Bombay High Court
Jean Nusly Duggan vs Dr. Feroze Homi Duggan on 27 October, 2016
Bench: A.S. Oka
1 osappeal56
ssp
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.56 OF 2012
IN
TESTAMENTARY SUIT NO.78 OF 1994
Jean Nusly Duggan ...Appellant
vs.
Dr.Feroze Homi Duggan ...Respondent
Mr.Sharan Jagtiani a/w Mr.Aditya Pimple a/w Mr.Ish
Jain and Ms Bindi Parikh i/b Kiran Jain & Co. for
the appellant
Mr.Shailesh Shah, Senior Counsel a/w Mr.Prakash
Ganwani, Mr.Shanay Shah, Mr.J.S.Solomon, Ms Soniya
Putta, Mr.Rahul Soman i/b M/s.Solomon & Co. for the
respondent
CORAM : A.S.OKA AND P.D.NAIK,JJ.
DATE ON WHICH THE JUDGMENT IS RESERVED: MAY 6, 2016
DATE ON WHICH THE JUDGMENT IS PRONOUNCED:OCTOBER 27,2016
JUDGMENT(PER A.S.OKA,J):
1 By this Appeal, the appellant has taken an
exception to the Judgment and Decree dated 3rd August
2011 passed by the learned Single Judge by which the
Testamentary Suit filed by the respondent was
decreed by the learned Single Judge.
2 The respondent filed a Testamentary Petition
seeking grant of Letters of Administration. The
petition was filed in respect of the alleged last
Will and Testament dated 4th April 1993 (for short
`the disputed Will') of Lady Jeena alias Jena
Jamhedji Duggan (for short "the testator"). The
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respondent claimed to be the sole residuary legatee
under the disputed Will. The testator died at
Mumbai on 2nd September 1993. It is alleged that the
disputed Will was executed in the house of the
testator situated at Lawnside, 6, Harkness Road,
Mumbai 400006. Under the disputed Will, the
testator appointed Mr.Jamshed Burjor Aga, Mrs.Raty
Adi Nariman and Ms. Neena Kapadia as the Executors
and/or Executrix. It is stated in the Testamentary
Petition that all of them have renounced their right
as executor/executrix. It is stated in the petition
that the testator had two sons and the surviving
next-of-kins according to Indian Succession Act,
1925 (for short "the succession Act") as applicable
to Parsis were the respondent (grandson of the
testator) and one Ms Farina Alexandre Folichichook
being the grand-daughter.
3 The present appellant is claiming to be widowed
daughter-in-law of the testator. It is claimed that
the testator had two sons Homi and Nusserwanji alias
Nusly. Both the sons pre-deceased the testator.
The respondent is the son of Homi. The appellant is
the widow of Nusly. It is claimed that the said
Nusly died in the year 1983.
4 Initially, the Letters of Administration were
granted to the respondent. The Letters of
Administration were revoked on a petition filed by
the appellant. Thereafter, the present appellant
filed a Caveat. In the affidavit in support of the
Caveat, it was contended by the appellant that the
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testator was not in a sound state of mind when the
disputed Will was allegedly executed. It was
pointed out that she was hospitalised soon after the
execution of the Will. It is contended that the
Will has not been validly executed and there are
several suspicious circumstances on record which
create a serious doubt about the genuineness of the
Will. It was contended that the Will was got
executed by fraud and undue influence. In view of
the Caveat being filed by the appellant, the
Testamentary Petition was numbered as a Suit.
The issues were framed by the learned Single
Judge of this Court on 8th August 2007 which read
thus:
(I) Whether the Writing dated 4th April 1993 is
the validly executed Will of deceased lady Jean
Duggan?
(II) Whether the deceased Lady Jean Duggan was
in sound and disposing state of mind at the
time of execution of the said Writing dated 4 th
April 1994?
(III) Whether the Defendant proves that at the
relevant time the testator of the Will was not
in sound and disposing state of mind?
(IV) Whether the Writing dated 4th April 1993 has
been obtained by fraud and undue influence as
alleged in para 7 of affidavit in support of
caveat?"
6 The respondent examined one Roshan Master who
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was alleged attesting witness of the disputed Will.
The appellant examined herself. Apart from the
appellant, Mrs.Bakul Kiran Khatau and Dr.Vishnu
Chandra Kakkar were examined as witnesses by the
appellant. The learned Single Judge by the impugned
Judgment and Decree held that the disputed Will was
duly proved and that at the time of execution of the
disputed Will, the testator was in a sound and
disposing state of mind. The learned Single Judge
held that the appellant has failed to prove that at
the time of execution of the disputed Will, the
testator was not in sound and disposing state of
mind. The learned Single Judge also held that the
appellant failed to prove that the disputed Will was
obtained by fraud and undue influence. The learned
Single Judge, by the impugned Decree, directed the
Prothonotary and Senior Master to issue a probate of
the disputed Will dated 4th April 1993.
7 The learned counsel for the appellant in
support of the appeal submitted that in view of
section 59 of the Indian Succession Act,1925 (for
short `the said Act'), the onus is always on the
propounder to prove the sound and disposing state of
mind of the testator and where existence of
suspicious circumstances is shown, the onus is on
the propounder to prove the Will by explaining the
suspicious circumstances by leading cogent
evidence. The learned counsel for the appellant
relied upon the decision of the Apex Court in the
case of H.Venkatachala Iyengar vs. B.N.Thimmajamma1.
1 AIR 1959 SC 443
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He has taken us through the pleadings and notes of
evidence. His submission is that the respondent
failed to lead any evidence to discharge onus. He
submitted that the respondent himself did not enter
the witness box though the appellant, by filing a
chamber summons, sought his presence for the cross-
examination. He pointed out that the said chamber
summons was opposed by the respondent and the
learned Single Judge rejected the said prayer. He
pointed out that there were several suspicious
circumstances associated with the execution of the
disputed Will. He pointed out that at the time of
execution of the disputed Will, the age of the
testator was 96 years. He also pointed out that
three executors who were allegedly appointed under
the disputed Will have renounced their right as
executors. He pointed out that the only witness
examined by the respondent accepted that Mr.Jamshed
Aga who was one of the executors appointed under the
disputed will played an instrumental role in the
execution of the Will. He submitted that
renouncement of executorship of the disputed Will by
the said Jamshed Aga who was closely associated with
the testator is also a suspicious circumstance.
Thirdly, he pointed out that except for the minor
bequests made by the testator in favour of the
members of her staff, rest of the property has been
bequeathed to the respondent who had no contact with
the testator for several decades. He submitted that
the evidence shows that after several years, he came
to India and was with the testator in Mumbai in
February and March 1993, just before the execution
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of the disputed Will. He submitted that it is
obvious that the respondent who was in India just
before the execution of the Will has played a major
role in getting the Will executed. He pointed out
that the manner in which the respondent obtained the
custody of the Will is also suspicious. He urged
that no evidence is adduced by the respondent for
explaining the aforesaid suspicious circumstances.
He submitted that the learned Single Judge was made
aware of the said flaw in case of the respondent of
not leading the evidence to explain the suspicious
circumstances.
8 He invited our attention to the letter the
dated 10th March 1993 (Exhibit P-4) allegedly written
by the testator to the respondent. He submitted
that the only witness examined by the respondent has
not referred to the said letter though affidavit of
documents filed by the Constituted Attorney of the
respondent refers to the said letter. He pointed out
that when the appellant was shown the said letter,
she recognized the handwriting of the said letter
by stating that it was the handwriting of the
deceased testator. He submitted that the contents
of the said letter have not been proved by the
respondent and he has not proved that the letter was
dispatched by the testator and was received by him.
He submitted that in absence of the proof of
contents of the said letter and the proof of
delivery of the said letter, the same could not have
been considered as an authentic evidence by the
learned Single Judge. He pointed out that the
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condition of the health of the testator was very
poor as she was required to be hospitalised for
three weeks immediately after the execution of the
Will. Inviting our attention to the evidence of the
second witness examined by the appellant who was a
friend of the testator, he submitted that the said
evidence is not at all shattered in the cross
examination. He pointed out that the said witness
stated that the deceased was suffering from loss of
memory and understanding to a great extent. The
deceased was frail, weak and disoriented. The
witness also deposed that the deceased testator
failed to recognize her during the her last two
visits in or around February 1993 in the house of
the testator. He pointed out the evidence of the
Medical Practitioner(third witness examined by the
respondent). He pointed out that the said witness
was brought to the house of the testator on the
request of the Mr.Jamshed Aga on 10 th January 1993
and on the last Sunday of February 1993. He stated
that the said witness proved that the testator was
suffering from loss of memory and in general, her
health was poor. He stated that he was requested by
Mr.Jamshed Aga to sign the Will as an attesting
witness, but he refused to do so.
