Bombay High Court
Mrs.Dhana Nambiar vs Mr. E.P.Vinod Kurup on 10 October, 2017
Bench: R.D. Dhanuka
ppn 1 ts-59.03 (j).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO.59 OF 2003
IN
TESTAMENTARY PETITION NO.237 OF 2003
Edakuda Panankandiyil Narayana Kurup .. Deceased
In the matter between
Mrs. Dhana Nambiar )
Hindu Inhabitant of Bombay )
being the sole executrix named under )
the last Will of the deceased, )
residing at Shreeniketan, Plot No.377, )
9th Cross Road, Chembur, )
Bombay - 400 071 ) .. Plaintiff/Petitioner
Versus
E.P.Vinod Kurup of Mumbai )
Hindu Inhabitant of Bombay )
residing at Shiv Anil, 600, 6th Floor, )
6, Union Park, Chembur, )
Mumbai - 400 071. ) .. Defendant/Caveator
---
Mr.Prakash Lad a/w Ms.Aparna Murlidharan a/w Ms.Sayli Apte for
the plaintiff/petitioner.
Mr.Clive D'Souza for the defendant.
---
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CORAM : R.D. DHANUKA, J.
RESERVED ON : 5th July 2017
PRONOUNCED ON : 10th October, 2017
Judgment :-
. The plaintiff herein has filed a petition bearing No.237 of
2003 which is converted into Testamentary Petition No.59 of 2003 inter
alia praying for probate of the last Will and Testament of Mr.Edakuda
Panankandiyil Narayana Kurup dated 18th August 2002 who died on 4th
September 2002 (Hereinafter referred as the "said deceased"). Some
of the relevant facts for the purpose of deciding this suit are as under :-
2. The plaintiff claims to the sole executrix of the said Will
dated 18th August 2002 alleged to have been executed by deceased
Mr.Edakuda Panankandiyil Narayana Kurup. Plaintiff was the daughter of
the said deceased. It is the case of the plaintiff that the said deceased left
the Will dated 18th August 2002 bequeathing a flat described in the Will
to his grandson Harish Nambiar, son of the plaintiff absolutely and
exclusively. Except the said bequest, the deceased has alleged to have
bequeathed all his estate, movable as also immovable to his daughter-
ppn 3 ts-59.03 (j).doc
plaintiff absolutely and exclusively. It is the case of the plaintiff that the
said deceased left behind him surviving as his only next of kin
according to the Hindu Succession Act, 1956 i.e. three sons and one
daughter.
3. In the said alleged Will, it was provided that all three sons
were well settled and the testator did not wish to give them anything out
of his estate and hence he had excluded all his three sons from his estate
and directed that none of them shall have any share or interest of any
nature in any portion of his estate. According to the plaintiff, the said
Will was witnessed by Mr.Kishor V. Tembe, Advocate and also by his
wife i.e. Mrs.Neela K. Tembe.
4. On 4th September 2002, the said deceased died at Mumbai.
On 17th February 2003, the plaintiff herein filed a Testamentary Suit
No.237 of 2003 inter alia praying for probate of the alleged last Will and
Testament of the said deceased. Citations were served upon the next of
kins described in paragraph 8 of the plaint.
ppn 4 ts-59.03 (j).doc
5. Mr.Kishor V. Tembe and Mrs.Neela K. Tembe filed two
separate affidavits both dated 17th February 2003 as the attesting
witnesses which were annexed to the testamentary petition. Out of
three sons of the said deceased, the defendant herein filed a caveat and
affidavit for opposing the probate petition. In view of the said caveat
and affidavit-in-support of the caveat, the Testamentary Petition No.237
of 2003 was converted into a Testamentary Suit No.59 of 2003. In the
affidavit-in-support of the caveat, the caveator alleged that the alleged
Will purportedly executed by the deceased on 18th August 2002 was a
false and fabricated document prepared at the instance of the plaintiff
with a view to make provision for herself and her children so that the
entire estate of the deceased would belong to them.
6. It was further alleged that the plaintiff had a malafide
motive of disinheriting the caveator completely which the deceased
would never have done. It is stated by the caveator that he was given to
understand that the left hand thumb impression was obtained by the Sub
Registrar at the residence of the deceased. The said deceased was unable
to sign the purported Will. However, the purported Will bear the
signature of the deceased. It is contended that the attesting witnesses
ppn 5 ts-59.03 (j).doc
of the purported Will are the husband and wife. The caveator objected to
grant of probate also on the ground that the plaintiff who was eldest in
the family, her eyes were always set on the estate of the deceased. The
deceased was suffering from Cancer which suffering increased in the
final days of his life. The deceased died on 4 th September 2002 i.e. 17
days from the date of execution of the alleged Will. The deceased was
88 years old and was not in a proper state of mind to understand what he
was doing. The deceased was illiterate and was understanding only
Malayalam. He could not read or write English. The deceased was in
extreme pain in the final days of his life. His poor physical & mental
health and feeble mind due to medication towards the end of his life
made him an easy prey to the manipulations of the plaintiff whose
influence over him was overwhelming.
7. In paragraph 5 of the affidavit-in-support of the caveat, it
is alleged that the purported Will shows that the language of the alleged
Will was not the expression of thoughts of the deceased but was an
expression of thoughts of the plaintiff herself whose main object was to
make provision for herself and her children i.e. her daughter Mrs.Rekha
Unni and her son Mr.Harish Nambiar. It is alleged that the only reason
for excluding the caveator and his two brothers was that they are well
ppn 6 ts-59.03 (j).doc
settled. The plaintiff was also well settled and has been residing in
Shreeniketan without any payment. It is further alleged that the
registration of the alleged Will with Sub Registrar at Kulra was done
by the plaintiff with a view to create a false impression that the purported
Will was a genuine Will.
8. It is alleged that the deceased was incapable of signing the
purported Will on or about 18th August 2002 on account of his illness
and physical and mental weakness. The said affidavit of the attesting
witnesses were tailor-made to lend credence to the genuineness of the
alleged Will. The alleged Will dated 18th August 2002 which is sought to
be probated by the plaintiff is a false and fabricated document. It is
alleged in the affidavit-in-support of the caveat that considering close
relationship that existed between the deceased and the caveator who
being the youngest in the family, it is inconceivable that the deceased
would have excluded him in the manner that the purported Will does. It
is alleged that even assuming without admitting that the alleged Will
was signed by the deceased, it was certainly signed under duress or
under the influence of the plaintiff. It is further alleged that the said
alleged Will alleged to have been drawn up by Mr.Kishor V. Tembe who
was also the attesting witness of the alleged Will. Instructions for
ppn 7 ts-59.03 (j).doc
drawing up the alleged Will were purportedly given by the plaintiff
herself. The said alleged Will is not a genuine Will.
9. It is alleged that even if the deceased had some reason to
be displeased with him, he would not have excluded his children only
from the estate when he had allegedly made provision for the children
of the plaintiff. The deceased at the time of alleged execution of the
purported Will was not in full possession of his faculties and could not
have understood the contents of the purported Will. The alleged Will is
against the temperament of the deceased. The deceased was not
explained the contents of the alleged Will and the alleged Will was
obtained fraudulently or by undue influence. It is alleged that the
deceased was too feeble and was not in a position to make any
testamentary disposition at the time the alleged Will was purported to
have been executed by him on account of his illness and extreme old
age.
10. On 9th July 2010, this Court framed the following issues.
Issues and my findings thereon are as under:-
ppn 8 ts-59.03 (j).doc
Issues Findings
(i) Whether the last Will and Testament of In Negative.
the testator dated 18th August 2002
was validly executed ?
(ii) Whether the Will was obtained by Alleged Will is
surrounded by
fraud or was forged and fabricated ?
surrounding
suspicious
circumstances.
(iii) What relief, if any, the plaintiff/
petitioner is entitled to ? As per order.
11. The plaintiff himself entered the witness box and filed
affidavit in lieu of examination-in-chief on 29th July 2010. He also
examined one of the sons of the deceased i.e. Mr.Edakuda Panankandiyil
Dhandas as a witness (PW-2) who was also cross-examined by the
defendant's advocate. The plaintiff also examined Mr.Kishor V. Tembe,
advocate who was alleged to be one of the attesting witnesses to the
alleged Will who was cross-examined by the defendant's advocate. The
defendant himself entered the witness box and filed affidavit in lieu of
examination-in-chief dated 17th June 2013. He was cross-examined by
ppn 9 ts-59.03 (j).doc
the plaintiff's advocate. The defendant examined one of the sons of the
deceased i.e. Mr.Edakuda Panankandiyil Dhananjayan as one of the
witnesses who was cross-examined by the plaintiff's advocate. The
defendant had issued a witness summons upon Dr.Nobhojit Roy of
BARC Hospital to produce two files containing medical records of the
deceased and for recoding his evidence. The said witness was cross-
examined by the plaintiff's advocate.
12. Mr.D'Souza, learned counsel appearing for the defendant
invited my attention to the averments made in the plaint, affidavit-in-
support of the caveat, issues framed by this Court, various affidavits in
lieu of examination-in-chief filed by the witnesses and their cross-
examination. He invited my attention to the deposition of the plaintiff
recorded in paragraph 8 of the affidavit in lieu of examination-in-chief
and submits that according to the said witness, she has alleged to have
identified the signature of the deceased at the time of registration of the
alleged Will. He submits that the said witness was not shown the original
alleged Will of the deceased at any point of time and more particularly
when she filed affidavit in lieu of examination-in-chief and when she was
in witness box.
ppn 10 ts-59.03 (j).doc
13. Learned counsel for the defendant invited my attention to
the affidavit in lieu of the examination-in-chief of Mr.Kishor V. Tembe
dated 8th April 2013. It is submitted that the said Mr.Kishor V. Tembe
claimed to be an Executor of the alleged Will was also not shown the
original alleged Will dated 18th August 2002 of the deceased. He submits
that in the said deposition of the said Mr.Kishor V.Tembe, he has not
deposed as to whether he was shown the original Will. He submits that
when the said witness entered the witness box before the learned Court
Commissioner, even at that stage, the original alleged Will was not
shown to the witness. It is thus submitted that since the original alleged
Will was not shown either to the attesting witness or to the plaintiff
herself, the said original alleged Will is not proved by the plaintiff. The
said Mr.Kishor Tembe has not identified the signature of the deceased
and the attesting witnesses on the alleged Will. In support of this
submission, learned counsel for the defendant invited my attention to
the entire evidence of the said Mr.Kishor V.Tembe who alleged to be the
attesting witness and also to the plaintiff.
ppn 11 ts-59.03 (j).doc
14. Learned counsel for the defendant placed reliance on
Sections 67 and 68 of the Indian Evidence Act, 1872 and would submit
that even if the Will is registered, the signature of the testator has to be
proved. He submits that the documents referred to and relied upon by the
plaintiff in her affidavit in lieu of the examination-in-chief and more
particularly in paragraph 4 were admittedly not marked as exhibits but
marked "X" for identification.
