Sunder Shahani vs Girdharilal Chellaram Matai
2016 Latest Caselaw 6323 Bom

                           Sunder Shahani v Deepak Matai & Anr
                  TS36-2010-SUNDER SHAHANI V DEEPAK MATAI & ANR-F.DOC




     ATUL




                                                                               
          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
          TESTAMENTARY AND INTESTATE JURISDICTION




                                                       
                   TESTAMENTARY SUIT NO. 36 OF 2010
                                         IN




                                                      
              TESTAMENTARY PETITION NO. 856 OF 2009


     SUNDER SHAHANI,
     Hindu Inhabitant, at present residing at Flat




                                         
     No. 603/604 Magnum Towers,
     Lokhandwala Complex, Andheri (W),
                             
     Mumbai - 400053                                      ...                  Plaintiff

                                        versus
                            
     1.       DEEPAK MATAI,
              Hindu Inhabitant, at present residing
              at Flat 14, Sea View, Road 14-A,
      


              Khar (West), Mumbai - 400052
   



     2.       VEENA ALIAS MEERA
              PUNJWANI,
              Hindu Inhabitant, at present residing
              at 605, Raheja Crest -1, Off. Link





              Road, Andheri (W), Mumbai -
              400053                                      ...             Defendants


     A PPEARANCES





     FOR THE PLAINTIFF             Mr. T. G. Vora, a/w Mr. D. R. Mishra, i/b
                                        Ms. B.S. Shivhare
     FOR THE DEFENDANTS            Mr. V.Y. Sanglikar, a/w Mr. Mrunalini
                                        V. Panchal, i/b MRK Law Associates




                                      Page 1 of 12
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                            Sunder Shahani v Deepak Matai & Anr
                  TS36-2010-SUNDER SHAHANI V DEEPAK MATAI & ANR-F.DOC




     CORAM                                                  : G.S.Patel, J.
     JUDGMENT RESERVED ON                                   : 29th September 2016




                                                                                     
     JUDGMENT PRONOUNCED ON                                 : 25th October 2016




                                                             
     JUDGMENT:

A. OVERVIEW

1. The Petition is for Letters of Administration with Will

Annexed. The Will in question is of one Girdharilal Chellaram Matai ("Girdharilal"; "the deceased"; "the testator"), who died

in Mumbai on 21st April 1991.1 The Plaintiff ("Shahani") claims Girdharilal left a Will dated 18th March 1991.2

2. The Will, as we shall see, has three attesting witnesses. Two filed affidavits supporting the Petition, and, after it was renumbered

as a suit on caveats being entered, and taken to trial, one attesting witness was led in evidence. It is this evidence that is fatal, for this

attesting witness admits in cross-examination that the Will was not Girdharilal's 'real Will', and that he executed under some form of pressure. Having closely considered Mr. Vora's submissions for the Plaintiff, I am unable to find for him. Mr. Sanglikar for the

Defendants makes a straightforward point, one with which I am in complete accord: if the evidence of the attesting witness itself casts a doubt as to the volition of the testator, and as to the propounded

1. Death Certificate, Ex. "P2", Vol. D, p. 131.

2. Ex. "P1", Vol. D, p. 129.

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Will being genuine, the matter ends at that, and nothing further

need be shown. There is also the matter of another attesting witness filing contradictory affidavits, including one in which he alleges that

he himself was induced into attesting the will by misrepresentation.

3. For the reasons that follow, I have dismissed the suit and the

Petition and declined the grant.

                       B.      FACTUAL BACKGROUND

     4.
                             

Girdharilal was married three times. His first two wives, Ishwaribai and Savitribai, died before he. His third wife, Lata Matai

("Lata") was the sole Executrix and beneficiary named under the said Will. She died on 8th February 2006, leaving a Will dated 16th January 2003.3 Lata's Will appointed Shahani as the sole Executor.

Her nephew, Tarun Advani ("Tarun"), was its sole beneficiary.

Shahani obtained probate to Lata's Will on 4th August 2007.4 Shahani says that before she died, Lata gave him Girdharilal's Will, in which Girdharilal appointed Lata as the sole executrix.5 Shahani

filed this Petition for the Letters of Administration with Will annexed as the proving executor of Lata's Will in place and stead of Lata herself.

3. Ex. "P3", Vol. D, p. 133.

4. Ex. "P3", Vol. D, p. 132.

5. Affidavit in Support of Caveat, Vol. C, Para 3, p. 94 and Q.10, Sunder Shahani's cross-examination, Vol. C, p. 100.

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5. Girdharilal had five sons by his first wife, Ishwaribai, three

children by his second wife, Savitribai, and an adopted daughter with his third wife, Lata.6 Two of his children by his second wife,

Deepak Matai ("Deepak") and Veena alias Meera Punjwani ("Veena") filed Caveats in the present Petition for Letters of Administration with Girdharilal's Will annexed. The Petition was

then renumbered as Suit No. 36 of 2010.

