem but later on he had developed
blood pressure and diabetes.
Q. 17 Would it be correct to say that the person
suffering from blood pressure/hyper
tension and diabetes is under constant
medication for rest of his life?
Ans. Yes.
22. Other than this, there is nothing produced as regards the
testamentary capacity.
23. As to the due execution, in my view, the cross-examination
actually destroys the defence. Questions 32 to 34 and their
corresponding answers read thus:
Q. 32 When you attended the office of Advocate
S. A. Abhyankar who all were present in his
office?
Ans. Nobody else except three of us namely, Mr.
Vitthal Yashwant Samant, Advocate S. A.
Abhyankar and myself.
Q. 33 Who was the first person to sign the Will
dated 09.09.1996 after the same was typed
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or ready?
Ans. The Will dated 09.09.1996 was firstly signed
by Mr. Vitthal Yashwant Samant.
Q. 34 Thereafter who signed the Will dated
09.09.1996?
Ans. Thereafter, Advocate S. A. Abhyankar
signed the Will dated 09.09.1996.
24. I find from the remaining cross-examination that a large
number of wholly irrelevant questions were placed to the attesting
witness, including as to the contents of the Will and the Plaintiff's
awareness of these contents.8 This is not germane at all. It certainly
does not disprove due execution and attestation or establish lack of
testamentary capacity.
25. The second attesting witness also filed and served Affidavit of
Evidence. This is dated 12th June 2015. 9 Although the Plaintiff
made this witness available for cross-examination repeatedly, the
Defendants failed to cross-examine him. His testimony must be
taken as uncontroverted.
26. The Defendants have led no evidence whatsoever. There is
nothing in this regard that even remotely indicates that the
8 Worse yet, as to the witness's date of marriage and his wife's date of
birth. If there was ever a reason to examine an alternative to recording
evidence on commission, where a hapless commissioner has no option
but to record such thoroughly irresponsible questions, it is this.
9 Vol. B, pp.125-128.
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Defendants have discharged their evidentiary burden or have been
able to dislodge the case placed by the Plaintiff.
27. In this view of the matter, the suit is decreed. Both Caveats
are discharged. The Petition is allowed. Probate to be issued
expeditiously. I expect the probate to be issued at the earliest, and in
any event on or before 22nd December 2016.
28. Drawn up order dispensed with.
29.
Registry is not to insist upon an Affidavit of Service of
citations since I have already held that citations have been duly
served.
30. In view of this, the two Notices of Motion do not survive and
are disposed of accordingly as infructuous.
(G. S. PATEL, J.)
21st November 2016