9 The learned counsel for the appellant also made
submissions on the letter dated 13 th September 1993
(Exh.PX-1). He submitted that the respondent's
Advocate had confronted the appellant by showing a
copy of the letter at Exh.PX-1. He pointed out that
the learned Single Judge has accepted the case of
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the appellant that the said letter is required to be
read in evidence. Inviting our attention to the
finding recorded by the learned Single Judge that
the respondent exercised influence upon the deceased
testator for making the impugned will, he submitted
that in view of the said finding which is not
challenged by the respondent, the case of the undue
influence will have to be taken as proved.
10 The learned counsel for the appellant submitted
that it was bounden duty of the respondent to step
into witness box and to offer himself for cross
examination as he was aware of the material facts.
He submitted that an adverse inference ought to have
been drawn against the respondent for not entering
into witness box. He submitted that the letter
dated 10th March 1993 (Exh.P-4) will have to be
discarded as that there was no opportunity available
to the appellant to cross examine the respondent on
the said letter.
11 After taking the Court through the depositions
of the witnesses, he made submissions on the
testimony of the witnesses, he submitted that the
issue No.2 is distinct from the Issue No.3. He
submitted that the Issue No.2 is based on section 59
of the said Act.
12 His submission is that the learned Single Judge
has not taken into consideration the distinction
between the two issues. He submitted that the
evidence of the only witness examined by the
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respondent is not sufficient to discharge the burden
on the respondent. He urged that the letter at
Exhibit PX-1 was admissible in evidence. It was
produced in the cross-examination of the appellant
in response to question no.88. In fact the learned
counsel for the respondent confronted the appellant
by showing a copy of the said document which was a
part of the affidavit of Mr. Zaiwalla in Contempt
Petition no.22 of 1999. He urged that the said
letter supports the contention of the appellant
about the state of mind of the testator on the date
of the execution of the alleged will. He submitted
that though it may not be conclusive, the failure
to take endorsement of the doctor on the Will must
be taken into consideration as the age of the
testator was 96 years. He submitted that the burden
to prove the issue No.3 on the appellant was
required to be discharged only if the burden imposed
by the Issue No.2 was discharged by the respondent.
His submission is that the respondent ought to have
led his own evidence or at least the evidence of
Mr.Jamshed Aga who was actively involved in the
execution of the disputed Will. He also dealt with
the findings recorded by the learned Single Judge on
non production of the hospital record of the
deceased testator. He urged that the appellant never
claimed that she was in possession of the hospital
record. His submission is that the reference to the
hospital record in the affidavit of documents was by
way of mistake and therefore, no adverse inference
can be drawn for non production of the said
documents on record especially when she has
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explained as to how she obtained the hospital
registration number. He submitted that the finding
of the learned Judge that the second witness
examined by the appellant could not have met the
appellant on more than two occasions may not be
correct. He submitted that while dealing with the
evidence of the third witness examined by the
appellant, the learned Single Judge was
unnecessarily swayed by the fact that the Doctor has
attended the residence of the testator on 10 th
January 1993 when there were riots in the city. He
submitted that the learned Judge ignored that the
said witness was residing in Mumbai at the relevant
time at a place which is close to the place of
residence of the testator. He submitted that there
was no reason to reject the evidence of the third
witness examined by the appellant. He submitted
that the evidence of the third witness clearly shows
that the deceased was suffering from loss of memory
and understanding. He, therefore, submitted that the
evidence of the witnesses examined by the appellant
ought to have been accepted and as the respondent
has not discharged the burden, the learned Single
Judge ought to have dismissed the Testamentary Suit.
13 The learned senior counsel for the respondent
has also made detailed submissions. While supporting
the findings recorded by the learned Single Judge,
he relied upon various decisions of the Apex Court.
He submitted that if propounder of the Will proves
the execution of the Will and that Will was made
when the testator was in a sound state of the mind,
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then the onus on him stands discharged. He relied
upon paragraph 9 of the decision of the Apex Court
in the case of Madhukar D. Shende Vs. Tarabai Aba
Shedage2 dealing with the onus and the burden of
proof. He submitted that in a given case merely
because it is established that the beneficiary under
the disputed Will has actively participated in the
process of making the Will, that itself is not
sufficient to create any doubt either about the
testamentary capacity or the genuineness of the
Will. In this behalf, he relied upon the decision
of the Apex Court in the case of Pentakota
Satyanarayana and others vs. Pentakota Seetharatnam
and others3. He submitted that once the Court is
satisfied on the basis of the evidence that the
testator with a free will and with a sound and
disposing state of mind has made the Will, the
Court cannot go into the question whether the
disposition is fair. He submitted that exclusion of
some of the natural legal representatives of the
testator under the Will is not by itself sufficient
to doubt the authenticity of the Will. He relied
upon the the decision of the Apex Court in the case
of Ramabai Padmakar Patil (dead) by L.Rs and others
vs. Rukminibai Vishnu Vekhande and others4. Dealing
with the document at Exh.P-4, he submitted that as
the witness identified the handwriting of the
testator in the said letter, the contents thereof
are certainly admissible to the extent of the fact
2 (2002) 2 SCC 85
3 (2005) 8 SCC 67
4 AIR 2003 SC 3109
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that the deceased testator had written the said
letter. He relied upon the decision of the Apex
Court in the case of Bishvanath Rai Vs. Sachhidanand
Singh5. Relying upon the decision of the learned
Single Judge (A.S.Oka,J.), in the case of Geeta
Marine Services Pvt. Ltd. And another Vs. State and
another6, he urged that there is a consistent
practice followed by the Courts in the State to
mark the documents shown to a witness in the cross
examination as exhibits. Marking of such documents
as exhibits does not dispense with the requirement
of the proof of execution, contents and genuineness
of the documents in accordance with law. These
submissions were made with reference to the
documents marked as Exhibit PX-1. He invited our
attention to the oral evidence on record as well as
the findings recorded by the learned Single Judge.
He submitted that merely because the will was not
read over to the testator at the time of execution
thereof, there is no illegality attached and the
Will does not become suspicious. He submitted that
even assuming that there were suspicious
circumstances, the burden explaining the suspicious
circumstances was discharged. He submitted that non
examination of Mr. Jamshed Aga is not at all fatal.
He submitted that no fault can be found with the
findings recorded by the learned Single Judge. He
urged that if the findings are considered in its
entirety, it becomes very clear that the learned
Single Judge has recorded findings on all the
5 (1972) 4 SCC 707
6 2009 All M.R. (Cri) 672
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issues.
14 The learned counsel for the appellant has
rejoined by contending that the burden on the
respondent has not been discharged. He relied upon
certain precedents.
15 We have given careful consideration to the
submissions. We have perused the notes of evidence
and the documentary evidence on record. In the
petition for Letters of Administration filed by the
respondent, it is pointed that the testator died on
2nd September 1993 and she had executed the Will
dated 4th April 1993. It is stated that the Will
was executed by her at her residence at Lawnside, 6,
Harkness Road, Mumbai 400 006. As the per the
alleged Will, the bequests were made of very small
amounts to three servants employed by the testator
and her nephew. The Will provides that after making
payment of various expenses and paying legacies to
the four persons, one half of the residue of her
entire estate was bequeathed to the respondent. The
remaining half was ordered to be held by the
executors in trust for grant-daughter of the
deceased. It was provided that the grand daughter
will be entitled to enjoy the income from the said
half share till she attains 55 years and after she
attains the age of 55, she will be absolutely
entitled to receive the said share. It is further
provided that if the grand-daughter marries to a
Russian gentleman named in the said Will, she would
not be entitled to have any share whatsoever and
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the entire residual estate will be given to the
respondent. It appears that the grand-daughter
married to the Russian gentleman named in the Will.
As pointed out earlier, the present appellant is the
daughter-in-law of the deceased (who is the widow of
Nusly, a son of the testator). The respondent is the
son of deceased Homi, another son of the testator.
The alleged attesting witnesses are Late Mr. Nani
Palkhiwala, Senior Advocate and Ms Roshan M. Master,
Advocate.
Now, we turn to the deposition of the only
witness examined by the respondent-plaintiff. The
said witness is Ms Roshan Master who was an Advocate
and Notary. As reflected from her affidavit in lieu
of examination-in-chief, her age at the time of
filing of the said affidavit in lieu of
examination-in-chief was 70 years. She stated that
she was enrolled as an Advocate in the year 1961.
She stated that she knew Mr.Nani Palkhiwala as his
office was located on the fourth floor at Bombay
House Fort, Mumbai-4000 023. She stated that since
April 1969, she worked as an assistant of Mr.S.R.