6. Girdharilal's Will is a two-page document typed in English.

Girdharilal's signature appears on the second page, along with the signatures of three attesting witnesses: Mr. Chandru Mirpuri; Dr.

Haresh Chulani ("Chulani"), a physician, and Mr. Sunder Bhandary ("Bhandary"), an Advocate. Chulani and Bhandary both

filed Affidavits supporting the Petition. At the trial, Bhandary's evidence was led.

7. In his Will, Girdharilal named Lata as his sole beneficiary,

bequeathing to her his residential flat no. 14, Sea View, 14th A- Road, Khar, Mumbai 400052, and the entirety of his personal estate. The result, should the present Petition succeed, is, of course,

that Tarun, Lata's nephew, gains the entirety of Girdharilal's estate, it having been left to Lata and by Lata to him.

8. Nine heirs were named in this Petition, viz., Girdharilal's children by his first two wives and his adopted daughter. All were served. Deepak and Veena entered Caveats. In the Affidavit in

6. The adopted daughter, Jyoti Adwaney, opposed the petition for probate to Lata's Will, but her caveat came to be dismissed.

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Support of his Caveat,7 Deepak alleges that this Will is a forgery,

and that the circumstances surrounding the execution of the Will are suspicious. He takes principally these grounds:

(a) The said Will is not Girdharilal's Last Will and Testament of the deceased; Deepak says that Girdharilal left an earlier writing dated 30th December

1984, and that it is this that is Girdharilal's last Will and Testament.

(b) Deepak claims that Shahani obtained Probate to Lata's

Will by fraud and misrepresentation, concealing that

Lata's right to the Khar property was only through her husband's Will of 1991, and without disclosing

Girdharilal's Will at all.

(c) It is suspicious, Deepak says, that since Lata supposedly had possession of the Will in question for

more than 12 years and Shahani had possession of it for

another nine years after that, but neither filed a Petition for over 21 years.

(d) The signature on the Will is not Girdharilal's and does

not match his original specimen signatures.

9. Veena adopts the same grounds in her Affidavit in Support of Caveat.8

7. Affidavit in support of Caveat, Vol. A, p.5.

8. Affidavit in support of Caveat, Vol. A, p.76.

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C. ISSUES

10. Issues were framed on 21st April 2011 by Mrs. Justice R. S.

Dalvi. These are set out below with my findings.

Sr No Issue Findings

1. Whether the last Will and Testament of the deceased Girdharilal Chellaram In the negative.

Matai dated 18th March 1991 was validly executed?

2. Whether the said Will has been forged In the negative.

and fabricated?

3. What relief, if any, is the Plaintiff Suit dismissed.

entitled?

D. THE EVIDENCE ON RECORD

11. The Plaintiff examined himself (PW2), and one of the three

attesting witnesses, Sunder Bhandary (PW1).

12. The Plaintiff led three documents in evidence:

(a) Ex. "P1": the Will in question, of 18th March 1991.

(b) Ex. "P2": Girdharilal's death certificate.

(c) Ex. "P3" (Colly): Probate dated 4th August 2007 of

Lata's Will, which has the following documents attached: Lata's Will dated 16th January 2003; Dr. Haresh Chulani's medical certificate of 16th January 2003 and a Schedule of Lata's movable and immovable property.

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13. The Defendant neither examined any witnesses nor led any

documents in evidence.

14. A Will is proved in its solemn form only if it is shown to meet the requirements of Sections 59, 61 and 63 of the Indian Succession Act, 1925: that it is made by an adult of sound mind, without any

importunity that takes away the testator's free agency, and is duly attested, in the prescribed manner, by at least two witnesses.

15. The affidavits filed by Dr. Haresh Chulani, the second

attesting witness to the said Will, are curious indeed. All of these are before the trial, and his evidence was never led. He first filed an Affidavit on 15th September 2009,9 in which he stated that he was

present when Girdharilal made his Will. He then filed an Affidavit

dated 16th November 2009 in which he denied all the statements he made in his previous Affidavit.10 What comes next is even more suspicious. Dr. Chulani then filed a third Affidavit on 3rd April

2010,11 in which he said that the 1st Defendant, Deepak, and his son, Vikas, misrepresented the facts and induced him to sign the second Affidavit dated 16th November 2009. In other words, in his third affidavit, he reverted to his first affidavit, recanting his recantation.

