Bombay High Court
Vinodrai Haridas Kotadia & Ors vs Mukesh Gopaldas Kotadia And Ors on 15 March, 2017
Bench: G.S. Patel
Vinodrai Haridas Kotadia & Anr V Gopaldas Haridas Kotadia & Ors
TS50-1995-KOTADIA-V-KOTADIA-F2.DOC
ATUL
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY & INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 50 OF 1995
IN
TESTAMENTARY PETITION NO. 261 OF 1994
1. VINODRAI HARIDAS KOTADIA
of Mumbai, Hindu Inhabitant and
residing at Shri Krishna Niwas, 16,
Dashrathlal Joshi Road, Vile Parle (West),
Mumbai 400 056
Being one of the executors named in the
will of the deceased.
2. Ranjitkumar Haridas Kotadia
(since deceased)
3. PRAFULLCHANDRA HARIDAS
KOTADIA
of Mumbai, Hindu Inhabitant and
residing at Shri Krishna Niwas, 16,
Dashrathlal Joshi Road, Vile Parle (West),
Mumbai 400 056.
Being the other executor named in the
will of the deceased. ... Plaintiffs
~ versus ~
1. Gopaldas Haridas Kotadia
(Since deceased)
1(a). Vasanti Gopaldas Kotadia
(Since deceased)
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1(b). Mukesh Gopaldas Kotadia
both of Mumbai, Hindu Indian,
Inhabitant, residing at C-11, Matru
Ashish, Chaadavarkar Lane, Borivali
(West), Mumbai 400 092.
1(c). Rohit Gopaldas Kotadia
(since deceased)
1(c)(i) RADHIKA PINAL DEWANI
8, Santosh, Mrutunjay Nagar, Tilak
Wadi, Belgaum 590 006
1(c)(ii) NIYATI VIKRAM THAKKAR
(UNADKAT)
Sai Plaza, C-Wing, 102/103, Near
Telephone Exchange, Dr. Ambedkar
Road, Panvel 410 206
1(c)(iii) BIJAL ROHIT KOTADIA
Prabhat Road No.9, Samadhau,
Building, Flat No.6, 3rd floor, Pune - 4
1(c)(iv) PAYAL THAKKAR (KANABAR)
No.401, 4th floor, Shiv Sadan, Opp.
Dutt Mandir, Kandivali, (West) Mumbai
400 067
1(d) MEENAXI MAHESH RUPARELIA
of Mumbai, Hindu Inhabitant, II,
Western Express Highway Road, Near
Dattani Park, Kandivali (East), Mumbai
400 101
2. Laxmidas Haridas Kotadia
(since deceased)
2(a) SUSHILA LAXMIDAS KOTADIA
2(b) MANOJ LAXMIDAS KOTADIA
both of Mumbai, Hindu Indian
Inhabitants, residing at 102/103
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Chandralok, Ram Gally, Kandivali
(West) Mumbai 400 067
2(c) BHARAT LAXMIDAS KOTADIA
of Mumbai, Hindu Indian Inhabitant
residing at flat no .105, A/1 Yogi Nagar,
Eksar Road, Borivali (west), Mumbai
400 092
2(d) PRATIK LAXMIDAS KOTADIA
of Mumbai, Hindu Indian Inhabitant
residing at C/510, Rajashree Apartment,
Mahavir Nagar, Kandivali (West),
Mumbai 400 067
3. KIRAN ASHOK KUMAR SONI
of Mumbai, Indian Inhabitant residing at
6, Nanadadeep Building 10th Road,
JVPD Scheme, Mumbai 400 049
4. CHAMPABEN NARANDAS KOTADIA
5. Shailesh Narandas Kotadia
(Since deceased)
5(a) JAGRUTI SHAILESH KOTADIA
521, Room No.13, Sector No. 5,
Charkop, Kandivali (West), Mumbai
500 067
5(b) RUPAL SHAILESH KOTADIA
521, Room No.13, Sector No. 5 Charkop,
Kandivali (West), Mumbai 500 067.
5(c) RAJ SHAILESH KOTADIA
521, Room No.13, Sector No.5,
Charkop, Kandivali (West), Mumbai
400 067
6. Mehul Ramesh Kotadia
(since deceased)
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6(a) JALPA MEHUL KOTADIA
wife, aged about 40 years, B/3, Flat
No.9, Jai Punit Nagar, Bhatt Lane,
Saibaba Nagar, Near Poisar Bus Depot
Borivali (West), Mumbai 400 092
6(b) SUNNY MEHUL KOTADIA
son, aged about 10 years B/3, Flat No.9,
Jai Punit Nagar, Bhatt Lane, Saibaba
Nagar, Near Poisar Bus Depot Borivali
(West), Mumbai 400 092
6(c) DEV MEHUL KOTADIA
son, aged about 6 years, B/3, Flat No.9,
Jai Punit Nagar, Bhatt Lane, Saibaba
Nagar, Near Poisar Bus Depot Borivali
(West), Mumbai 400 092
Through their mother and natural
guardian Mrs. Jalpa Mehul Kotadia
7. JIGNESH RAMESH KOTADIA
and all of Mumbai Indian Inhabitants
residing at Room No.22, Plot No. 374,
Akash Society, sector-3 Charkop,
Kandivali (West), Mumbai 400 067
8. Harish Narandas Kotadia
(Since deceased)
8(a) JYOTI HARISH KOTADIA
102, Accord C.H.S.L., Tank Road, Near
Ganapati Visarjan Talao, Kandivali
Village, Kandivali (West), Mumbai 400
067.
8(b) DHARMESH HARISH KOTADIA
102, Accord C.H.S.L., Tank Road, Near
Ganapati Visarjan Talao, Kandivali
Village, Kandivali (West), Mumbai 400
067
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8(c) JIGNA PARAG POPAT
C/301, Akshar Apartment, Building
no.1, Irani Wadi, Road to. 3, Kandivali
(West), Mumbai 400 067 ...Defendants
A PPEARANCES
FOR THE PLAINTIFFS Mr Shailesh Shah, Senior Advocate, with
Mr Vatsal Shah i/b Ila Kotadia for the
Plaintiff.
FOR DEFENDANTS NOS Mr Mayur Khandeparkar,
1(c) to 1(c)(iv) with Bhairavi Pathak, Niteen Menon,
and Prasad Joshi
i/b M/s IR Joshi & Co
FOR DEFENDANTS NOS Mr Shriram S Kulkarni, for Defendants
1(c) to 1(c)(iv) Nos. 1(c) to 1(c)4.
CORAM : G.S.Patel, J.
JUDGMENT RESERVED ON : 16th February 2017
JUDGMENT PRONOUNCED ON : 15th March 2017
JUDGMENT:
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TS50-1995-KOTADIA-V-KOTADIA-F2.DOC
STRUCTURE
A. Introduction............................................................................. 6
B. Facts ....................................................................................... 7
C. The Will in dispute .................................................................11
D. The Caveats in opposition to probate ......................................13
E. Issues ......................................................................................16
F. Evidence on record .................................................................17
G. Re: Issue No. 3: Probate of a document
not annexed to the petition..................................................... 20
H. Re: Issues Nos. 1 & 2: Due execution and
testamentary capacity............................................................. 23
I. Re: Issue No. 4: Whether the Defendants prove
the Will is unnatural............................................................... 38
J. Re: Issue No.5: Whether the Defendants prove
undue influence and fraud...................................................... 45
K. Re: Issue No. 6: Whether the Defendants prove
the Will is forged.................................................................... 49
L. Conclusions & Order ............................................................. 59
A. INTRODUCTION
1. The Plaintiffs seek probate to the last Will and Testament
dated 12th March 1989 of their mother Kasturbai Haridas Kotadia
("Kasturbai"; "Testatrix"; "Deceased"). The surviving
Plaintiffs, Vinodrai and Prafullchandra, are Kasturbai's sons and the
surviving executors named in her Will. The other named executor,
Ranjitkumar, died during the pendency of these proceedings. The
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Petition was opposed by Kasturbai's other sons Gopaldas, Laxmidas
and the heirs of her pre-deceased son Narandas. On their entering
caveats, the petition was numbered as a suit. Gopaldas and
Laxmidas died pending the suit. Their legal heirs have carried on
their defence.
2. I have heard Mr. Shah for the Plaintiff and Mr. Khandeparkar
and Mr Kulkarni for the Defendants at length. The Will is
impeached on several distinct grounds, including that it was
procured by undue influence, Kasturbai's lack of dispositive
capacity and that the signature on the Will is not hers. With the
assistance of appearing counsel, I have considered the pleadings and
the evidence, oral and documentary. I have not found a tenable basis
for the opposition. I have decreed the suit. My reasons follow.
B. FACTS
3. Kasturbai died in Mumbai on 17th August 1993, about four
and a half years after the Will in question. She was 89 years old
when she died. Her husband died some 18 years earlier. She owned
an immovable property at Vile Parle, in suburban Mumbai. This is a
parcel of land with a building named "Shri Krishna Niwas" on it.
The property is near Vile Parle Station, on a road that runs west.
The building has a ground and two upper floors. It is of undoubted
value, and seems to be the principal cause of this dispute.
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4. Kasturbai and Haridas had eight children, six sons and two
daughters. Haridas died in 1975, before Kasturbai. One of their
daughters, Pushpaben, died before Kasturbai too. The other
daughter, Kunjbala, filed an Affidavit consenting to the grant.