15. Learned counsel for the defendant invited my attention to
the answer of the plaintiff in reply to question nos.24 to 36, 43 and 44.
He submits that the plaintiff has admitted in the cross-examination that
the said deceased was suffering from abdominal cancer, diabetes, high
blood pressure, breathlessness and had walking difficulties and whenever
he was suffering from any illness, the plaintiff used to take him to
BARC hospital. He submits that the attention of the witness was invited
to paragraph 7 of the affidavit in lieu of examination-in-chief. She
admitted that the said deceased was suffering from blood pressure also.
Witness admitted that on 26th August 2002, the deceased was suffering
from breathlessness and chest pain as mentioned in the progressive notes
of the BARC hospital. She further admitted that the deceased was
ppn 12 ts-59.03 (j).doc
suffering from severe arm pain and was not taking solids and was also
suffering from severe weakness. She deposed that she did not recollect
for how long the deceased was suffering from severe arm pain but it
was stated that may be, he was suffering from 27th August 2002.
16. Learned counsel for the defendant invited my attention to the
answer given by the plaintiff in cross-examination in reply to question
no.47 and would submit that when the witness was shown page no.1/73
of medical reports and was asked whether the contents of the said report
were correct, she answered the said question in affirmative. The witness
also admitted that the deceased was admitted to the Bhabha Atomic
Research Hospital on 22nd August 2002. In reply to question no.50, the
witness admitted that when the deceased was admitted to the said hospital
on 22nd August 2002, he was vomiting and was suffering from severe
weakness. He was also suffering from loss of appetite. He was not
taking solids. The witness admitted that when the deceased was
admitted to the hospital in 2002, he was 88 years old. In reply to
question no.66, the witness admitted that on 4th January 2001, the said
deceased was provided hearing aid by BARC hospital.
ppn 13 ts-59.03 (j).doc
17. It is submitted that the plaintiff had produced only two
selected documents which were at pages 34/73 and 36/73 from the
medical reports filed by the BARC hospital which were produced on
record by the plaintiff. Doctor of the BARC examined by the defendant
confirmed that those two documents produced by the plaintiff were out
of those medical reports produced by the doctor from BARC. He invited
my attention to the reply given to question no.88 i.e. when the plaintiff
was put a suggestion by the defendant's advocate that the alleged Will
was not validly executed, the plaintiff denied the said suggestion. In reply
to question no.90, the witness could not produce any proof to show that
the deceased could speak Hindi, Marathi, Tamil and Gujrati and read
English as deposed by her in paragraph 3 of her affidavit in lieu of
examination-in-chief. The witness denied the suggestion of the
defendant's advocate that the purported Will dated 18 th August 2002
was obtained fraudulently and was a fabricated document. She also
denied the suggestion that the deceased had a poor physical health and a
feeble mind at the time of execution of the alleged Will.
18. Learned counsel for the defendant invited my attention to
paragraph 16 of the affidavit in-support of the caveat and submits that
ppn 14 ts-59.03 (j).doc
the defendant had raised a specific objection that the deceased was not in
a position to make any testamentary disposition and was not in a proper
frame of mind to make and execute the alleged Will. He invited my
attention to the deposition in paragraph 10 of the affidavit in lieu of
examination-in-chief of the plaintiff alleging that the said deceased was
very active and was capable of understanding the contents of the said
Will at the time of execution thereof. He submits that in the said
deposition, the plaintiff has not deposed whether the said deceased had
actually understood the contents of the Will or not at the time of alleged
execution of the said Will. It is deposed by her that the said deceased was
treated at BARC hospital because the plaintiff was a teacher in Atomic
Energy Central School. In the said paragraph, she deposed that when the
said deceased was hospitalised only on 22nd August 2002, he was
vomiting. He has only abdominal cancer and was treated in BARC
hospital.
19. Learned counsel for the defendant invited my attention to the
affidavit in lieu of examination-in-chief of Mr. Kishor V. Tembe,
advocate and submits that even the said witness has not deposed about
the alleged sound mind and disposition mind of the said deceased at the
time of execution of the said Will or that the said deceased had
ppn 15 ts-59.03 (j).doc
understood the contents of the said alleged Will at the time of execution
of the said alleged Will.
20. Learned counsel for the defendant placed reliance on Rule
374 of the Bombay High Court (Original Side) Rules, 1980 and submits
that the affidavits of attesting witnesses have to be accompanied with
the testamentary petition when filed. He submits that the contents of the
affidavits of the attesting witnesses have to be incorporated into the
affidavit of evidence which the alleged attesting witnesses have failed.
He submits that the affidavit of attesting witnesses cannot be considered
in evidence. Learned counsel for the defendant invited my attention to
the affidavit of attesting witness Mr. Kishor V. Tembe dated 17 th February
2003 annexed to the petition alleging that at the time of the said
deceased having subscribed his signature to the said Will, he was of
sound and disposing mind, memory and understanding and to the best
of his belief, made and published the same of his free Will and pleasure.
The contents of the said affidavit annexed to the petition were not
incorporated in affidavit of evidence of Mr.Kishor V. Tembe.
21. Learned counsel for the defendant invited my attention to
the examination-in-chief of Dr.Nobhojit Roy who attended these
ppn 16 ts-59.03 (j).doc
proceedings pursuant to the summons issued to him by this Court on
the application of the defendant to give evidence in respect of two files
containing medical reports of the deceased maintained by BARC hospital.
He submits that various portions of the medical reports were shown to the
said witness.
22. It is submitted that the said doctor admitted that the hospital
started treating the deceased from 28th March 2002 till his death in the
Surgical Unit. He deposed that his area of specialization was General
Surgery. He had gone through the medical reports when the witness
was asked as to what is terminal cardio respiratory arrest in case of
advance adeno carcinoma of stomach with heptic metastasis. The witness
answered that it means cancer of the stomach which spread to the liver.
The said answer was given by the witness after his attention was drawn
to page 1/73 of the certified copy of the medical notes showing cause of
the death as "terminal cardio respiratory arrest" in case of advance adeno
carcinoma of stomach with heptic metastasis.
23. The said doctor also admitted that at the different times and
varying period of times, the said deceased had suffered from heart
disease, diabetes, hypertension, breathlessness, severe weakness,
ppn 17 ts-59.03 (j).doc
discharged from eyes, ear tinnitus, low sodium and blood pressure.
When the witness was asked whether various illnesses of the deceased
admitted by him was during the period from 28th March 2002 until his
death on 4th September 2002, he deposed that there were pre-existing
illnesses which did not manifest as a cause for admission in the
hospital. He further deposed that none of the member of the team were
treating those illnesses of the deceased. He deposed that Dr.Bhatt was
treating the ear complaint, Dr.Nandkarni was treating the eye treatment,
Dr.Nair was the physician treating diabetes, hypertension and heart
disease. When the witness was asked as to what diseases the deceased
was operated on, he replied that it was a cancer of the stomach, but he
was not operated upon. The deceased was referred to Dr.Raman
Deshpande at Tata Memorial Hospital and the doctors and the family in
consultation decided not to go ahead with surgery. He submits that the
said doctor admitted that it had been recorded in the notes of the patient
that the family did not desire to go ahead with the operation.
24. Learned counsel for the defendant invited my attention to the
answer of the witness to question no.22 and submits that the said witness
admitted that the said deceased was suffering from vertigo as mentioned
in the progress reports on the dates he was seen by the ENT consultant.
ppn 18 ts-59.03 (j).doc
In reply to question no.28, the witness admitted that all investigations
done on the patient entered in the main file recorded by the treating
doctor/clinicians. The investigation file contained physical reports of
the investigation. He also admitted that severe weakness, weight and
appetizer, loss and pooling of food was the results of stomach cancer.
25. Learned counsel invited my attention to reply of the witness
to question nos.34 to 37 and submits that the said witness admitted that
the patient was physically weak because of his illness. The said witness
further deposed that the deceased was however ambulatory and had
energy enough not to be bed ridden. The said deceased came in for
treatment and was admitted from home on 22nd August 2002. There was
no record in the hospital notes of how he got to the hospital. He
presented himself to the Out Patient Department. He deposed that there
was no record of who accompanied the patient to the hospital.
26. Learned counsel for the defendant invited my attention to
the cross-examination of the said Dr.Nobhojit Roy and submits that
though the said witness admitted that the said deceased was suffering
from several illnesses, in his cross-examination, when he was asked by
the learned advocate for the plaintiff that whenever he had occasioned to
ppn 19 ts-59.03 (j).doc
examine the deceased, how did he find his mental condition, the said
witness deposed that the said deceased was to be extremely cheerful
despite his physical condition and his diseases. When the said witness
was asked whether he could tell about his understanding whenever he
had examined the deceased, the said witness replied that the said
deceased had a very good understanding and his decision making of not
undergoing any aggressive treatment for his cancer.
27. When the said witness was put a suggestion by the
plaintiff's advocate that the deceased was of sound mental condition till
2nd September 2002, he answered the said question in affirmative and
further stated that as per the team record of the said witness, the said
deceased was conscious and oriented which reflected his sound mental
condition. It is submitted by the learned counsel that the said cross-
examination of the said witness was totally contrary to his various
answers given in the examination-in-chief which were giving after
verifying the contents of various medical records forming part of the
reports filed by the said deceased by BARC hospital. He submits that
cross-examination of this witness has to be read and construed in proper
perspective.
ppn 20 ts-59.03 (j).doc
28. The plaintiff examined himself as well as the witness
Mr.Edakuda Panankandiyil Dhanadas, one of the son of the deceased and
also examined Mr.Kishor V. Tembe, advocate who claimed to be one of
the attesting witness to the alleged Will who were cross examined by the
defendant himself. The defendant examined himself and also Dr.
