Bombay High Court
S. F. Rego vs Benjamin L Abraham on 10 October, 2017
Bench: R.D. Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY & INTESTATE JURISDICTION
TESTAMENTARY SUIT NO.75/2002
IN
TESTAMENTARY PETITION NO.787/2001
1] Stanislaus F. Rego,
residing at Home Coming,
Waroda Road, Bandra,
Mumbai 400 050.
AND
2] Hasmukh B. Gandhi,
residing at Laburnum Road,
Gamdevi, Mumbai 400 026.
The Executors of the Last Will
and Treatment and Codicil of the
deceased Simha I. Talegawkar.
...Plaintiffs..
Versus
1] Mrs.Margaret Benjamin Abraham,
having her address at 1932,
Hazan Chem, St.Ramale, Israel.
2] Mrs.Miriam Benjamin Abraham,
having her address at Gustaff,
Gelferstreat, NR191518, Az
Almere Netherlands (Holland).
3] Mr.Hillel Benjamin Abraham,
having his address at J2/303/304
Jayraj Nagar, Manav Mandir Complex,
Ambadi Road, Vasai (W),
Dist.Thane.
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4] Mrs.Reena Benjamin Abraham,
having her address at 1932
Hazan Chem, St.Ramale, Israel.
5] Mr.Azriel Benjamin Abraham,
having his address at 53,
Nacha Zohar, Molden, Israel.
6] Mr.Israel Benjamin Abraham,
having his address at 32
Madison, St.Portsmouth,
NH 03801, USA.
7]
Mr.Shalom Benjamin Abraham,
having his address at 17/37
Harav David, Rechovot, Israel.
...Defendants...
.....
Shri Hiralal Thacker, Senior Advocate a/w Mr.Kirit Mody
a/w Ms.Urvi Patel i/by M/s M.M. Patel & Co. for
plaintiffs.
Shri Ramgopal S. Tripathi, Advocate for defendants.
.....
CORAM: R.D. DHANUKA, J.
JUDGMENT RESERVED ON 1st AUGUST, 2017
JUDGMENT PRONOUNCED ON 10th OCTOBER, 2017
JUDGMENT :
1] By Testamentary Petition No.787 of 2001 which is
converted into Testamentary Suit No.75 of 2002, the
plaintiff (original petitioner) seeks probate of alleged
Will and Codicil both dated 26.4.1990 alleged to have
been executed by Simha Issac Talegawkar, who died at
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Mumbai on 18.8.1996. Some of the relevant facts for the
purpose of deciding this suit are as under:-
2] It is the case of the plaintiff that by an
alleged Will and Testament dated 26.4.1990, Simha Issac
Talegawkar (for the sake of convenience, the said Simha
Isaac Talegawkar is referred as "the said deceased"),
made a bequest in respect of Plot of land bearing No.312,
First Road, Khar, Bombay-400052 together with building
thereon including furniture, fixtures, and articles
lying in the plot to his son Mr.Albert Talegawkar
absolutely.
3] It is the case of the plaintiff that in the said
Will, the said deceased directed the said Mr.Albert
Talegawkar to give his three daughters i.e. Mrs.Daisy,
Mrs.Rosy and Mrs.Annie and another son Mr.Benjamin a sum
of Rs.1,00,000/- each within a period of two years from
the death of the deceased, provided that such of her
children as have migrated at the time of her death, will
avail of the said legacy in India subject to the
prevailing law. According to the said alleged Will, all
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of movables and personal jewellery of the said deceased
had been already given away to the children. It is
provided in said Will that the residue of her estate of
whatsoever nature, was given to her son Mr.Albert
Telegawkar absolutely. It is the case of the plaintiff
that under the said Will and Testament dated 26.4.1990,
the said deceased had appointed the plaintiff and
Mr.Hasmukh B. Gandhi both Advocates by profession as her
joint executors of the said Will.
4] The said deceased had three daughters and two
sons. It was provided in the said alleged Will that her
oldest daughter Mrs.Daisy was married to Mr.Sayed
Dadarkar and she was staying in Mumbai. The second
daughter was married to Mr.Gedaliah Solomon and had
settled down in Israel with her family. The last
daughter Mrs.Annie was married to Mr.Samuel Malekar and
was in Mumbai. Her son Mr.Benjamin was working in the
Customs Department in Mumbai and was living separately
from her for last several years. It was further provided
in the said alleged Will that except Mr.Benjamin's son
Hillel, the other children and his wife had already
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migrated to Israel.
5] It is the case of the plaintiff that on
26.4.1990, the said deceased also executed a Codicil and
modified the part of the Will dated 26.4.1990. According
to the said alleged Codicil, the said deceased directed
Mr.Albert Talegawkar to give Rs.1,50,000/- instead of
Rs.1,00,000/- to her other children i.e. Mrs.Daisy,
Mr.Benjamin, Mrs.Rosy and Mrs.Annie.
6] It is the case of the plaintiff that the said
Will and the said Codicil both dated 26.4.1990 were duly
witnessed by Dr.P.H.Udhas and also by plaintiff himself
as attesting witnesses. On 18.8.1996, the said deceased
expired living behind her five heirs and next-of-kin
according to the Indian Succession Act, 1925 i.e. 1)
Mrs.Daisy Sayed Dadarkar - relation daughter, 2)
Mr.Benjamin - relation son, 3) Mrs.Rosy Gedaliah Soloman
- relation daughter, 4) Mr.Albert Issac Talegawkar -
relation son and 5) Mrs.Annie Samuel Malekar - relation
daughter. The husband of the said deceased predeceased
her.
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7] On 11.10.2001, the plaintiff herein filed the
Testamentary Petition No.787 of 2001, inter-alia, praying
for Probate for alleged Will and Codicil both dated
26.4.1990. The plaintiff had also impleaded Mr.Hasmukh
B. Gandhi as petitioner No.2 to the said Testamentary
Petition. Alongwith Testamentary Petition, plaintiff
filed an affidavit of oath dated 11.10.2001. The
original petitioner No.2, Mr.Hasmukh B. Gandhi also filed
affidavit of oath along with the Testamentary Petition.
The citation was served upon all the legal heirs and
next-of-kin of the said deceased by the plaintiff on 4.7.
2002. The plaintiff filed an affidavit of attesting
witness in the Testamentary Petition subsequently.
8] Except Mr.Benjamin Abraham, one of the sons of
the said deceased, no other legal heirs and next-of-kin
filed any caveat and affidavit in support of caveat in
the Testamentary Petition though served with the
citations. In view of the caveat and affidavit in
support of Mr.Benjamin Talegawkar, Testamentary Petition
No.787 of 2001 was converted into Testamentary Suit No.75
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of 2002.
9] In the affidavit in support of caveat dated
14.10.2002 filed by the said Mr.Benjamin Abraham, he
alleged that the plaintiffs were the best friends of sole
major portion beneficiary under the Will. It was alleged
that the major portion beneficiary compelled the said
deceased to sign the alleged Will without the said
deceased exercising her own free-will or consent. It
was alleged that the said alleged Will had been got
signed from the said deceased without her knowledge of
its contents and application of mind by her. Due to old
age, the said deceased had not only been terribly weak
physically, but also suffered mentally, loosing power and
capacity of exercising her mind so as to freely and
independently decide any vital matter.
10] It was alleged that the alleged signature of the
deceased had been obtained at the time when the deceased
was not in sound and disposing capacity. It was alleged
in the said affidavit that the alleged Will might have
been prepared by none other than the major portion
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beneficiary under whose custody the said deceased was,
with the help of close associates. It was alleged that
the Doctor was a mute spectator of the same as he was the
close friend of Mr.Abraham Issac Talegawkar.
11] It was alleged that the said deceased was a
cancer patient and had virtually collapsed due to
overnight death of her husband. The alleged Will was
prepared under duress mode, may be of starvation or
threat of survival and / or by coercion tactics used by
the sole major portion beneficiary against his own
mother. It is alleged that sole major beneficiary has
suppressed the Will from his brother for several years
after the death of the deceased. The Doctor, who signed
the alleged Will, did not state anything about the health
and mental condition of the deceased.
12] It was alleged that the said alleged Will was
unnatural and caveator could not be excluded as an equal
beneficiary under the said alleged Will. The said
deceased had not exercised any disposing power of
property in Schedule-I of the Petition. The deceased had
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not mentioned her other properties, jewellery, bank
accounts, pension account, furniture etc. It was alleged
in the affidavit that the said deceased used to usually
sign as "S.Issac" and not "S.I.Talegawkar" as signed in
the suspicious document. It was alleged that the said
Will seems to be manipulated. The caveator denied that
the alleged Will had been properly attested or that the
same was a genuine Will.
13] During the pendency of this Suit, the said
Mr.Benjamin Issac Abraham expired on 7.8.2010. Upon his
demise, his seven legal heirs have been brought on record
as defendants. The caveator No.3, Mr.Hillel Benjamin
Abraham filed an affidavit in support of his contention
dated 3.8.2011 on behalf of himself and caveator Nos.1,
2, 4 & 7 as their constituted Attorney and disputed the
said alleged Will and Codicil on almost similar grounds.
He alleged that when his father Mr.Benjamin had visited
the residence at Girija Bhavan, Khar i.e. at the place of
Mr.Albert Talegawkar, his father found that the hands of
the deceased were tied as she would scratch the forehead
wound and was not in the proper state of mind and did not
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recognize people and did not remember any person. It was
alleged that the said deceased failed to recognize the
father of the said Mr.Hillel or any of his children.
14] During the pendency of the Suit, Mr.Hasmukh
Gandhi expired. Pursuant to the order passed by this
Court, the name of Mr.Hasmukh Gandhi came to be deleted.
15] Following issues were framed by this Court :-
Sr.No. POINTS FINDINGS
1. Whether the petitioners prove
due execution and attestation Yes
of the subject will ?
2. Whether the subject will is
legal and valid ? Yes
3. Whether the Defendant proves
that the deceased signed the
subject will without knowledge
of the contents thereof or
that the major portion No
beneficiary compelled the
deceased to sign the subject
will ?
4. Whether the Defendant proves
that the deceased was not of No
sound and disposing capacity ?
5. Whether the Defendant proves
that the Deceased had
virtually collapsed due to the No
alleged overnight death of her
husband ?
6. Whether the Defendant proves
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that the deceased executed the
Will under duress or on No
account of starvation or
threat of survival ?
7. Whether the Defendant proves
that the subject Will is No
unnatural ?
8. Whether the Defendant proves
that the deceased usually No
signed as "S.Issac" and not as
"S.I. Talegawkar ?
9. Whether the Petitioners are
entitled for probate of the Yes
last Will and Testament of the
deceased, which is propounded
in the Petition ?
10. What relief ? As per order.
16] Mr.Thacker, learned Senior Counsel for the
plaintiffs submits that the said deceased had three
daughters and two sons. Prior to the date of execution
of the will and codicil dated 26.4.1990, the said
deceased had also executed a will and codicil on
1.12.1987. He submits that under both the wills and the
codicils, the bequests made by the said deceased were
identical. Mr.S.F. Rego, who was one of the executors in
the will dated 26.4.1990 was a sitting Judge of Bombay
City Civil Court when the earlier will and codicil were
executed by the said deceased. The said will and codicil
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were not witnessed by any Advocate or the doctor. After
retirement of the plaintiff Mr.S.F. Rego, the said
deceased executed the said will dated 26.4.1990 and also
the codicil on the same date.
17] Learned Senior Counsel invited my attention to
the issues framed by this Court and would submit that out
of nine issues, except issue nos.1,2 & 9, the onus to
prove those issues was upon the defendants whereas the
onus to prove upon the plaintiffs was only in respect of
first three issues.
18] Insofar as issue nos.1,2 & 9 are concerned, the
learned Senior Counsel invited my attention to the
affidavit in support of the caveat filed by Mr.Benjamin
L. Abraham, the original caveator and also the affidavit
in support filed by Mr.Hillel Benjamin Abraham, which was
filed after the demise of said Mr.Benjamin Abraham. He
also invited my attention to the deposition of the
plaintiff in the affidavit filed in lieu of examination-
in-chief dated 28.4.2009. He submits that the plaintiff
has deposed about the execution of will and codicil both
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dated 26.4.1990 and also about the attestation thereof in
accordance with law. He also deposed about the sound and
disposing mind of the said deceased in his affidavit in
lieu of examination-in-chief.
19] It is submitted by the learned Senior Counsel
that inadvertently the plaintiffs filed the original will
and codicil both dated 1.12.1987 with the Prothonotary
and Senior Master instead of filing the will and codicil
dated 26.4.1990. It is submitted that though the
plaintiffs had referred to and relied upon the will and
codicil both dated 26.4.1990, the original of the will
and codicil both dated 1.12.1987 came to be filed.