Narandas, one of the sons, also died before Kasturbai. The
opposition came at first from the other two sons Gopaldas
(Defendant No.1) and Laxmidas (Defendant No.2), one of
Pushpaben's daughters (Kiran; Defendant No.3), three of
Narandas's widow and children (Champaben, Defendant No.4;
Shailesh, Defendant No.5; and Harish, Defendant No.8), and the
two sons of Narandas's son Ramesh (Mehul, Defendant No.6; and
Jignesh, Defendant No.7), Ramesh also having died before
Kasturbai. There were thus eight defendants in all, arrayed thus:
Defendant No Name Relationship to
Kasturbai
Defendant No.1 Gopaldas Son
(since deceased)
Defendant No.2 Laxmidas Son
(since deceased)
Defendant No.3 Kiran Grand-daughter --
daughter of a pre-
deceased daughter
(Pushpaben)
Defendant No.4 Champaben Daughter-in-law;
widow of a pre-
deceased son
(Narandas)
Defendant No.5 Shailesh Grandson -- son of a
(since deceased) pre-deceased son
(Narandas)
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Defendant No Name Relationship to
Kasturbai
Defendant No.6 Mehul Great grandson -- son
(since deceased) of a pre-deceased son
(Ramesh) of a pre-
deceased son
(Narandas)
Defendant No.7 Jignesh Great grandson -- son
of a pre-deceased son
(Ramesh) of a pre-
deceased son
(Narandas)
Defendant No.8 Harish Grandson -- son of a
(since deceased) pre-deceased son
(Narandas)
5. Defendants Nos. 3, 4 and 7 are thus the only surviving
original defendants. All the other original defendants have died;
their heirs are on record.
6. In her Will, Kasturbai made bequests to all her children. She
left Shri Krishna Niwas, however, only to her three sons who she
named as executors. They were the original Plaintiffs. The second
died. Everyone else was left with no share at all in Shree Krishna
Niwas. Kasturbai had made three previous Wills: in 1972, 1976 and
1985, the last being registered. Under the 1972 Will, Kasturbai
bequeathed Shri Krishna Niwas to the children who were staying
there at that time, viz., the Plaintiffs and Narandas. This, according
to the Plaintiffs, was pursuant to an oral family arrangement made at
a meeting between Kasturbai, Haridas and all six sons. At this
meeting, the Plaintiffs say, it was mutually agreed that Shri Krishna
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Niwas would be bequeathed only to those sons who were living
there. This was because the parents had already made alternate
accommodation arrangements for Gopaldas and Laxmidas. Further,
they had borne the wedding expenses for both daughters; therefore,
they too were excluded. Kasturbai appointed her husband Haridas
as Executor of her 1972 Will.
7. After Haridas died in 1975, Kasturbai prepared and executed
the 1976 Will. The contents of the 1972 Will and the 1976 Will were
the same. The only difference was that in the 1976 Will the sons
living in Shri Krishna Niwas were appointed as Executors in place of
Haridas.
8. In 1985, Narandas and his family left the flat they had
occupied in Shri Krishna Niwas and moved to Rajkot. As a result of
Narandas moving out, say the Plaintiffs, Kasturbai executed the
1985 Will on 8th February 1985. In the 1985 Will, she removed
Narandas as one of the legatees of Shri Krishna Niwas. The building
was thus bequeathed only to the Plaintiffs, they being the only sons
in residence there. The Plaintiffs were continued as Executors under
the 1985 Will.
9. The Plaintiffs' case -- also reflected in the Will -- is that on
26th January 1989, Narandas, during a visit to Mumbai, fetched
Kasturbai from Shri Krishna Niwas and took her to visit his son
Harish (Defendant No.8, since deceased) in Kandivali. At Harish's
house, it seems Kasturbai was allegedly made to sign a document.
She did not know of its contents, but suspected it might have been a
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will: for, after she signed, two other people she did not know also
signed it. On her return to Shri Krishna Niwas, Kasturbai asked
Plaintiff No. 1, Vinodrai, a practicing lawyer, to make another Will
rescinding any other will said to have been made by her and
reaffirming her 1985 Will. I will turn to the evidence shortly, but
Vinodrai's case is that he prepared the Will of 12th March 1989 in
original with a carbon copy. Both were signed in original, that is to
say, Kasturbai and the two attesting witnesses signed the original or
first copy and they also then signed the carbon copy. The carbon
copy is therefore not a Photostat of the first document; it is another
original on its own. I refer in this judgment to the first of these as
the Original Will and the second as the Carbon Copy Will.
C. THE WILL IN DISPUTE
10. The Original Will (and the Carbon Copy, evidently) are in
Gujarati. The text is typed, not handwritten. The document is of 12
pages. Kasturbai's initials appear on each page. Her signature is on
the last. There, we also find the signatures of the two attesting
witnesses, Dr Shashikant C Patel ("Dr Patel"), whose evidence
was led at the trial, and one Yogesh T Desai ("Mr Desai").
11. In clause 2, Kasturbai sets out the fact of her having made
previous Wills and revokes them all, including the one she
apprehended having signed in January 1989, except the 1985 Will,
which she reaffirms. She says in clause 2 that she lives in Shree
Krishna Niwas with Vinodrai, Ranjit Kumar and Prafulchandra (the
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three Plaintiffs). They have their own 'blocks' (apartments) in that
building.
12. Clauses 3 and 4 have a narrative of the events of January 1989.
She says Narandas, who lives in Rajkot, took her from Vile Parle to
his son's (Harish's, the 8th Defendant's) house in Kandivali.
There, he asked her to sign a paper. She said she wanted to read it
over, but was told it only said she had six sons and one daughter.
Nothing else was explained to her. In good faith, she signed the
document. Then a gentleman she did not know came over. He was
introduced to her as Harish's neighbour. A second gentleman came
after the first left. He was introduced as a doctor. She knew neither
of these men. Both left. Kasturbai confirms she had never met this
doctor nor been treated by him. She expresses an apprehension that
the document on which her signature was obtained may have been
fashioned as a will. She revokes and annuls this writing. She
expresses her intention and wish to leave Shri Krishna Niwas only
to her three sons residing there. This was what she had provided in
her 1985 Will. She then reconfirms and reaffirms that disposition.
13. In clause 5 she names her surviving seven children, and that
Pushpaben had died. In clause 6, she appoints the three Plaintiffs as
her executors. Clause 8 contains legacies to various charities of her
choice. Clause 9 leaves 15,000 to Kunjbala, her married daughter.
The second Clause 9 asserts her absolute ownership of 44 years of
Shree Krishna Niwas. Clause 10 says arrangements have been made
for Gopaldas and Laxmidas who are living at Borivali and Kandivali
respectively. Narandas had an apartment in Shree Krishna Niwas.
The rent receipt was in his wife's, Champaben's, name. Since then,
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Narandas had acquired his own house at Rajkot and taken up
residence there, leaving Shree Krishna Niwas. All these
arrangements were by consent, she says. In clause 11, she says the
other three sons (the Plaintiffs) were still in residence at Shree
Krishna Niwas. Vinodrai had quarters on the first floor of the front
of the building, with Prafulchandra on the second floor, while Ranjit
Kumar had an apartment on the second floor at the rear of the
building. All three were looking after the building's administration
and collecting rent (there were evidently other tenants, and there is
now material to suggest that there are some commercial premises
there too). She goes no to say there are no vacant premises in the
building and there is no possibility of further construction. In clause
12, she leaves the building to the three Plaintiffs as absolute co-
owners. The other children are to have no share in it. Clause 13
directs that the contents of her safe deposit vault be distributed
between all her seven surviving children. In clause 14, the amount in
her savings account with the Bank of Baroda is left to the three
Plaintiffs. Clause 15 says she has made distributions inter vivos to her
satisfaction. Unit Trust certificates (unspecified) in her name jointly
with others are left to the joint holders. She then confirms the Will
is of her volition.
D. THE CAVEATS IN OPPOSITION TO
PROBATE
14. The Defendants filed caveats, opposing the grant of probate
to the Original Will. Gopaldas and Laxmidas filed Affidavits in
Support of the Caveats 22nd September 1995. Shailesh Narandas
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Kotadia (Defendant No.5, since deceased), filed his supporting
affidavit on 29th September 1995. The Testamentary Petition was
then remembered as Testamentary Suit No. 50 of 1995. After
Gopaldas (Defendant No.1) died, his wife Sushila and his children
filed two separate Affidavits on 18th October 2007. After Laxmidas
(Defendant No.2 died), his son Mukesh Laxmidas Kotadia
("Mukesh") filed an Affidavit on 1st September 2009.
15. The contents of these Caveats and Affidavits in Support are
broadly similar. In his Affidavit, Gopaldas alleges the Will to have
been procured by Vinodrai, Plaintiff No.1, a practicing lawyer. He
doubts Kasturbai's signatures on the document(s), saying the
signatures are shaky. He also says that for six years before her death
-- which would take us to 1987, about two years before the date of
the Will -- Kasturbai was ailing and, indeed, completely bedridden.1
The previous Wills of 1972 and 1976 are not disputed. He alleges
fraud2 and undue influence.3 Then he says she was of unsound
mind.4 Laxmidas adopted Gopaldas's Affidavit in Support.5
Shailesh, Defendant No.5 (since deceased), claimed in paragraph
4(b) of his Affidavit in Support of his Caveat that on 26th January
1989, the day Narandas took Kasturbai to his son's Harish's (the 8th
Defendant's) house at Kandivali on 26th January 1989, where she
1 Affidavit in Support by Gopaldas, p. 73.
2 Id., paragraph 6, p. 74.
3 Id., paragraph 8, p. 75.
4 Id., paragraph 9, p. 75.
5 Record, pp. 79-84.
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made a Will.6 Shailesh then said the Will in question was unnatural,
forged and Kasturbai's signatures obtained on blank paper.7 He also
said she was seriously ill, ailing, had arthritis, heart and blood
pressure problems, was bedridden, suffered from poor memory,
lacked understanding and was susceptible to control. He thus
alleged fraud, misunderstanding and a lack of awareness by
Kasturbai of the Will in question.8 Sushila, Laxmidas's widow, filed
an affidavit supporting what his other heirs said.9 Manoj, Bharat and
Pratik, her sons, filed a joint affidavit.10 They too the same defences,
but also said the signatures on the Will were not hers for stated
reasons. They, too, said she was ailing and bedridden for six years
before she died, and that she was under the control of Vinodrai,
Plaintiff No.1.11 Then they allege collusion, and it is evident that the
real focus is on Shree Krishna Niwas.12 They allege she was of
unsound mind.13
16. Mukesh, Defendant No.1(b), Gopaldas's son, the only
Defendant to give evidence (DW1), filed his own affidavit.14 He too
said the signature on the Will was not Kasturbai's.15 He then said
6 Affidavit in Support by the 5th Defendant, pp. 89-93, paragraph 4(b) at
p. 91.