Nobhojit Roy of BARC Hospital and also one of the son of the said
deceased Mr.Edakuda Panankandiyil Dhanadas who were cross
examined by the plaintiff's counsel.
29. Learned counsel for the defendant invited my attention to the
alleged Will of the deceased and would submit that the alleged testator
has alleged to have bequeathed the entire property to the plaintiff and her
two children. The immovable properties are bequeathed to the grand
children of the deceased and the movables are bequeathed to the plaintiff.
Learned counsel invited my attention to various contentions raised by the
defendant in the affidavit in support of the caveat. My attention is
invited to the affidavit in lieu of examination in chief of the plaintiff.
Learned counsel for the defendant submits that the plaintiff has though
identified the alleged signature of the deceased, the said alleged signature
was identified at the time of the registration of the alleged Will. The
ppn 21 ts-59.03 (j).doc
alleged Will was never shown to the plaintiff in evidence at any point of
time.
30. On this issue, the learned counsel for the defendant invited
my attention to the affidavit in lieu of examination in chief filed by
Mr.Kishor V. Tembe, advocate who was alleged to be one of the attesting
witness. It is submitted that the said witness also did not identify the
signature of the testator and the other alleged witnesses on the alleged
Will. The said witness also was not shown the original of the alleged
Will executed by the said deceased. Learned counsel for the defendant
invited my attention to the cross examination of Mr.Kishor V. Tembe and
would submit that the said alleged Will is neither proved by the said
Mr.Kishor V. Tembe or by the plaintiff at all. He placed reliance on
sections 67 and 68 of the Indian Evidence Act, 1872. He submits that
even if a Will is registered, proof of the signature of the deceased testator
on the Will is not dispensed with and has to be proved.
31. Learned counsel appearing for the defendant invited my
attention to the deposition of the plaintiff in paragraphs 3 and 4 of the
examination in chief and submits that the documents referred by the said
witness such as public notice alleged to have been issued by the deceased
ppn 22 ts-59.03 (j).doc
on 28th October, 1989 has not been marked as exhibit as the same is not
proved by the plaintiff. He invited my attention to the cross examination
of (PW-1) and in particular his answer to question nos. 24 to 36, 43, 44,
53 to 55, 61 to 73, 75 to 77, 88, 92 to 99 and submits that the plaintiff has
admitted in its cross examination that the said deceased was suffering
from various diseases and was bed-ridden.
32. Learned counsel appearing for the defendant invited my
attention to clause (4) of the alleged Will and would submit that even the
said alleged Will clearly indicates that there was no rivalry between the
said deceased and the defendant who was his son. The said deceased in
the said alleged Will has totally disinherited the defendant. He submits
that the alleged Will of the said deceased is not an unnatural Will and
cannot be probated.
33. Learned counsel appearing for the defendant invited my
attention to some of the objections raised by the defendant in support of
his caveat and more particularly on the issue of mental capacity and
disposing mind of the deceased and also disputing that the deceased
could not have understood the contents of the alleged Will. He submits
that neither the attesting witness nor the plaintiff has deposed about the
ppn 23 ts-59.03 (j).doc
sound and disposing mind and memory of the said deceased or that the
said deceased had understood the contents of the said Will.
34. Learned counsel appearing for the defendant invited my
attention to Rule 373 of the Bombay High Court (Original Side) Rules
and would submit that the affidavit of the attesting witness has to be in
the format prescribed under the said Rule. The affidavit of the attesting
witness has to be accompanied with the testamentary petition when filed.
35. Learned counsel appearing for the defendant invited my
attention to the examination in chief of Dr. Nobhojit Roy (PW-3) and in
particular his reply to question nos. 4, 8 to 12, 14 to 37 and would submit
that the said witness who was who was practicing doctor in BARC
Hospital where the said deceased was admitted for quiet sometime after
verifying the medical report showing to him by the learned counsel for
the defendant. He submits that the said doctor could not produce any
team record which were alleged to have been referred by him in his cross
examination. He submits that insofar as the evidence of the said Dr.
Nobhojit Roy is thus concerned, this court shall consider the entire
evidence in toto including the evidence of the other two witnesses
examined by the plaintiff who had categorically admitted that the said
ppn 24 ts-59.03 (j).doc
deceased was suffering from various diseases till his death.
36. Learned counsel for the defendant invited my attention to the
evidence of the plaintiff (PW-1) and also some portion of the cross
examination and more particularly question nos. 10, 11 to 26, 33, 36 to
38, 53, 59 to 63 and 68. He submits that the plaintiff in her cross
examination has admitted that she had given instructions to her advocate
to prepare the affidavit of evidence of her brother Mr.Edakuda
Panankandiyil Dhanadas (PW-2). He submits that the said affidavit filed
by the said PW-2 shall be thus discarded by this court. He submits that
the said witness categorically admitted in the cross examination that the
deceased was suffering from abdominal cancer, diabetics, high blood
pressure, hypertension etc. Whenever the said deceased was suffering
from any illness, he was taken to BARC Hospital. He also admitted that
on 26th August, 2002, the said deceased was suffering from
breathlessness, chest pain and also severe arm pain and was not taking
solids' and was suffering from severe weakness.
37. Learned counsel appearing for the defendant submits that the
said witness (PW-2) admitted that all the children of the said deceased
were looking after the said deceased. All the children had performed the
ppn 25 ts-59.03 (j).doc
last rites of the said deceased. He invited my attention to the affidavit in
lieu of examination in chief of the defendant (PW-1) filed on 17th June,
2013. He submits that both the parents of the defendant were extremely
fond of him and there is no reason whatsoever for the father of the
defendant to dis-entitle him to the share in his estate. The deceased was
not only fond of the defendant but also his only child Vishal Kurup. The
plaintiff who was the eldest in the family, her eyes were always set on the
estate of the deceased. The defendant also placed on record that the said
deceased was suffering from diseases and pain and died on 4th September,
2002 i.e. 17 days from the date of execution of the alleged Will. The said
deceased was 88 years old when the alleged Will was executed and he
was not in a proper state of mind to understand what he was doing.
38. Learned counsel for the defendant heavily placed reliance on
the medical report of the BARC Hospital relating to the treatment given
to the said deceased from time to time which reports were taken on
record by this court. He also invited my attention to some of the answers
given by DW-1 in his cross examination. DW-1 admitted that the father
had issued a public notice but did not recollect the date. The defendant
denied the submission that after 1989, his relationship with the father
were severe.
ppn 26 ts-59.03 (j).doc
39. The witness denied the suggestion that the plaintiff was
looking after the father during his illness or that the plaintiff was present
personally in the BARC Hospital all throughout. The witness also denied
the suggestion that the said deceased knew to read and write English and
used to read the English newspapers. When the witness was put a
suggestion that the deceased was not mentally ill, he deposed that the
compilation of medical papers which he had filed would prove the mental
condition of the deceased. He submits that no bills were raised by BARC
Hospital for the treatment given to the said deceased. The defendant was
put a suggestion by the plaintiff's advocate that Mr.Kishor V. Tembe,
advocate (PW-3) was a friend of the deceased and was a regular visitor in
the house of the deceased. Mr.Kishor V. Tembe was a resident of the
same vicinity where the said deceased was residing.
40. Learned counsel for the defendant invited my attention to
some of the documents from the medical reports also separately produced
in evidence by the defendant which were obtained under the provisions of
the Right to Information Act. It is submitted that the defendant thus has
proved that the said deceased was suffering from various diseases and did
not have sound and disposing mind on the date of execution of the
ppn 27 ts-59.03 (j).doc
alleged Will nor to understand the contents of the alleged Will.
41. Insofar as the production of the medical report of BARC
Hospital is concerned, Mr.Lad, learned counsel for the plaintiff initially
raised an objection to the marking of those documents on the ground that
the same were not forming part of the Government record. He submits
that the plaintiff has raised an objection when such documents were
relied upon by the defendant and were shown to the witness examined by
the plaintiff and also to Dr. Nobhojit Roy examined by the defendant.
He submits that since the documents were produced at the time of cross
examination, the Order 13 Rule 1 will not apply.
42. On the issue of marking of the original report, learned
counsel for the defendant invited my attention to various parts of the
cross examination of the witnesses by the plaintiff and also the evidence
of Dr. Nobhojit Roy who was shown most of the documents forming part
of the medical report and would submit that after verifying the
correctness of those reports, the said Dr. Nobhojit Roy had confirmed
that the said deceased was suffering from various diseases. Learned
counsel invited my attention to the order passed by this court on 1 st July,
2014 taking those two medical reports files on record and marked as
ppn 28 ts-59.03 (j).doc
Exs.A and A-1. He submits that the plaintiff thus cannot raise any
dispute now that those medical files cannot be marked as exhibits. He
submits that in any event, the said documents were obtained by the
defendant under Right to Information Act and were confronted to various
witnesses and they had given their reply based on the reports. In my
view, those medical records are already taken on record and thus there is
no merit in the submission of the learned counsel for the plaintiff.
43. Learned counsel for the defendant submits that the alleged
Will is surrounded by various suspicious circumstances which are
required to be dispelled by the propounder of the alleged Will. He
submits that conscious of this court has to be satisfied before granting
probate. He submits that the plaintiff claimed to be executrix of the Will
is an interested party. She herself and her children were exclusive
beneficiary under the said Will. She was alleged to be present when the
alleged Will was executed by the said deceased. She had called her
husband to witness the alleged registration in the office of the Sub
Registrar of Assurances. She had given instructions to draft the affidavit
of PW-2.
44. Learned counsel for the defendant placed reliance on the
ppn 29 ts-59.03 (j).doc
judgment of Supreme Court in case of Rani Purnima Debi and another
Vs. Kumar Khagendra Narayan Deb and another, AIR 1962 SC 567
and in particular paragraphs 5 to 8, 12, 13 and 23 and would submit that
the onus is on the propounder of the Will to dispel the suspicious
circumstances. He submits that since the plaintiff who claims to be
executrix had played prominent part in execution of the Will of the
deceased, it was one of the suspicious circumstances that the plaintiff
failed to dispel.