20] Learned Senior Counsel invited my attention to
the order dated 24.9.2013 passed by this Court in Chamber
Summons No.42/2013 filed by the plaintiffs granting
permission to the plaintiffs to file original of the will
and codicil both dated 26.4.1990 as propounded by the
plaintiffs with the Prothonotary and Senior Master within
two weeks from the date of the said order. This Court
also made it clear that original of the will and codicil
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both dated 1.12.1987 already filed by the plaintiffs in
the office of this Court shall continue to be in custody
of the Prothonotary and Senior Master. It was also made
clear that this Court had not expressed any views on the
existence and authenticity of the will and codicil
propounded by the plaintiffs and the said issue was kept
open. The plaintiffs thereafter filed an additional
affidavit in lieu of examination-in-chief on 17.12.2013.
21] The plaintiff was cross-examined by the learned
counsel for the defendants. To buttress his argument
that the plaintiffs had discharged the onus insofar as
issue nos.1, 2 & 9 are concerned, the learned Senior
Counsel invited my attention to various portions of the
deposition made in the affidavits in lieu of examination-
in-chief of the plaintiff and also the deposition made in
the affidavit of the sister of the plaintiff Mrs.Daisy
Dadarkar (PW2) and their cross-examination.
22] It is submitted by the learned Senior Counsel
that the plaintiff had identified the signature of the
said deceased testatrix on the will and codicil both
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dated 26.4.1990 and also identified the signatures of the
attesting witnesses. Insofar as will and codicil dated
26.4.1990 are concerned, those documents were drafted by
the plaintiff himself on instructions of the said
deceased testatrix. The plaintiff was also an attesting
witness to those documents. The learned Senior Counsel
submits that the defendants had cross-examined the
plaintiff on execution and attestation of the said will
and codicil both dated 26.4.1990 and also will and
codicil dated 1.12.1987. He submits that by cross-
examination of the plaintiff and PW2 by the defendants
also, both the wills and codicils were proved beyond
reasonable doubt.
23] It is submitted by the learned Senior Counsel
that the plaintiff was asked by the learned counsel for
the defendants that whether the plaintiff knew the
contents of the will and codicil dated 26.4.1990 which
question was answered in affirmative by the plaintiff.
He deposed that he was draftsman of the said will and
codicil both dated 26.4.1990. He was asked whether the
drafts of the wills were prepared by the plaintiff alone
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at the instance of the deceased, the witness answered in
affirmative. The witness was asked as to when he had
prepared the draft of the will and codicil, whether he
had made any corrections in the draft or any correction
was made in draft of the will and codicil, the plaintiff
answered that no corrections were made in the will.
24] The plaintiff deposed that the instructions for
preparing codicil were given separately after the will
was shown. The witness was asked whether any corrections
were suggested by the testatrix on reading the will, the
plaintiff replied that the testatrix had suggested that
the provisions for each child of her be increased by
Rs.50,000/- and thus a codicil came to be prepared. The
learned Senior Counsel invited my attention also to the
answer of the plaintiff to question nos.38 to 59 to show
that the defendants had not disputed the execution and
contents of the will and codicil both dated 26.4.1990 as
is apparent from the line of questions asked by the
learned counsel for the defendants to the plaintiff. He
submits that the defendants have also proved the
execution and attestation of the will and codicil dated
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26.4.1990 and also the earlier will and codicil both
dated 1.12.1987.
25] The learned Senior Counsel for the plaintiff
also invited my attention to the deposition of Mrs.Daisy
Dadarkar who was one of the daughters of the said
deceased and was examined as a witness by the plaintiff.
He placed reliance on the deposition of the said witness
in the affidavit in lieu of examination-in-chief and in
particular paragraph nos.6 to 10 insofar as issue nos.1,2
& 9 are concerned. He also invited my attention to the
cross-examination of the said witness by the learned
counsel for the defendants and more particularly to her
answers to question nos.10, 13, 14 and 17 to 24 and so
far as issue nos.1,2 & 9 are concerned. He submits that
the said witness also proved the due execution of the
will and codicil both dated 26.4.1990 and also that the
said deceased was of sound and disposing mind on the date
of execution of the said will and codicil both dated
26.4.1990.
26] The learned Senior Counsel for the plaintiff
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also invited my attention to the affidavit in lieu of
examination-in-chief filed by the defendant no.3 i.e.
Mr.Hillel Benjamin Abraham. He also invited my attention
to the cross-examination of the said witness and more
particularly to his answers to question nos.10, 12, 14,
22 to 26, 36, 38 and 39 to 50 and would submit that the
defendant no.3 had never stayed with the said deceased at
any point of time and could not identify the signature of
the said deceased.
27] It is submitted that the defendant no.3 did
enter the witness box as a grandson of the said deceased
and had no personal knowledge about the subject matter of
the proceedings filed by the plaintiffs. The said
witness admitted that substantial part of his deposition
was not as per his personal knowledge. His allegation of
undue influence being alleged to have been exerted on the
said deceased was not based on personal knowledge. It is
submitted by the learned Senior Counsel that the
defendant no.3 was duly given inspection of the original
will and codicil. A notarized copy of the will and
codicil both dated 26.4.1990 was also furnished by the
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plaintiffs' Advocate to the defendants. In support of
this submission, the learned Senior Counsel invited my
attention to the correspondence exchanged between the
parties through their respective Advocates.
28] Insofar as the allegations of fabrication and
forgery made by the defendants in the affidavit in
support of caveat and also in the affidavit in lieu of
examination-in-chief is concerned, the learned Senior
Counsel invited my attention to the answer given by the
defendant no.3 in his cross-examination and more
particularly to question no.42 and would submit that the
witness had admitted that the said allegation was based
on the information given to him by his deceased father.
His father had alleged to have told that the signature of
the deceased appearing on the will did not match with her
signature in the account with the Bank of Maharashtra.
He had also no personal knowledge of any duress or
coercion under which the said deceased had signed the
said will. He had also no personal knowledge of any
threats of physically throwing out of the house, alleged
to have been given by anybody.
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29] Insofar as issue nos.3 to 8 framed by this Court
are concerned, it is submitted by the learned Senior
Counsel that the onus to prove all these issues was
expressly upon the defendants, which the defendants
failed to discharge.
30] Insofar as issue no.7 i.e. whether the alleged
will is unnatural or not, is concerned, it is submitted
by the learned Senior Counsel that it was the choice of
the testatrix to prefer to give her legacy to any of the
family members or even to an outsider. The said deceased
had three daughters and two sons. The said deceased had
recorded justification or reasons in the will as to why
the other legal heirs and next of kin of the deceased
were given share in her will smaller than Mr.Albert
Talegawkar. The original defendant Mr.Benjamin Abraham
was admittedly living separately from the said deceased.
He invited my attention to various clauses of the said
will dated 26.4.1990 and also codicil and would submit
that the said deceased had also provided for legacy in
terms of money to all the remaining daughters or sons in
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the sum of Rs.1,50,000/- each and had accordingly issued
directions to Mr.Albert Talegawkar to make such payment
to them.
31] It is submitted by the learned Senior Counsel
that the original defendant had refused to accept the
said amount though offered by the plaintiffs. In support
of this submission, the learned Senior Counsel invited my
attention to some of the correspondence on record. It is
submitted that the other beneficiaries under the said
will and codicil have been already paid the said amount.
In support of this submission, he also invited my
attention to the evidence of Mrs.Daisy Dadarkar (PW2) who
admitted that all the other beneficiaries under the said
will were already paid the said amount by Mr.Albert
Talegawkar.
32] The learned Senior Counsel invited my attention
to the documents and also the photographs which were
marked as Exhibits D-1 to D-3 and would submit that the
said deceased was present in the wedding reception of the
defendant no.3 Mr.Hillel Benjamin Abraham. He submits
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that the deceased had also given various gifts to the
father of the defendant no.3 and also to the defendant
no.3. The defendant no.3 was examined as a witness who
admitted these facts in his cross-examination. It is,
therefore, submitted that the said will and codicil both
dated 26.4.1990 cannot be construed as an unnatural will
and codicil, but were executed by the said deceased after
fully understanding the contents thereof.
33] It is submitted by the learned Senior Counsel
that the defendants did not lead any independent evidence
to show that the said deceased was not of sound and
disposing capacity on the date of execution of the will.
He submits that the defendant no.3 himself had no
personal knowledge of the sound and disposing capacity of
the said deceased on the date of execution of the will
and codicil both dated 26.4.1990. He also could not
prove that the deceased had collapsed due to the alleged
overnight death of her husband. It is submitted that the
said deceased had expired after 12 years of the death of
her husband and not overnight.
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34] Insofar as the issue as to whether the
defendants had proved that the deceased usually signed as
"S.Issac" and not as "S.Talegawkar" is concerned, it is
submitted by the learned Senior Counsel that the
defendant no.3 had not personally seen the said deceased
signing any document and had no personal knowledge about
her signature. The said defendant also was not present
when the said will and codicil were signed by the said
deceased. The defendant no.3 has thus failed to prove
the said allegations made by him in his affidavit in
support of caveat.
35] The learned Senior Counsel placed reliance on
the judgment of this Court in case of Rusi Hormusji Pavri
& another v. Roxana M. Buhariwala (2010 (4) Bom.C.R. 463)
and in particular paragraph no.10 and would submit that
even if the other legal heirs and next of kin were not
given equal share in the immovable property of the said
deceased, the said will and codicil cannot be a reason to
overlook the validly proved will and codicil. He submits
that this Court in the said judgment had considered the
earlier wills and codicils, which also provided the same
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pattern of distribution of the property. The learned
Senior Counsel submits that there was no change in the
bequests made by the said deceased in the earlier will
and codicil except in the date, in the status of Mr.S.F.
Rego as a retired Judge and in the age of the deceased.
He submits that the defendants have not disputed and
challenged the earlier will and codicil dated 1.12.1987
and thus the will and codicil both dated 26.4.1990 cannot
be challenged being identical in terms insofar as
bequests made by the said deceased are concerned.
36] The learned Senior Counsel for the plaintiffs
placed reliance on the judgment of this Court in case of
Madhuri Pukhraj Baldota v. Omkarlal Daulatrao Banwat &
others (2016 (1) Bom.C.R. 154) and in particular
paragraph nos.27 to 29 in support of his submissions,
that the onus to prove that the deceased was of an
unsound mind or having physical disability was on the
defendants, which the defendants had failed to prove. He
submits that except one of the sons i.e. Benjamin
Abraham, the other legal heirs and next of kin of the
said deceased had not opposed the grant of probate in
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respect of the said will and codicil both dated
26.4.1990. He submits that the said testatrix was all
throughout vigilant till her death and had even suggested
corrections in the will after reading and understanding
the contents thereof and accordingly a codicil was
drafted on her instructions by the plaintiffs, which was
duly executed and attested.
37] It is submitted by the learned Senior Counsel
that though the will and codicil dated 1.12.1987 and
26.4.1990 are marked as Exhibits by this Court with a
rider that marking of the documents would not mean that
the defendants have accepted or admitted either their due
execution or the correctness of their respective
contents, it is submitted by the learned Senior Counsel
that the witnesses examined by the plaintiffs have duly
proved the execution and attestation of both these
documents including the earlier will and codicil both
dated 1.12.1987 in accordance with law.
38] Mr.Tripathi, learned counsel for the defendants,
on the other hand, submits that the said deceased had
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expired on 18.8.1996 whereas the testamentary petition
filed by the plaintiffs was affirmed on 11.10.2001. The
said testamentary petition was filed by the plaintiffs
herein without filing affidavit of attesting witness
alongwith testamentary petition. On that ground itself,
the said testamentary petition, which is converted into
testamentary suit, deserves to be dismissed. He invited
my attention to paragraph no.11 alleging that Mrs.Daisy
Dadarkar had requested the executors of the will to hold
on the filing of the petition for probate and was
pursuing Mr.Benjamin Abraham and Mr.Albert I. Talegawkar
to avoid any contest so that the grant of probate would
have been smooth and expeditious. He submits that there
was no valid explanation given by the plaintiffs for
delay in filing the testamentary petition.
39] The learned counsel for the defendants invited
my attention to Clauses 4 and 5 of the alleged will dated
26.4.1990 and would submit that the substantial bequest
under the said alleged will has been made in favour of
Mr.Albert I. Talegawkar, one of the sons of the said
deceased whereas the remaining legal heirs and next of
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kin were given a paltry sum of Rs.1,50,000/-. He invited
my attention to the docket of the will and codicil both
dated 26.4.1990 showing the name of the plaintiff and
Mr.Hasmukh Gandhi. He submits that the executors of the
said alleged will and codicil were not aware of the true
and correct facts.