He also filed a police complaint against Deepak and Vikas.12 None of

9. Affidavit of Attesting Witness, Vol. A, p. 10.

10. Affidavit of Attesting Witness, Vol. A, p. 31.

11. Affidavit of Attesting Witness, Vol. A, p. 23.

12. Vol. A, p. 33.

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this was ever explained. Dr. Chulani was never led as a witness. Yet

these affidavits remain as part of this record. I cannot accept Mr. Vora's submission that these affidavits are inconsequential. It was

for the Plaintiff to lead the evidence of Dr. Chulani; Mr. Sanglikar could hardly be expected to call him as a Defendants' witness. The affidavits are unreliable, and this makes the question of Dr.

Chulani's attestation of the Will equally unreliable. Establishing Dr. Chulani's credibility was, in my judgment, a burden that the Plaintiff had to discharge.

16. The cross-examination of Bhandary, PW1, an Advocate, turns

out to be fatal to the Plaintiff's case:

Q.29. So, do we take it that according to you, when Mr. Girdharilal Matai gave you instructions, you were not aware whether it

was his Last Will or not?

Ans. At the time of instructions, I was not

certainly not aware that, that was his Last Will.

Q.30. Did you or did you not ask him whether it was his Last Will?

Ans. In fact, I had asked him, but he had a

different version of his Will later on.

Q.31. Would it be right to say that Mr. Girdharilal Matai had given instructions which were

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not discernible and therefore you have stated in reply to Question No. 12 that the

Will was 'perhaps' drafted by you?

Ans. I was quite clear and discernible and there was no confusion in his instructions to prepare his Will, in the beginning.

Q.32. Do we take it that, according to you, there was confusion at a later point of time?

Ans. I don't want to use the word "confusion", ig but for some reason, later he changed his mind and he told me why he is changing

his Will.

Q.40. Were you aware that there were disputes

among the family members of Mr. Girdharilal Matai?

Ans. I don't know the meaning of family members, but Mr. Girdharilal Matai used

to tell me that his wife is not happy with the Will that I had drafted on his instructions and that he wanted to change the Will, because he is unable to

face his Wife with the Will that I had drafted on his instructions. I know only this dispute, nothing else.

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Q.41. According to you, did you change Mr. Girdharilal Matai's Will?

Ans. I did not myself change it, but I was

instructed by Mr. Girdharilal Matai later that to prevent any fight between himself and his wife, although he was

not willing to do so, he wanted to change the Will.

Q.42. Are you aware of any subsequent Will of

Ans.

ig Mr. Girdharilal Matai?

The only Will that I know is the Will in

question.

Q.59. According to you, did you explain to Mr.

Girdharilal Matai what was there in the Will?

   



             Ans.                  Mr. Girdharilal Matai was a qualified,
                                   educated      person    and    he     knew the

contents and I and himself discussed the contents several times and although the Will was not his real Will, but he was in a way compelled to give his property to

his wife to purchase peace at home and therefore he knew the contents very well.

(Emphasis added)

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17. Section 61 of the Succession Act requires that a Will must be

made entirely of the Testator's free agency and volition. Bhandary's evidence indicates a lack of this volition. It matters little what those

external influences or pressures were: this evidence tells us that the Will being propounded was not one that Girdharilal wanted to make. It is, in a word, a reflection of another's intentions and

desires, not his own, and that lack of free agency invalidates the Will in its entirety.13

18. The first issue is answered in the negative.

F. RE: ISSUE 2

19. The Defendants submit that the signature of Girdharilal on the said Will has been forged and does not match his original

specimen signatures. The burden of proof that the Will is forged

and fabricated by the Plaintiff and Tarun Advani is entirely on the Defendants.14 The Defendants having led no evidence, this issue must be answered in the negative.

G. CONCLUSIONS & ORDER

20. The evidence of Bhandary is damning, and the Will in question cannot be said to be proved in its solemn form. The suit must be dismissed.

13. Hall v Hall, 1868 I XXXI P&D Vict LR 48.

14. Daulat Ram & Ors. v Sodha & Ors., (2005) 1 SCC 40.

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21. The Defendants claim Girdharilal left an earlier Will dated

30th December 1984. This is propounded in Testamentary Suit No. 52 of 2006, and this suit will now proceed to trial with the dismissal

of the present Suit, one that propounded a later Will. The claim that the Plaintiff has obtained Probate to Lata's Will by fraud and misrepresentation is quickly dispatched. The Defendants cannot set

this up as an opposition to this Will; they must separately move for revocation of the probate to Lata's Will.

22. In the view that I have taken, it is not necessary to assess the ground of delay and laches, one that is, in any case, without

substance.15 The protracted delay in filing the petition, though not a bar, is certainly a ground of suspicion that requires explanation.16

There is none.

23. The suit and petition are dismissed with costs.

(G. S. PATEL, J)

15. S. Vatsala v K.S. Mohan & Others, (2016) 1 MLJ 513.

16. Vasudev Daulatram Sandarangani v Sajni Prem Lalwani, AIR 1983 Bom

268.

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