45. Learned counsel appearing for the defendant placed reliance
on the judgment of the Kerala High Court in case of The Parent Teacher
Association Maharaja's College vs. State of Kerala, AIR 1995 Kerala
209 and in particular paragraph 4 and would submit that even after the
alleged Will is registered, the genuineness of the said alleged Will cannot
be presumed. The execution of the Will will have to be independently
proved by the propounder of the alleged Will.
46. Learned counsel for the defendant placed reliance on the
judgment of this Court in case of Sheshrao M. Kuratkar vs. Keshavrao
M. Kuratkar, AIR 2006, Bombay 33 and would submit that since the
alleged Will was not produced in evidence by the propounder of the
ppn 30 ts-59.03 (j).doc
alleged Will and the said alleged original Will was not shown to the
witnesses examined by the plaintiff, including the attesting witness for
the purpose of identifying the signatures thereon, the execution of the
Will is not proved and thus on that ground itself, the petition filed by the
plaintiff herein deserves to be dismissed.
47. Mr.Lad, learned counsel appearing for the plaintiff placed
reliance on section 63 of the Indian Succession Ac, 1925 and section 68
of the Indian Evidence Act. He submits that insofar as compliance of
section 63 of the Indian Succession Act is concerned, the plaintiff has
already proved by leading documentary as well as oral evidence that the
testator had signed the said Will. He also proved that the said Will was
attested by two witnesses. According to the learned counsel, the
attestation of the Will was also duly proved by the plaintiff by examining
one of the attesting witness. He invited my attention to paragraph 8 of the
affidavit in support of the caveat and would submit that the caveator has
admitted the signature of the testator on the original Will and thus in
view of section 68 of the Indian Evidence Act, the facts which are
admitted by the defendant are not required to be proved. He submits that
the plaintiff was thus not required to prove the execution of the Will by
the said deceased.
ppn 31 ts-59.03 (j).doc
48. Learned counsel for the plaintiff invited my attention to the
affidavit in lieu of examination in chief filed by Mr.Kishor Tembe,
Advocate and also his cross-examination. He submits that the said
Mr.Kishor Tembe, Advocate is an advocate practicing in this Court and
has been residing in the same vicinity in which the said deceased testator
was residing. He was known to the family of the deceased testator and
had drawn the Will in question as per the instructions of the deceased
testator. He submits that the plaintiff has thus discharged the burden
under section 68 of the Indian Evidence Act by examining one of the
attesting witness.
49. Learned counsel for the plaintiff invited my attention to the
answer given by Mr.Kishor Tembe, Advocate to questions 36 and 37 and
would submit that the said witness was only put a suggestion by the
learned counsel for the defendant that the Will was not signed by the said
deceased testator or by the said attesting witness. He submits that though
the signature of the deceased testator was not required to be proved in
view of the signature of the testator having been admitted in the affidavit
in support of caveat, the plaintiff has duly proved the execution of the
Will as well as attestation thereof by examining various witnesses. He
ppn 32 ts-59.03 (j).doc
submits that the genuineness of the Will is also proved by the plaintiff.
The Will in question was duly registered in accordance with the
provisions of the Indian Registration Act. The photograph of the deceased
testator on the registered Will was duly identified by the defendant.
50. Insofar as the issue of suspicious circumstances raised by the
defendant in execution of the Will is concerned, it is submitted by the
learned counsel for the plaintiff that out of three brothers of the plaintiff
and the defendant, two brothers have already filed the consent affidavits
for grant of probate in favour of the plaintiff. The another brother, who
was examined as one one of the witness by the defendant had also filed a
consent affidavit for grant of probate in favour of the plaintiff. Learned
counsel also invited my attention to the deposition of the said witness
Mr.E.P. Dhananjayan (DW-2) and in particular paragraph 3 admitting that
the consent affidavit was filed by him. He also invited my attention to the
cross-examination of the witness and in particular his reply to questions 4
to 9 and submits that the deposition of the said witness does not assist the
case of the defendant but would assist the case of the plaintiff.
51. Learned counsel for the plaintiff invited my attention to
paragraph 4 of the affidavit in support of the caveat and submits that
ppn 33 ts-59.03 (j).doc
though the defendant has alleged that the said deceased was of 88 years
old on the date of execution of the Will and was not in a proper state of
mind to understand what he was doing, the defendant did not prove such
allegations. He submits that merely because the said deceased testator
died 17 days after the execution of the Will, the probate cannot be refused
on that ground. He placed reliance on the judgment of the Supreme Court
in case of Madhukar D. Shende vs. Tarabai Aba Shedage, AIR 2002 SC
637 and the judgment of the Supreme Court in case of Seth Benichand
(since dead) Now by L.Rs. Smt.Kamla Kunwar & others, AIR 1977 SC
63.
52. Insofar as the issue as to whether the said deceased testator
was in the proper state of mind and was able to understand what he was
doing is concerned, learned counsel for the plaintiff invited my attention
to the cross-examination of Dr.Nobhojit Roy, who was examined as one
of the witness by the defendant and more particularly to his answers to
questions 1 to 4. He submits that the said Dr.Nobhojit Roy, who was
treating the said deceased testator in B.A.R.C. Hospital had admitted in
the cross-examination that the deceased testator was always cheerful, was
having sound and disposing mind and was mentally alert.
ppn 34 ts-59.03 (j).doc
53. It is submitted by the learned counsel for the plaintiff that
even if according to the defendant the said doctor who was examined by
the defendant as one of the witness had turned hostile in view of his
answers in the cross-examination contrary to the answers given in the
examination in chief, since the defendant did not apply for declaration of
the said witness as hostile and did not seek permission for examining the
said witness, the admissions of the said witness in his cross-examination
conducted by the plaintiff has to be considered by this Court and cannot
be ignored. He submits that the sound mind and good mental condition of
the said deceased testator is thus proved by the plaintiff at the time of
execution of the Will in question.
54. It is submitted that the defendant has not made any attempt
to explain as to why the cross-examination of the said witness examined
by the defendant was wrong or has to be ignored. He submits that the
defendant did not re-examine the said witness though he had an
opportunity and scope to re-examine the witness for the purpose of
clarification. He submits that re-examination of the said witness was not
confined only to seek clarification or to clarify the ambiguity.
55. It is submitted by the learned counsel for the plaintiff that
ppn 35 ts-59.03 (j).doc
even if it is proved by the defendant that the said deceased was suffering
from various illnesses and was frequently admitted in the hospital, only
such ailments would not be sufficient to declare a person of unsound
mind or that he was not able to understand as to what he was doing. He
submits that every illness may not affect the sound mind. He submits that
the mental understanding of the deceased testator has been clearly
proved by the plaintiff and his witnesses. Learned counsel invited my
attention to the cross-examination of the plaintiff and more particularly
answers to question no.24 and submits that there was no whisper in the
cross-examination about the brain of the deceased testator by the
defendant.
56. It is submitted that though the will was executed on 18 th
August 2002 and the testator died on 4 th September 2002, it was not the
case of the defendant that the said deceased was in the hospital on the
date of his death. He was admitted in the hospital as outdoor patient.
Family members of the said deceased did not agree for surgery for
illness of cancer.
57. Learned counsel for the plaintiff invited my attention to the
cross-examination of the plaintiff and more particularly in reply to
ppn 36 ts-59.03 (j).doc
question nos.29 and 33 and would submit that from the names of the
medicine notes, gravity of the illness of the said deceased could not
concluded. He submits that since the plaintiff was an employee of the
BARC hospital, the said deceased was admitted to the said hospital and
was not charged anything. The testator died in the hospital. He submits
that the defendant has not produced any evidence to show that the
deceased testator was not able to understand or was not of a sound mind.
58. Learned counsel for the plaintiff invited my attention to the
affidavit in lieu of examination-in-chief of Mr.Edakuda Panankandiyil
Dhanadas (PW-2) and in particular paragraph 2 and 4 and would submit
that the said witness also has proved that the said deceased testator was
of sound and disposing mind on the date of execution of his Will. He
submits that even from the medical reports marked as Exhibits 'A' and
'A-1' produced by the defendant from the BARC hospital, the defendant
could not show any material to prove that the testator was not of sound
and disposing mind on the date of execution of his Will or on the date of
registration of the Will. He submits that all three witnesses examined by
the plaintiff has deposed about sound and disposing mind of the deceased
testator. Though the defendant had cross-examined all three witnesses,
the defendant could not prove that the deceased testator was not of a
ppn 37 ts-59.03 (j).doc
sound and disposing mind.
59. Learned counsel for the plaintiff invited my attention to the
evidence of Mr.Edakuda Panankandiyil Dhananjayan (DW-2) who was
one of the sons of the deceased testator was examined by the defendant.
He submits that in his deposition, the said witness stated that whenever
he had visited the deceased testator, he was sleeping. He submitted that
the said witness thus could not assess the mental condition of the said
deceased. He submits that the said witness also could not prove that the
said deceased testator was not of a sound and disposing mind on the
date of execution of the Will. He submits that the plaintiff was all
throughout staying with the deceased testator and was providing
treatment to the testator. He submits that all three witnesses examined
by the plaintiff had proved that the said deceased testator could read and
write English.
60. It is submitted by the learned counsel for the plaintiff that the
deceased testator had given two shops to the brothers during his lifetime.
The said deceased had also given a factory to the defendant. The
plaintiff was given the residential flat who was staying with the said
deceased testator for last several years. All three sons of the deceased
ppn 38 ts-59.03 (j).doc
were staying separately. Two of the sons of the deceased testator did not
raise any objection for grant of probate in favour of the plaintiff. The
deceased was not on talking terms with the defendant and issued a public
notice against the defendant which would show the strained relation
between the deceased and the defendant. He invited my attention to
various clauses of the Will and would submit that the deceased testator
had explained the Will categorically as to why all his sons were
disinherited in the Will. He submits that in these circumstances, it cannot
be concluded that the Will left by the said deceased testator was an
unnatural Will.