7 Id., paragraph 4(c), p. 91.
8 Id., paragraph 4(d), p. 92.
9 Record, pp. 97-100.
10 Affidavit of Defendants Nos. 2(b), 2(c) and 2(d), pp. 103-117.
11 Id., paragraph 7, pp. 106-108.
12 Id., paragraph 8, pp. 109-110.
13 Id., paragraph 11, p. 111.
14 Affidavit of Defendant No.1(b), pp. 121-125.
15 Id., paragraph 5, p. 123.
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she had made previous Wills, and specifically referenced the Wills
of 1972, 1986 and the registered Will of 1985. He went on to say she
had made a Will in January 1989,16 evidently a reference to the
document Kasturbai suspected she signed as a will while at Harish's
place with Narandas.
E. ISSUES
17. On 11th July 2011, Mrs RS Dalvi J framed four issues. Later,
on 2nd February 2017, I framed additional issues by consent. The
consolidated issues are set out below, with my findings against each.
Sr No Issue Finding
1. Whether the Plaintiffs prove that
either the original writing dated 12th
March 1989, or its carbon copy also of In the affirmative.
the same date, or both, is/are the last
Will and Testament of Kasturbai?
2. Whether Kasturbai was in a sound
state of mind at the time of the In the affirmative.
execution of the Will?
3. Whether it is permissible in law,
having regard to the requirement of
the High Court (Original Side) Rules,
Does not arise.
for probate ordered to be issued of a
document a copy of which is not
annexed to the probate Petition?
4. Whether the Defendants prove that
In the negative.
the document dated 12th March 1989
16 Id., paragraph 6, p. 124.
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Sr No Issue Finding
and alleged to be the Will of Kasturbai
is unnatural?
5. Whether the Defendants prove that
the said writing was procured by In the negative.
undue influence and fraud?
6. Whether the Will has been forged? In the negative.
7. What relief, if any, are the Plaintiffs
Suit is decreed.
entitled to?
F. EVIDENCE ON RECORD
18. The Plaintiffs led the evidence of Plaintiff No. 1 and one of
the attesting witnesses Dr Patel. The Defendants led the evidence of
Mukesh and Mr. Javeria, a handwriting expert.
19. The Plaintiffs led 14 documents in evidence:
(1) Ex. "A": Kasturbai's Will dated 15th May 1972 along
with its official translation;17
(2) Ex. "B": Kasturbai's Will dated 12th November 1976
along with its official translation;18
(3) Ex. "C": Kasturbai's Will dated 8th February 1985
along with its official translation;19
(4) Ex. "D": The original Will dated 12th March 1989;20
17 Volume II, p. 367-374.
18 Volume II, pp. 399-408.
19 Volume II, pp. 423-444.
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(5) Ex. "DD": The carbon copy of the original Will along
with its official translation, also dated 12th March
1989;21
(6) Ex. "E": Rent receipts of February 1975 and
November 1984 to March 1987 issued in the name of
Manjula Vinodrai Kotadia along with their official
translations;22
(7) Ex. "F": Rent receipts of January 1975 and August
1980 to June 1981 issued in the name of Vanmala
Ranjitkumar Kotadia along with their official
translations;23
(8) Ex. "G": Rent receipts of November 1976 and January
1984 to March 1987 issued in the name of Manjula
Vinodrai Kotadia along with their official translations;24
(9) Ex. "H": Letter dated 23rd August 1984 from
Champaben Narandas Kotadia to Kasturbai Haridas
Kotadia;25
(10) Ex. "J": Rental agreement dated 23rd August 1984
between Kasturbai Haridas Kotadia and Ashwin Ramji
Shah;26
20 In the court Registry.
21 Volume II, pp. 445-458.
22 Volume II, pp. 375-381.
23 Volume II, pp. 383-389.
24 Volume II, pp. 391-397.
25 Volume II, p. 409-412 (with translation from Gujarati).
26 Volume II, pp. 413-418.
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(11) Ex. "J-1": Signatures of the executant as circled in blue
ink in the execution clause;27
(12) Ex. "K": Letter dated 26th January 1985 from
Champaben Narandas Kotadia to Kasturbai Haridas
Kotadia;28
(13) Ex. "L": Photocopy of certificate dated 22nd July
2006 of Defendant's handwriting expert.29
(14) Ex. "M": Wedding invitation in Gujarati of Sandeep
Ranjitkumar Kotadia with its official translation;30
(15) Ex. "N": Photographs from Sandeep Ranjitkumar
Kotadia's wedding;31
20. The Defendants led the following documents in evidence:
(1) Ex. "D-1/1 to Ex. D-1/4": Rent receipts from
December 1959 to October 1965;32
(2) Ex. "D-1/5": Photocopy of Power of Attorney dated
19th March 1989;33
(3) Ex. "D-1/6": Handwriting Report by Mr. Devendra
Javeria dated 15th December 2015 comparing the
Original Will and the carbon copy of the original Will;34
27 Volume II, p. 418.
28 Volume II, pp. 419-422 (with translation from Gujarati).
29 Separately filed, not in compilation.
30 Volume II, pp. 465-468.
31 Volume II, pp. 477-483.
32 Volume II, pp. 497-503.
33 Volume II, pp. 505-517.
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(4) Ex. "D-1/7": Handwriting Report by Mr. Devendra
Javeria dated 15th December 2015 comparing the
Original Will and the General Power of Attorney;35
(5) Ex. "D-1/8": Handwriting Report by Mr. Devendra
Javeria dated 15th December 2015 comparing the
carbon copy of the original Will and the General Power
of Attorney.36
G. RE: ISSUE NO. 3: PROBATE OF A
DOCUMENT NOT ANNEXED TO THE
PETITION
21. I prefer to deal with this issue first. Rule No. 374 of The
Bombay High Court Original Side Rules ("the Rules") requires a
probate petitioner to annex to the petition a copy of the last Will of
which probate is sought. The relevant portion of this Rule is:
"Rule 374. Application for probate.--The application for
probate shall be made by Petition. There shall be annexed
to the petition a copy of the last will and testament of the
deceased. If the will be not in the English language, an
official translation thereof shall be annexed. The original
will shall be file separately and kept by the Prothonotary
and Senior Master in the strong room of his office. ... "
34 Separately compiled, File C-2.
35 Id.
36 Id.
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22. The Defendants say the Plaintiffs have not fulfilled this
requirement. What was annexed to the Petition was a photocopy of
the Carbon Copy Will (Exhibit "DD" in evidence).
23. Some background is necessary. On 12th March 1989,
Kasturbai and the attesting witnesses are said to have executed not
one, but two documents: the Original Will and the Carbon Copy
Will. Both are identical. The text of the second is simply a carbon
copy of the first. However, both documents were executed and
attested separately on the same day -- the Original Will first,
followed immediately by the Carbon Copy. The Carbon
Copy therefore, having been signed after the Original Will is, in law,
the last Will and Testament of the Testatrix.
24. At the time when documents were first marked in evidence,
the Plaintiffs produced the Carbon Copy before the Court. It was
marked Exhibit "D".37 However, instead of lodging the Carbon
Copy in the Registry, the Plaintiffs lodged the Original Will, which
was numbered Will No. 133 of 1994. Later, RD Dhanuka J by his
orders dated 22nd October 2013 and 6th January 2014 withdrew the
marking of the Carbon Copy as Exhibit "D" and assigned it to the
Original Will which was lodged in the Registry. The Carbon Copy
remained, inadvertently, without any marking at all. Seeing that both
the documents were relied upon in the trial and in evidence, I
marked the Carbon Copy as Exhibit "DD" by my order dated 2nd
February 2017. On 16th February 2017, I noted some of this history
37 Per RS Dalvi J, order dated 14 March 2012.
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and then directed the Carbon Copy to be lodged in the Registry as
well.
25. Mr Khandeparkar for the Defendants contends that since the
Original Will was lodged with the registry, and since the copy
annexed to the Petition is of the Carbon Copy, not the original, this
Petition should be dismissed. If there are two "Wills", both of the
same date, and though they contain the same text, the Plaintiffs
cannot seek probate of the Carbon Copy -- it is not the document
lodged in the Registry. They cannot seek probate of the Original
Will either -- its copy was not annexed to the Petition.
26. The argument is without substance in the facts of this case.
Both documents are lodged in the Registry. The purpose of the Rule
is to ensure accuracy and consistency. It is a rule of procedure, not
substantive law. Non-compliance is at best an irregularity, and that
can always be cured. No probate petitioner will be non-suited for
annexing a wrong copy. The purpose is clear, and this is to ensure
that probate is issued of a sufficiently correctly identified document.