40] It is submitted that Mr.Albert I. Talegawkar,
who was the major beneficiary under the said will and
codicil, had actually participated in filing the said
probate petition and also in preparation, execution and
attestation of the said alleged will and codicil. He
invited my attention to the oath affidavit dated
11.10.2001 filed by the plaintiff as well as by
Mr.Hasmukh Gandhi and would submit that both these
Advocates were the close associates of Mr.Albert I.
Talegawkar who had played a prominent role in
preparation, execution and attestation of the alleged
will and codicil.
41] It is submitted by the learned counsel that the
plaintiff had retired in the month of August, 1989. If
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the plaintiff was already an executor in the alleged will
and codicil dated 1.12.1987, there was no need to prepare
another will and codicil on 26.4.1990 for giving the same
bequests. He submits that the plaintiff has pleaded
total ignorance about the alleged will and codicil dated
1.12.1987. He submits that the contents of the alleged
will and codicil dated 1.12.1987 are identical to the
contents of the will and codicil dated 26.4.1990 except
the status of the plaintiff who had retired in the month
of August, 1989, the age of the said deceased testatrix
and the names of the witnesses.
42] Learned counsel invited my attention to some of
the answers of the plaintiff in his cross-examination by
the learned counsel for the defendants to the effect that
the plaintiff had deposed that he was not at all aware of
the execution, attestation and contents of the will and
codicil both dated 1.12.1987. He submits that the
plaintiff claimed to be a draftsman of the will and
codicil dated 26.4.1990 and if he was not the draftsman
of the will and codicil dated 1.12.1987 and had never
seen such a will and codicil dated 1.12.1987, the
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plaintiffs could not have drafted the will and codicil
dated 26.4.1990 on identical terms.
43] It is submitted that various such suspicious
circumstances are placed on record and proved by the
defendants surrounding the alleged execution and
attestation of the will and codicil dated 26.4.1990,
which are not dispelled by the propounder of the will and
codicil. He submits that the plaintiff has conspired
with the major beneficiary under the said will and
codicil i.e. Mr.Albert I. Talegawkar in fabrication of
the said will and codicil dated 26.4.1990. The
plaintiffs have adopted a very casual approach in the
matter.
44] The learned counsel for the defendants invited
my attention to the will and codicil dated 1.12.1987 and
would submit that in the said two documents, the said
deceased had alleged to have affixed her full signature,
whereas in the will and codicil dated 26.4.1990, the said
deceased had affixed her short signature, which itself
creates a doubt and suspicion in execution of the will
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and codicil dated 26.4.1990. He submits that the two
witnesses to the said will and codicil dated 1.12.1987
have not been examined by the plaintiffs to prove the
said will and codicil though both the attesting witnesses
were available for examination. He submits that this
Court thus shall draw an adverse inference against the
plaintiffs.
45] It is submitted by the learned counsel for the
defendants that the plaintiff was attached with Bhai
Shankar Kanga and Girdharlal Company and had given the
address of the said Solicitor Firm in all the
correspondence in which the said Mr.Albert I. Talegawkar
was a partner. He submits that various facilities were
provided by the said Solicitor Firm to the plaintiffs for
various purposes in this matter including the alleged
drafting of the testamentary petition by the Clerk of the
said Solicitor Firm. He submits that similarly
Mr.Hasmukh Gandhi, who claimed to be a joint executor of
will and codicil dated 26.4.1990 was an Advocate and was
associated with the said Mr.Albert I. Talegawkar and the
said Solicitor Firm - Bhai Shankar Kanga and Girdharlal
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Company.
46] It is submitted that the plaintiff - S.F. Rego
had also filed a proceeding for recovery of his pension
in a Court through the said Solicitor Firm. He submits
that the plaintiff has made various false and incorrect
statements in these proceedings with a view to help the
said Mr.Albert I. Talegawkar and had supported the said
Mr.Albert I. Talegawkar in fabricating and forging the
said will and codicil dated 26.4.1990 and thus this Court
shall take an appropriate action against the plaintiff
u/s 471 r/w Section 191 of the Indian Penal Code and
shall direct the Registrar of this Court to file
prosecution against the plaintiff. He submits that the
plaintiff has created various documents for the benefit
of said Mr.Albert I. Talegawkar.
47] It is submitted by the learned counsel for the
defendants that though the said Mr.Hasmukh Gandhi
expired on 14.5.2017 and was available on the date of
recording of the oral evidence by the plaintiff before
this Court in this proceeding, the plaintiff deliberately
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did not examine the said Mr.Hasmukh Gandhi and thus an
adverse inference shall be drawn by this Court against
the plaintiffs and on that ground itself, this
testamentary suit deserves to be dismissed.
48] Insofar as the deposit of the will and codicil
both dated 26.4.1990 with the office of the Prothonotary
and Senior Master by the plaintiff is concerned, it is
submitted that the plaintiff has admitted that the said
original will and codicil dated 26.4.1990 were handed
over to the Clerk of M/s Bhai Shankar Kanga and
Girdharlal Company. He submits that this fact itself
shows that the office of Bhai Shankar Kanga and
Girdharlal Company in which said Mr.Albert I. Talegawkar
was a partner was involved at all the stages including
the stage of filing and prosecuting the testamentary
petition.
49] The learned counsel for the defendants submits
that the quality of paper used for execution of the will
and codicil dated 1.12.1987 looked better than the
quality of paper used for the will and codicil dated
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26.4.1990, which itself would indicate that the will and
codicil dated 26.4.1990 is a forged and fabricated
document. He submits that the credibility of the
plaintiff, who was examined as the star witness has to be
considered by this Court and in view of various false
statements made by him to support the case of Mr.Albert
I. Talegawkar, his evidence cannot be considered by this
Court, he being not a reliable witness. He submits that
both the documents are produced by the plaintiff from the
custody of Mr.Albert I. Talegawkar. The learned counsel
for the defendants submits that the plaintiffs also did
not examine Dr.Udhas and also Mr.Balraj Verma and thus an
adverse inference shall be drawn by this Court against
the plaintiff.
50] On the issue as to whether the said will and
codicil dated 26.4.1990 were unnatural or not, the
learned counsel for the defendants submits that the
testatrix herself had attended the wedding of Mr.Hillel
Benjamin Abraham and had given gifts to him and his
father, itself would indicate that the relations between
the said deceased and the defendant no.3 and his father
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were cordial and thus the said deceased could not have
disinherited the said Mr.Benjamin Abraham or his son from
distribution of the share in the building owned by the
said deceased. He submits that the said will and codicil
have to be construed as unnatural.
51] It is submitted by the learned counsel for the
defendants that the defendants have produced evidence on
record to show that the hands of the said testatrix were
tied by said Mr.Albert I. Talegawkar admittedly which
would show that there was coercion and physical assault
by the said Mr.Albert I. Talegawkar upon the said
deceased and had compelled the said deceased to execute
will and codicil in favour of said Mr.Albert I.
Talegawkar substantially in respect of the immovable
property.
52] It is submitted by the learned counsel for the
defendants that the plaintiff has not filed consent
affidavit of the other legal heirs and next of kin of the
said deceased alongwith the testamentary petition or even
thereafter and thus it cannot be said that the other
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legal heirs and next of kin of the said deceased are
supporting the plaintiff.
53] It is submitted by the learned counsel for the
defendants that if the said deceased had already executed
the will and codicil dated 1.12.1987, the plaintiff would
have given an advice to the said deceased not to execute
the will and codicil again on 26.4.1990 for the same
bequests. The plaintff could have filed a testamentary
petition for seeking probate of the said will and codicil
dated 1.12.1987. He submits that the plaintiff has
performed the duty as a friend and has obliged Mr.Albert
I. Talegawkar.
54] It is submitted by the learned counsel for the
defendants that the plaintiff or the said Mr.Albert I.
Talegawkar did not produce any receipts alleged to have
been obtained by them from the other alleged
beneficiaries under the said will and codicil dated
26.4.1990 acknowledging the receipt of the amount alleged
to have been bequeathed by the said deceased. He submits
that the said Albert I. Talegawkar was also not examined
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by the plaintiff as their witness though various
allegations were made by the defendants against him
personally in the affidavit in support of the caveat.
This Court thus shall draw an adverse inference against
the plaintiffs.
55] Insofar as the evidence of Mrs.Daisy Dadarkr
(PW2), relied upon by the plaintiffs, is concerned, it is
submitted by the learned counsel for the defendants that
the said Mrs.Daisy Dadarkar was one of the daughters of
the said deceased. Her marriage was not approved by the
parents. Her relations with the said deceased were not
cordial for quite some time. He submits that the said
witness had admitted in her evidence that the said
deceased was admitted in Bombay Hospital and was operated
for skin cancer in the year 1988. He submits that there
are contradictions in the evidence of the said Mrs.Daisy
Dadarkar about the execution and attestation of the will
and codicil dated 26.4.1990 and in the evidence of the
plaintiff in that regard and thus her evidence shall not
be considered by this Court, she being not a reliable
witness.
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56] It is submitted that the said witness did not
produce any document to show that the said Mr.Benjamin
Abraham was convicted for an offence alleged to have been
committed by him. It is submitted by the learned counsel
for the defendants that the will and codicil both could
not have been executed on the same day and that itself
clearly indicates that the said will and codicil both are
surrounded by suspicious circumstances. The execution of
the will and codicil both on the same day would not be
possible in ordinary course. The plaintiff has failed to
repel these surrounding circumstances to the satisfaction
of this Court by leading cogent evidence.
57] The learned counsel for the defendants placed
reliance on Section 59 of the Indian Succession Act, 1925
and in particular Explanation 4 and would submit that
since the said deceased was suffering from illness, she
was not in a state of mind to execute such will and
codicil on 26.4.1990 and thus such a document cannot be
accepted by this Court as proved u/s 63 of the Indian
Succession Act, 1925. The said testatrix was not aware
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of anything at all about execution of the said will and
codicil dated 26.4.1990. If the said deceased would have
remembered that she had already executed a will and
codicil on 1.12.1987, she would not have executed another
will and codicil for the same bequests. He submits that
this fact itself would indicate that she was not of the
sound and disposing mind and was not able to understand
her acts. Such a will and codicil thus cannot be
accepted as proved by this Court.
58] The learned counsel for the defendants placed
reliance on Section 63(c) of the Indian Succession Act,
1925 and would submit that the plaintiff has failed to
prove the execution and attestation of the will and
codicil and thus the same cannot be probated by this
Court.
59] The learned counsel for the defendants invited
my attention to Clause 6 of the will dated 26.4.1990 and
would submit that according to the said clause, if any
beneficiary under the said will challenges the said will
in any manner whatsoever, such a beneficiary would
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forfeit his or her right and in that event, Mr.Albert I.
Talegawkar would not be bound to make any payment to such
a beneficiary. He submits that even if this Court comes
to a conclusion that such a will was executed and
attested in accordance with law, Clause 6 thereof, being
a conditional bequest, the entire will has to be
considered as void and thus no probate thereof can be
granted by this Court.
60] Mr.Tripathi, learned counsel for the defendants
placed reliance on the judgment of the Supreme Court in
case of Surendra Pal and others v. Dr.(Mrs.) Saraswati
Arora & another (1974) 2 SCC 600 and in particular
paragraph no.7 and would submit that the propounder has
to show that the will was signed by the testatrix, that
he was at the relevant time in a sound and disposing
state of mind, that he understood the nature and effect
of the dispositions, that he put his signature to the
testament of his own free will and that he had signed it
in the presence of two witnesses, who attested it in his
presence and in the presence of each other. He also
relied upon the said judgment in support of his
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submission that the plaintiff as well as said Mr.Albert
I. Talegawkar, who had alleged to have taken prominent
part in the execution of the will which conferred
substantial benefit on the said Mr.Albert I. Talegawkar,
in collusion with the plaintiff, the plaintiff was under
an obligation to dispel such surrounding suspicious
circumstances, which he failed.
61] The learned counsel for the defendants placed
reliance on the judgment of the Supreme Court in case of
Kalyan Singh v. Smt.Chhoti and others (AIR 1990 SC 396)
and in particular paragraph no.20 and would submit that
the Court is not bound to grant probate only on the
plaintiff's proving the execution and validity of the
will by considering the evidence produced by the
propounder, but in order to judge the credibility of
witnesses and disengage the truth from falsehood, the
Court is not confined only to their testimony and
demeanor, but it would be open to the Court to consider
the circumstances brought out in the evidence or which
appear from the nature and contents of the documents
itself. The Court has to look into the surrounding
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circumstances as well inherent probabilities of the case
to reach a proper conclusion on the nature of evidence
adduced by the party.