61. In so far as the submission of the learned counsel for the
defendant that the plaintiff and her husband had participated in the
execution of the Will is concerned, it is submitted by the learned counsel
for the plaintiff that the husband of the plaintiff was present at the time
of registration of the Will since Mr.Kishor V.Tembe, advocate was not
available that point of time. On the date of execution of the Will,
Mr.Kishor V.Tembe and his wife were present along with the testator.
The said deceased had given instructions to Mr.Kishor V. Tembe,
advocate to draft the said Will. Mr.Kishor V.Tembe in his evidence has
confirmed that the said deceased testator had given instructions to draft
ppn 39 ts-59.03 (j).doc
the said Will. He submits that this confirmation of Mr.Kishor V. Tembe,
advocate that the testator had given his instructions to draft the Will has
not been shaken in the cross examination by the defendant.
62. Learned counsel invited my attention to paragraph 2 of the
affidavit in lieu of examination-in-chief filed by Mr.Kishor V. Tembe,
advocate and also to his reply to question no.20 in his cross-examination.
He submits that the said witness has deposed that at the time of drafting
the alleged Will, the plaintiff was not present. He also invited my
attention to the answers given by the said witness to question nos.21 to
23, 27 and 28. He submits that there was no cross-examination of the
said witness on his deposition about sound and disposing mind of the
said deceased testator by the defendant. He submits that suspicious
circumstances highlighted by the defendant are not abnormal. The
plaintiff was the daughter of the said deceased. DW-2 has not fully
supported the defendant. He has admitted to have executed a consent
affidavit for grant of probate in favour of the plaintiff.
63. Learned counsel for the plaintiff invited my attention to the
cross-examination of the defendant and in particular in reply to question
nos.60 to 93 and would submit that the said witness has admitted the
ppn 40 ts-59.03 (j).doc
issuance of a public notice by the said deceased testator to the defendant.
He submits that Wagle Estate property was sold by the said deceased to
pay loans and dues of the defendant. Learned counsel submits that all
the suspicious circumstances raised by the defendant are fully explained
by the plaintiff. This Court has to consider overall circumstances in the
matter and not any particular part of the evidence.
64. In so far as the issue no.2 i.e. whether the Will was obtained
by fraud or was forged and fabricated is concerned, learned counsel for
the plaintiff submits that the burden of proof was on the defendant to
prove that the alleged Will was forged or fabricated or that the plaintiff
had committed any fraud upon the said deceased or on the defendant.
He submits that since the defendant had admitted the signature of the
deceased on the Will, he could not allege the forgery in execution of the
said Will. He submits that allegations of fraud are also not proved by the
defendant by bringing any evidence on record.
65. Mr.D'Souza, learned counsel for the defendant in rejoinder
invited my attention to the affidavit-in-support of the caveat and would
submit that his client has not admitted the execution of the alleged Will
by the deceased testator. He submits that admittedly the said alleged
ppn 41 ts-59.03 (j).doc
original Will was neither shown to the plaintiff nor to the alleged
attesting witnesses of the defendant and thus the said alleged Will itself
is not proved and/or that ground itself, testamentary suit inter alia
praying for probate deserves to be dismissed. In support of this
submission, learned counsel invited my attention to the order dated 5 th
August 2010 passed by this Court showing that the alleged Will was
marked as Exhibit-E for the sake of convenience. He submits that the
said alleged Will thereafter was never marked till date since the
original Will thereof has never shown to the witnesses examined by the
plaintiff. He submits that merely because the photograph of the deceased
on the alleged Will is admitted by the defendant, that would not make
any difference or on that basis, it can not be concluded that the alleged
Will is admitted by the defendant.
66. In so far as the submission of the learned counsel for the
plaintiff that if Dr.Nobhojit Roy had turned hostile, the defendant ought
to have filed an application against him as hostile witness and ought to
have sought permission to cross-examine the said witness examined by
him is concerned, learned counsel for the defendant placed reliance on
section 154 of the Indian Evidence Act, 1872 and submits that medical
reports were produced pursuant to the witness summons issued by this
ppn 42 ts-59.03 (j).doc
Court upon the BARC hospital. The said Dr.Nobhojit Roy was examined
to prove the illness of the deceased. Dr.Nobhojit Roy was shown the
substantial part of those medical reports who admitted in his evidence
that the said deceased testator was suffering from severe serious illness.
He submits that Mr.Kishor V.Tembe did not depose that the said
deceased testator was of sound and disposing mind. He submits that it
was nobody's case that the deceased testator read and understood the
contents of the Will. He submits that Dr.Nobhojit Roy was examined
for a different purpose. There was thus no question asked to the said
witness about sound and disposing mind of the deceased by the
defendant. Since 28th March 2002, the said deceased was treated in the
hospital from time to time and was under the treatment of the said
Dr.Nobhojit Roy till his death.
67. Learned counsel for the defendant distinguishes the
judgment of the Supreme Court in the case of Seth Beni Chand (since
dead) now L.Rs. Vs. Smt. Kamla Kunwar and Ors., reported in AIR
1977 SC 63 and in particular paragraphs 2, 3 and 5 thereof and would
submit that the facts before the Supreme Court in the said judgment
were totally different. Admittedly no litigation between the deceased
testator and his legal heirs was going on in Court of law. In this case,
ppn 43 ts-59.03 (j).doc
the defendant had proved that the relations between the deceased father
and the defendant were cordial.
68. Learned counsel for the defendant distinguishes the
judgment of the Supreme Court in the case of Madhukar D.Shende
Vs.Tarabai Aba Shedage, reported in AIR 2002 SC 637. He submits
that in the said matter, no medical evidence was produced to show that
the deceased was of sound and disposing mind whereas in this case,
the defendant had examined the doctor Dr.Nobhojit Roy of the hospital
who was treating the said deceased. He submits that the witness (DW-2)
examined by the defendant, in his cross-examination, has deposed that
the consent affidavit signed by him was prepared by the advocate of the
plaintiff and thus he had signed it. It is submitted by the learned counsel
that the plaintiff has failed to prove that the Will was duly executed by
the said deceased and that the said deceased was of sound and disposing
mind on the date of execution of the alleged Will and thus the
testamentary suit filed by the plaintiff shall be dismissed by this Court.
REASONS AND CONCLUSIONS:-
Issue No.1 : Whether the last Will and Testament of the testator dated 18th
August, 2002 was validly executed ?
ppn 44 ts-59.03 (j).doc
Issue No.2 : Whether the Will was obtained by fraud or forged and
fabricated ?
69. The plaintiff himself entered into the witness box and also
examined one of the sons of the deceased Mr.Edakuda Panankandiyil
Dhanadas as a witness (PW-2). The plaintiff had also examined
Mr.Kishor V. Tembe, advocate who was alleged to be one of the attesting
witnesses to the alleged Will. The defendant examined himself and also
one of the sons of the deceased Mr.Edakuda Panankandiyil Dhanadas as
one of the witnesses. The defendant had also issued witness summons
upon Dr. Nobhojit Roy of BARC who had produced two files containing
medical records of the deceased and for recording his evidence.
70. A perusal of the deposition of the plaintiff and more
particularly in paragraph (8) of his affidavit in lieu of examination in
chief, she has alleged to have identified the signature of the deceased at
the time of registration of the alleged Will. There is no dispute that when
the plaintiff entered the witness box, she was not shown the alleged
original Will of the said deceased or even thereafter till her evidence was
closed. None of the other witnesses examined by the plaintiff including
the alleged witness Mr.Kishor V.Tembe were shown the alleged original
Will of the said deceased at any point of time.
ppn 45 ts-59.03 (j).doc
71. A perusal of the deposition of Mr.Kishor V. Tembe, advocate
indicates that he did not depose as to whether he was shown the original
Will even before the learned Court Commissioner. In view of this
admitted fact, learned counsel for the defendant vehemently urged before
this court that since the alleged original Will was not shown to the
plaintiff who was propounder of the said alleged Will or to any of the
witnesses examined by the plaintiff including the alleged attesting
witness, execution of the said alleged Will dated 18 th August, 2002 of the
deceased was not proved in evidence by the plaintiff and thus the Suit
deserves to be dismissed on this ground alone.
72. Per contra, the submission of the learned counsel for the
plaintiff is that the original Will was filed before the Prothonotary and
Senior Master. The witnesses examined by the plaintiff were cross
examined on the issue of execution of the said Will and thus even if the
original Will was not shown to the plaintiff or his witnesses, the
defendant cannot be allowed to urge that the execution of the said Will is
not proved by the plaintiff.
73. It is not in dispute that the said alleged original Will of the
ppn 46 ts-59.03 (j).doc
deceased has not been marked as an exhibit at any stage of the evidence
by this court. The plaintiff also did not apply before this court at the
stage of oral and documentary evidence to mark the Will as an exhibit.
74. I will now consider the relevant part of the evidence of the
witnesses examined by the parties on this issue. Insofar as the evidence
of the plaintiff (PW-1) is concerned, in her affidavit in lieu of
examination in chief, she has deposed that the deceased had given
instructions to Mr.Kishor V.Tembe, advocate to draft a Will. The said
deceased, the plaintiff herself, Mr.Kishor V.Tembe and his wife Ms.Neela
Kishor Tembe were present. She has deposed in the said affidavit that as
per the instructions of the said deceased, Mr.Kishor V.Tembe advocate
drafted the Will and came to the residence of the said deceased with his
wife on 18th August, 2002 i.e. after two days of such instructions given by
the said deceased to him. She has deposed that the said deceased had
requested the said Mr.Kishor V.Tembe and his wife to be the witnesses of
his last Will. Considering the long standing cordial relation, the said
Mr.Kishor V.Tembe and his wife agreed to be the witnesses of the said
Will. She has deposed in her affidavit that the husband of the plaintiff
Mr.V.P.K.Nambiar fixed as an appointment with the Sub Registrar's
Office on 19th August, 2002 for registration of the said Will.
ppn 47 ts-59.03 (j).doc
75. It is deposed that the said deceased, the husband of the
petitioner and Mr.Bhanudas Shinde were present at the office of the Sub
Registrar at Chembur and admitted execution of the last Will of the
deceased. She identified the signature of the deceased on the said Will
and also identified the signature of her, Mr.V.P.K.Nambiar and
Mr.Bhanudas Shinde as attesting witnesses of the said Will. She deposed
that the said Will was signed in her presence. The plaintiff has not
deposed in the said affidavit that the said Will was signed by the said
deceased or by the alleged attesting witnesses in her presence on the date
of its alleged execution on 18th August, 2002.