Vakil, Advocate whose office was located on the
ground floor of the same building Bombay House.
Paragraphs 3 to 8 of her deposition read thus:
"3 I knew and I was well acquainted with
Lady Jena Jamshedji Duggan. I became
acquainted with Lady Jena Jamshedji Duggan in
the offices of Mr.N.K.Petigara and
Mr.S.R.Vakil in M/s.Mulla and Mulla and
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Craigie Blunt & Caroe, Advocates and
Solicitors. Lady Duggan used to visit
Mr.Nani A. Palkhiwala and Mr.S.R.Vakil often
in their offices at Bombay House, Fort,
Mumbai - 400 023 in connection with her
charitable works. I became more acquainted
with Lady Duggan in the offices of Mr.Nani A.
Palkhiwala and Mr.S.R.Vakil in Bombay House
after April 1969.
4 At the beginning of April 1993, Mr.Nani
A. Palkhiwala requested Mr.S.R.Vakil to
depute me to accompany Mr.Nani A. Palkhiwala
to the residence of Lady Duggan for attesting
her Will. Accordingly, I went with Mr.Nani
A. Palkhiwala to the residence of Lady Duggan
at Lawnside at Malbar Hill on 4 th April 1993.
On reaching the residence of Lady Duggan at
Lawnside, Malbar Hill around noon or 4th April
1993, Mr.Nani A. Palkhiwala and myself were
met by Lady Duggan. Mr.Jamshed Burjor Aga,
who was known to Mr.Nani A. Palkhiwala was
also present at this meeting. At this
meeting, Lady Duggan produced a type written
document and informed us that the said
writing was her Will and signed the same and
requested Mr.Nani A. Palkhiwala and myself to
attest her signature thereon. I have taken
inspection of the original writing dated 4 th
April 1993 deposited in this Hon'ble Court
(referred to hereafter as "the said writing")
in the office of this Hon'ble Court on 20 th
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December 2006.
5 On 4th April 1993, I was present together
with Mr.Nani A. Palkhiwala at the residence
of Lady Jena Duggan at Lawnside, 6, Harkness
Road, Mumbai 40006 when Mr.Jamshed Burjor Aga
was also present and at that time, I and
Mr.Nani A. Palkhiwala saw Lady Duggan set and
subscribe her name at the foot of the said
writing and declare and publish the same as
her last Will and Testament. Thereupon, at
the request of Lady Duggan, Mr.Nani A.
Palkhiwala and I set and subscribed our
respective names and signatures at the foot
of the said writing as witnesses thereto in
the presence of the said Lady Duggan. All
three of us, namely, Lady Duggan, Mr.Nani A.
Palkhiwala and myself were present at the
same time on 4th April 1993 at the residence
of Lady Duggan when Lady Duggan set and
subscribed her signature on the said writing
as executing party and Mr.Nani A. Palkhiwala
and myself signed the said writing as
witnesses thereto. I say that the signature
subscribed at the foot of the said writing,
namely, `Jena J. Duggan' is in the
handwriting of Lady Jena Duggan. I say that
the signature at the foot of the said
writing, namely, `Jena J. Duggan' was made by
Lady Jena J. Duggan in my presence and in the
presence of Mr.Nani A. Palkhiwala on 4th April
1993. I say that the two signatures
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`N.A.Palkhiwala' on the said writing are in
the handwriting of Mr.Nani A. Palkhiwala and
were made by him in the presence of Lady Jena
Duggan and myself on 4th April 1993. I say
that the signature `Roshan M.Master' on the
said writing is in my handwriting and was
made by me on 4th April 1993 in the presence
of Lady Jena Duggan and Mr.Nani A.
Palkhiwala.
6 On 4th April 1993 when Lady Jena Duggan
subscribed her name and signature to the said
writing, the words `Fourth' and `April' had
been added in ink by Mr.Jamshed Burjor Aga in
his handwriting in the line beginning with
the words "IN WITNESS WHEREOF" as also on the
docket of the said writing.
7 I say that when Lady Jena Duggan
subscribed her signature on the said writing
on 4th April 1993, she was of sound and
disposing mind, memory and understanding and
made and published the same as her Will of
her free will and pleasure. I say that from
the behaviour and talk of by Lady Jena Duggan
with Mr.Nani A. Palkhiwala and me and
Mr.Jamshed Burjor Aga on 4th April 1993, it
was clear to me that Lady Jena Duggan was in
a sound state of mind, memory and
understanding and executed the said writing
voluntarily.
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8 After executing her Will on 4th April
1993, Lady Duggan retained the said original
Will with herself. At the time of execution
of her Will by Lady Jena Duggan on 4 th April
1993, except Lady Duggan, Mr.Nani A.
Palkhiwala and myself and Mr.Jamshed Burjor
Aga, no other person was present. Prior to
the demise of Lady Duggan, I was not
acquainted with Dr.Feroze Duggan or his
mother Mrs.Aban Duggan."
Her further examination-in-chief was recorded
by the learned Single Judge. When the original Will
was shown to her, she identified the signature of
the testator. She stated that she along with the
other attesting witness Mr.Nani Palkhiwala as well
as the said Jamshed Aga were present at the time of
execution. She stated that the date on the Will was
put by the said Jamshed Aga. In paragraph 4 of her
further examination-in-chief, she stated that
health of the testator was normal when she signed
the Will. She stated that the testator spoke to them
and she enquired about the health of Mr.S.R.Vakil.
She stated that in presence of the testator, she
along with Mr.Nani Palkhiwala attested the Will.
She stated that the testator put her signature on
the Will in presence of herself and Mr.Nani
Palkhiwala. In the cross examination, she stated
that except at the places mentioned in the affidavit
in lieu of examination-in-chief, (the office of
Mr.Nani Palkhiwala and Mr. S.R.Vakil) she had not
met the testator at any other place. She stated that
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she was not aware of the hospitalization of the
testator in the year 1993 though Mr.S.R.Vakil had
casually mentioned about it. The answers given by
the witness in paragraphs 7 to 9 of the cross-
examination are very material which read thus:
"7 On 4.4.1993, I reached the residence of
Lady Jena J. Duggan at about 11.30 a.m with
N.A.Palkhiwala. We were there for about half
an hour. When I went with Mr.Palkhiwala, we
did not meet Lady Jena in the main hall. But
after crossing the main hall, one side room
was there in which we met her. She was
sitting on the chair. At the time when the
Will was attested by me, I was not knowing
that Lady Jena was 96 years old, but I was
knowing that she was quite old. I personally
did not handle legal matters of Lady Jena
Duggan.
8 When we went to residence of Lady J.
Duggan at about 11.30 a.m on 4.4.1993,
Mr.Jamshedji Aga received us and took us to
the room where Lady Jena J. Duggan was
sitting. After expressing some pleasantries,
she told us that we were called to witness
her Will. Before that, I was not knowing for
what purpose I was called. However,
Mr.N.A.Palkhiwala was knowing about the
purpose of his visit i.e for attesting her
Will. Lady Jena Duggan herself produced the
subject Will and said that we both have to
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witness her Will.
9 She signed the subject Will in our
presence and thereafter we attested the same
as witnesses to the said Will."
(emphasis added)
18 In paragraph 10 of her cross-examination, she
accepted that she has not taken any part in the
preparation of the Will. She stated that the Will
was not prepared by the testator in her presence and
even the attesting Witnesses did not read the Will.
When the witness was confronted with her affidavit
filed in support of the Testamentary Petition, she
stated that the mention of presence of the said Mr.
Aga was not made therein as the affidavit in support
is filed in the prescribed form. In paragraph 12,
she denied the correctness of the suggestion that on
4th April 1993 when the Will was allegedly executed,
the testator was in bad health and was not in a
position to recognize anybody. She denied the
correctness of the suggestion that she along with
Mr.Nani Palkhiwala did not attest the Will. We must
note here that the evidence of the witness is not at
all shaken in the cross-examination.
19 The appellant in her affidavit in support of
the caveat denied the execution of the alleged Will.
It was contended that the testator was not of sound
mind when she executed the alleged Will. It was
pointed out that from 19th April 1993 to 15th May 1993
the deceased was hospitalised in Breach Candy
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Hospital in Mumbai in a serious condition with
history of being in delirious condition, lapsing
into Coma and other factors. It was further
contended that the testator was unable to recognise
her relatives and friends and was incapable of
arriving at an independent decision at the relevant
time. Moreover, she had become frail due to ill
health, she was unable to walk and therefore, she
was required to use a wheel chair. It is alleged
that she was required to be fed by a food pipe.