62] The learned counsel for the defendants placed
reliance on the judgment of the Supreme Court in case of
Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003) 2 SCC
91 and in particular paragraph nos.7 to 11 and would
submit that the plaintiff having failed to prove the
conditions set out in Section 63 of the Indian Succession
Act, 1925 and u/s 68 of the Indian Evidence Act, this
Court cannot grant probate in respect of the said will
and codicil dated 26.4.1990. He submits that the
plaintiff has not examined the second attesting witness
to the will and codicil dated 26.4.1990 and the plaintiff
having failed to prove the attestation and execution of
the said will and codicil dated 26.4.1990, this Court
cannot grant probate in respect of those two documents.
63] The learned counsel for the defendants placed
reliance on the judgment of the Supreme Court in case of
Jagdish Chand Sharma v. Narain Singh Saini (dead) through
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L.Rs. & others (2015) 8 SCC 615 and in particular the
paragraph nos.22, 22.2 and 22.3 of the said judgment in
support of his submission that the plaintiff who was
allegedly propounder of the said will and codicil and
also claimed to be one of the attesting witnesses having
failed to prove the execution and attestation of the said
will and codicil dated 26.4.1990, this Court cannot grant
probate in favour of the plaintiffs in respect of those
documents.
64] The learned counsel for the defendants
distinguished the judgments relied upon by the learned
Senior Counsel for the plaintiff on the ground that the
facts in the said judgments were totally different than
the facts before this Court in this case.
65] Mr.Thacker, learned Senior Counsel for the
plaintiff, in rejoinder, submits that the conspiracy
alleged by the defendants across the bar has not been
proved. The defendants have not challenged the will and
codicil dated 1.12.1987, which were identical in terms
insofar as bequests made therein are concerned and thus
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the execution of the will and codicil on the same terms
on 26.4.1990 cannot be considered as any conspiracy as
canvassed by the learned counsel for the defendants
across the bar. He submits that the order passed by this
Court in the Chamber Summons allowing the plaintiffs to
produce the will and codicil dated 26.4.1990 has not been
impugned by the defendants by filing any appeal. Various
findings recorded by this Court in the said order are
subsisting and are binding on the defendants as well as
the plaintiff. In support of this submission, the
learned Senior Counsel reiterated his submissions based
on the judgment of this Court in case of Rusi Hormusji
Pavri & another (supra).
66] The learned Senior Counsel distinguished the
judgment of the Supreme Court in case of Jagdish Chand
Sharma (supra). He submits that the plaintiff had filed
two affidavits in lieu of examination-in-chief and has
identified the signature of the said deceased on the will
and codicil dated 26.4.1990 and also identified the
signatures of the attesting witnesses, which evidence
remained uncontroverted in the cross-examination. He
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also identified the signature of Dr.Udhas.
67] Insofar as the submissions made by the learned
counsel for the defendants on the alleged surrounding
suspicious circumstances in execution of will and codicil
are concerned, it is submitted by the learned Senior
Counsel that the said will and codicil dated 1.12.1987
were not attested by a lawyer or a doctor. The plaintiff
- S.F. Rego, who was a sitting Judge of the Bombay City
Civil Court on the date of execution of the will and
codicil dated 1.12.1987 retired. He submits that the
defendants have not disputed the execution and
attestation of the said will dated 1.12.1987. On the
contrary, the defendant no.3 had asked various questions
to the plaintiff in his cross-examination about the
corrections, if any, made by the plaintiff and how. The
plaintiff had deposed in his cross-examination, in
response to such question, that the corrections were made
on instructions of the said deceased, which she suggested
after reading the said will dated 26.4.1990.
68] Insofar as the submission of the learned counsel
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for the defendants that Mr.Hasmukh Gandhi, Mr.Albert I.
Talegawkar, Mr.Verma and Mr.Udhas were not examined as
witnesses by the plaintiff and thus an adverse inference
shall be drawn by this Court is concerned, it is
submitted by the learned Senior Counsel that none of them
were attesting witnesses to the will and codicil dated
26.4.1990 and were not required to be examined as
witnesses.
69] Insofar as the submission of the learned counsel
for the defendants that the said deceased was not in a
position to understand anything about the alleged
execution of will and codicil and was not familiar with
the English language is concerned, the learned Senior
Counsel invited my attention to the reply given by the
plaintiff in his cross-examination to question no.38 in
which the plaintiff answered that the said deceased had
read the will and had suggested correction in the will
and accordingly the said codicil was drafted by the
plaintiffs and was executed by the said deceased.
70] Learned Senior Counsel also invited my attention
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to the affidavit in support of the caveat filed by the
father of the defendant no.3 and also the affidavit of
the defendant himself and in particular paragraph no.8(i)
admitting that the said deceased was teaching in a school
for 38 years and was educated. The plaintiff also
admitted in the cross-examination that the said deceased
had put her initials in the said will while putting a
date thereon. The defendants did not lead any positive
evidence to show that the said deceased was not in a
position to understand about the execution, attestation
and the contents of the said will and codicil.
71] Insofar as the submission of the learned counsel
for the defendants that since the address of the
plaintiff in the correspondence and other documents was
c/o Bhai Shankar Kanga and Girdharlal Company and
various assistance was provided to the plaintiff by the
said Solicitor Firm in which Mr.Albert I. Talegawkar was
a partner is concerned, it is submitted by the learned
Senior Counsel that when the testamentary petition was
filed, the said Mr.Albert I. Talegawkar was a junior
Advocate with the said Solicitor Firm - M/s Bhai Shankar
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Kanga and Girdharlal Company and was using some
facilities of the said firm. He submits that merely
because services of the Clerk of the said Solicitor Firm
were availed of or address of the said Firm was given by
the plaintiff in some of the correspondence, no
conclusion can be drawn that Mr.Albert I. Talegawkar had
played any role in execution of the will and codicil. He
submits that no such suggestion was given to the
plaintiff in his cross-examination by the learned counsel
for the defendants. He submits that the alleged
participation of Mr.Albert I. Talegawkar in drafting,
execution and attestation of the will and codicil is not
proved by the defendants.
72] Insofar as the submission of the learned counsel
for the defendants that the will and codicil were
unnatural is concerned, it is submitted by the learned
Senior Counsel that all the daughters and Mr.Benjamin
Abraham were excluded from share in the immovable
property and were given a sum of Rs.1,50,000/- in the
said will read with codicil. None of the daughters have
opposed grant of probate in favour of the plaintiff. No
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suspicious circumstances have been alleged by the
defendants admittedly in respect of the will and codicil
dated 1.123.1987. Since the will and codicil dated
1.12.1987 are identical to the will and codicil dated
26.4.1990, no suspicious surrounding circumstances thus
can be alleged by the defendants in respect of the said
will and codicil dated 26.4.1990. In any event, the said
allegations are not proved by the defendants. It was not
the case of the defendants that Mr.Albert I. Talegawkar
was present at any stage of execution and attestation of
the will and codicil or had influenced the testatrix of
the will and codicil at the time of execution of the
documents or at any other stage.
73] Insofar as the submission of the learned counsel
for the defendants that the plaintiff did not produce any
receipt of payment of the amounts to sisters as per
directions of the testatrix in the will and codicil is
concerned, it is submitted by the learned Senior Counsel
that the implementation of the will or codicil, though
could be done after grant of probate by this Court, the
said Mr.Albert I. Talegawkar had paid the said amount to
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the three sisters and had also offered the amount of
Rs.1,50,000/- to Mr.Benjamin Abraham, who refused to
accept. He submits that this fact was, though not
required to be proved, has been proved by the plaintiff
by examining Mrs.Daisy Dadarkar (PW2) who admitted that
all the sisters were already paid the said amount by
Mr.Albert I. Talegawkar. He submits that in any event
those receipts can be produced after probate is granted
by this Court and even if those receipt are not produced
by the plaintiff, that cannot be a ground not to grant
probate though the plaintiff has proved the execution and
attestation of the will and codicil and that the said
testatrix was of sound and disposing capacity on the date
of execution of will and codicil.
74] Insofar as the submission of the learned counsel
for the defendants that the plaintiff has not produced
the affidavit of consent of other sisters alongwith the
testamentary petition or even thereafter is concerned, it
is submitted by the learned Senior Counsel for the
plaintiff that there is no requirement of filing consent
affidavit of the legal heirs and next of kin alongwith
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testamentary petition or even thereafter. He submits
that since all the legal heirs and next of kin disclosed
in the testamentary petition, of which there is no
dispute, were served with the citation and none of them
except Mr.Benjamin Abraham had filed any caveat and
affidavit in support, it is proved that there was no
objection to the grant of probate by any of those legal
heirs and next of kin.
75] Insofar as the submission of the learned counsel
for the defendants that the plaintiff had not filed an
affidavit of witness alongwith the testamentary petition
is concerned, it is submitted by the learned Senior
Counsel that when the office of this Court raised an
objection about such affidavit of witness not having been
filed alongwith testamentary petition, the plaintiff
immediately filed an affidavit of attesting witness. He
submits that this Court cannot refuse to grant probate in
favour of the plaintiff on that ground.
76] Insofar as the submission of the learned counsel
for the defendants that in paragraph no.6 in Clause 6 of
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the will, there was a condition imposed by the said
testatrix to the effect that if any of the beneficiaries
challenges to the said will, no benefit under the said
will would be conferred upon him or her, being a
conditional bequest and on that ground, the entire will
has become void is concerned, it is submitted by the
learned Senior Counsel that no such ground was raised by
the defendants in the affidavit in support of caveat or
by the father of the defendant no.3 in his affidavit in
support of the caveat. He submits that in any event, the
said Mr.Albert I. Talegawkar had offered the said amount
of Rs.1,50,000/- to the father of the defendant no.3, who
was one of the beneficiaries under the said will and the
codicil, he had refused to accept the said averment
admittedly. He submits that under Chapter XI of the
Indian Succession Act, 1925, such bequeath cannot be
considered as void. He submits that since no such issue
was raised by the defendants in the affidavit in support
of the caveat, this Court did not frame any such issue
for consideration and thus no evidence was led by the
plaintiff on that issue raised across the bar by the
defendants.
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77] It is lastly submitted by the learned Senior
Counsel that the learned counsel for the defendants has,
during the course of arguments, made personal attack on
the integrity and character of the plaintiff and has
prayed for an order and direction against the Registrar
of this Court to file prosecution u/s 471 of the Code of
Criminal Procedure, 1973, read with Section 191 of the
Indian Penal Code against him. He submits that each and
every submission attacking the plaintiff personally on
the integrity and character and seeking prosecution of
the plaintiffs is totally baseless, without any
supporting evidence and is made with ulterior motive. No
such case is made out by the defendants against the
plaintiff.
78] It is submitted that the defendants are not able
to prove any of the allegations made by them in the
affidavit in support of the caveat filed by the defendant
no.3 nor in the affidavit in support of the caveat filed
by his father and the objections raised in those
affidavits are raised merely for the sake of raising it
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in order to delay outcome of the testamentary petition
filed by the plaintiff. Those objections thus are
deserved to be dismissed with exemplary costs and the
plaintiff be granted probate in respect of the said will
and codicil both dated 26.4.1990 expeditiously.
REASONS AND CONCLUSIONS :
together, which are interconnected. Both the parties
have led oral as well as documentary evidence on these
two Issues. The onus is on the propounder of the Will
and Codicil to prove due execution and attestation
thereof and as to whether the subject Will and Codicil
are legal and valid. The plaintiff Mr.S.F.Rego, who was
one of the executor appointed by the said deceased in the
said Will and Testament dated 26.4.1990, was also one of
the attesting witness to the said Will and Testament
dated 26.4.1990. In his affidavit in lieu of
examination-in-chief dated 28.4.2009, he deposed that on
26.4.1990, he was present with Dr.P.H.Udas at the house
of the said deceased and had witnessed the signature of
the said deceased and also were attesting witness at the
same time.
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80] In his further affidavit dated 17.12.2013, the
plaintiff identified his signature on the original Will
and Codicil both dated 26.4.1990 and also the signature
of testatrix on the said Will and Codicil and also the
signature of Dr.P.H.Udas, who was another attesting
witness to the documents. The plaintiff had also filed
affidavit of attesting witness in the testamentary
petition on 4.7.2002, showing the proof of execution and
attestation of the Will and Codicil both dated 26.4.1990,
by the said deceased and two attesting witnesses thereon.