76. In the cross examination of the PW-1 in reply to question no.84,
when the witness was asked as to on what basis in last four lines on page
9 para no.8 of her affidavit in lieu of examination in chief, she made a
deposition that the contents of the alleged Will was true and correct, the
witness answered that when both the witnesses and the deceased were
signing the Will, she was present. The witness denied the suggestion put
to the witness that the alleged Will dated 18th August,2002 was not
validly executed. She answered the question in negative when she was
asked whether she had any documentary evidence to support her case that
ppn 48 ts-59.03 (j).doc
the said deceased could speak Hindi, Marathi, Tamil and Gujarati and
could read English. She also deposed that she was going to examine a
witness to prove that the said deceased knew English and could read
English and speak Hindi, Marathi, Tamil and Gujrati.
77. Insofar as the evidence of one of the son of the said deceased
Mr.Edakuda Panankandiyil Dhanadas (PW-2) is concerned, the said
witness in his cross-examination admitted that when the purported Will
dated 18th August, 2002 was executed, he was not present. He was also
not present when the purported Will was registered. The said witness
admitted in his cross examination that all the children of the said
deceased were looking after the said deceased and had performed the last
rites of the said deceased. He also admitted that the said deceased was
also fond of other grand children. He admitted that he was called by the
plaintiff to give his evidence in the suit. He could not produce any
documents to show that the said deceased did not like the defendant.
78. In the cross examination of the said PW-2, he also admitted
that the said deceased died at the age of 88 and was suffering from
abdominal cancer, diabetes, high blood pressure, hyper tension. He
however denied that he was suffering from breathlessness. The said
ppn 49 ts-59.03 (j).doc
witness was not aware that the said deceased was admitted to BARC
Hospital for treatment of discharge from eyes. He however admitted that
the said deceased was in and out of BARC Hospital. He could not
produce any documentary evidence to show that the plaintiff has
constructed the alleged portion of the building.
79. The said PW-2 deposed that the plaintiff used to give him
updates about the health condition of the said deceased. He however
deposed that Mr.Kishor Tembe advocate was a friend of the said deceased
and used to visit the house often. The said advocate also knew the
plaintiff. The said witness also knew Mr.Kishor Tembe, advocate. In
reply to Question No.59, the said witness admitted that during the stay of
the defendant with the said deceased, he was also looking after the said
deceased. He also admitted that after the death of the said deceased, the
plaintiff, the elder brother Mr.Dhananjay had accompanied the defendant
to Panchvati, Nashik to immerse the ashes of the deceased and to perform
the last rites. The witness deposed that all the four legal heirs had visited
the Panchvati, Nashik. The witness admitted that the said deceased had
studied upto 4th form in a Malayalam medium in Kerala. He however
volunteered that English was also one of the subject. He admitted that
Hindi, Marathi and Gujrati were not the subjects in the syllabus in the 4 th
ppn 50 ts-59.03 (j).doc
form.
80. Insofar as physical and mental condition of the said deceased
on the date of execution of the said alleged Will is concerned, PW-1 in
his affidavit in lieu of examination in chief dated 29 th July, 2010 deposed
that till December 2001, the health of the said deceased was good. In the
month of December 2001, the said deceased was complaining about the
pain in stomach and thereafter he was treated in BARC Hospital. In the
month of March 2002, abdominal cancer was detected. She denied that
although the said deceased was suffering from diabetic and blood
pressure, his periodical condition was shown as normal. She deposed
that since the said deceased was suffering from diabetic and blood
pressure, the said witness had taken him to BARC Hospital for check up
on 30th July, 2002. He was normal and doctor called him after six
months.
81. The said witness deposed that after the demise of the said
deceased, she showed the said alleged Will to her brother
Mr.E.P.Dhanadas and Mr.E.P.Dhanadas and after going through the
alleged Will, they accepted the said Will and accepted that they were
ready to give consent for grant of such probate Will. The defendant
ppn 51 ts-59.03 (j).doc
however refused to give consent and asked for his share.
82. PW-1 in her examination in chief deposed that the said
deceased was very active and was capable of understanding the contents
of the said alleged Will at the time of execution thereof. She deposed that
the said deceased was hospitalized only on 22nd August, 2002 in Ward
No.3-D for vomiting. He had only abdominal cancer and was treated in
BARC Hospital. In the cross examination of PW-1, on the issue of
alleged sound and disposing mind and good health of the said deceased,
the said witness admitted that the said deceased was suffering from hyper
tension but was not suffering from heart diseases. Whenever the said
deceased was suffering from any illness, he used to be taken to the BARC
Hospital. When the witness was asked as to on what basis she had
deposed that when the deceased was checked on 30th July, 2002, he was
normal, the witness deposed that the said deceased could come after six
months for another check up. She deposed that the said deceased was
normal on 30th July, 2002. She however admitted that the said deceased
died on 3rd September, 2002 before completion of six months.
83. When the PW-1 was shown the medical report dated 30 th
July, 2002 (Ex.D collectively) and was asked whether that the doctor who
ppn 52 ts-59.03 (j).doc
had checked the said deceased on 30th July, 2002 had not certified that the
deceased was normal, the witness answered the said question in
affirmative. She admitted that the said deceased was administered
medicines for hyper tension and diabetes. She did not recollect as to why
the other two medicines were administered. The witness was shown the
progress notes of BARC Hospital dated 26th August, 2002 and was asked
that on 26th August, 2002, the said deceased was admitted to the said
hospital as he was suffering from chest pain and breathlessness or not, the
witness deposed that the said deceased was admitted in the hospital for
vomiting on 22nd August, 2002 and he continued to be in hospital till his
death. She admitted that the said deceased was suffering from
breathlessness and chest pain on 26th August, 2002 when he was admitted
in the BARC Hospital as mentioned in the progressive notes of the
BARC Hospital. She also admitted that the said deceased might be
suffering from severe arm pain and on 22nd August 2002 was not taking
solid and was also suffering from severe weakness and loss of appetite.
84. When the witness was shown page 1/73 of medical report
and was asked to confirm whether the contents of the said report were
correct, the witness answered the said question in affirmative. However,
in reply to Question No.55, the witness answered that her answer to
ppn 53 ts-59.03 (j).doc
Question No.47 that the contents of the medical report were correct
insofar as the deceased was suffering from ischemic heart disease was
false. The witness admitted that when the said deceased was admitted in
the hospital in the year 2002, he was of extreme old age i.e. of 88 years.
The witness admitted that on 4th January, 2001, the said deceased was
provided hearing aid by BARC Hospital. The witness admitted that the
medical report produced by her were provided to her by BARC Hospital
on her request and were forming part of the medical report produced by
the defendant. When the witness was asked whether it was correct that
the said deceased loved all the children, PW-1 answered that she did not
know. The witness admitted that her deposition in paragraph (10) of her
affidavit in lieu of examination in chief that the said deceased had only
abdominal cancer was wrong.
85. Insofar as evidence of Mr.Kishor V.Tembe, advocate who
was alleged to be one of the attesting witness to the alleged Will is
concerned, in his affidavit in lieu of examination in chief dated 8th April,
2013, the said witness deposed that the said deceased was known to him
and was his family friend. The said deceased knew the father of the said
witness. He was regularly visiting the premises of the said witness and
the said witness was also visiting him at his residence at Chembur.
ppn 54 ts-59.03 (j).doc
86. In paragraph (2) of the said affidavit, the witness deposed
that the said deceased had contacted him in the month of August 2002
and had requested him to draft a Will. He had instructed him to draft a
Will and according to him, he had drafted a Will as per his instructions.
It is deposed that the said Will was approved by the deceased and
thereafter the said deceased requested him and his wife to be the
witnesses in the said Will. It is deposed that accordingly the said witness
and his wife witnessed the said Will on 18th August,2002.
87. In paragraph (3) of the affidavit in lieu of examination in
chief, it is deposed that the said deceased, the witness and his wife had
signed the Will in presence of each other on 18 th August, 2002. He
further deposed that the said witness was knowing English and was in a
postilion to read, write and talk English. The said Mr.Kishor V.Tembe in
the said affidavit in lieu of examination in chief did not identify the
signature of the said deceased on the said alleged Will dated 18 th August,
2002 or signature of himself and his wife.
88. In his cross examination, the said witness deposed that he
did not recall as to whether he had read the petition and also as to when
he had learnt of the filing of the petition. He deposed that he did not
ppn 55 ts-59.03 (j).doc
know how many children the deceased had but he knew the petitioner and
the defendant. When the witness was asked that since when he had been
visiting the house of the deceased, he deposed that he might have visited
twice or thrice. He deposed that he knew the plaintiff since last several
years as she was the daughter of the deceased. He answered the question
in negative when he was asked whether at the time of drafting of the
alleged Will, the plaintiff was present. He deposed that the plaintiff
might have been present at the time of giving instructions as the said
witness had gone to the residence of the said deceased.
89. The said witness deposed that the deceased had sent the
message to the said witness through the plaintiff calling him to the
residence of the said deceased. The plaintiff personally had come to the
house of the said witness with the message to call him to the residence of
the said deceased. The witness could not recall as to when and in which
year he had prepared a document for the said deceased with regard to the
letting down of the premises in his building. The witness was asked
whether he had given suggestion to the plaintiff to get the alleged Will
registered, he answered the said question in negative. He deposed that he
came to know about the registration of the Will several days after the
death of the deceased when the plaintiff wanted to file a petition for
ppn 56 ts-59.03 (j).doc
probate. He admitted that he was requested by the plaintiff's advocate to
prepare his affidavit of evidence.