The other purpose is, of course, convenience, so that the original
does not have to be handled every time the matter is called at every
stage. In a contested matter, the third purpose is to ensure that the
contesting or opposing party is not taken unawares and that probate
is not granted of a document which the opponent had no
opportunity to address. That can hardly be said of this case. The
Plaintiffs have never hidden the fact of the Carbon Copy. Before the
trial ended, both sides were aware of the existence of both
documents, and the Carbon Copy had gone in and out of the trial
record. Before arguments closed, both the Original Will and the
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Carbon Copy were not only marked in evidence but were lodged
with the Registry as well. There is no question of the Defendants
being taken unawares, or of one document being substituted for the
other. Both documents are before the Court.
27. As I will proceed to discuss in greater detail, the Original Will
and the Carbon copy were both duly executed and attested. The
Carbon Copy was executed after the Original Will. Since it was
separately executed, it is on its own an original -- the fact of its text
being a carbon copy is wholly immaterial. Being later in point of
time, the Carbon Copy is the 'Last Will', and it is a copy of this Will
that was annexed -- in retrospect, perhaps fortuitously -- to the
Petition. It is also now lodged with the Registry. The question
therefore does not arise in this case at all.
28. In a given case, however, if by the end of the trial, it is found
that the document lodged with the Registry is not the original of the
copy annexed to the Petition, I do not see how probate can be
granted. That will depend on the facts of the case.
29. Issue No.3 is answered accordingly.
H. RE: ISSUES NOS. 1 & 2: DUE EXECUTION
AND TESTAMENTARY CAPACITY
30. The burden of proving these issues is on the Plaintiffs. I have
addressed the two together. The law on the essential requirements
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of a valid will is well settled. The testator must be an adult of sound
mind.38 He must be shown to have made the will without fraud,
coercion or such importunity as might take away her free agency.39
He must sign the will intending it to be such. The execution of the
will must be attested by at least two witnesses and each witness must
sign the will in the presence of the testator, but not necessarily in the
presence of each other.40
31. As to the actual execution, we have the evidence of Plaintiff
No. 1 as PW1, and one of the attesting witnesses, Dr Patel, as
PW2.41 Each of them filed an Affidavit in lieu of Examination in
Chief42 and both were cross-examined.43 The other attesting
witness, Mr Desai, died before he could give evidence.
32. In his Affidavit In lieu of Examination in Chief, the 1st
Plaintiff, PW1, states that he was present during the execution and
attestation of the March 1989 Wills, which took place at his house.
He said that in addition to him, the two other Plaintiffs and the two
38 Indian Succession Act, 1925, Section 59.
39 Id., Section 61.
40 Id., Section 63.
41 In view of Section 68 of the Evidence Act, 1872, the attesting witness
ought to have given evidence first. This is now being followed after the
decision in Walter D'Souza v Anita D'Souza, 2015 (2) ABR 90, where I
held that this is an exception to Order 18 Rule 3-A of the Code of Civil
Procedure, 1908. Evidently, past matters where evidence was already
taken remained unaffected by that decision.
42 Evidence Affidavit of Plaintiff No.1, PW1, pp. 169-186. Evidence
Affidavit of Dr Patel, PW2, pp. 257-262.
43 Cross-examination of PW1, pp. 187-256. Cross-examination of PW1,
Volume II, pp. 263-286.
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attesting witnesses were present. The events unfolded in the
following manner. Kasturbai read the will, which was typewritten in
Gujarati, and understood its contents. Upon doing so, she executed
the Original Will by putting her initials on each page and her
signature at the bottom of the will on the last page, and subsequently
did the same on the Carbon Copy. This was done in the presence of
the two attesting witnesses, Dr Patel and Mr Desai. As soon as this
was done, the two attesting witnesses signed against the column for
attesting witnesses. They did this in Kasturbai's and in each other's
presence.44 Dr Patel's Affidavit in lieu of Examination in Chief
describes these events in exactly the same sequence.45
33. There is no real opposition provided by Mukesh in his
Affidavit in Lieu of Examination in Chief to disturb the case of due
execution put forth by the Plaintiffs, except for his claim that the
first attesting witness, Dr Patel, being a close friend of the Plaintiff
No. 1's son, and the second attesting witness, Mr. Desai, being a
close friend of Plaintiff No. 1, were hand in glove with the Plaintiffs,
and that they put their signatures only as an obligation to the
Plaintiffs.46
34. This allegation was tested, although to a very limited extent,
in the cross examination of the Plaintiffs' witnesses. Plaintiff No. 1
was asked whether Kasturbai knew the attesting witnesses47 and if
44 Evidence Affidavit of PW1, paragraph 29, pp. 180-181.
45 Evidence Affidavit of PW2, paragraph 6, p. 259.
46 Evidence Affidavit of DW1, paragraph 17, p. 293.
47 Cross-examination of PW1, Q. 85, p. 217.
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so, for how long.48 He answered that she had known them for a few
years, which was corroborated by the attesting witness himself in his
cross-examination.49 It is not disputed that she knew them through
Plaintiff No. 1, Dr Patel being a friend of Plaintiff No. 1's son and
Mr. Desai being a friend of the Plaintiff No. 1. But there is no
requirement that an attesting witness needs to be known to the
testator. Mukesh Kotadia provided no further evidence to
substantiate his allegation that the attesting witnesses only put their
signatures to oblige the Plaintiffs.
35. Cross-examining the Plaintiffs' witnesses, the Defendants
attempted another line of questioning to extract a discrepancy about
the date when Kasturbai asked Dr Patel to be an attesting witness. In
their Evidence Affidavits, PW150 and Dr Patel51 both said Kasturbai
asked Dr Patel to be an attesting witness during one of his casual
visits to their house in the first week of March 1989. Some
confusion arises because, in cross-examination, Plaintiff No. 1 said
that the first time Kasturbai asked Dr Patel to be an attesting witness
was on the day of execution itself, 12th March 1989.52 This answer,
however, was followed by another where the Plaintiff No. 1
reiterated that Dr Patel was asked about being an attesting witness
during one of his visits in the first week of March 1989,53 and not on
48 Cross-examination of PW1, Q. 86, p. 218.
49 Cross-examination of PW2, Q. 155, p. 267.
50 Evidence Affidavit of PW1, paragraph 27, pp. 179-180.
51 Evidence Affidavit of PW2, paragraph 4, p. 258.
52 Cross-examination of PW1, Q. 79, p. 215.
53 Cross-examination of PW1, Q. 83, pp. 216-217.
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12th March 1989, i.e. on the day of execution. There is no further
evidence about this.
36. This is the extent of the challenge to the due execution of the
March 1989 Wills. The tail-end questions in the usual form of
'putting one's case', wholly unnecessary and never required, in my
view, served no purpose at all. This practice of requiring to 'put a
case' is sorely misunderstood, but seems to have passed into the
realm of received wisdom. It is based on an utter misreading of the
Division Bench decision of the Calcutta High Court in AEG
Carapiet v AY Derderian.54 I had occasion to consider and follow the
ratio of this case in Harish Loyalka v Dileep Nevatia55 -- Carapiet is a
decision consistently followed and approved.56 The Carapiet
requires a party to put his affirmative case, i.e., a case that is stated
in positive terms in direct contradiction of the opposite side's case,
so as to give the opposite party's witness an opportunity to meet it.
Nothing in Carapiet requires a cross-examiner to put to a witness
questions of mind-numbing banality, with inevitable denials. The
'case' that is always required to be 'put' to the witness must be
affirmative, the "essential and material case" and the "important
and crucial part", to use the words of the Calcutta High Court. For
the rest, a general question is usually sufficient, and judicial time
need not be wasted in suggesting to the witness that every statement
in his pleading is 'false'. To ask therefore, questions like this: "I put
it to you that you did not see Dr Patel signing the Will" or "I put it
54 AIR 1961 Cal 359.
55 2015 (1) Bom CR 361.
56 Badriprasad K Agarwal & Anr v Premier Garage & Ors, 1980 (1) RCJ
(Bom) 385; MB Ramesh v KM Veeraje Urs, (2013) 7 SCC 490.
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to you that the signature on the Will is not that of Kasturbai" are
never necessary and always redundant. If this is to be disproved, it is
to be done by getting the witness to admit his statement is incorrect,
showing that it could not possibly be correct, contradicting him or
by other techniques in cross-examination. In trial litigation, cross-
examination is very much an art form: what to ask, what not to ask,
and what need not be asked. Dr Patel, for instance, dutifully, and
predictably, denied all these 'suggestions' and 'cases put to' him,
and nothing at all was achieved thereby. Merely putting such
statements in cross-examination does not make them true. If the
witness denies such statements, the defence must still prove them in
their evidence. This has not been done. The Plaintiffs' case remains
unshaken.
37. The due execution and attestation of both the March 1989
Wills has been proved.
38. The Defendants, in their caveats, claim that at the time of
execution of the March 1989 Wills, Kasturbai was not of sound
mind. They say that Kasturbai suffered from various ailments such
as arthritis, blood pressure, heart trouble, poor eyesight, a bad
memory and was bed-ridden for six years prior to her death. As I
have noted, given that she died in 1993, this puts the time-frame of
her so-called immobility in 1987, some two years before her Will. As
we shall presently see, the Defendants' own case demolishes this
allegation.
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39. Plaintiff No.1 in his Evidence Affidavit says that Kasturbai
was in sound health and deposing state of mind and executed the
March 1989 Wills after reading and understanding its contents.57 He
specifically denies the claim of the Defendants that Kasturbai was
suffering from aliments like arthritis, blood pressure, heart trouble,
poor eyesight and a bad memory, or was bedridden for six years
prior to her death.58 He says Kasturbai was in good health and even
attended and fully participated in the wedding celebrations of
Sandeep Ranjitkumar Kotadia in December 1986.59 He says she was
accustomed to reading the newspaper and religious books and that
she discussed the stories from these books with members of the
Kotadia family. It was not until the last few weeks before her demise
that she was ever bed-ridden.60 In cross-examination, Plaintiff No. 1
was asked if it was correct that Kasturbai was bedridden for six years
prior to her demise61 and whether it was true that she was not of
sound and deposing mind, thereby making her incapable of making a
will.62 He denied both suggestions. He was asked nothing else.