81] A perusal of examination-in-chief of the
plaintiff indicates that when the witness was asked about
the original Will and Codicil dated 26.4.1990, the
plaintiff answered that both the documents were handed
over to the clerk of Bhaishankar Kanga and Giridharlal
Solicitors for depositing the same with the Prothonotary
and Sr.Master. It is pertinent to note that the
plaintiff was shown the original Will dated 26.4.1990,
and Codicil dated 26.4.1990 and was asked whether those
two documents and the affidavit dated 1.10.2013 were
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bearing his signatures, the plaintiff identified his
signatures on the original Will and Codicil both dated
26.4.1990, as an attesting witness.
82] The witness also identified his signature on
affidavit of oath dated 1.10.2013. He also deposed that
the contents of the affidavit are true and correct. The
witness was also shown the signatures on the original
Will and Codicil. The witness also identified the
signatures of the testatrix on the original Will and
Codicil both dated 26.4.1990 and also deposed that
Dr.P.H.Udas had signed the said documents as a witness
alongwith the plaintiff in his presence.
83] It is pertinent to note that in the cross-
examination of the plaintiff, he was asked whether he
knew the contents of the Will and Codicil dated
26.4.1990, he answered the said question in affirmative
and further stated that he was a draftsman. The said
witness was further asked whether the draft and the Will
were prepared by him alone at the instance of the
plaintiff, the witness answered in the affirmative. The
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said witness replied in negative when he was asked as to
whether prior to preparing the draft of the Will and
Codicil dated 26.4.1990, any other draft of Will and
Codicil were prepared.
84] In reply to question No.36, when the plaintiff
was asked as to when he had prepared the draft of the
Will and Codicil, had he made any corrections in draft
of the Will and Codicil, the witness answered that no
corrections were made. Instructions of preparing Codicil
were given separately by the said testatrix after the
Will was shown. The witness denied the suggestion of the
learned counsel for the defendants that he had never
prepared any draft of the Will and Codicil in this
matter. The witness was asked whether he had made any
corrections in the Will and Codicil, the witness answered
in negative in so far as the Will is concerned.
85] The said witness further deposed that the
Codicil was separately made on the instruction of the
testatrix. The witness was asked about the nature of
corrections suggested by the testatrix on reading the
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Will, the witness answered that the testatrix had
suggested the provisions for each child of hers to be
increased by Rs.50,000/- and thus Codicil came to be
prepared.
86] The plaintiff was asked to inform the Court as
to the time taken between preparation of Will and
Codicil, but the plaintiff's answer was that the Will was
prepared few days after taking instructions. Codicil was
prepared on the same day of execution of the Will. He
answered that no draft of the Will was typed. The
witness was when asked as to whether he was aware of
typed draft of Will and Codicil, the witness answered
that the Will was in his handwriting and not typed. He
was asked as to whether the drafts of Will and Codicil
were prepared by him and handed over, the witness
answered that the same were handed over to his assistant
Mr.Balraj Verma after it is typed. In reply to
question No.43, when the witness was asked as to who made
the corrections in the final draft, he answered that so
far as the Codicil is concerned, oral instructions were
given by him to Mr.Balraj Verma as the figure of
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Rs.1,00,000/- to Rs.1,50,000/- was made in the Codicil.
The witness denied the suggestion of the learned counsel
for the defendants that the deceased was never instructed
him to change the figure.
87] The witness deposed that he had come to know
for the first time that he was appointed as an executor
of the Will at the time of taking instructions. It is
pertinent to note that the plaintiff was asked whether
the deceased gave him instructions at the time of
preparing draft that he was also appointed as an executor
of the Will, the witness replied that he was requested
to act as an executor by the said deceased at the time of
taking instructions. He was asked whether the testatrix
had informed him that she had already prepared the Will
and Codicil in which he was one of the executor, the
witness answered the said question in negative.
88] The witness was thereafter shown Will dated
1.12.1987, alongwith Codicil filed with affidavit of oath
and was asked to compare the contents of the Will and
Codicil dated 1.12.1987 with the contents of the Will
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dated 26.4.1990 and was asked whether the contents were
the same, the Witness however, stated that he was not
in a position to answer the question in the form of 'Yes'
or 'No' regarding the contents of both the Will and the
Codicil whether were the same.
89] The witness was shown the docket of the Will and
Codicil dated 26.4.1990, and was asked to state whose
name was written on the docket of the said documents.
The witness answered that the said docket showed his name
and the name of Mr.Hasmukh B.Gandhi, Advocate. The
witness was asked as to why he allowed the name of
Mr.Hasmukh B.Gandhi on the docket, if he had not prepared
the draft of the said documents, the witness replied that
he was one of the executor of the Will and therefore, the
said witness allowed the name of Mr.Hasmukh B.Gandhi on
the docket of Will and Codicil dated 26.4.1990.
90] The witness was asked whether it was correct to
state that Mr.Hasmukh B.Gandhi was one of the executors
along with plaintiff to the Will and Codicil dated
26.4.1990, the witness answered in the affirmative. The
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witness deposed that he was not an attesting witness to
the Will dated 1.12.1987. Dr.P.H.Udas was also not an
attesting witness to the said Will dated 1.12.1987. He
deposed that though the Will dated 1.12.1987 came to his
knowledge after filing of the probate petition in the
year 2002, it was not necessary to file any separate
petition for probate in respect of Will dated 1.12.1987,
as the probate petition has to be filed in respect of the
subsequent Will. He deposed that original of the Will
dated 26.4.1990 was filed in the Court about one year
ago, the same was handed over to him by managing clerk of
Mr.Bhaishankar Kanga and Giridharial. He met Mr.Albert
Talegawkar, who was beneficiary under the Will and
Codicil dated 26.4.1990 after filing of the probate
petition.
91] All the pleadings filed on his behalf and on
behalf of Mr.Hasmukh Gandhi were drafted by the managing
clerk of M/s.Bhaishankar Kanga and Giridharlal under his
instructions. He deposed that he was not going to
examine Mr.Hasmukh Gandhi as his witness or the managing
clerk of M/s.Bhaishankar Kanga and Giridharlal as the
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said clerk was not available. The witness has also
deposed that he has not examined Dr.Udas as his witness.
The witness was asked whether he was informed that the
deceased was a school teacher and had retired, the
witness answered in affirmative.
92] In reply to question no.11 in cross-examination,
the witness was asked whether it was correct that on page
no.3 after paragraph no.6 of the Will dated 26.4.1990,
the date was mentioned as 26.4.1990, whether there were
initials of the said deceased, the witness answered the
said question in affirmative. He also deposed that the
date as 26.4.1990 was filled by the said deceased in her
own handwriting. The deceased was an educated lady. He
denied the suggestion of the learned counsel for the
defendants that he was informed that he was appointed as
an executor by the deceased in the Will and Codicil dated
26.4.1990, by Mr.Albert.
93] The said witness deposed that since he had
drafted the Will and Codicil dated 26.4.1990, he knew
that such documents existed. He had directed Mr.Albert
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Talegawkar to distribute to the legatees the amounts as
directed in the Will read with Codicil both dated
26.4.1990. The witness denied the suggestion put by the
learned counsel for the defendants that Will and Codicil
dated 26.4.1990 were given to him by Mr.Albert Talegawkar
for signature after the same was already signed by
testator. The witness has also denied the suggestion
that since there were no proper witnesses to the Will
dated 1.12.1987, he had obliged Mr.Albert Talegawkar by
attesting the Will and Codicil both dated 26.4.1990.
94] A perusal of the affidavit of evidence filed by
Mrs.Daisy Dadarkar (PW-2) examined by the plaintiff
indicates that she deposed that her father Isaac Abraham
Talegawkar died on 9.7.1983 at Mumbai. The deceased
testatrix died on 18.8.1996. During the life time of the
father of plaintiff and the said witness and other
children, and in the life time of the said
deceased/testatrix, both the parents were living with
Mr.Albert Talegawkar and his family on the 2 nd Floor of
the building on Plot No.312 at Khar.
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95] In her affidavit in lieu of evidence, the PW-2
stated that in the get-together at the residence of one
of the sisters Mrs.Annie, all the siblings of the said
deceased including Mrs.Rosy, who had come from Israel,
except Mr.Albert Talegawkar, were present after the said
Will and Codicil were executed. In the said get-
together, the said PW-2 along with the other family
members were present had discussed about the said Will
and Codicil. It is deposed that the said deceased at
that time had told them that the property at Khar was
given to Mr.Albert Talegawkar and that each of the other
children were to get Rs.1,50,000/-. The copies of the
Will and Codicil were given to the witness and to other
siblings when all were present on Hashkaba day which was
a obsequial ceremony.
96] The said Mrs.Daisy Dadarkar in her cross-
examination denied that the said affidavit was filed by
her on the suggestion of the plaintiff. She also denied
that the said affidavit was drafted by Mr.Albert
Talegawkar. She deposed that nobody had advised her to
give evidence in the matter. However, as she felt that
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truth should come before this Court, she had filed her
affidavit. Her parents did not approve her marriage
since it was inter-caste marriage. She deposed that
after the death of the father in the year 1983, Mr.Albert
Talegawkar was staying with his wife and three children
and also the said deceased mother.
97] The said witness was shown the original Will
dated 1.12.1987, and Codicil dated 1.12.1987 and was
asked to identify the signatures of the said deceased on
both the documents. She identified the signature of the
said deceased on both the documents and deposed that as
far as she knew the signature, the signature on those
documents was her usual signature. The witness was put a
suggestion that the said deceased used to sign as "Issac
Talegawkar", the witness answered that as far as she
knew, her mother used to sign as "S.I.Talegawkar" and not
as "Issac Talegawkar". She had seen the signature of the
deceased as "S.I.Talegawkar".
98] The deceased used to give gift by cheques to
her children on their birthday on which the said witness
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had seen her signature as "S.I.Talegawkar". The witness
denied that Mr.Albert Talegawkar or his family were
present at the time of execution of the Will or Codicil.
In her cross-examination, she deposed that Mr.Benjamin
Abraham, one of the son of the said deceased, had asked
the said deceased as to why she prepared such Will and
why most of the properties were given to Mr.Albert
Talegawkar. The said deceased told him that what she
felt proper, she had done in the Will.
99] The said deceased also told Mr.Benjamin that
when her husband had expired, none of the sisters or said
Mr.Benjamin had ever asked the deceased to come and stay
to their house. It was only Mr.Albert Talegawkar and his
wife who took her care after demise of husband of the
said deceased in all sense. The said deceased also told
Mr.Benjamin that whatever she felt proper, she had given
to her children in her Will and it was for them to accept
what was given. The said deceased also told Mr.Benjamin
that neither any of the sisters nor Mr.Benjamin had ever
come to clear her stool and urine and except, Mr.Albert
Talegawkar, all the other siblings had only given her lip
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service. She deposed that such conversation took place
between sisters, Mr.Benjamin and mother after they all
finished their lunch. The plaintiff used to frequently
visit the house of the said deceased. The said witness
deposed that she had not read the Will, however, she knew
the contents whatever had informed to her by her mother.
100] Mr.Benjamin Abraham had initially filed
affidavit in support of the caveat opposing the grant of
probate on 14.10.2002. In his affidavit in support of
caveat, he had alleged that the alleged Will had got
signed by the deceased without her knowledge of its
contents and application of mind by her. The major
portion beneficiary had compelled the deceased to sign
the alleged Will. The said Mr.Benjamin Abraham, however,
expired during the pendency of this Testamentary Suit on
7.8.2010. Mr.Hillel Benjamin Abraham thereafter filed a
separate affidavit in support of caveat on behalf of
himself and other legal heirs and next-of-kin of the said
Mr.Benjamin Abraham on 3.8.2011. In his affidavit in
support of caveat also he alleged that the said Will had
not been signed by the deceased and her signature was
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forged and fabricated by Mr.Albert Talegawkar under
collusion and connivance of plaintiff and Mr.Hasmukh
B.Gandhi.
101] The affidavit in lieu of examination-in- chief
of Mr.Hillel B.Abraham contained the allegations made by
him in affidavit in support of caveat. In his cross-
examination, the said witness when was asked whether it
was true to say that immediately after the marriage of
his father Mr.Benjamin I.Talegawkar, he had separated
from his parents, the witness answered that he had no
personal knowledge of the same. However, he had told
that his parents stayed with his father's parents for
atleast two years following their marriage. The witness
admitted that he and his father had taken inspection of
original Will dated 26.4.1990. The witness was asked as
to where he was living at the time of the death of the
said deceased testatrix, he answered that he was staying
at Income Tax Colony, Peddar Road. The said deceased was
staying at Madhu Park, Khar at the time of her death.