90. The defendant himself entered the witness box and filed
affidavit in lieu of examination in chief dated 17 th June, 2013. In his
examination in chief, he deposed that he being the youngest in the family,
his parents were extremely fond of him. His father had no reason
whatsoever to dis-entitle him to the share in his estate. His father was not
only fond of him but also his only child Vishal Kurup. He deposed that
the plaintiff was the eldest in the family and her eyes were always set on
the estate of the deceased. The plaintiff surrendered her premises at
Degras Mansion at Chembur and went to reside with the deceased to
influence him and get a Will executed in her favour. He deposed that the
said deceased was suffering from cancer and several other diseases and
the suffering increased in the final days of his life. Within about 17 days
from the date of execution of the alleged Will, the said deceased died. He
was not in a proper state of mind to understand what he was doing. The
deceased was illiterate and understood only Malayalam and could not
read or write English. He was in extreme pain in the final days of his
life.
ppn 57 ts-59.03 (j).doc
91. The defendant placed reliance on the certified copy of the
medical report obtained by him under the provisions of Right to
Information Act from the BARC Hospital on 13th July, 2012 and placed
on record. The witness deposed that the said alleged Will dated 18 th
August,2002 was false and fabricated document. The registration of the
alleged Will was at the residence of the said deceased. It is deposed that
the left hand of the thumb impression was obtained by the Sub-Registrar
at the residence of the said deceased. He deposed that the plaintiff who
claims to be the executrix of the said alleged Will was self appointed and
was not named by the deceased in the alleged Will.
92. The said witness deposed that the said deceased was
incapable of signing the purported Will on or about 18 th August, 2002 on
account of his illness and physical and mental weakness. He deposed
that in view of the close relationship existed between the deceased and
the defendant, he could not have been excluded in the alleged Will from
any request. The said deceased was not in a proper frame of mind and
could not have understood the contents of the alleged Will. The alleged
Will was obtained fraudulently or by undue influence and by without
explaining the contents to the deceased. The deceased was too feeble and
was not in a position to make any testamentary dispossession at the time
ppn 58 ts-59.03 (j).doc
the alleged Will was purported to have been executed by him on account
of his illness and extreme old age.
93. In his cross examination, the defendant (DW-1) admitted
that his business ran into difficulties because he did not receive payment
from the company by name of M/s. Lektrix. The said deceased was
impleaded as a party in a suit filed by Bank of Baroda for recovery of the
sum of Rs.9 lacs approximately against the defendant. When the witness
was shown the photograph annexed to the registered Will and was asked
whether the photographs were of the said deceased, the witness answered
in affirmative. He however volunteered that he could not comment on
the thumb impression as he was not present at that time.
94. In reply to question 118 when the defendant was put a
suggestion that the said deceased was not mentally ill, he replied that
compilation of medical papers which he had filed explains the mental
condition of the said deceased.
95. The defendant examined his another brother Mr.E.P.
Dhananjayan as one of the witness, who filed his affidavit in lieu of
examination in chief dated 18th February, 2014. In his cross-examination,
ppn 59 ts-59.03 (j).doc
he admitted that when he went to the office of Advocate Mrs.Madhuri
Gaikwad along with his sister, the affidavit dated 11th March, 2004 was
drafted. He denied that after discussing with him, Advocate Mrs.Madhuri
Gaikwad had drafted the affidavit dated 11 th March, 2004. He deposed
that till date he had not raised any question regarding the correctness of
his affidavit because he was not interested. In reply to question 7 when
he was asked to explain as to what he meant by saying that "you were not
interested", the witness replied that he was very sick mind and therefore,
he did not have time to run after this and as the plaintiff is his only sister,
I did not mind if it was Willed to her.
96. The witness was shown photograph in the alleged Will of
the deceased. He identified the photograph of the deceased. When he was
asked to identify the signature of the deceased on the alleged Will, the
witness replied that he could not say as he had not signed in his presence.
He further deposed that whenever he used to sign the cheques in front of
him, his signature was different. The witness admitted that since 1979,
the plaintiff was residing along with the said deceased at Chembur house.
In reply to question 30, the suggestion was put to the witness that during
all his visits, the deceased used to talk with the said witness and was
recognizing him and was in his proper senses, the witness replied that
ppn 60 ts-59.03 (j).doc
whenever he visited the deceased, he used to be lying down and there was
not much talk. The witness denied the suggestion that there was any
pressure by the defendant on him to give evidence in support of the
defendant.
97. In reply to question 38 when the witness was put a
suggestion that the statement made by the said witness in his affidavit that
the defendant being the youngest in the family, his parents were
extremely fond of him was incorrect, the witness denied the said
suggestion and deposed that the parents were very fond of the defendant.
98. The defendant had got witness summons issued to the head
of Surgical Unit of BARC Hospital, Dr.Nobhojit Roy. The BARC
Hospital had produced the medical reports filed by the said deceased
which has been taken on record by this Court by a separate order. The
said Dr.Nobhojit Roy was examined by the defendant as one of his
witness. The said witness admitted that he was the head of Surgical Unit
of BARC Hospital and was treating the said deceased in BARC Hospital
as a part of treating team. The head of the Surgical Unit was somebody
else at that time.
ppn 61 ts-59.03 (j).doc
99. After perusing the medical reports shown to the witness, he
deposed that the said Hospital had started treating the said deceased from
28th March, 2002 till his death in the Surgical Unit. He deposed that he is
specialized General Surgeon. The other two doctors on the team were
also specialized in General Surgeon. When the witness was shown page
1/73 of the medical notes and was asked to explain the cause of death
mentioned in the said report, he deposed that it was due to cancer of
stomach which spread to the liver. The said deceased was suffering from
cancer since 16th April, 2002 i.e. the date on which the deceased
diagnosed.
100. The said witness was asked to confirm that the deceased
suffered from heart disease, diabetes, hypertension, breathlessness, severe
weakness, discharge from eyes, ear tinnitus, low sodium and blood
pressure, the witness deposed that at different times and varying period of
times, the said deceased had each of these illnesses. He further deposed
that none of the member of the team were treating the said illnesses. He
deposed that Dr.Bhatt was treating the ear complaint, Dr.Nadkarni was
treating the eye complaint, Dr.Nair was the physician treating diabetes,
hypertension and heart disease.
ppn 62 ts-59.03 (j).doc
101. The witness admitted that the said deceased was suffering
from cancer with stomach but he was not operated upon. The witness
deposed that the said deceased was referred to Dr.Raman Deshpande at
Tata Memorial Hospital. The doctors and the family in consultation
decided not to go ahead with surgery. The witness admitted that it had
been recorded in the notes of patient that the family did not desire to go
ahead with the operation. The witness admitted that the said deceased was
suffering from vertigo on the dates that he was sent by the ENT
consultant. He admitted that severe weaknes, weight and appetizer loss
and pooling of food was the results of stomach cancer. He further
admitted that pulling of food is a endoscopicing finding of symptoms.
The witness admitted that the said deceased was physically weak because
of his illness but was ambulatory and had energy enough not to be bed
ridden. He admitted that there was no record in the hospital notes as to
how he was brought in the hospital. There was no record of who
accompanied the patient to the hospital.
102. The said witness however, in his cross-examination deposed
that the said deceased was speaking with him in English and Hindi
language. When the witness was asked about the mental condition of the
said deceased whenever the said witness had occasion to examine him, he
ppn 63 ts-59.03 (j).doc
replied that the said deceased was to be extremely cheerful despite his
physical condition and deceases. He also replied that the deceased had a
very good understanding and his decision making of not undergoing any
aggressive treatment for his cancer. The witness was put a suggestion that
the said deceased was of a sound mental condition till 2 nd September,
2002. The said witness answered the said question in affirmative. He
further deposed that as per the record of the said witness and of the team,
the deceased was conscious and oriented which reflected his sound
mental condition. There was no re-examination of the said witness.
103. This court in case of Sheshrao M. Kuratkar (supra) has held
that if there are suspicious circumstances, the onus is on the propounder
to explain them to the satisfaction of the court before the court accepts
the Will as genuine. Where the caveator alleges undue influence, fraud
and coercion, the onus is on him to prove the same. Even where there
are no such pleas but the circumstances give rise to doubts, it is for the
propounder to satisfy the conscience of the court. The suspicious
circumstances may be as to the genuineness of the signature of the
testator, the condition of the testator's mind, the dispositions made in the
Will being unnatural, improbable or unfair in the light of relevant
circumstances or there might be other indications in the Will to show that
ppn 64 ts-59.03 (j).doc
the testator's mind was not free. It is held that in such a case the court
would naturally expect that all legitimate suspicion should be completely
removed before the document is accepted as the last Will of the testator.
If the propounder himself takes part in the execution of the Will which
confers a substantial benefit on him, that is also a circumstance to be
taken into account and the propounder is required to remove the doubts
by clear and satisfactory evidence.
104. This court in the said judgment held that no presumption of
law can be drawn in respect of the document which is 30 years old
document in respect of the Will which has not been produced on record
though it was available and thus the said Will which was alleged to have
been executed was not duly proved as required by law as per the
provisions of sections 63, 67 and 68 of the Indian Evidence Act. The
principles laid down by this Court in case of Sheshrao M. Kuratkar
(supra) squarely applies to the facts of this case. In this case admittedly,
the original alleged Will was neither produced in evidence nor proved by
the attesting witnesses or by the plaintiffs. The attesting witness has also
not identified the signature of the alleged testator and/or himself and
other alleged signatures on the alleged Will. Since the Will was not
produced in evidence, the same was not exhibited as a document on
ppn 65 ts-59.03 (j).doc
record.
105. Section 68 of the Indian Evidence Act, 1872 clearly provides
that if the document is required by law to be attested, it shall not be used
as evidence until one attesting witness at least has been called for the
purpose of proving its execution, if there be an attesting witness alive,
and subject to the process of the Court and capable of giving evidence.
Section 62 of the Indian Evidence Act, 1872 provides that the primary
evidence means the document itself produced for the inspection of the
Court.
106. Section 64 provides that the document must be proved by
primary evidence except in cases mentioned in the said Indian Evidence
Act, 1872. In my view even the certified copy of the Will is not
admissible per se in evidence being not a primary document. It is thus
clear that the plaintiff has failed to prove the execution and attestation of
the Will as required under the provisions of Indian Evidence Act, 1872 by
producing and proving the original alleged Will though had examined the
witnesses.