In the affidavit in support of the caveat, it
was alleged that the respondent has taken active
part in purported execution of the Will. It is
alleged that entire exercise of making the alleged
Will was conducted by the respondent or at his
instance by Mr.Noshir Talathi,who was a Director of
Benzer Interiors Private Limited. It is alleged that
the alleged Will is void. It is further alleged
that on account of illness as well as mental and
physical disability of the testator, she came under
total control of the respondent and/or the said
Noshir. It is alleged that they decided to exclude
all other heirs to the estate of the testator. It
is pointed out all the three executors appointed
under the disputed Will have renounced their rights
as executors. It is contended that the Will contains
inconsistent statements and the same is unnatural.
We are referring only to the material contentions
raised in the affidavit in support of the caveat.
One of the contentions raised in the affidavit is
that during the last phase of the life of the
22 osappeal56
testator, she had shown marked improvement in her
attitude towards appellant as she was the only
member of the family in Mumbai who could contact the
testator and enquire about her health.
21 Now we turn to the affidavit in lieu of
examination-in-chief of the present appellant. She
stated that the testator had two sons Nusserwanji @
Nusly and Homi. It is pointed out that the
respondent is the son of the first wife of Homi.
Homi died in the year 1985 and Nusly died on 31 st May
1983. As stated earlier, the appellant is the
widow of the said Nusly who claims to be the sole
legatee under the Will dated 2nd February 1978 of her
husband. She stated that after she married to Nusly
on 26th July 1976, she started residing at Lawnside
(the place of residence of the deceased). It was
pointed out that the respondent and his mother left
India and settled in U.K and were not residing in
India since the year 1959. In fact, the respondent
and his mother were British Nationals holding
British passports. She stated that somewhere in
February or March 1993, the respondent visited
India after lapse of 32 to 35 years. As the testator
was not keeping a good health, it is alleged that
during his visit, the respondent with the help and
assistance of the said Mr. Jamshed Aga planned a
conspiracy to grab the estate of the deceased. It
is alleged that the said Mr. Jamshed Aga was able to
exercise enormous influence on the deceased and in
fact all her papers and bank documents were always
in the custody of the said Jamshed Aga. It is
23 osappeal56
alleged that the testator did not give any
instructions for making the disputed Will and that
the disputed Will is not prepared as per her wishes.
It is alleged that during the relevant period, she
was prevented from having an access to the room of
the testator.
22 Paragraphs 14 to 17 of the examination-in-chief
of the appellant are important which read thus:
"14. I say that the said Lady Duggan died at
Mumbai on 2nd September 1993. Prior to her
death the said Lady Duggan who was about 96
years old was not of sound mind and was
keeping indifferent health and had lost her
memory and physical and mental faculties
since long. The said deceased lady Duggan
was under constant medical treatment of
Doctors. I know that Dr.Majmudar was giving
Medical Treatment to Lady Duggan.
15. Much prior to April 1993, the said Lady
Duggan was unable to understand the contents
of any documents or effect thereof. The
deceased due to various ailments was unable
to physically discharge any work. The
deceased was not having sound and disposing
mind and memory and was unable to act
voluntarily and to understand or give
instructions much less for preparing Will.
The deceased was unable to even recognize me
when I used to visit her. Similarly the
deceased was unable to recognise her
24 osappeal56
relatives and friends who use to visit the
deceased at Lawnside and was incapable of
arriving at any independent decision. The
deceased Lady Duggan on many occasion become
unconscious. The deceased became frail due
to ill health and as a result of which the
deceased was not able to consume food in
normal course and hence was being fed with
food pipe. I say that Lady Duggan was not at
all keeping good health in the year 1993 and
I will lead evidence of independent witness
if necessary.
16. Mrs.Bakul Khatau was a frequent visitor
of the deceased Duggan who was her friend.
The said Mrs.Khatau during her visits to
Lawnside informed me that the deceased Duggan
was unable to recognise her as friend when
visited and was unable to remember anything.
17. I say that the deceased Lady, Duggan
due to continuous medical problem was
admitted and hospitalised from 19th April 1993
to 15th May 1993 in Breach Candy Hospital
under registration No.1535/93 code no.2341 in
a serious condition with the history of being
in delirious condition lapsing into coma and
other factor indicating that she had lost her
physical and mental faculty since long. I
have made inquiries with Breach Candy
Hospital whether any record of Lady Duggan's
Medical treatment given is available to which
I was informed that the same was destroyed.
I used to visit her in Hospital."
25 osappeal56
(emphasis added)
23 In the further part of examination-in-chief,
she stated that after her marriage with Nusly, her
relationship with the testator got soured. After
demise of her husband, the relationship became
cordial and she used to visit deceased testator
during her illness at Lawnside as well as in the
hospital. She further stated that the conspiracy was
hatched by the respondent during his visit in
February/March 1993. Thereafter, the respondent's
mother came to India in December 1993 and stayed
till April 1994. The respondent visited India in
March/April 1994. It is alleged that there were
meetings between him and One Noshir Talathi.
24 She further stated that in the month of
May/June 1994, the respondent received 2,00,000 UK
Pounds from the said Noshir Talathi. It is alleged
that the said amount was paid with the intention of
grabbing the Lawnside property on the basis of the
alleged Will.
25 We have also perused the material portion of
the cross examination of the appellant made by the
learned Counsel for the respondent. The witness
accepted in the cross examination that till the
death of her husband, her relationship with the
testator had deteriorated and thereafter, they
started talking to each other. The witness accepted
that she had filed a suit in the City Civil Court
against the testator who in turn had also filed a
26 osappeal56
suit against her and that both the said proceedings
were hotly contested. Thereafter, she was cross
examined on her statements regarding alleged
conspiracy between the respondent and the said Mr.
Jamshed Aga. She stated that one Ms. Neena Kapadia
who was named as an executor is a part of the
conspiracy. She stated that she came to know about
the conspiracy when she read the letter annexed to
the petition which was served upon her may be in
June 1994. In response to the question No.88, the
witness stated that she prepared a copy of the
letter dated 13th September 1993 on the basis of the
copy of the said letter annexed to the petition
served upon her. The said typed copy of the letter
dated 13th September 1993 was marked as Exhibit PX-1.
Thereafter, there was further cross examination on
the theory of conspiracy. She was cross examined on
the letter at Exhibit PX-1. She was shown the
affidavit dated 1st December 1997 filed in Contempt
Petition No.22 of 1997. She admitted that a copy of
the letter at exhibit PX-1 annexed to the said
affidavit does not bear any date. She stated that
the date appearing in Exhibit PX-1 was in the
handwriting and she has not written the same. She
stated in the cross examination that some time in
April 1993, the testator was ill and was
hospitalised. She was brought to home for a period
of 10 days and thereafter, she was again
hospitalised. She stated that she used to visit
the hospital in night and private nurses appointed
were aware about her visit. Later on, she stated
that on some occasions, she used to visit even in
27 osappeal56
the afternoon. The witness admitted that when she
visited the hospital to visit the testator, she has
not seen any record of the hospital. She stated
that the discharge card was given to her by the
nurse who was present at the house of the testator
but she does not recollect her name. She admitted
that she had given the registration code number of
the hospital in the present proceedings. She stated
that she has given the particulars on the basis of
the record of the hospital. She stated that she got
the registration number from the office of the
Breach Candy hospital where the testator was
hospitalised. She claimed that the said information
was obtained by one lady Lila who was married and
settled abroad. She stated that she was not aware
about the whereabouts of the said Lila. She
accepted by way of reply to the question No.158
that she had no opportunity to see any record of the
hospitalization of the testator. The appellant was
also cross examined on the affidavit of documents.
Item No.10 of the said affidavit of documents was
the record of Breach Candy Hospital of medical
treatment given to the deceased testator in April
1993. The appellant accepted that she did not
possess the said record. She accepted that item
No.10 of her affidavit of documents was in relation
to the record of the Breach Candy Hospital. She
stated that she never had the said record of the
hospital. She admitted that she has made an
incorrect statement in the affidavit of documents
regarding the custody of the record. She accepted
that she has only the registration number and not
28 osappeal56
any record. She accepted that she did not make any
effort to procure the said documents mentioned in
the affidavit of documents. She stated that the
mistake occurred in the affidavit of documents
because she was just discharged from the hospital.
She further stated in the cross examination that the
disputed Will may have been prepared by Mr. Jamshed
Aga or under his instructions, but she is not sure
about it. She stated that the statement is based on
the letter marked as Exhibit PX-1. In the cross
examination, she stated that she used to see the
testator every day. She stated that the testator
used to pass by her room every day. She stopped
passing by her room after some time and thereafter,
the Cook used to take instructions from her. She
accepted the correctness of the suggestion that as
the testator stopped passing by her room, she
concluded that the testator was not physically or
mentally fit to make the Will. She stated that she
was relying upon the deposition of Mrs.Bakul Khatau.