40. Dr Patel in his Evidence Affidavit said he often visited the
Kotadia family. During his visits he observed that Kasturbai was in
good health and a sound state of mind. He says she was not confined
to the bed; that she would talk to him about day-to-day matters,63
57 Evidence Affidavit of PW1, paragraphs 29, 31 and 35, pp. 181-182.
58 Id., Paragraph 34, p. 183.
59 Id., Paragraph 32, p. 182.
60 Id., Paragraph 31, p. 181.
61 Cross-examination of PW1, Q. 87, p. 217.
62 Cross-examination of Pw1, Q. 92, p. 219.
63 Evidence Affidavit of PW2, paragraph 2, p. 258.
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and that she would often be reading newspapers and religious books.
He also says she did not suffer from ailments like arthritis, blood
pressure, heart trouble or bad memory.64 Dr Patel was questioned on
this opinion in his cross-examination:65
Q.161: What is the basis on which you say that the
said deceased did not have any illness like
arthritis, blood pressure or any heart trouble
or any loss of memory on a mere clinical
assessment considering the fact that no
medical apparatus were available to you
during the so-called visits to the place of
residence of the said deceased?
A.: Clinical assessment deals with questioning
and examining the patient for the related
illness. She was walking around normally and
she did not have any complaints related to the
joints. The pulse gives an idea about the blood
pressure as well. Related to the heart trouble
there was no symptoms dyspnea on exertion
and related to look of memory she used to
recall events like when I visited last or who
are the family members and any related
questions which she answered within a good
range of a sound memory.
This is a perfectly satisfactory response.
64 Evidence Affidavit of PW2, paragraph 3, p. 258.
65 Cross-examination of PW2, pp. 269-271.
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41. The Plaintiffs' evidence is sufficient to discharge their
preliminary burden. Given the pleadings in the caveat, it would then
fall on the Defendants to establish that Kasturbai suffered from a
disabling mental condition at the time of the execution of the March
1989 Wills. In his Evidence Affidavit, Mukesh, DW1, says Kasturbai
was not of sound mind at the time of execution of the will due to
old-age, ill-health and inability to read or write, thereby making it
impossible for her to appreciate, distinguish or understand the
repercussions and consequences of the papers that she was
signing.66 In order to prove lack of testamentary capacity, Mukesh
must be able to show that Kasturbai, at the time of the execution of
the March 1989 Wills, was in such a physical or mental condition (or
both) that she could not have possibly understood the contents of
the documents she was signing. These are Mukesh's responses in
cross-examination:67
Q21. Are you aware of Kasturbai's physical and
mental condition in 1989 and for a year or two
before then?
A. In 1987 when I met her and when she came
to our house, she had to use a wooden
support and brace and could not walk
without it. In fact, she could barely walk.
Thereafter, she was bedridden till the end.
Q.29. Do you know what her mental condition was
in 1988-89?
66 Evidence Affidavit of DW1, paragraph 5, p. 288.
67 Cross-examination of DW1, pp. 309, 310, 319-320.
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Ans. She used to be hesitant in conversations
and could not speak fluently.
Q.54. In the year 1986, was Kasturbai able to
move around on her own?
Ans. Yes, but slowly, slowly.68
Q.56. Did you at any of these times find Kasturbai
unwell?
Ans. She had come to reside with us in the year
1987-1988 and at the time she was taking
regular medication which she carried with
herself. She was wearing a belt with
wooden support for her back. At that time,
she had difficulty walking there we would
assist her by giving support.
Q.57. To your knowledge, was there any other
illness?
Ans. She came to our house for a short period, I do
not know for what illness she was taking
the medication.
Q.58. Did you and your father not care to find out
the nature of your grandmother's illness?
Ans. We had asked her and she replied saying
that she had urinary and back related
problems.
Q.59. Apart from these problems, do you know if
she had any other medical problems?
68 Probably a literal translation from an answer in Gujarati.
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Ans. We heard what she said and how would we
know about any other illness if she had?
(Emphasis added)
42. Difficulty in walking, back and urinary problems, using a
brace -- these are hardly conditions sufficient to rob a person of
testamentary capacity. They are no more than the usual incidents of
age. There is nothing to establish, to Mukesh's knowledge, a lack of
dispositive ability. These answers do not establish the Defendants'
affirmative case. The law does not mandate physical agility,
athleticism or even sprightliness as a determinant of testamentary
capacity. Nor does it require every testator to be in perfect health. It
is enough if the testator is able to discern and judge matters
sufficiently to make a rational testament according to his beliefs and
wishes.69
43. On its own, this is enough to conclude that Kasturbai did not
lack testamentary capacity when making the March 1989 Wills. But
the Defendants then score a self-goal of sorts by admitting into
evidence a Power of Attorney that Kasturbai made on 19th March
69 Gordhandas Nathalal Patel v Bai Suraj & Ors, AIR 1921 Bom 193 (DB) :
(1921) 33 Bom LR 1068; Ganpatrao Khandero Vijaykar v Vasantrao
Ganpatrao Vijaykar, 1932 (34) Bom LR 1371; Kanwar Sain v State &
Ors, AIR 1976 Del 11; KC Bajaj and Ors v Sudershan Kumari & Anr, 149
(2008) DLT 694; KL Malhotra v Sudershan Kumari & Anr, 149 (2008)
DLT 783; Desh Raj Gupta v State & Ors, 2010 (119) DRJ 138;
HarNarain v Budh Ram, 1991 (21) DRJ 94; Chittaranjan Narottamdas
Negandhi v Hemkala & Ors, 2016 (4) MhLJ 819.
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1989 -- a mere seven days after the March 1989 Wills.70 Mukesh
was asked about this in cross-examination:71
Q.61 According to you, is this Power of Attorney
signed by the deceased?
A. Yes.
Q.62 According to you, is this a validly executed
Power of Attorney of the deceased?
A. It is attested by 2 lawyers and also notarized.
Therefore, yes, it is a validly executed
Power of Attorney.
Q.63. So according to you, deceased was in a
condition to execute documents at the time
the Power of Attorney was executed?
Ans. It was signed before 2 lawyers. Therefore, she
might have been in the condition to execute
documents at that time.
(Emphasis added)
The very next question is also important:
Q.64 Would it be correct to say you are personally
not aware of the condition of the deceased at
that time?
A. She was bedridden at that time.
70 Ex. "D-1/5", Volume II, pp. 505-517.
71 Cross-examination of DW1, p. 322.
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But this is less than useful. Mukesh himself earlier said that at
around that time, she could walk, 'but slowly, slowly'. If she was
bedridden, this could not be true. There is also no dispute that in
January 1989, just a few months earlier, Narandas took her to
Harish's house in Kandivali. Again, if she had been bedridden since
1987, this was hardly possible. The Defendants explain none of this.
44. And here is the sting in the tail. As we have seen, at least two
Defendants in their Affidavits in Support of Caveats said Kasturbai
had executed a will in January 1989, which they believed to be her
last and final will: Shailesh, Defendant No.5, since deceased;72 and
Mukesh, DW1 himself.73
45. Here is what Shailesh said:
4(b) ... The deceased grand mother made a will on or
about 26th January 1989 in the presence of two witnesses
whereby her estate was bequeathed in equal shares to each
son or to the heirs of such son if he is deceased. I crave
leave to refer to and rely upon the said will when produced.
46. This is what Mukesh said:
6. I further submit and say that the deceased appears to
have wavering mind and not stable about disposing off her
estate. The first Will was made in 1972, then second Will
was made in 1976, then third in 1985 which was got
registered. Then in January 1989 another Will was prepared
72 Affidavit in Support by the 5th Defendant, pp. 89-93, paragraph 4(b) at
p. 91.
73 Affidavit in Support by DW1, Defendant No.1(b), pp. 121-125,
paragraph 6, p. 124.
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and within span two months in March 1989 the alleged Will
in question appears to have been prepared.
47. None on the Defendants' said cared to produce this Will.
Even if they had, it could not have been received in this fashion in
evidence, since it was being propounded as a contesting final
testamentary writing. None have sought to prove it in its solemn
form. Mukesh, for his part, abandons this Will altogether in his
Evidence Affidavit: he makes no mention of it at all. Instead, he
insists Kasturbai could have made no Will in 1989; she was totally
bedridden, he says, and lacked all cognitive ability:
4. I further say that the deceased died at the age of
90 years was bed ridden for more than six years prior to
her death and she was entirely dependent on the
Petitioners and their family members.
10. I further say that In 1989, the said deceased to my
personal knowledge was not in a position to sign any
papers as she was ill since more than five years prior to
her death.
15. I repeat that at the time of her execution of the
alleged Wi11 of 1989, she was very ill and totally bed-
ridden and was not in a position to read or write and it is
next impossible she would have executed the alleged
Will in 1989 for which the Probate is sought. The said
deceased, because of her ill health and for other reasons was
solely depending upon the Petitioners and Petitioners,
taking advantage of the same, practiced fraud upon other
heirs of the deceased including my father by fraudulently
depriving them from the estate of the said deceased .
20. It is further pertinent to note that the deceased
would not in any manner or course remember that she has
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made the previous Wills in 1972, 1976, and 1985 and this
itself shows that it is the Petitioners and particularly
Petitioner No.1, who has provided the alleged said Will
because at her old age and due to her ill health, it was
next to impossible for her to give a Will and the alleged
Will in respect of which the Probate is given was
obviously prepared by the Petitioners to exclude my father
and other sons and daughters of the deceased as in the
previous Wills, she has given to all in equal shares.