This witness was not present at the residence of the said
deceased when she passed away. The witness admitted that
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he was not present at the residence of the said deceased
when she has executed the Will. He was also not present
when the said deceased has executed the Codicil.
102] In reply to question No.35 when the witness was
asked whether he had ever seen the said deceased signing
any document, the witness answered in negative. In reply
to question No.36, when he was asked whether he would be
able to identify the signature of the deceased on any
documents shown to him, he answered in negative and
further deposed that it would not be possible.
103] In reply to question No.38, the witness was
asked whether he was aware that the Will was attested by
Dr.Udas, the witness answered that there are two Wills
left by the said deceased. Dr.Udas had attested the Will
that was made some time in the year 1990. When the
witness shown the photocopy of the Will dated 26.4.1990
since the original was in safe custody and was asked
whether the said Will he had referred to in his answer to
question No.38, the witness answered in affirmative.
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104] In reply to question No.42, when the witness was
asked that since he was not present when the Will was
executed, whether he had anything to support to his
statement that the Will was forged and fabricated and was
not genuine as stated by him in paragraph No.7(a) of the
witness affidavit, witness answered that the said
statement was based on what he had heard from his father.
His father had told him that the signature of the said
deceased appearing on the Will did not match with her
signature in the Bank of Maharashtra where she held an
account. The witness was asked whether he has any
personal knowledge of the deceased having been threatened
as alleged by him in paragraph No.7(e) of the affidavit
for evidence and the witness answered that he had no
personal knowledge.
105] In reply to question No.60, when the witness was
asked as to whether he was present when Mr.Albert
Talegawkar had alleged to have been threatened the said
deceased to throw her out of the house, the witness
answered in negative and further deposed that he was not
present that time. The said witness could not produce
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any record to show that Mr.Benjamin had paid the bills of
Bombay Hospital when the said deceased was admitted
there. He deposed that all the bills and receipts were
with Mr.Albert Talegawkar. The witness admitted that he
had never lived with his grandparents. In reply to
question No.71 when he was asked whether he was aware
whether the said deceased had made bequest of
Rs.1,50,000/- to his father Mr.Benjamin and the sisters
of his father and that his father has declined to accept
it from the executors of the Will, he answered the said
question in affirmative and further deposed that his
father had declined to accept the said amount. He did
not know about his sisters.
106] A perusal of the aforesaid documentary as well
as oral evidence clearly indicates that the plaintiff and
Ms. Daisy Dadarkar, who was examined as a witness by the
plaintiff had identified the signatures of the said
deceased on the Will and Codicil and also the attesting
witnesses thereon and has proved the execution and
attestation thereof as required in law and in particular
under Section 63 of the Indian Succession Act, 1925.
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107] A perusal of the cross-examination of the
plaintiff and his witnesses by the defendants clearly
indicates that the defendants have no disputed the
existence, execution and attestation of the Will and
Codicil both dated 26.4.1990 and also Will and Codicil
both dated 1.12.1987. The plaintiff was asked repeatedly
in his cross-examination by the learned counsel for the
defendants about the existence, execution and attestation
of Will and Codicil by asking various questions. The
witness was also asked whether he had carried out any
corrections in the Will and the Codicil.
108] In so far as only the evidence of Mr.Hillel
Benjamin Abraham, who was examined by all the defendants
is concerned, the evidence summarized aforesaid clearly
indicates that he had never stayed with his grandparents.
He had never seen the deceased affixing her signature on
any document and clearly admitted that he would not be
able to identify the signature of the said deceased. He
was not present when the Will and Codicil were executed
by the said deceased. The allegations of the forgery and
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fabrication made by the said witness in his affidavit in
lieu of examination-in-chief was based on hearsay
information alleged to have been given to him by his
deceased father Benjamin. The defendants did not lead
any other independent evidence to show that the
signatures of the said deceased on the Will and the
Codicil were forged and fabricated.
109] Under Section 63 of the Indian Succession Act,
1925, the initial burden which is always on the
propounder to prove due execution and attestation of the
Will and about the sound and disposing state of mind of
the testator has been proved by the plaintiff by leading
cogent evidence. The case of the plaintiff is also
proved by virtue of cross-examination of plaintiff and
his witness by defendants in so far as valid execution of
the Will and Codicil are concerned. The condition set
out in Section 63 of the Indian Succession Act, 1925 are
thus fully satisfied by the plaintiff. The evidence led
by the plaintiff, who was not only one of the executor
appointed by the said deceased, but also attesting
witness, had entered in the witness box and his evidence
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was remained un-controverted and was not shattered in the
cross-examination. In my view, the plaintiff has also
proved by leading cogent evidence that the subject Will
was legal and valid. Accordingly, for the reasons
recorded aforesaid, the Issue Nos.1 and 2 are answered
in affirmative.
110] I shall now deal with Issue Nos.3, 4, 5, 6 and 8
together in view of there being a common evidence on
these Issues and thus can be conveniently decided
together. The onus to prove all these issues is on the
defendants.
111] In so far as Issue Nos. 3 and 4 are concerned, a
perusal of cross-examination of the plaintiff by the
learned counsel for the defendant no.3 and more
particularly, the answers to question No.36, 38, 43 and
44, clearly indicate that when the plaintiff was asked
whether he had made any corrections in the Will or the
Codicil, the witness answered that he had not made any
corrections in the Will. However, the Codicil was
separately prepared under the instruction of the
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testatrix, who had after reading the Will had suggested
the corrections. The witness was further asked about
nature of the corrections suggested by the testatrix on
reading the Will, the witness answered that the testatrix
has suggested that the provisions for each child of hers
be increased by Rs.50,000/- and accordingly the Codicil
came to be prepared.
112] It is thus clearly established beyond
reasonable doubt by the plaintiff and more particularly,
by the deposition given in cross-examination that the
said deceased had herself read the contents of the Will
and had made suggestion after reading the contents of the
Will to increase the amount provided in Will by
Rs.50,000/- in favour of all the children of the said
deceased. In my view, it is thus clear beyond reasonable
doubt that the defendants have failed to prove that the
deceased had signed the subject Will without knowledge of
the contents thereof or that she was not of sound and
disposing capacity on the date of execution of the said
Will and Codicil.
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113] The question asked by the learned counsel for
the defendants to the plaintiff itself would indicate
that there was no dispute that the said deceased could
read and understand the contents of the Will and could
make a suggestion for corrections in the Will. There is
thus no merit in the submission of the learned counsel
for the defendants that deceased was not of sound and
disposing capacity on the date of execution of Will.
114] In so far as reliance placed by learned counsel
for the defendants on Section 59 of the Indian Succession
Act, 1925 in particular explanation-4 in support of the
submission that the said deceased could not make a will,
in view of the said deceased suffering from illness or
that she did not know what she was doing is concerned, a
perusal of the evidence referred to above clearly
indicates that the said deceased was clearly aware of
what she was doing while executing the Will and Codicil.
115] In so far as her alleged sickness is concerned,
the plaintiff in his affidavit in lieu of examination-in-
chief dated 28.4.2009 had deposed that at the time of
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execution and attestation of the said Will and Codicil,
the said deceased was of sound and disposing capacity and
memory and understanding and had published the said
documents by free-will and pleasure. In his cross-
examination, when the plaintiff was asked whether the
deceased was suffering from skin cancer prior to 10 years
of her death the witness answered that he was not aware
that the said deceased was suffering from skin cancer
prior to 10 years of death. She had suffered fracture
2-3 months prior to her death.
116] Mrs.Daisy Dadarkar (PW-2) was asked about the
skin cancer of the said deceased, the said witness
answered that the said deceased was suffering from skin
cancer in the year 1998 and was operated by
Dr.Shrikhande. She denied a suggestion of the learned
counsel for the defendants that after demise of the
father of the witness, the said deceased was not
recognizing any person and had lost her balance.
117] A perusal of the cross-examination of Mr.Hillel
Benjamin Abraham on this issue indicates that he has
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admitted that he never stayed with the grant parents
including the said deceased. In reply to question No.26
when he was asked whether he had any personal knowledge
of any alleged undue influence been exerted by Mr.Albert
Talegawkar on the said deceased, he answered in
affirmative. He further volunteered that the said
deceased had skin cancer, which made her constantly to
scratch her face and body to relieve the itching
sensation and would create wound in doing so, the
plaintiff used to tie down her hands. When the witness
was asked by the Court whether he would agree that it is
possible that hands of the deceased had to be tied to
prevent her from injuring herself by constant scratching,
the witness answered in affirmative.
118] A perusal of the oral evidence laid by the
parties on this issue clearly indicates that though the
said deceased was suffering from skin cancer 10 years
prior to the execution of the Will and Codicil, she was
already treated and operated by the Doctors. The
defendants have failed to prove before this Court by any
cogent evidence that by virtue of the skin cancer, which
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the deceased suffered 10 years prior to the execution of
the Will and was though treated by the Doctors, had made
her incapable of understanding what she was doing on the
date of execution of the Will and Codicil or affected her
mind and disposing capacity to execute such document.
119] Unless defendants would have proved by leading
cogent evidence that by virtue of such skin cancer
suffered by the said deceased 10 years prior to the
execution of Will and the Codicil and the same would have
affected her sound and disposing capacity to execute a
Will and Codicil and her understanding as to what she was
doing on the date of execution of Will and the Codicil,
it cannot be said that the said deceased was incapable of
making Will and Codicil under Section 59 of the Indian
Succession Act, 1925. In my view, therefore, there is no
merit in the submission of the learned counsel for the
defendants on these Issues. Issue Nos.3 and 4 are
accordingly answered in negative.
120] In so far as Issue No.5 is concerned, the onus
to prove this Issue was on the defendants. It is
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admitted by the defendant No.3 in his evidence that he
was not present when his grandmother had expired. He
admitted that when the grandmother passed away, he was
living at Income Tax Colony, Peddar Road. The witness has
not denied that the said deceased has died after more
than 12 years of demise of her husband. There is no
other cogent evidence led by the defendants in support of
this allegation that the said deceased has virtually
collapsed due to overnight death of her husband. Issue
No.5 is accordingly answered in negative.
121] In so far as Issue No.6 is concerned, in his
cross-examination and more particularly in reply to
question No.43 the defendant no.3 admitted that though he
had alleged in paragraph No.7 (a) & (e) of his affidavit
in lieu of examination-in-chief that the said Will was
signed under duress and by using coercive methods, he had
nothing to substantiate it, he admitted that he had no
personal knowledge of any duress or coercion under which
the witness has signed the Will. He also admitted in
reply to question No.44 that he had no personal knowledge
that the deceased having been threatened as alleged by
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him in paragraph No.7(e) of his affidavit in lieu of
examination-in-chief. When the witness was asked as to
whether he had any personal knowledge that his
grandmother was starved by Mr.Albert Talegawkar, the
witness answered that the said deceased talk in Marathi
and when the witness had visited her atleast on 4-5
occasions, she had told him that Mr.Albert did not feed
her. When he was asked whether he had offered to take
the deceased with him to his house, he replied that
though he had offered, she had refused to come.
Mr.Albert Talegawkar informed him that she was given less
solid food on Doctor's advice, but was given liquid food.
122] In my view, the defendants have thus failed to
prove that the deceased had executed the will under
duress or on account of starvation or threat of survival.
The cross-examination of the witness of the defendants
clearly proves contrary to what is alleged by the
defendant on this Issue in the affidavit in lieu of
examination-in-chief. The said Issue is accordingly
answered in negative.
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123] In so far as Issue No.7 is concerned, i.e. as to
whether the defendants prove that the subject Will is
unnatural or not, a perusal of the evidence indicates
that it is an admitted position that the parents were
staying with the said Mr.Albert Talegawkar. The said
deceased continue to stay with Mr.Albert Talegawkar after
demise of her husband until her death. The said deceased
died at the place of residence of Mr.Albert Talegawkar.
The said deceased in her Will had recorded that during
her husband's life time, the said deceased along with her
husband were living with her son Mr.Albert Talegawkar in
the flat, second floor of the building No.312, First
road, Khar, Mumbai-400052. After the death of her
husband, the said deceased continued to live with
Mr.Albert Talegawkar who had taken good care of the said
deceased with love and affection
124] In paragraph No.3 of the Will, the said deceased
recorded that the said Mr.Benjamin, one of the son of the
said deceased, was with the Customs Department in Mumbai
and had been living separately from her for past several
years. The other children and wife of Mr.Benjamin had
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already migrated to Israel, except Mr.Hillel. In
paragraph No.4 of the said Will, it was provided by her
that the said Plot No.312 together with building was
owned by her. The building was fully tenanted. She had
let out two floors and terrace thereon and also the open
place in the in the rear portion of said plot to
Mr.Albert Talegawkar and was receiving rent from him in
respect of that portion.