She stated that before she filed the suit in the
City Civil Court, her relationship with the testator
was very cordial.
26 In response to a question, she stated that the
respondent obstructed her access to the testator in
February or March 1993. She admitted that except
for complaining to her sister, she did not complain
to anybody about the said conduct of the respondent.
She accepted that in April 1993, the respondent was
not in India. She admitted that in a suit filed by
the testator in the City Civil Court, she was
29 osappeal56
restrained by the said Court from going to the
premises where the testator used to reside.
Referring to Mrs.Bakul Khatau, another witness
examined by her, she stated that Mrs.Khatau used to
stay near the place of residence of the testator and
used to visit the testator. She stated that
Mrs.Khatau was a socialite. In response to the
question No.224 and 225, she answered that before
filing her affidavit in lieu of examination in
chief, she was in ICU for four days and thereafter,
in a ward for eight days. She stated that she was
discharged on 2nd or 4th January 2008. She stated
that she did not make any efforts to get any
documents mentioned in Item No.10 in affidavit of
document as she was not well. She stated that when
she asked casually someone else to get the
documents, she was informed that the hospital does
not keep such an old record for such a long time.
She admitted that when the affidavit of documents
was filed, she did not know whether the documents
were available with the hospital. She stated that
she was not aware on that date whether the documents
were destroyed by the hospital. Her attention was
invited to her statement in paragraph 17 of the
affidavit in lieu of examination-in-chief in which
she stated that she made inquiries with the Breach
Candy Hospital about the availability of the record
and she was informed that the record was destroyed.
She stated that this statement is not correct. She
admitted that the suit filed by her in the year 1983
against the testator was earlier in the point of
time than the suit filed by the testator against her
30 osappeal56
in the same year. In response to the question
No.271 when she was called upon to the disclose the
names of her witnesses, she stated that she may
examine Mrs.Khatau and a Doctor whose name she was
not presently knowing. In response to the question
whether she was proposing to examine Dr.Mazmudar,
she stated that the said Doctor has declined to
depose. She stated that her statement about the
physical and mental condition of the testator is
based on her understanding and on the basis of what
is disclosed to her by Mrs.Khatau and the servants.
She stated that she is not aware where the said
servants were at present. The appellant was shown
an inland letter dated 10th march 1993 addressed to
the respondent. She accepted that handwriting in the
said letter was of the testator and the letter was
addressed to the respondent. The said letter was
taken on record in her cross-examination and was
marked as Exhibit P-4. She reiterated that her
statement that the testator was unable to recognize
her when she used to visit her was correct. She
stated that notwithstanding the order of injunction
of the City Civil Court against her, she used to go
and meet the testator. She stated that after the
father of the respondent died, she used to go to
meet her and the testator used to send for her. From
her evidence, a serious doubt is created about her
personal knowledge of the condition of the deceased
on the date of the execution of the alleged Will.
27 The appellant examined Mrs.Khatau by filing her
affidavit in lieu of examination in chief which runs
only into 2 pages. In the affidavit, the witness
31 osappeal56
stated that she used to meet the deceased testator
at weddings and Navjotes as well as in various clubs
and Halls. She stated that the deceased testator
had invited her to her house on few occasions and
she has visited her house. She stated that after
February 1993, for quite some time she did not see
the deceased testator. On enquiry, she learnt that
the deceased testator was unwell. Thereafter, she
visited the deceased testator at her residence on
couple of occasions to enquire about her health.
She stated that when she visited the deceased
testator, she was unable to recognise her. She
stated that the deceased testator was not keeping
good health and to some extent was suffering from
loss of memory and understanding. She stated that
her physical and mental faculties were very poor.
Paragraphs 3 to 7 read of her affidavit in lieu of
examination-in-chief read thus:
"3. I say in or about that after February 1993
for quite some time I did not see deceased Lady
Jena Duggan.
4. On inquiring I heard about the ill health of
deceased Lady Jena Duggan and thereafter on
couple of occasions visited her at her residence
at Lawnside to enquire about her health.
5. I say that during my visits to Lawnside, I
found that deceased Lady Jena Duggan was not
keeping good health and to some extent suffering
from loss of memory and understanding and also
her physical and mental faculties looked very
poor. I say that inspite of my repeated efforts
32 osappeal56
deceased Lady Jena Duggan was unable to recognise
me in my said visit.
6. I say that I am aware that deceased Lady Jena
Duggan died at advanced age of about 96 years
in September 1993.
7. I say that during my visits to Lawnside I saw
and met the Defendant Jean Duggan who was on
couple of occasions present when I met deceased
Lady Jena Duggan."
(emphasis added)
In the cross examination, the witness
Mrs.Khatau stated that she knew the testator from
late 1980's. She stated that when she used to go to
Willingdon Club, she used to see the testator along
with some of her friends. She stated that she met
her several times at Willingdon Club and Cama Hall.
She stated that in response to the question as to
how many times the deceased testator invited her to
her residence, the witness stated that it must be on
5 to 6 occasions. She stated that when she visited
the house of the testator, she was led to the
testator by the servants. She stated that she did
not see the testator in US Club after February 1993
for a month. She stated that she visited the
Lawnside residence of the testator in March 1993.
She stated that after February 1993, she visited her
residence on two occasions. She stated that she met
her and knew the appellant from the year 1991. In
response to the question No.28, she stated that when
she met the testator in March 1993, she noted that
she was not in good condition and was little bit
33 osappeal56
disoriented. She reiterated that in March 1993,
when she met the testator, she was not recognised by
the testator. She accepted that she did not attend
the funeral or condolence meeting of the deceased
testator.
29 The third and the last witness examined by the
appellant is Dr.Vishnu C. Kakkar. In the affidavit
in lieu of examination-in-chief, Dr.Vishnu Kakkar
stated that he holds degrees of M.B.B.S And M.D
(Medicine) and he has been practicing as a Physician
and Cardiologist at Kemps Corner, Mumbai. He stated
that his house in Mumbai was nearby the place of
residence of the testator. He stated that he has
been the owner of Race horses and was a member of
the Committee of Royal Western India Turf Club for
more than a decade. He stated that he knew the
testator who used to meet him during the visits to
the clubs and race course and other functions. He
learnt from Mr. Jamshed Aga in January 1993 that the
testator was not keeping a good health. He further
stated that in March 1993 on two occasions, on
Sundays on the request made by the said Jamshed Aga,
he examined the testator. He suggested
investigations and treatment to avoid transient
Ischemic attack. He stated that in the first week of
April 1993, he was again requested by the said
Jamshed Aga to visit the place of residence of the
deceased testator and to examine her. He found that
the investigations as advised by him were not
carried out. Paragraphs 19 to 26 of his affidavit
in lieu of examination-in-chief read thus:
34 osappeal56
"19. I say that since the investigations and
treatment instructed by me was not carried and in
view of the fact that, in my opinion, Lady Duggan
was incapable of understanding any matter and act
on her own free will, I refused to visit Lawn
Side and attest the document as requested by
Jamshed Aga.
20. I say that the person suffering from the
aforesaid would look normal and it would be
difficult for an ordinary person or a family
member to recognize and diagnose the condition of
such a person.
21. I say that from medical experience and
clinical examination of Lady Duggan, I came to
the aforesaid conclusion that since times prior
to January 1993, Lady Duggan had a loss of
memory and was incapable for understanding and
conducting her affairs at her own free will.
22. I say that such a patient who is incapable
of understanding and conducting her affairs at
her own free will would not remember the nature
of activities or act committed by her or
incapable of expressing herself freely.
23. I say that such a person would be easily
influenced by any person closer to the person.
24. I say that during my visits to Law Side I
could not noticed presence of the Defendant in
room when I examined Lady Duggan. I say that
the said Jamshed Aga was present during my said
two visits and examinations of Lady Duggan. I
have not noticed any other person except a
35 osappeal56
servant or a nurse employed during my said
visits. I do not remember names of any other
person except Jamshed Aga who was present
during my said visits.
25. I know and meet the Defendant who was also
used to visit race course on many occasions. I
had no other contact with the Defendant except
that I saw her during my visits to Lawn Side in
the other part of the Lawn Side.
26. I say that it is only in December 2008/
January 2009 the Defendant approached me and
requested me to give evidence in the matter
which I agreed to as I have attended and
examined Lady Duggan as aforesaid."