28. I further say that on 19th March, 1989, the
deceased was said to have executed a Power of Attorney
in favour of the Petitioners and when the signature in
the said Power of Attorney and the signature on the
original as well as duplicate alleged Will dated 12th
March, 1989 obviously goes to show that the signatures
totally differ and the Power of Attorney contains the
correct signature at that time. The said signature
compared with the signature on the alleged original and
duplicate Will clearly goes to show that the signature on the
alleged Will is forged and fabricated. I herewith produce
Xerox copy of the said Power of Attorney and the original
thereof is with the Petitioner and they should be directed to
produce the original Power of Attorney in the Court.
(Emphasis added)
48. Mukesh does not say anything n his Evidence Affidavit about
the January 1989 Will of which he spoke in his Affidavit in Support
of his caveat. He does however accept she made a Power of Attorney
on 19th March 1989, only seven days after the Will in question, and
was well enough to do this. The Defendants do not of course care to
explain the serpentine contradictions in all this: how, if they are to
believed, and she was bedridden and lacking all dispositive
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capacities since 1987, she could have validly made a Will in January
1989 only to promptly (and conveniently) lose this capacity two
months down the road; and then immediately regain sufficient
capabilities within the next seven days to make a Power of
Attorney.74
49. The defence on this is wholly unworthy of credence. Issues
Nos. 1 and 2 are answered in the affirmative.
I. RE: ISSUE NO. 4: WHETHER THE
DEFENDANTS PROVE THE WILL IS
UNNATURAL
50. The Defendants claim that Kasturbai loved her children
equally and had no reason to bequeath the property exclusively to
Vinodrai, Ranjitkumar and Prafullchandra. Therefore, according to
them the Will is unnatural.75 Plaintiff No. 1 has very carefully laid
out his mother's reasons to exclude her sons from the March 1989
Wills. Plaintiff No. 1 said in his cross-examination76 that the brothers
had an oral arrangement with their parents that Shri Krishna Niwas
was to be left only to those male members living there. He says this
can be seen from his documents in evidence.
74 Kunjbala made an affidavit dated 4th December 2008 wholly supporting
the Plaintiffs. She never gave evidence and her affidavit was only
included in the Plaintiffs' compilation, never taken on record as her
Affidavit in lieu of Examination-in-Chief. I have disregarded it
altogether.
75 Evidence Affidavit of DW1, paragraph 5, p. 289.
76 Cross-examination of PW1, Q.105, p. 229.
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51. In his cross-examination, PW1 says this about Shree Krishna
Niwas arrangement:
Q.131: Do you want to say that in view of the family
arrangement in the said meeting mother
agreed to execute the Will and bequeath
Krishna Niwas to remaining four sons?
A.: There was no question of arrangement. It was
wish of my mother to bequeath Krishna
Niwas to the four sons mentioned in the Will.
All the sons agreed to our mother's wish.
Q.132: Is it not your case that mother agreed to
bequeath Krishna Niwas to remaining four
brothers as the arrangement for residence was
made for Gopaldas and Laxmidas?
A.: It was the desire of my mother. Whatever
stated in para 8 is correct.
Q.133: Is it your case that late Gopaldas agreed to
this arrangement because residential
accommodation was already provided to him?
A.: Yes.
52. By definition, a Will disrupts the natural line of succession;
otherwise, there would be no reason to make a will. Kasturbai's
reasons for such a disruption of a natural line of succession are
clearly laid out from the time of her 1972 Will. I will straightaway
reject Mr Khandeparkar's argument that the previous Wills are not
proved and cannot be received in evidence. That might have been
correct had anybody disputed them. As we have seen, none of the
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Defendants dispute the earlier Will. Mukesh, DW1, actively refers
to them and extols their correctness. We are not looking to these
Wills for their proof as Wills. We look to them as undisputed
documents.
53. Kasturbai made her 1972 Will at a time when her husband
Haridas was still alive. She appointed him executor of it. She left
Shree Krishna Niwas to the four sons then living there. After
Haridas died, Kasturbai made the 1976 Will. She changed the
executors, but reiterated her wish to leave the property only to the
four sons in residence.77 She said she had arranged other
accommodation for Gopaldas and Laxmidas. This was the stated
basis of their exclusion from the property. Sometime in 1984,
Narandas moved out of Shri Krishna Niwas with his family to settle
at Rajkot. PW1 says that in 1975, during Haridas's lifetime, it was
decided that rent would be collected from the sons residing in Shri
Krishna Niwas. These receipts were issued in the names of the
daughters-in-law. Narandas was in possession of a flat on the first
floor and one room on the ground floor. Rent receipts were being
issued in the name of Champaben. These are in evidence.78 When
they moved away in 1984, Champaben addressed two letters to
Kasturbai, one dated 23rd August 1984,79 and the other dated 26th
January 1985.80 In the former letter, Champaben informed Kasturbai
77 Evidence Affidavit of PW1, paragraph 10, p. 172.
78 Exhibits "E", "F" and "G", Volume II, pp. 375-381, 383-389 and 391-
397, in the names of the 1st and 2nd Plaintiffs' wives.
79 Exhibit "H" in evidence, Volume II, p. 409-412 (with translation from
Gujarati).
80 Exhibit "K" in evidence, Volume II, pp. 419-422 (with translation from
Gujarati).
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that the flat on the first floor had been vacated and that neither she
nor any of her family members had any right or share in the flat. On
the same date, a Tenancy Agreement was signed with one Ashwin
Ramji Shah for the flat.81 In the letter dated 26th January 1985,
Champaben relinquished all tenancy rights of the room on the
ground floor.
54. If there was any doubt about this, it is set to rest by
Kasturbai's third Will, viz., the 1985 Will. Here, she speaks of
Narandas leaving Shree Krishna Niwas for Rajkot and the
arrangements made for the others. Here, she also makes a bequest
of Shree Krishna Niwas to the Plaintiffs; and this Will is actually
accepted by the Defendants.82 Indeed, in his Evidence Affidavit, this
is what Mukesh, DW1, says about these three earlier Wills,
including the one of 1985:
26. I further say that the Wills of 1972, 1976 and 1985 are
already on record of the proceedings, and I crave leave to
refer to and rely upon the same.
(Emphasis added)
55. Once the Defendants 'rely' on the document in their
pleadings, I do not see how they can impeach or disavow it. In his
Affidavit in Support of his Caveat, Mukesh, DW1 in terms says that
the Will
81 Exhibit "J" in evidence, Volume II, pp. 413-418.
82 DW1 Affidavit in Support of Caveat, paragraph 6, p. 124; DW1 Evidence
Affidavit, paragraph 20, pp. 294-295 and paragraph 26, p. 297.
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... made in February 1985 and stated to be registered at
Bandra and as admittedly affirmed by the deceased in the
said Original Will to be her true will and not revoked or
cancelled by her. ... I submit and pray that the Plaintiffs be
directed by this Hon'ble Court to produce the said alleged
Registered Will of February 1985 for verification by this
Hon'ble Court, since the same is not revoked and/or
cancelled by the deceased."
(Emphasis added)
56. Mr Khandeparkar's reliance on Ramesh Verma v Lajesh
Saxena83 is inapposite. That was not a case where the other party
expressly affirms a previous Will, only to later do a volte face at final
arguments. The principle against approbation and reprobation will
apply. Similarly, LIC v Ram Pal Singh Bisen84 can hardly be invoked
here. We should note that the Defendants rely on the 1985 Will as
being the last, correct one in support of their case that the 1989
Wills are untrue, and that the 1985 Will is correct and equitable.
Even if we do not look at the document itself, their statements are
sufficient; and the result is the same.
57. With this, it is difficult to see how the exclusion of the other
sons is unnatural. It seems abundantly clear that, from the
beginning, Kasturbai did not intend for Gopaldas and Laxmidas to
inherit the property. In 1985, by removing Narandas as a legatee of
Shri Krishna Niwas, there is no doubt about her intention to leave
that property only to the sons continuing in residence there.
83 (2017) 1 SCC 257.
84 (2010) 4 SCC 491.
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58. It appears that on 26th January 1989, Narandas picked
Kasturbai up from Vile Parle and took her to visit his son Harish in
Kandivali. This of course does not reconcile with the Defendants'
case of her being bedridden. The present Will itself says that while
at Kandivali at Harish's house she was made to sign a document that
Narandas told her only said that she had six sons and two daughters.
She harboured doubts that this may have been a will. This January
1989 document has also been referred to by Shailesh85 where he says
that the Will is unnatural and that there was no reason for Kasturbai
to cancel the Will made on 26th January 1989. As I have noted,
Mukesh, PW1, also references it (by month and year) in paragraph 6
of his own Affidavit in Support of his Caveat. This document,
however, has never been produced. Kasturbai returned to Vile Parle,
informing the Plaintiffs that she feared she had signed a document
on Narandas's insistence, the contents of which she had not been
allowed to read. Plaintiff No.1 says he drafted the Will of 12th
March 1989 as a precautionary measure to rescind the 26th January
1989 document and to confirm the 1985 Will, which was what
Kasturbai desired. PW1 was cross-examined on this:86
Q.57: In paragraphs 20 and 21 of your Affidavit of Evidence you
have deposed what your mother had allegedly told you with regard
to your mother having allegedly put her signature on a writing
allegedly prepared by Narandas. Did you call Narandas or meet him
and enquire from him whether he asked your mother to sign any
document/writing as allegedly told to you by your mother?
85 Defendant No.5, Affidavit in Support of Caveat, paragraph 4(e), p. 92.
86 Cross-examination of PW1, pp. 203-205, 209, 233-235.
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Ans: No.