125] The rent from other tenant is negligible and
hardly sufficient to meet the property taxes and
maintenance of the property. In the said Will, the said
deceased provided for a bequest for the said land and
building including furniture, fixtures and articles lying
in the said plot for Mr.Albert Talegawkar absolutely.
She had requested bequest of Rs.1,00,000/- to be paid to
the other son and daughters within two years of her death
on the condition that such of his children as have
migrated at the time of her death will avail of said
legacy in India and subject to prevailing law. She
directed Mr.Albert Talegawkar to distribute the said
legacy. She further provided that all her moveables and
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personal jewellery she had already given in her life time
to her children. She made a bequest in respect of
residue of her estate in favour of Mr.Albert Talegawkar.
126] The evidence led by the plaintiff and more
particularly Mrs.Daisy Dadarkar (PW-2) and also evidence
of Mr.Hillel Benjamin Abraham, proves that the said
deceased had attended the reception of the marriage of
Mr.Hillel Benjamin Abraham and she also gave various
gifts to Mr.Hillel Benjamin Abraham and also to the said
witness in her life time. The said Mr.Benjamin and the
said witness never stayed with the said deceased or took
her care at any point of time.
127] The said Mrs.Daisy Dadarkar in her cross-
examination admitted that the said deceased had told her
that what she felt proper, she had done in the Will. She
had told Mr.Benjamin Abraham that when the father
expired, none of the sisters and the said Mr.Benjamin had
ever asked her to come and stay with them in their house.
It was only Mr.Albert and his wife, who took her care
after demise of her husband. The said witness also
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proved in her cross-examination that the said deceased
had told Mr.Benjamin that neither any of the sisters nor
Mr.Benjamin had ever come to clear her stool and urine
and all of them, except Mr.Albert Talegawkar, had only
given her lip service.
128] In my view, the aforesaid evidence led by the
parties clearly proves that in these circumstances,
Mr.Albert Talegawkar, who had all throughout taken care
of the parents including the said deceased and more
particularly after demise of the husband of the said
deceased till the death of the said deceased and also in
view of the fact that the said building was tenanted and
portion thereof was let-out in favour of Mr.Albert
Talegawkar by the said deceased, bequest in respect of
plot on land bearing No.312 together with building
including furniture, fixtures and articles lying in the
plot in favour of Mr.Albert Talegawkar exclusively,
cannot be construed as a unnatural Will.
129] Be that as it may the said deceased has already
provided for a legacy of Rs.1,50,000/- in favour of other
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four legal heirs of the said deceased. It was for the
said deceased to decide in her life time as to in whose
favour the property could not have been bequeathed and
for what reasons. With the aforesaid evidence in hand,
in my view, it cannot be held that the Will and Codicil
executed by the said deceased could be considered as
unnatural as canvassed by the defendants.
130] In so far as submission of the learned counsel
for the defendants that the said deceased had attended
the reception of the marriage of Mr.Hillel Benjamin
Abraham and had given gifts to the said witness and his
father, and thus the said deceased would not have
disinherited the said Mr.Benjamin Abraham or his children
from the share in the property concerned, in my
view, there is no merit in the submission of the learned
counsel for the defendants in this regard. If the said
deceased had considered the fact that her care was taken
by Mr.Albert Talegawkar during her life time exclusively
with love and affection, whereas the other children of
the said deceased did not take her care, more
particularly, after demise of her husband, it cannot be
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said that the other legal heirs of the said deceased not
having been provided with any share in the immovable
property, can be a factor to be considered to hold that
the said Will and Codicil of the said deceased were
unnatural. The said Issue No.7 is accordingly answered
in negative.
131] In so far as Issue No.8 as to whether the
defendants prove that the deceased usually sign as
"S.Issac" and not as "S.I.Talegawkar" is concerned, it is
an admitted position that the said Mr.Hillel Benjamin
Abraham in his evidence had admitted that he had never
seen the said deceased signing any document and it was
impossible for him to identify the signature of the
deceased. In my view, the defendants have failed to
prove the usual signature of the said deceased. Be that
as it may, the witnesses examined by the plaintiff have
proved the usual signature of the said deceased.
132] Mrs.Daisy Dadarkar also in her cross-examination
and more particularly in reply to question Nos.13 and 14
has admitted that her mother used to sign as
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"S.I.Talegawkar" and not as "Issac Talegawkar". She had
seen her signature as "S.I.Talegawkar". The said
deceased used to give gift by cheques to children of the
said witness on their birthday on which she had seen her
signature as "S.I.Talegawkar". In my view, the
defendants have thus failed to prove that the deceased
usually sign as "Issac Talegawkar" and not as
"S.I.Talegawkar".
133] The witness Mr.Hellel Benjamin Abraham in cross-
examination also answered in reply to question No.34 that
he had never seen any person forging his grandmother's
signature on any document. In reply to question No.36,
he admitted that he would not be able to identify her
signature on any document shown to him and that would be
impossible. In reply to question No.42 when he was asked
about anything to support his allegation that the will
was forged and fabricated and not genuine, he deposed
that the basis of his statement was what he had heard
from his father. The Issue No.8 is accordingly answered
in the negative.
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134] In so far as the submission of the learned
counsel for the defendants that the said Mrs.Daisy
Dadarkar could not produce any document to show that
Mr.Benjamin Abraham was convicted for an offence is
concerned, in my view the said allegation will not have
any bearing on the issue that the said deceased had
executed the said Will or Codicil. I do not find any
contravention in the evidence of the plaintiff on the
issue of execution and attestation of the Will and
Codicil. I am not inclined to accept the submission of
the learned counsel for the defendants that said
Mrs.Daisy Dadarkar was not a reliable witness and thus
her evidence cannot be considered by this Court. On the
contrary, in view of the cross-examination of the said
witness by the learned counsel for the defendants,
various averements made by the plaintiff are proved and
the allegations made by the defendants were disproved.
135] In so far as Section 63(c) of the Indian
Succession Act, 1925 relied upon by the learned counsel
of the defendants in support of the submission that the
attestation of the Will is not proved by the plaintiff is
concerned, in my view, there is no merit in the
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submission of the learned counsel. The execution and
attestation of the Will and the Codicil dated 26.4.1990
is not only proved by leading cogent evidence by the
plaintiff and by PW-2, but the same is also proved beyond
reasonable doubt in view of the cross-examination of
those two witnesses by the learned counsel for the
defendants.
136] In so far as the Judgment of the Supreme Court
in case of Janki Narayan Bhoir (supra) relied upon by
Mr.Tripathi, learned counsel for the defendants in
support of his submission that the Will and Codicil are
not proved as per requirement of proof under Section 63
of the Indian Succession Act, 1925 read with Section 68
of the Indian Evidence Act, 1872, is concerned, the
proposition of law laid down by the Supreme Court in the
said Judgment holding that the person propounding the
Will has to prove that the Will was duly and validly
executed and the attestation was also made properly as
required by clause (c) of Section 63 of the Indian
Succession Act, 1925. The Supreme Court in the said
Judgment has held that atleast one attesting witness has
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to be called for proving due execution of the Will. The
examination of the other attesting witness can be
dispensed with.
137] In my view, the plaintiff, who had proved beyond
reasonable doubt that he was one of the attesting witness
to the Will and Codicil, has proved the due execution of
the Will and attestation thereof in accordance with the
provisions of law. The examination of the two attesting
witnesses by the plaintiff was dispensed with and was not
necessary. In my view, merely because second attesting
witness i.e. Dr.P.H.Udas was not examined by the
plaintiff, it cannot be said that the attestation of the
Will was not duly proved in accordance with requirement
of Section 63 of the Indian Succession Act, 1925 r/w
Section 68 of the Indian Evidence Act, 1872.
138] The Judgment of Supreme Court in case of Jagdish
Chand Sharma (supra) also would not assist the case of
the defendants. The principles of law laid down by the
Supreme Court in the said Judgment on the essential of a
valid execution and attestation of the Will being
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mandatory in nature, is not in dispute.
139] In so far as the Judgment of Supreme Court in
the case of Surendra Pal (supra) and others relied by
Mr.Tripathi, learned counsel for the defendants is
concerned, it is held by the Supreme Court that the
propounder has to show that the Will was signed by the
testator, that he was at the relevant time in a sound and
disposing state of mind, that he had understood the
nature and effect of the dispositions, that he had put
his signature to the testament of his own free will and
that he had signed it in the presence of two witnesses,
who attested it in his presence and in the presence of
each other. It is held that once these elements are
established, the onus which rest on the propounder is
discharged.
140] It is held that there may be cases in which the
execution of the Will itself is surrounded by suspicious
circumstances, such as whether the signature is doubtful,
who had attested in her presence and in the presence of
each other, the dispositions made by the deceased in the
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Will and Codicil do not appear to be unnatural,
improbable and unfair. Mr.Albert Talegawkar, who had
taken care of the said deceased exclusively all
throughout, was given share in the plot of land and
building standing thereon, whereas the other legal heirs
and next-of-kin, who had not taken care of the deceased,
but were still given monetary bequest of Rs.1,50,000/-
each. In my view, all the principles laid down by the
Supreme Court in the case of Surendra Pal (supra) were
satisfied by the plaintiff in this case. The said
Judgment would assist the case of the plaintiff and not
the defendants.
141] In so far as the submission of the learned
counsel for the defendants that the said deceased was not
aware of the execution of the earlier Will and Codicil
dated 1.12.1987 or that if the earlier Will and Codicil
dated 1.12.1987 were already executed by the said
deceased, the second Will and Codicil dated 26.4.1990
could not have been executed for the said bequest and the
same creates suspicious circumstances is concerned, a
perusal of the evidence clearly indicates that the
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defendants have not disputed the existence, execution and
attestation of the Will and Codicil dated 1.12.1987. It
is also not in dispute that while the said Will and
Codicil dated 1.12.1987 were executed, Mr.S.F.Rego, the
plaintiff herein was a sitting Judge of Bombay City Civil
Court. When the second Will and Codicil were executed by
the said deceased, Mr.S.F.Rego had already retired as a
Judge.
142] It is not disputed by the defendants that the
bequest in the earlier set of Will and Codicil dated
1.12.1987 and in the Will and Codicil both dated
26.4.1990 were identical. This Court in the case of Rusi
Hormusji Pavri & another (supra) has considered similar
facts and has held that where admittedly there were
earlier Wills and Codicils of 1995, which also provided
same pattern of distribution of the property, it would
indicate that the deceased had wish and desire to
bequeath the property in favour of the petitioners and
the exclusion of others was intended since long. It is
further held that exclusion of others by itself cannot be
a reason to overlook to validly proved Will.
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143] In my view, the defendants having not challenged
the execution and attestation of Will and Codicil dated
1.12.1987, could not challenge the execution and
attestation of the Will and Codicil dated 26.4.1990,
which even according to the defendants provide for the
similar bequests thereby giving the immovable property
exclusively to Mr.Albert Talegawkar and giving monetary
legacy to the other legal heirs and next-of-kin. The
mind of the said deceased was thus consistent and
continued between 1.12.1987 to 26.4.1990. It is not in
dispute that by subsequent Will, the earlier Will and
Codicil executed on 1.12.1987 are revoked by the said
deceased.
144] In my view, in these circumstances, the
arguments of the learned counsel for the defendants that
the execution of Will and Codicil dated 26.4.1990 is
surrounded by suspicious circumstances cannot be
accepted. Admittedly, the plaintiff has not applied for
probate of the earlier Will and Codicil both dated
1.12.1987 and thus, no inference as sought to be
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canvassed for the learned counsel for the defendants, can
be drawn against the plaintiff. The Judgment of this
Court in the case of Rusi Hormusji Pavri & another
(supra) will squarely apply to the facts of this case and
assist the case of the plaintiff. I am respectfully
bound by the said Judgment.
145] In so far as the submission of the learned
counsel for the defendants that the plaintiff ought to
have given an advice to the said deceased that the said
deceased have already been executed the similar Will and
Codicil on 1.12.1987 and thus there was no requirement to
execute the Will and Codicil on 26.4.1990 for providing
similar bequest is concerned, the plaintiff in his
evidence has clearly deposed including in the cross-
examination that he was not aware of the execution of
the Will and Codicil dated 1.12.1987 nor was he informed
at any point of time about Will and Codicil dated
1.12.1987 by the said deceased.