30 In paragraph 27, he stated that he does not
have any record regarding his visits to the place of
residence of the deceased testator. He stated that
his fees were paid by the said Jamshed Aga but he
does not have any record. Dr.Kakkar was subjected
to a detailed cross examination. He stated that he
used to attend his clinic on 5 days. On everyday,
25 to 30 patients used to be examined by him. He
accepted that he must have examined 500 patients
every month in the year 1993. He clarified that all
500 cases may not be different. He stated that he
filed an affidavit in lieu of examination-in-chief
on the request made by the appellant and he met the
appellant only once in Pune in February 2009. He
claimed that when he visited the bungalow of the
testator, the appellant was standing on the right
side of the bungalow. The witness in reply to the
36 osappeal56
question No.45 stated that in 1993, when he saw the
appellant, he was not aware that she was the person
by the name Jean Duggan. He was confronted with
the statements in paragraph 25 of the affidavit in
lieu of examination-in-chief wherein he has stated
that he used to meet the appellant who also used to
visit the race course on many occasions. In
response to a question, he stated that he had met
the appellant who used to regularly visit the race
course earlier. He stated that when he used to meet
her prior to January 2009 and early February 2009,
he did not know that the person he was meeting, or
he new was Mrs Jean Duggan. He stated that he had
glanced at the evidence of the appellant and other
witness. In response to the question No.67, he
stated that in the month of January 1993, he was
requested by the said Mr. Aga to visit the residence
of the testator. He stated that to the best of his
recollection, it was 10th January 1993, as there were
morning races which he recollected and he was
requested by the said Mr. Aga to visit Lady Duggan.
He stated that there was a special race in the
afternoon on that day by the name Ram Niwas Ruia
Trophy. He stated in the cross examination that
when he visited the place of residence of the
deceased testator, she was likely to get transient
ischemic attack(TIA). He stated that the object of
asking for investigation to be done was to enable
him to come to the conclusion and without
investigation and reports as suggested by him, the
second visit would have been futile.
37 osappeal56
31 The said witness was extensively cross examined
on his statement about the visit to the place of
residence of the testator on 10th January 1993. In
the cross examination, he stated that the request
was made prior to 10 th January 1993 by the said
Mr.Aga at the race course. He stated that the
request was made in the afternoon of 3rd January
1993. He stated that he recollected the same as it
was one week prior to Ramnarayan N. Ruia Gold Cup.
He stated that on 3rd January 1993, there were
ordinary races and there were no graded races on
that day. He stated that on 10th January 1993, he
received a call at his residence from the said
Mr.Aga. He stated that the last race and meeting of
stewards was over at 1.30 p.m on 10 th January 1993
and he visited the residence of the testator around
2.30 p.m. He stated that the said Jamshed Aga was
already present at the residence of the testator.
He stated that the request for second visit was made
on the Friday before the last Sunday of February
1993 when Mr. Jamshed Aga met him in his Consulting
Room. He stated that he reached the house of the
testator for the second visit around 8.30 p.m. or
9.00 p.m. In response to the question as to how he
could examine the testator as he came directly from
the race course, the witness stated that he always
carries medical equipment in his car including the
Cardiogram machine. The witness was extensively
cross examined on the races held on 10th January
1993.
32 We may note here that the certain questions
38 osappeal56
which ought not to have been permitted were asked
before the Court Commissioner in the cross
examination of Dr. Kakkar. For example, a question
was asked to the said Doctor as to who was favourite
to win Ruia Cup in the year 1993. He was even
confronted with the articles on the result of Ram
Nivas Ruia Gold Cup.
33 In paragraph 5 of the affidavit in lieu of
examination-in-chief, the witness had stated that
till few years back he was residing in Pushpa Vihar
at Colaba, Mumbai and he had a house at Pune which
he used to visit off and on. In the cross
examination, the witness stated that he was staying
in Pushpa Vihar till 2003. He stated that he was not
practicing as a Physician and Cardiologist in Pune
and was practicing in Mumbai. He stated that during
his first visit in January 1993, he was re-
introduced to the testator by the said Jamshed Aga
by telling her full name. He stated that he wished
her but there was a blank look on her face. He
stated that he perused the papers which were
available and took history from the said Jamshed Aga
and the nurse who was present. He stated that apart
from the said Jamshed Aga, a nurse and ayah were
present when he examined the testator. In the cross
examination, he also disclosed the tests which he
had suggested as the said tests would have assisted
him in confirming his clinical diagnosis of TIA. He
stated that the testator was heading for TIA. He
stated that during his second visit for examining
the testator, he was with her for one hour. He
39 osappeal56
stated that his conclusion that the testator had a
loss of memory and was incapable of understanding
and conducting her affairs was on the basis of the
history available and direct questioning. He denied
the correctness of the suggestion that as TIA is a
temporary condition, loss of memory is also
temporary and it cannot be progressive. He stated
that during his first visit, he recorded his
observations and along with Cardiogram strip, he
handed over the same to the said Jamshed Aga. He
stated that he recollected that there were two
family doctors attending to the testator. One was
Dr.Majmudar. He stated that he learnt about the
said family doctor from the said Jamshed Aga. He
stated that Dr.Majmudar was the family physician.
He stated that at the time of his second visit to
examine the testator, he referred to his earlier
notes and handed over the same to the said Jamshed
Aga. He stated that his second visit, he did not
make any note. When he was confronted in the cross
examination with the earlier statement that he used
to examine 500 patients in a month, he stated that
the home visits are not regular events, and
therefore, the home visits made to attend to the
dignitaries and special category patients were
always vivid in his mind and memory. He stated
that the visit to the testator was a special visit.
34 In the light of the evidence adduced by the
parties, now we will have to consider the issues
which arose for consideration before the learned
Single Judge. We have already quoted the issues in
40 osappeal56
earlier part of the Judgment. There are large number
of decisions cited by both the parties dealing with
the proof of execution of the Will. In case of H.
Venkatachala Iyengar (supra), entire law on the
subject has been considered by the Apex Court.
Paragraphs 18 and 19 are material which read thus:
"18. What is the true legal position in the matter of proof of wills? It is
well-known that the proof of wills presents a recurring topic for decision
in courts and there are a large number of judicial pronouncements on the
subject. The party propounding a will or otherwise making a claim under
a will is no doubt seeking to prove a document and, in deciding how it is
to be proved, we must inevitably refer to the statutory provisions which
govern the proof of documents. Sections 67 and 68 of the Evidence Act
are relevant for this purpose. Under Section 67, if a document is alleged
to be signed by any person, the signature of the said person must be
proved to be in his handwriting, and for proving such a handwriting
under Sections 45 and 47 of the Act the opinions of experts and of
persons acquainted with the handwriting of the person concerned are
made relevant. Section 68 deals with the proof of the execution of the
document required by law to be attested; and it provides that such a
document shall not be used as evidence until one attesting witness at
least has been called for the purpose of proving its execution. These
provisions prescribe the requirements and the nature of proof which must
be satisfied by the party who relies on a document in a court of law.
Similarly, Sections 59 and 63 of the Indian Succession Act are also
relevant. Section 59 provides that every person of sound mind, not being
a minor, may dispose of his property by will and the three illustrations to
this section indicate what is meant by the expression "a person of sound
mind" in the context. Section 63 requires that the testator shall sign or
affix his mark to the will or it shall be signed by some other person in his
presence and by his direction and that the signature or mark shall be so
made that it shall appear that it was intended thereby to give effect to the
writing as a will. This section also requires that the will shall be attested
41 osappeal56
by two or more witnesses as prescribed. Thus the question as to
whether the will set up by the propounder is proved to be the last
will of the testator has to be decided in the light of these provisions.
Has the testator signed the will? Did he understand the nature and
effect of the dispositions in the will? Did he put his signature to the
will knowing what it contained? Stated broadly it is the decision of
these questions which determines the nature of the finding on the
question of the proof of wills. It would prima facie be true to say that
the will has to be proved like any other document except as to the
special requirements of attestation prescribed by Section 63 of the
Indian Succession Act. As in the case of proof of other documents so in
the case of proof of wills it would be idle to expect proof with
mathematical certainty. The test to be applied would be the usual test
of the satisfaction of the prudent mind in such matters.
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 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)
35 As far as the appreciation of evidence is
concerned, in paragraph 22, the Apex Court observed
thus:
42 osappeal56
"22. It is obvious that for deciding material questions of fact which arise in
applications for probate or in actions on wills, no hard and fast or inflexible rules
can be laid down for the appreciation of the evidence. It may, however, be
stated generally that a propounder of the will has to prove the due and valid
execution of the will and that if there are any suspicious circumstances
surrounding the execution of the will the propounder must remove the said
suspicions from the mind of the court by cogent and satisfactory evidence.