Q.58. Is there any particular reason why you did not
call or meet Narandas to find out the factual
position?
Ans. I have to believe my mother.
Q.59. Don't you think that if your mother's story
was true it was a serious matter?
Ans. That is why I got the particular writing
revoked.
Q.60. Without seeing such a writing??
Ans. When Narandas was not staying in the same
building there was no reason for him to take
my mother's signature on any writing with
regard to this building.
Q. 63. How was this alleged particular writing
revoked?
Ans. By the original Will.
Witness' attention is drawn to paragraphs 20 and 21 of his
affidavit of evidence and Q.57 to Q.60 and his answers
thereto.
Q.112. According to you, was that writing under
coercion or misrepresentation?
Ans. The writing was not out of her free will,
therefore she asked me to revoke the writing.
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59. This does not establish that the March 1989 Wills were
unnatural. The burden of proof on this issue is on the Defendants.
That burden is not discharged.
60. Issue No.4 is answered in the negative.
J. RE: ISSUE NO.5: WHETHER THE
DEFENDANTS PROVE UNDUE INFLUENCE
AND FRAUD
61. The Defendants, in their Affidavits in Support of the Caveat87
allege that the Plaintiffs have obtained the March 1989 Wills
fraudulently and by exercising undue influence on Kasturbai.
Mukesh also alleges fraud in his Evidence Affidavit.88
62. It is settled law that the burden to prove fraud, undue
influence or coercion is on the caveator that alleges such fraud,
undue influence or coercion.89 It is therefore for the Defendants to
establish that Kasturbai was subjected to fraud, coercion or undue
influence. Section 61 of the Indian Succession Act, 1925 deals with
this and says:
61. Will obtained by fraud, coercion or
importunity.--A Will or any part of a will, the making of
87 Affidavit in Support of Defendant No.5, paragraph 4(d) p. 92.
88 Evidence Affidavit of DW1, paragraph 21, p. 295.
89 H Venkatachala Iyengar v BN Thimmajamma, AIR 1959 SC 443; Rani
Purnima Devi & Anr v Kumar Khagendra Narayan Dev, AIR (1962) SC
567.
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which has been caused by fraud or coercion, or by such
importunity as takes away the free agency of the testator, is
void.
63. It is not mere influence which renders the March 1989 Wills
invalid. The influence must be undue.90 Therefore, the Defendants
must prove that the Plaintiffs influenced Kasturbai and also that
such influence was undue.
64. In the present case, the Defendants allege undue influence on
three factors. First, that the Plaintiffs did not allow Kasturbai to visit
her other sons. Second, that due to her dependency on the Plaintiffs
due to her alleged ill health, the Plaintiffs were in a position to
exercise undue influence on Kasturbai.91 Third, that Plaintiff No. 1
who is one of the beneficiaries of the March 1989 Wills, drafted the
March 1989 Wills himself and could ensure that there was little
room for challenge of the March 1989 Wills since he was a lawyer.
This is repeated multiple times in Mukesh's Evidence Affidavit.
65. The first allegation is falsified by Mukesh's admission in
cross-examination that after Haridas's death, even though Kasturbai
was staying with Plaintiff No. 1, she used to visit her other sons.92
He also admitted that Kasturbai visited his house in 1987.93
Kunjbala, in her Consent Affidavit, said that Kasturbai visited her
house in Rajkot in 1988.
90 Naresh Charan Gupta v Paresh Charan Gupta,AIR 1955 SC 363.
91 DW1 Affidavit in Support of Caveat, paragraph 7, p. 124.
Q. 69, p. 324.
Q. 29, p. 309.
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66. Since Kasturbai lived the Plaintiffs, they were in a position to
dominate her, claimed the Defendants. Plaintiff No.1 disputed this
in cross-examination.94
Q. 88: Would it be correct to say that your mother
was only residing with you?
A.: She was mainly residing with me. I was taking
care of her
Q.93: I put it to you that your mother made the
Will on your dictates.
A.: It is not correct.
Q.97: I put it to you that undue influence was
exercised by you upon your mother to
induce her to sign the original Will of 1989
with a view to deprive 2 other brothers,
namely Laxmidas and Gopaldas of their share
in the said property.
A.: It is not correct.
Q.118: I put it to you that your mother was staying
all along with you therefore you were in a
position to obtain all the writings.
A.: It is not correct.
(Emphasis added)
67. Apart from anything else, this highlights the perils of 'putting
a case' in this rote fashion. The question itself posits that the cross-
94 PW1 cross-examination, pp. 217, 219, 221 and 239.
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examiner's client is in a position to prove the correctness of that
which he asserts as a 'case put'. If this is so, then the burden on the
Defendants increases manifold. A failure to discharge that burden is
catastrophic.
68. In Naresh Charan Das Gupta v Paresh Charan Das Gupta,95 the
Supreme Court said it is well established that the mere fact that the
bequest is in favour of persons who were looking after the testator at
or about the time of the will, does not of itself indicate that the will
was executed under undue influence. In Bur Singh v Uttam Singh,96
the Privy Council said no presumption can take the place of
evidence:
"In order to set aside a will there must be clear evidence
that the undue influence was in fact exercised or that the
illness of the testator so affected his mental faculties as to
make them unequal to the task of disposing of this
property.' The mere proof of the relation of parents and
child, husband and wife, doctor and patient, and
solicitor and client does not raise a presumption of
undue influence to vitiate a will."
(Emphasis added)
69. The Defendants then contend that since Plaintiff No. 1 was a
lawyer, he cleverly drafted the March 1989 Wills in a manner that
left no room for challenge (a self-defeating argument, given that the
length of arguments). The Defendants further argue that Plaintiff
No. 1 being a beneficiary under the March 1989 Wills himself, he
95 AIR 1955 SC 363.
96 38 Cal 355 (PC).
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exerted undue influence on Kasturbai so as to exclude the
Defendants from any inheritance in Shri Krishna Niwas. The
Plaintiff No. 1 accepted that he drafted the March 1989 Wills on his
mother's instructions.97 It is undisputed that he is an advocate. It
would actually make sense for him to assist his mother in making a
Will, and I can think of no law or principle that prevents a son or
daughter from assisting his or her parent in matters of the child's
special expertise or colours that assistance as 'undue influence'. The
Defendants have shown nothing to indicate that Plaintiff No. 1
abused his position as an advocate.
70. The Defendants have failed to prove the Plaintiffs exercised
undue influence and fraud on Kasturbai. The Defendants only make
general allegations. That is never enough.98
71. Issue No.5 is answered in the negative.
K. RE: ISSUE NO. 6: WHETHER THE
DEFENDANTS PROVE THE WILL IS FORGED
72. According to Mr. Shah, forgery was never pleaded in the
caveats; it was brought up for the first time in Mukesh's Evidence
Affidavit. Therefore, he says that the Defendants are not entitled to
lead evidence on this ground. It is indeed settled law that no amount
97 PW1 cross-examination, Q. 6, p. 191.
98 Bishnudeo Narain & Anr v Seogenin Rai& Anr, AIR 1951 SC 280.
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of evidence can be looked into on a plea never put forward.99 This,
however, may not strictly apply to the case before us. Shailesh's
Affidavit in Support of his Caveat specifically pleads that the will is
forged.100 Even Mukesh's Affidavit in Support of his Caveat of
Mukesh alleges Kasturbai's signature on the March 1989 Wills to be
shaky and doubtful, and says they are different in the Original Will
as compared to the Carbon Copy.101 There is no express usage of the
term "forgery", but that can be the only implication. The issue of
forgery has been sufficiently pleaded.
73. In his Evidence Affidavit,102 Mukesh claims Kasturbai's
signature on the last page of the Original Will tilts downward
towards the right, whereas the signature on the 'Xerox' copy (which
I take to mean the Carbon Copy) is in a straight line. He also claims
that her initials are placed at different positions in the margins of the
March 1989 Wills. In addition, the figure "89" by Dr Patel and the
date of execution written by Mr Desai are at different locations in
the March 1989 Wills.
74. However, as we have seen, this is not a case of one document
and its photocopy. There are two originals. One is the Original Will,
with the parent text; the other is the Carbon Copy, but that is a copy
of the text. Both were executed, and both were executed separately,
99 Kishor Kirtilal Mehta v Lilavati Kirtilal Mehta Medical Trust, (2007) 10
SCC 21.
100 Defendant No.5, Affidavit in Support of Caveat, paragraph 4(c), p. 91.
101 DW1, Affidavit in Support of Caveat, Paragraph 5, pp. 122-123.
102 DW1, Evidence Affidavit, paragraphs 23 and 24, pp. 295-296.
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one after the other. Therefore these minor differences in positioning
of signatures and dates are bound to result.
75. It is the second contention regarding forgery that demands
closer attention. Mukesh says that both the signature on the Original
Will and the signature on the Carbon Copy are forged and that only
the Power of Attorney contains Kasturbai's signature.103 The burden
of proving this is on the Defendants. Mukesh sought to discharge
this burden by leading the evidence of a handwriting expert, one
Devendra Javeria.
76. Javeria filed an Affidavit dated 16th February 2016 in lieu of
Examination in Chief and was cross-examined on commission. His
report dated 15th December 2015 was marked in evidence104
("expert report").
77. In the expert report, Javeria compared the Original Will to a
photocopy of the Power of Attorney; the Carbon Copy to a
photocopy of the Power of Attorney; and the Original Will to the
Carbon Copy. He concluded that all three were signed by different
persons.
78. The Defendants admit the signature on the Power of Attorney
is Kasturbai's. Therefore, Javeria correctly compared the Power of
Attorney with the Original Will and the Power of Attorney with the
103 Id., paragraph 28, p. 297.
104 Per AK Menon J, order dated 16th February 2016. Separate Volume, pp.
619-654.