146] In my view, the plaintiff thus, even otherwise
could not have given any such advice to the said
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deceased. It was for the said deceased to decide about
execution of any number of Wills or Codicils. The last
of such Will and Codicil would prevail and would revoke
all earlier Wills and Codicils. No blame on the plaintiff
for allegedly not giving such advice to the said deceased
can be attributed. Be that as it may, no suspicious
surrounding circumstances can be inferred in this case
due to execution of Will and Codicil dated 26.4.1990 by
the said deceased in these circumstances.
147] If the said deceased had another Will and
Codicil in view of the fact that Mr.S.F.Rego had retired
from judicial service or due to any other reasons, no
conclusion be drawn by this Court that the second Will
and Codicil were surrounded by any suspicious
circumstances. In my view, there is no merit in the
submission of the learned counsel for the defendants that
though such alleged suspicious surrounding circumstances
exist, the plaintiff has failed to dispel such alleged
surrounding suspicious circumstances.
148] In so far as the submission of the learned
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counsel for the defendants that the testamentary petition
was filed without affidavit of attesting witness is
concerned, no sooner an office objection was raised by
the office of this Court, the plaintiff filed an
affidavit of the attesting witnesses in the proceedings.
No prejudice therefore, was caused to the defendants of
any nature whatsoever. I am not inclined to dismiss the
testamentary petition or the testamentary suit on this
ground.
149] In so far as the submission on the Issue of
delay raised by the learned counsel for the defendants is
concerned, the plaintiff has averred in the testamentary
petition and more particularly in paragraph No.11 that
each of daughters of the deceased had confirmed that they
did not have doubt or objection about the said Will and
Codicil and had no objection to the grant being made.
Mrs.Daisy S.Dadarkar, the eldest sister, however, had
requested the executor to hold on filing of the petition
or probate and she being a senior member amongst the
family, was pursuing Mr.Benjamin Abraham to avoid any
contest so that grant of probate would have been smooth
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and expeditious.
150] However, she was unable to persuade Mr.Benjamin
Abraham and thereafter, the executors decided to file
testamentary petition. The petitioners accordingly
prayed that the delay in filing the petition in these
circumstances be condoned. Though, the said daughter,
Mrs.Daisy Dadarkar was examined as a witness by the
plaintiff and the defendants though had cross-examined
her, no such suggestion was put to her confronting the
said statement made in paragraph No.11 of the
testamentary petition. In my view, the delay is
sufficiently explained by the plaintiff, which remained
un-controverted.
151] In so far as the submission of the learned
counsel for the defendants that plaintiff had not filed
the original Will dated 26.4.1990 with the Prothonotary
and Sr.Master of this Court is concerned, this Court has
already permitted the plaintiff to file the said original
Will and Codicil by a detailed order passed on 24.9.2013
in the Chamber Summons No.42 of 2013 by keeping the issue
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of existence and authenticity of the Will and Codicil
open.
152] In so far as reliance placed by the learned
counsel for the defendants on the order passed by this
Court on 25.11.2014 while exhibiting the Will and Codicil
both dated 26.4.1990 as exhibit P-5 and P-6 respectively
with a clarification that merely because the Will and
Codicil now marked in evidence, it does not mean that the
defendants have admitted the said documents and the
order passed by this Court on 31.7.2017 thereby
exhibiting the Will and Codicil both dated 1.12.1987 are
marked as P-7 and P-8 respectively with mere
clarification and that those documents cannot be
considered as proved merely on marking of those exhibits
is concerned, there is no dispute that merely because
the documents are marked as exhibits, proof thereof is
not dispensed with.
153] However, in the facts of this case, the
plaintiff has examined witness and has laid cogent
evidence to prove the execution and attestation for the
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said documents. The defendants have not disputed the
execution and attestation of the Will and Codicil dated
1.12.1987. In my view, after perusing the entire
evidence on record, the plaintiff has proved the
execution and due attestation of all the four documents.
There is thus no merit in the submission made by the
learned counsel for the defendants.
154] In so far as the submission of the learned
counsel for the defendants that the plaintiff had not
examined Dr.P.H.Udas, Mr.Balraj Verma or Mr.Hasmukh
Gandhi and thus adverse inference has to be drawn by this
Court is concerned, in so far as examination of
Mr.Hasmukh Gandhi is concerned, he was also one of the
executors of the Will and Codicil. The plaintiff was not
required to examine both the executors of the Will and
Codicil to prove the execution and attestation of the
Will. The examination of one of the executor, who was
one of the propounder, was sufficient to prove the
execution and attestation of the Will. No adverse
inference thus can be drawn against the plaintiff by not
examining Mr.Hasmukh Gandhi. It is not in dispute that
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Mr.Hasmukh Gandhi was already impleaded as plaintiff No.3
in the testamentary petition and continued to be on
record till his death recently.
155] In so far as examination of Dr.P.H.Udas is
concerned, he was also one of the attesting witness
alongwith the plaintiff. The plaintiff had examined
himself as a witness. He was not required to examine
Dr.P.H.Udas also for the purpose of proving the execution
and attestation of the Will and Codicil. In so far as
examination of Mr.Balraj Verma is concerned, since the
defendants themselves while cross-examining the plaintiff
had accepted the position that the said Will and Codicil
were drafted by the plaintiff by asking several questions
to the plaintiff, the examination of Mr.Balraj Verma by
plaintiff was not necessary. The plaintiff was not
required to multiply witnesses for proving the same
facts. No adverse inference thus can be drawn against
the plaintiff for not examining Dr.Udas, Mr.Balraj Verma
and Mr.Hasmukh Gandhi.
156] In so far as the submission of the learned
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counsel for the defendants that the plaintiff and
Mr.Hasmukh Gandhi were close associates of Mr.Albert
Talegawkar and were colluding with him or that the
plaintiff and Mr.Albert Talegaonkar had played prominent
role in execution and attestation of the Will and Codicil
and on that ground itself, such Will and Codicil cannot
be accepted as proved by this Court is concerned, the
plaintiff in his cross-examination has denied that the
plaintiff knew Mr.Hasmukh B.Gandhi at Bar and thereafter
in the office of Mr.Bhaishankar Kanga and Giridharlal
Solicitors. He denied that Mr.Hasmukh Gandhi was working
with the said Solicitors.
157] The plaintiff admitted that Mr.Albert Talegawkar
was the partner in Mr.Bhaishankar Kanga and Giridharlal
Solicitors, but had retired from the said Firm.
Plaintiff denied that he was ever associated with the
said Firm Mr.Bhaishankar Kanga and Giridharlal since
December, 1977. He also denied that he was a close
friend of Mr.Albert Talegawkar. He was only well
acquainted with him as he was the junior associate of the
Firm. He had visited the residence of Mr.Albert
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Talegawkar on certain occasions i.e. condolence meeting
on the demise of his father and mother. He had visited
the house in connection with execution of the Will.
158] In so far as the services of the clerk of Mr.
Mr.Bhaishankar Kanga and Giridharlal provided for the
purpose of drafting the probate petition or that the
address of the said Firm was mentioned in the
correspondence exchanged by the plaintiff is concerned,
that would not indicate that the said Mr.Albert
Talegawkar or the office of Mr.Bhaishankar Kanga and
Giridharlal had played any prominent role or otherwise
in the execution of the Will and Codicil. The defendants
failed to prove these allegations by leading any cogent
evidence that the said Mr.Albert Talegawkar had played
any prominent role in execution of the Will and Codicil
of the said deceased.
159] Merely because in the correspondence, the
address of Mr.Bhaishankar Kanga and Giridharlal was
mentioned by the plaintiff, that cannot conclude that
Mr.Albert Talegawkar had played any prominent role in
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drafting the Will or Codicil. Merely because at some
point of time, the plaintiff had filed one of the
proceedings through Mr.Bhaishankar Kanga and Giridharlal,
that would also not conclusively prove that the plaintiff
had colluded with Mr.Albert Talegawkar in drafting the
Will and Codicil dated 26.4.1990 or that he had played
any part to favour Mr.Albert Talegawkar.
160] In so far as the submission of the learned
counsel for the defendants that the quality of paper used
in the Will and Codicil dated 1.12.1987 was better or
new is concerned, the defendants have not disputed or
challenged the Will and Codicil dated 1.12.1987. The
defendants did not make any suggestion to the plaintiff
to this effect in the cross-examination or did not lead
any independent evidence to prove this allegation.
161] I am not inclined to accept the submission of
the learned counsel for the defendants that the Will and
Codicil was found in the custody of Mr.Albert Talegawkar.
In so far as examination of Mr.Albert Talegawkar as a
witness is concerned, the plaintiff had discharged the
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burden of proof in respect of the issues, for which
burden was on him. The plaintiff was not required to
examine the beneficiary under the Will for the purpose of
proving the execution and attestation of the Will and
Codicil.
162] In so far as Judgment of Supreme Court reported
in AIR 1990 SC, 396 relied upon by Mr.Tripathi, learned
counsel for the defendants, there is no dispute about
proposition of law laid down by the Supreme Court in the
said Judgment.
163] In so far as the submission of the learned
counsel for the defendants that this Court shall take
appropriate action against the plaintiff for allegedly
colluding with Mr.Albert Talegawkar, for making false
statement on oath or a prosecution shall be filed under
Section 471 of the Criminal Procedure Code r/w Section
191 of the Indian Penal Code against the plaintiff is
concerned, in my view no such case is made out by the
defendants. During the course of his argument, the
learned counsel for the defendants made various comments
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against the plaintiff, which in my view, were not only
unwarranted, incorrect, but were irresponsible and were
intentionally made to disrepute and malign his
reputation.
164] In so far as the submission of the learned
counsel for the defendants that the plaintiff has not
produced proof of legacy distributed by Mr.Albert
Talegawkar is concerned, a perusal of record, more
particularly, evidence of Mrs.Daisy Dadarkar, it is clear
that the amount directed to be paid by the said deceased
testatrix were already paid by the said Mr.Albert
Talegawkar except Mr.Benjamin Abraham. The defendant
No.3 in his evidence stated that such amount was offered
to his father Mr.Benjamin Abraham but he had refused. Be
it as may, the stage of implementation of the Will and
Codicil arise only after those Wills and Codicils are
probated by this Court and on that ground probate of such
proved Will and Codicil cannot be refused.
165] In so far as the last submission of the learned
counsel for the defendants that in Clause 6 of the Will
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dated 26.4.1990 there was a conditional bequest made by
the said deceased is concerned, a perusal of the clause 6
of the Will indicates that the testator had provided that
if any of the beneficiary challenges the Will in any
manner whatsoever, then such child or children will
forfeit whatever she had given to him/her or them under
such Will. Mr.Albert Talegawkar had offered the bequest
amount in favour of Mr.Benjamin Abraham, who refused to
accept it.
166] A plain reading of clause 6 does not indicate
that the condition if any imposed by the said deceased
testatrix in the Will can make the entire Will void.
There is thus no merit in the submission of the learned
counsel for the defendants. A reference to Section 126
of the Indian Succession Act, 1925 would be relevant.
Under Section 126 of the Indian Succession Act, a bequest
upon impossible condition is void. The condition imposed
under clause 6 in the Will was not impossible condition
and thus the same cannot be declared as void under
Section 126 or 127 of the Indian Succession Act, 1925.
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167] In so far Issue No.9 is concerned, for the
reasons recorded aforesaid, the plaintiff has proved that
he is entitled to the grant of probate in respect of the
Will and Codicil dated 26.4.1990 executed by the said
deceased Late Simha Issac Talegawkar. The said Issue
accordingly is answered in the affirmative. I therefore,
pass the following order:-
ORDER
(I) Testamentary Suit No.75 of 2002 is
decreed as prayed. Office is directed to issue
probate in favour of the plaintiff for the Will
and Codicil dated 26.4.1990 executed by Late Simha
Issac Talegawkar, having effect throughout the
State of Maharashtra, expeditiously.
(II) Suit is decreed with costs.
(III) The office is directed to act on the
authenticated copy of this order.
(R.D.Dhanuka, J)
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At this stage, Mr.Thacker, learned Senior
Counsel for the plaintiff states that his client will not
apply for enforcement of the judgment and order passed by
this Court today for a period of four weeks. The
statement is accepted. In view of the statement made by
the learned Senior Counsel for the plaintiff, I am not
inclined to consider the application made by the learned
counsel for the defendants for stay of operation of this
judgment and order.
(R.D. Dhanuka, J.)