It is hardly necessary to add that the result of the application of these two
general and broad principles would always depend upon the facts and
circumstances of each case and on the nature and quality of the evidence
adduced by the parties. It is quite true that, as observed by Lord Du Parcq
in Harmes v. Hinkson [ (1946) 50 CWN 895] "where a will is charged with
suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence
in disbelief. They do not demand from the Judge, even in circumstances of grave
suspicion, a resolute and impenetrable incredulity. He is never required to close
his mind to the truth". It would sound platitudinous to say so, but it is
nevertheless true that in discovering truth even in such cases the judicial mind
must always be open though vigilant, cautious and circumspect."
(emphasis added)
36 As stated earlier, according to the case of the
respondent, there were two attesting witnesses to
the Will. The first attesting witness was Mrs.Roshan
Master who is an Advocate and Notary. In the
affidavit in lieu of examination-in-chief and in
particular paragraph 1 she stated that she was
enrolled as an Advocate in the year 1961 and that
since 1981, she has been appointed as a Notary
Public. In paragraph 2, she stated that she worked
as an Advocate Assistant in M/s.Mulla and Mulla &
Craigie Blunt & Caroe, Advocates and Solicitors
till March 1969. She stated that she was working
under Mr.N.K.Petigara and Mr.S.R.Vakil who were the
senior partners of the said firm. She stated that
from the year 1969, she started working as an
Advocate Assistant to Shri S.R.Vakil whose office
43 osappeal56
was on the ground floor of the Bombay House, Fort,
Mumbai. During this period, the office of Mr. Nani
Palkhiwala, Senior Advocate (since deceased) was
located on the fourth floor of the Bombay House,
Fort, Mumbai. She stated that since September 1999,
she is having her office in a building opposite the
Bombay House, Fort, Mumbai. In paragraph 3, she has
stated that she became acquainted with the testator
in the office of N.K.Petigara and S.R.Vakil. There
is no cross examination of the witness on this
statement as well as on the statement in paragraph 3
that the testator used to visit the office of
Mr.Nani Palkhiwala and Shri S.R.Vakil in Bombay
House in connection with her charitable work. In
paragraph 4 of the affidavit in lieu of examination-
in-chief, she stated that in April l993, Shri
Palkhiwala personally requested Shri S.R.Vakil to
depute her to accompany him to the residence of the
testator for the execution of a Will. In the
affidavit in lieu of examination-in-chief, as quoted
above, she has stated as to how she along with
Mr.Palkhiwala reached the residence of the testator
and as to how in presence of the said Jamshed Aga,
the Will was executed. She also stated that the
date was put on the Will by the said Jamshed Aga.
In clause 5 of her affidavit in lieu of
examination-in-chief, it is stated that the said
witness along with Mr.Nani Palkhiwala in presence of
the testator and in presence of each other attested
the Will. The witness identified the signatures of
the testator, her own signature and the signature of
Mr.Palkhiwala. We have already quoted what was
44 osappeal56
brought on record in the cross examination which in
fact reiterates what is stated in the examination-
in-chief. In paragraph 8 of the cross examination,
the witness stated that the testator was sitting on
a chair in a side room in her house. She stated that
she along with Mr. Palkhiwala reached the residence
of the testator at 11.00 a.m and were in the house
for half an hour. She specifically stated that the
testator told them that they were called to witness
her Will. She stated in paragraph 8 of the cross
examination that Mr.Nani Palkhiwala was already
knowing of the purpose of their visit. She stated
that the testator herself produced the Will. In the
affidavit in lieu of examination-in-chief, in
paragraph 4, the witness stated that the testator
appeared to be normal as she talked to them. She
stated that the testator also enquired about the
health of Shri S.R.Vakil. When the affidavit in
lieu of examination-in-chief was filed on 28th August
2007, the age of the witness Roshan Master was 70
years. She was practicing law for a period of 46
years by that time. The witness was associated with
Mr.S.R.Vakil, the senior Partner of M/s.Mulla and
Mull & Craigie Blunt & Caroe, a well known firm of
Attorneys and Advocates. There is no reason to
disbelieve her version that she had met the testator
in the office of Mr.S.R.Vakil and Mr. Nani
Palkhiwala. The request came to her to remain
present for attesting the Will from the eminent
personality like Mr.Nani Palkhiwala, the Senior
Advocate of a great repute. There is no serious
challenge in the cross examination to the fact that
45 osappeal56
she accompanied Mr.Nani Palkhiwala to the house of
the testator on 4th April 1993 when the testator
executed the Will in her presence and in presence of
Mr.Nani Palkhiwala. The witness has stated that the
testator looked normal. She exchanged pleasantries.
She enquired about the health of Mr.S.R.Vakil. She
was sitting on a chair. This version of the witness
Mrs.Roshan Master certainly inspires confidence.
There was no reason for the person of her standing
in the legal profession to depose falsely. There is
no suggestion given in the cross examination which
indicates that there was some reason for her to
depose falsely. It is not the case of the appellant
that the said attesting witness was related either
to the testator or to any of the beneficiaries under
the Will or that the witness had any concern
whatsoever with the heirs of the deceased. She had
no connection with the testator or her family. As
stated above, when the evidence was recorded,
Mr.Nani Palkhiwala was no more. It is impossible to
accept that the two senior members of the Bar out of
which one was Mr.Nani Palkhiwala would attest a
Will if the testator was not even in a position to
talk or was not in a position to recognize anyone
or was not in a disposable state of mind.
37 There is some argument advanced about the
failure of the respondent to enter the witness box.
The respondent was not in India when the alleged
Will was executed. There is also an argument that
Mr.Jamshed Aga should have been examined as a
witness as he was present at the time of execution
46 osappeal56
of the Will. Only surviving attesting witness was
examined by the respondent. Therefore, non
examination of the said Jamshed Aga is not
sufficient to draw adverse inference.
38 The age of the testator is certainly a relevant
factor in the present case. However, only because
she was 96 years old, it cannot be presumed that she
was not in a sound and disposing state of mind.
Another argument canvassed was that the respondent
who was a beneficiary has taken a leading part in
giving instructions for preparation of the Will and
therefore, Letters of Administration ought not to
have been granted unless the evidence removes
suspicion and the evidence proves that the testator
had approved the Will. We must note here that the
testator was frequently visiting the offices of
Mr.Nani Palkhiwala and Mr.S.R.Vakil who were senior
members of the Bar of some repute and therefore, it
is obvious that advice of eminent members of the Bar
was readily available to the testator. Moreover, the
respondent was not in India at least for a period of
one month before the execution of will. If the
testator would have been forced to execute the Will,
she would have disclosed it to Mr.Palkhiwala.
39 A contention raised regarding non examination
of the respondent especially in the light of the
contents of the letter marked as Exhibit P-4. An
argument is canvassed that as the respondent did not
step into witness box, he could not be confronted
with the said letter. Even assuming that the said
47 osappeal56
letter cannot be read in evidence, the respondent
has discharged the burden on him to prove that the
testator was in a disposable state of mind and that
the testator had executed the disputed Will.
40 We have perused the letter marked as Exhibit
PX-1. Assuming that the same can be read in
evidence, in the said letter, the respondent has
stated as to why in 1977, the testator had
disinherited him. He has stated that the testator
disinherited him due to his marriage. However, the
marriage ended in divorce in 1984. He has stated in
the said letter that he received invitation from the
testator after gap of several years. He stated that
in February/March 1993, the testator informed that
she is proud of his achievement. In the said
letter, he has stated that he discussed the
execution of Will with the testator. In paragraph
2 of the letter, it is stated that after he returned
to England after February/March 1993 visit, he was
in touch with the testator on phone. He stated
that on phone, the testator told him that she has
given him everything which he had asked for. The
respondent stated in the letter that he told the
testator that it was her wish and he was grateful
for that. On the basis of the said letter, the
contention is that the deceased testator had
discussed the execution of the Will with the
respondent and that she had asked what the
respondent wanted. If the contents of the said
letter are taken as proved, the same will establish
that the testator was in a sound mental condition at
48 osappeal56
the relevant time. Even assuming that what is stated
in the letter is correct, it does not make the will
illegal as there was nothing wrong with the testator
discussing the issue of the execution of the Will
with her only grandson especially when her both sons
were no more.
41 Coming the evidence of the appellant, her case
is that in February/March 1993, the respondent
visited India after gap of more than 30 years. At
that time, the testator was not keeping good health
and her health was deteriorating. In the
examination-in-chief, she stated that the testator
was under constant medical treatment of Doctors and
Dr.Majumdar was giving medical treatment to her.