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Carbon Copy. But he also compared the signature on the Original
Will with that on the Carbon Copy and concluded that even these
were signed by different people. Surely this weakens his testimony,
because it would be difficult to believe that a party intent on forging
Kasturbai's signature would be so careless as to have two different
people attempt to forge it on the Original Will and on the Carbon
Copy too. Had Javeria concluded that the same person signed both,
the Original and the Carbon Copy, but that neither matched the
Power of Attorney and left it at that, matters might have been
different.
79. When questioned on the comparison of the Original and the
Carbon Copy, this is what Mr. Javeria had to say:
Q. 24: In your first report dated 15.12.2015 (which
compared the Original Will with the Carbon
Copy) at page 1, which according to you is
admitted signature?
A.: I have compared the original copy of the will
with the carbon copy of original will
presuming the original will contains the
said signature.
(Emphasis added)
80. For any expert, such a presumption is a wholly unsafe basis on
which to proceed.
81. Javeria said he made a comparison of the signatures using
"Xerox scanners, magnifying glass, microscope enlarged, colour
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Xerox and protractor" and arrived at his conclusion after "checking
rhythm, speed, various curves and also stops made at various
junctures".105 On a reading of his "major observations", I find he
compared each individual letter of the signatures on the documents
being juxtaposed and opined as to physical variations between the
letters.
82. Mr. Shah contends that the report of the handwriting expert
is utterly flawed. Many important factors have either not been
considered, or not been thoroughly explained in the report. These
inadequacies, he says, are captured in the following questions from
the cross-examination:106
Q. 44: What was the age of Kasturbai whose
signature you have compared when the
signatures were put?
A.: That is not part of my scope.
Q.45: Have you considered the effect of age on
handwriting while giving the opinion?
A.: Yes.
Q.46: So I take it that you are aware of the age of
Kasturbai when the signatures were put?
A.: No, that is not in my scope of work to
determine the age of a person, only age
related patterns are checked while
examination of signature.
105 Volume II, p. 623.
106 Cross-examination of DW2, pp. 341-355.
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Q. 47: Will it be correct to say that all signatures of
same persons have natural variations?
A.: Yes, no 2 signatures of the same persons
can be an exact replica as the making of a
signature involves messages received from the
brain to the hand, so the variations are there.
However, the patterns and basic formations
cannot change irrespective of the age, time
and place.
Q.48: Will it therefore be correct to say that two
signatures of the same persons signed at
the same time can differ?
A.: Yes, it can differ. However, the pattern will
remain the same only the size and the slant
can change.
Q. 49: Will it be correct to say that the
possibilities of variation increase in case of
extremely old persons?
A.: Yes, little bit. However, the basic pattern will
remain the same, which is controlled by the
brain.
Q.50: Will it be correct to say that with the
advancing age quality of writing may become
inferior, strokes may become irregular and
shaky and generally there may be lack of
uniformity in the writing?
A.: Yes. It may vary but not to the extent that it
will be a complete change over from the
originals as regards to strokes, rhythm they
may show minor variations; However, the
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patterns and formations will still remain the
same.
Q. 51: Will you consider 85 years as advance age?
A.: That depends upon the person to person.
(Emphasis added)
83. These answers are shoddy. They seriously undermine the
expertise behind this evidence and these reports. Javeria has
accepted that advancing age changes handwriting. He also claims he
considered the effect of age on handwriting; nothing in his report
shows this. It is unclear how or why he would have done this,
because by his own admission he did not know the age of the person
whose signatures he was examining, and he did not know
Kasturbai's age at the time when she is supposed to have signed the
documents before him: he says this was not 'part of his scope',
although it had to have been. How else could he have accounted for
her advanced age while making the report? He also admits that there
could be differences in two signatures of the same person and says
too that such differences could increase with age. But there is no
mention in the report of degrees of acceptable variation and no
analysis explaining that the subject signatures, after accounting for
advanced age, exceeded accepted benchmarks. Javeria does not
explain how he applied any of the tools he claims to have used. He
does not explain each portion of the signatures in a scientific
manner using established principles in forensics. There is no
analysis on parameters such as the movement of the writing
instrument, the pressure applied, aberrations in the disputed
signature when compared to individual signatures in the admitted
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documents. What we have is a basic explanation of the minor
differences in the signatures that would be evident even to an
untrained, naked eye. Mr. Shah accepts that the signatures have
minor differences. He says it would, in fact, be utterly suspicious if
they did not, that is to say if they were so identical and without
variation that they could not but be forgeries, especially considering
Kasturbai's age at the time. I agree.
84. The final blow to the expert report was delivered when the
Plaintiffs questioned Javeria on his qualifications as a handwriting
expert.
Q. 52: The training that you have referred to in
answer to Question No.3 was online or by
correspondence or otherwise?
A: Personal attendance in Mumbai.
Q. 53: Do you have a certificate in respect of this
training?
A.: Yes.
Q. 55: Would it be correct to say that this (i.e. the
certificate) pertains to one day attendance
on 22nd July 2006?
A.: Yes
(Emphasis added)
85. One day. That is the extent of Javeria's training. That is the
whole of it. On this, I am told, I must conclude that the March 1989
Wills were not signed by Kasturbai and the signatures on those
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documents are not hers. I must take as unshakeable, as iron-hard
proof, these generalized statements sans basic information gathered,
sans any explanation of techniques deployed, sans analysis from a
person with a single day's training in a difficult and challenging
branch of forensics.
86. Mr Khandeparkar attempts to limit the impact of this by
citing a case of the Mysore High Court,107 which tells of a
photographer without any technical qualification such as a diploma
or a degree being held to have still have amassed sufficient practical
experience to be called an expert. He says we find ourselves in a
similar situation with a handwriting expert who has limited
academic qualification. What Mr Khandeparkar says may be true of
an art form -- scientists, doctors, engineers, lawyers and even
judges are much given to such pursuits, with varying degrees of
success, though some do achieve quite considerable renown -- but
this is hardly likely to be a substitute for a solid technical grounding.
It is rather like saying, I think, that if a man has been a litigant for
long enough, he can qualify as an expert in law though all he has
done is attend a one-day seminar on introduction to law. Graphology
is a forensic science with established principles, and it is a serious
business. It is not to be diminished or trivialized like this.
87. Mr Khandeparkar also argued that since the Plaintiffs did not
cross-examine the expert on the contents of his report, the contents
stand proved.108 He says the Plaintiffs only questioned him on
107 Re: Govinda Reddy & Ors, AIR 1958 Mysore 150.
108 Vinod Kumar v State of Haryana, (2015) 3 SCC 138.
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general things like impact of age on handwriting and on his
qualifications, but not on the findings. This submission is not well-
founded. The Plaintiffs questioned Javeria on his lack of application
of mind in the report,109 the falsity of the report,110 the proposition
that the signatures on all the documents examined by the expert are
that of Kasturbai,111 the limitations of his method of comparing
signatures112 and important points relating to age as a factor and
reasons for variations. The Plaintiffs' cross-examination of Javeria
succeeded in raising sufficient doubts as to the accuracy of his
findings. An expert's report must be compelling on its own; it is not
to be accepted blindly merely because the other side says nothing
about it. A report may be so poor that no cross-examination is even
necessary. This report, for instance, inspires no confidence at all,
either in the manner of its making, what it says, how the expert went
about his business, or even his capabilities.
88. In Bhagwan Kaur v Maharaj Kishan Sharma113 the Supreme
Court held:
"The evidence of a handwriting expert, unlike that of a
fingerprint expert, is generally of a frail character and its
fallibilities have been quite often noticed. The courts
should, therefore, be vary to give too much weight to the
evidence of handwriting expert."
109 Cross-examination of DW2, Q. 59, p. 355.
110 Id., Q. 60, p. 355.
111 Id., Q. 62, p. 356.
112 Id., Q. 63, p. 356.
113 (1973) 4 SCC 46.
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89. In Sri Sri Kishore Chandra Singh Deo v Babu Ganesh Prasad
Bhagat & Ors,114 the Supreme Court held that
"Conclusions based upon mere comparison of handwriting
must be at best indecisive and yield to positive evidence in
the case".
90. The expert report does not satisfy the most basic test -- the
differences are not such as would arouse the suspicions of a court on
its own comparison, always a legitimate and permissible exercise.115
91. There is overwhelming positive evidence in favour of the
Plaintiffs, coupled with innumerable fallacies in the expert report.
92. The Defendants have made out no case of forgery.
93. Issue No. 6 is accordingly answered in the negative.
L. CONCLUSIONS & ORDER
94. The so-called suspicious circumstances the Defendants
invoke simply do not exist. What needs to be explained has been
satisfactorily explained.116
114 AIR 1954 SC 316.
115 Ajay Kumar Parmar v State of Rajasthan, (2012) 12 SCC 406.
116 Surendra Pal & Ors v Dr (Mrs) Saraswati Arora & Anr, (1974) 2 SCC
600; Guro v Atma Singh & Ors, (1992) 2 SCC 507.
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95. The Suit succeeds and is decreed. Registry is directed to issue
probate at the earliest, acting on authenticated copy of this Order.
Probate to be issued within eight weeks from today. The registry is
not to demand further proof of service of citations, or on a separate
order or drawn up order discharging the caveats. Drawn up
order/decree dispensed with, but should the Plaintiffs require one
they may apply for it on an authenticated copy of this order without
obtaining a further order of the Court for that purpose.
96. The original documents are to be returned to the parties on
these being substituted with photocopies authenticated by their
respective advocates.
97. The Defendants apply for a stay. Since this is a final order on
a matter tried as a suit, I will grant the Defendants some time. The
eight week period for issuing probate will begin from 6th June 2017.
98. No costs.
(G.S. PATEL, J.)
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