She has stated that much prior to April 1993, the
testator was unable to understand the contents of
any document. She was not in a sound disposing
state of mind. She was not able to recognise her
and other relatives. She stated that the deceased
testator was in Breach Candy Hospital from 19th April
1993 to 15th May 1993 and she died on 2nd September
1993. In the examination-in-chief itself, the
appellant admitted that after her marriage, her
relationship with the deceased testator became
strained which became cordial after the death of her
husband. Perusal of the cross examination of the
said witness shows that both the deceased and she
herself had filed suits against each other in the
year 1983. When she was confronted with the
suggestion that in the suit filed by the testator,
there was an injunction order passed against her
49 osappeal56
restraining her from entering any part of the house
of the testator except a bedroom, godown, servant's
room and garage, the response of the respondent was
that she did not remember whether such injunction
was granted. She was confronted with the suggestion
that she filed an Appeal against the said order. Her
response was that she does not remember. Another
suggestion was given that in the suit filed by the
testator, there was a Decree passed against her.
Even to this question, her answer was "may be. I
do not remember".
As regards the medical condition of the
deceased testator is concerned, she claimed that
she had a personal knowledge about the medical
condition of the testator. On this aspect, the
answers given by her to two questions is very
relevant. The said questions and answers are very
relevant which read thus:
"Q.239 Do you recall that Lady Jena Duggan
filed a suit bearing No.6182 of 1983 against
you in the City Civil Court on 6th October
1983 and you filed suit bearing No.4531 of
1983 on 28th July 1983 ?
Ans. I do not recall the dates.
Q.240 Do you recall the year in which the
suits were filed ?
Ans. I recall it was in the year 1983.
50 osappeal56
Q.241. Do you agree that your suit 4531 of
1983 filed on 28th July 1983 was earlier in
the point of time to the suit filed against
you by Lady Jena Duggan?
Ans. Yes.
Q.242 What was the relief claimed in the
suit that you filed in the City Civil Court?
Ans. I do not remember.
Q.243
Do you remember why you required to
file the said suit?
Ans. I think it was because she locked me out
of the house.
Q.244 Can you elaborate on your answer
that she locked you out of the house?
Ans. She did not permit me to even enter the
gate."
43 While appreciating her evidence, the aforesaid
portion of her cross examination assumes importance
as the witness admitted that even in March/April
1993, the order of injunction was operative. As
pointed out earlier, the appellant's knowledge about
the physical condition of the deceased testator was
based only on the fact that earlier, the testator
used to pass by her room and that she stopped
passing by her room. Though the appellant had
relied upon the medical record of the Breach Candy
51 osappeal56
Hospital, the appellant could not produce the same.
The appellant stated in the cross examination that
she was intending to examine Mrs.Bakul Khatau and
one Doctor whose name she could not disclose.
However, she admitted that she had requested
Dr.Majmudar to depose but he declined. It is
pertinent to note that Dr.Majumdar, a family
physician, was admittedly treating the deceased. In
fact, her death certificate was also issued by the
said Dr.Majmudar. No attempt was made by the
appellant to examine Dr.Majmudar. In fact the said
doctor refused to depose in her favour.
44 As regards the second witness Mrs.Bakul Khatau,
she claimed that she was acquainted with the
deceased testator due to the fact that she had met
her in Willingdon Club and Cama Hall. In the cross
examination she stated that the deceased testator
had invited her to her residence on 5 to 6
occasions. Her first visit was in 1990-1991. She
stated that there was a big gap between each of
these 5 to 6 meetings with the testator at her
residence. In the examination-in-chief, she stated
that after February 1993, for quite some time, she
did not see the deceased testator. She further
stated in the examination-in-chief, that she knew
about the ill health of the testator and she visited
her residence to enquire about her health on couple
of occasions. She stated that during her visits to
the residence of the of the deceased testator, she
found the testator was not keeping a good health and
she was to some extent suffering from loss of
52 osappeal56
memory. She stated that she was unable to recognise
her. It is pertinent to note that in Examination-in-
chief, she has not even stated in which month of
1993 after February 1993, she met the testator. We
must note here that in April and May 1993, the
testator was hospitalized and thereafter, she was
alive till September 1993. Even accepting what the
witnesses stated in her examination-in-chief is
correct, it is impossible to record a finding that
at the end of March 1993 or in the first week of
April 1993, she had met the testator at her
residence as that is not the case specifically made
out in her examination-in-chief at all. In the
cross examination, she claimed that she met the
testator in March 1993 when she was unable to
recognise her. In the face of the convincing and
reliable evidence of the attesting witness, it is
not possible to accept the testimony of the said
witness.
45 Now coming to the evidence of Dr.Vishnu Kakkar,
he was not a Medical Practitioner who was
regularly treating the deceased. Though he claimed
that he visited the place of residence of the
deceased in April 1993, there is no record
maintained by the Dr.Kakkar about his visit. In
fact, he claimed that he examined the deceased
testator on two occasions. It is true that his
evidence could not have been discarded by the
learned Single Judge on the ground that on 10 th
January 1993 when there were riots in the city,
Dr.Kakkar could not have come all the way from Pune
53 osappeal56
to examine the testator. In fact, there was no
material to show that at that time, Dr.Kakkar was
residing in Pune. The evidence will have to be
discarded for two reasons. Firstly, Dr. Majmudar, a
general practitioner who was regularly attending to
the deceased testator was not examined and in fact
he refused to depose on the request made by the
appellant. Secondly, Dr.Kakkar could not produce
any record to show that he had examined the testator
as claimed by him. The witness admitted that he used
to examine 500 patients in a month. Though he
claimed that he knew the testator having met her at
the race course, in the answer to question No.164,
he stated that during his visit to the residence of
the testator for examining her, he was introduced by
the said Jamshed Aga to the testator. Dr.Kakkar
stated that during his second visit, he did not make
any notes. His explanation for not keeping the
record was that he was keeping the record only of
his regular patients. There is one more aspect.
When the appellant was specifically questioned in
the cross-examination on the name of the Doctor whom
she was proposing to examine as a witness, the
appellant was unable to disclose the name of
Dr.Kakkar.
46 In our considered view, it is very difficult to
rely upon the testimony of Dr. Kakkar who claims to
have examined the testator on only two occasions and
hold that the testator was not in a proper mental
and physical condition on the date on which the
disputed Will was executed and that, she was not in
54 osappeal56
a sound and disposing state of mind. There is no
record available to prove that Dr.Kakkar had
examined the testator on two occasions.
47 In paragraph 7 of the affidavit in support of
the Caveat, the contention raised is that writing
dated 4th April 1993 has been obtained from the
deceased testator by playing a fraud and undue
influence. The respondent was in India in February
and March 1993. Even assuming that the testator
discussed the issue of execution of the Will with
the respondent, the Will has been executed on 4 th
April 1993. The respondent was not in India in April
1993. It is brought on record that the testator had
a close contact with Mr.S.R.Vakil and Mr.Nani
Palkhiwala and she used to very often visit their
offices. Therefore, the said contention raised in
paragraph 7 of the affidavit in lieu of examination-
in-chief cannot be held as established. Merely
because the appellant has been disinherited under
the Will, the same does not become a suspicious
circumstance as in the facts of the case, the
appellant had filed a suit against the testator
which was pending. In fact, the deceased testator
was forced to file a suit against her and to apply
for injunction against the appellant.
48 There is some justification in the contentions
raised by the learned counsel for the appellant as
regards certain findings recorded by the learned
Single Judge. But we have examined the evidence and
have recorded our own findings.
55 osappeal56
49 In paragraph 138 of the Judgment, the learned
Single Judge has observed that the respondent
undoubtedly persuaded the deceased to give him at
least a part of the estate. The respondent left
India on 3rd March 1993. The learned Single Judge
observed that the testator had best legal acumen
available to draft the Will. The docket of the Will
shows that it is drafted by M/s.Kanga and Company,
Advocates and Solicitors. The learned Single Judge
found that M/s.Kanga and Company were the Advocates
representing the testator in the litigation against
the appellant. In fact, the finding recorded in
paragraph 138 is that the respondent-plaintiff has
played no role in actual preparation and execution
of the Will. Merely because the testator did not
read the will in presence of the attesting
witnesses, no doubt is created about the execution
of the disputed Will.
50 Taking the overall view of the matter, we are
of the considered view that the respondent-plaintiff
discharged the burden on him under the Issue Nos.1
and 2 but the appellant failed to discharge the
burden on her under the issue Nos.3 and 4. Though
we may not agree with all the findings recorded by
the learned Single Judge, on the comprehensive
analysis of the evidence on record, there is no
error in the final conclusion reached by her.
However, instead of granting a probate, Letters of
Administration with will annexed will have to be
issued to the respondent.
56 osappeal56
50 Accordingly, we pass the following order:
(I) Appeal is hereby dismissed with no order as
to costs;
(II) Ad-interim/interim relief which is
operative till today shall stand extended by a
period of two months from today.
(P.D.NAIK,J.)
ig (A.S.OKA,J.)