107. Supreme Court in case of Rani Purnima Debi and another
ppn 66 ts-59.03 (j).doc
(supra) has adverted to the earlier judgment of Supreme Court in case of
H.Venkatachala Iyengar v. B. N. Thimmajamma, AIR 1959 SC 443 in
which it is held that the mode of proving a Will did not ordinarily differ
from that of proving any other document except as to the special
requirement of attestation prescribed in the case of a Will by section 63 of
the Indian Succession Act, 1925. The onus of proving the Will was on the
propounder and in the absence of suspicious circumstances surrounding
the execution of the will proof of testamentary capacity and signature of
the testator as required by law was sufficient to discharge the onus.
However, if there were suspicious circumstances, the onus would be on
the propounder to dispel them to the satisfaction of the Court before the
Will could be accepted as genuine.
108. It is held that the condition of the testator's mind might
appear to be very feeble and debilitated and evidence adduced might not
succeed in removing the legitimate doubt as to the mental capacity of the
testator; the dispositions made in the Will might appear to be unnatural,
improbable or unfair in the light of relevant circumstances; or the Will
might otherwise indicate that the said dispositions might not be the result
of the testator's free will and mind, in such cases, the Court would
naturally expect that all legitimate suspicions should be completely
ppn 67 ts-59.03 (j).doc
removed before the document was accepted as the last Will of the
testator. It is further held that if the propounder himself might take a
prominent part in the execution of the Will which conferred on him
substantial benefits, it is generally treated as a suspicious circumstances
attending the execution of the Will and the propounder is required to
remove the doubts by clear and satisfactory evidence.
109. Supreme Court in the said judgment considered that there
was no dispute that the relations between the testator and his wife and
sister were good and in these circumstances, the Court should have
expected something better than what is provided in the Will for wife and
sister of the testator. The daughter was completely disinherited. It is
further observed by the Supreme Court that there was no satisfactory
evidence to show that the relations between the testator and his daughter
was bad and thus in these circumstances it was accepted that the testator
would have made some provision for the daughter. Supreme Court
accordingly observed that in those circumstances, the Will was most
unnatural and there was a suspicions circumstances which may be
satisfactorily explained before the propounder of the Will could get the
Letters of Administration.
ppn 68 ts-59.03 (j).doc
110. In the facts of this case, the evidence on record and in
particular the evidence of the DW-2 examined by the defendant clearly
indicates that the relation between the deceased and the defendant was
not strained and all the children of the said deceased had attended the
funeral. The defendant was the youngest son of the deceased and in these
circumstances could not have been disinherited by the deceased father. In
my view, the learned counsel for the defendant is thus right in his
submission that the alleged Will of the said deceased is unnatural.
111. A perusal of the evidence further indicates that the plaintiff
had himself participated in execution of the Will. Her husband was an
alleged witness before the Sub Registrar of Assurances at the time of the
registration of the alleged Will. The plaintiff and her son are the only
beneficiary of the alleged Will of the deceased father. Since the plaintiff
and her husband had taken major part in preparation and execution of the
alleged Will, it clearly created a suspicious circumstances in execution of
the alleged Will. The onus was thus on the plaintiff to remove such doubt
and to dispel the suspicious circumstances by leading appropriate
evidence which the plaintiff failed to prove. The principles laid down by
the Supreme Court in case of Rani Purnima Debi and another (supra)
ppn 69 ts-59.03 (j).doc
squarely applies to the facts of this case. I am respectfully bound by the
said judgment.
112. Kerala High Court in case of Vattakam Purath Parambil
Ananda Bhai and another (supra) has held that merely because a Will is
registered its genuineness cannot be presumed. Registration of a Will
does not change the onus of proof from its propounder to its challenger. It
is held that since the burden is heavily upon the propounder to prove the
Will, he cannot adopt the stand that the registration of the Will itself is a
circumstance to dispel any suspicious circumstance. It is held that when
the genuineness of the Will is challenged the propounder has necessarily
to substantiate his case regarding its genuineness even in a case where it
is registered. At best registration of a Will though not required by law is
only a piece of evidence of the execution, but it cannot have greater
sanctity. It is not in dispute that under the provisions of Indian
Registration Act, the Will is not required to be registered compulsorily.
In my view, the principles laid down by the Kerala High Court in case of
Vattakam Purath Parambil Ananda Bhai and another (supra) squarely
applies to the facts of this case. I am respectfully in agreement with the
views expressed by the Kerala High Court in the said judgment. Merely
because the alleged Will is registered, the onus to prove the execution of
ppn 70 ts-59.03 (j).doc
the said Will and that the same was executed by the said deceased on his
own free will is not discharged. Since the execution of the said Will itself
is disputed on several grounds including on the ground that there are
suspicious circumstances, the onus to prove the execution and attestation
of the Will and dispel to such suspicious circumstances was on the
plaintiff which in my view he has failed to discharge.
113. A perusal of the evidence led by the plaintiff and also the
defendant clearly indicates that the said deceased was suffering from
abdominal cancer, diabetes, high blood pressure, breathlessness, vertigo
and had several other health issues including chest pain, severe arm pain
and was not taking solids and was suffering from severe weakness. The
plaintiff herself in her cross-examination has categorically admitted that
the said deceased was suffering from several such serious diseases and
was admitted in the BARC Hospital on 27 th August, 2002. The plaintiff
admitted that the said deceased was vomiting and suffering from severe
weakness and also from loss of appetite when he was admitted to the
Hospital on 27th August, 2002. The said deceased was 88 years old
when he was admitted to the Hospital before his demise. The said
deceased was also provided hearing aid in the said BARC Hospital.
ppn 71 ts-59.03 (j).doc
114. The medical reports of the said deceased produced by the
said BARC Hospital pursuant to a witness summons issued by this Court
which were confronted to the plaintiff as well as Doctor, who was
examined by the defendant admitted that the said deceased was suffering
from all the aforesaid deceases from time to time. The said Doctor
admitted in his evidence that the said deceased was suffering from cancer
of stomach, which has spread to Liver. The family members of the said
deceased had decided not to go ahead with operation of the said deceased.
The said deceased was also having discharged from his eyes, ear tinnitus,
low sodium. The said deceased was continued to be in hospital until his
death on 4th September 2002.
115. The Doctor (DW2), who was examined by the defendant
however, in his cross-examination admitted that the said deceased was
physically weak because of his illness and that severe weakness, weight
and appetizer loss and pooling of food was the result of stomach cancer.
116. The learned counsel for the plaintiff has strongly placed
reliance on the cross-examination of said Dr.Nobhojit Roy (DW2), who
gave inconsistent reply in the cross-examination. The said witness in his
cross-examination deposed that the said deceased was extremely cheerful
ppn 72 ts-59.03 (j).doc
despite his severe condition and his diseases. The said Doctor deposed
that the said deceased had a very good understanding and his decision
making of not undergoing aggressive treatment for his cancer. As per
team record of the said witness, the deceased was conscious, oriented and
reflected his sound mental condition.
117. It is not in dispute that the Doctor did not produce any team
record of the said witness in support of his answer that the said deceased
was conscious, oriented and reflected his sound mental condition. The
medical report produced by the said hospital through the said witness did
not indicate that the decision not to operate the said deceased for cancer
of stomach, which had spread to the Liver, was taken by the deceased.
On the contrary, the said Doctor has clearly deposed that said decision
was taken by the family members of the said deceased. In my view,
various answers given by the said Doctor in the examination-in-chief to
prove that the said deceased was suffering from various diseases was
given after considering the medical reports of the said deceased. It was
placed on record that the said deceased was suffering from several serious
diseases including cancer of stomach, which had spread to Liver. The
said deceased had become very weak and had stopped taking solids.
ppn 73 ts-59.03 (j).doc
118. In my view, the answers given in cross-examination by the
said Doctor, which were contrary to the answers, which were given in
examination-in-chief were based on the medical reports, thus cannot be
considered by this Court in isolation. This Court has to consider entire
evidence in right perspective to find out the truth. The plaintiff herself
admitted that the said deceased was suffering from several diseases for
last several years and was totally weak. After considering the age of the
said deceased as 88 years and in view of the proved fact that the said
deceased was suffering from several diseases, some of which were of
serious nature, in my view such diseases had impaired his mental capacity
as well as the understanding as well as sound and disposing capacity to
understand what documents he was executing including the alleged Will.
I am thus not inclined to accept the submission of the learned counsel for
the plaintiff that the plaintiff had proved, by cross-examining the said
Doctor, that inspite of several diseases and having age of 88 years, the
deceased was mentally sound and was of disposing mind. The said
Doctor alone had not treated the said deceased all through out. No other
Doctors, who had treated the said deceased for all such diseases were
examined.
119. In my view, the onus was on plaintiff to prove that the said
ppn 74 ts-59.03 (j).doc
deceased was of sound of disposing mind and was capable of
understanding the execution of documents including Will and the
contents thereof on the date of execution of such documents to the
satisfaction of the Court by leading cogent evidence. In my view, the
plaintiff has miserably failed to prove that inspite of suffering from
several such diseases for years and though the deceased was 88 years
already on the date of execution, he was of sound and disposing mind.
The said deceased was in hospital and died in the hospital as admitted by
the plaintiff in her cross-examination.
120. In so far as submission of learned counsel for defendant that
Will was surrounded by surrounding suspicious circumstances is
concerned, a perusal of record clearly indicates that the said witness was
illiterate. The alleged will was in English. The plaintiff could not
produce any proof to show that the said deceased could speak English,
Hindi, Tamil and could read English, in her evidence. In my view, few
answers given by the said Dr.Nobhojit Roy in cross-examination which
were totally contrary to the medical record and his own evidence in
examination-in-chief and thus do not inspire confidence. In my view, the
plaintiff was required to produce trustworthy and unimpeachable
evidence before this Court to prove the execution and attestation of Will
ppn 75 ts-59.03 (j).doc
and to dispel the suspicious surrounding circumstances.
121. The Supreme Court in case of Kalyan Singh Vs. Smt.Chooti
& Others, AIR 1990 SC, 396 has held that execution and validity of a
Will cannot be determined merely by considering the evidence produced
by the propounder. 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. 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. It would be also open to the
Court to look into surrounding circumstances as well as inherent
probabilities of the case to reach a proper conclusion on the nature of the
evidence adduced by the party.
122. A perusal of the evidence referred above clearly indicates
that the plaintiff (PW-1) had admitted that she had given instructions to
her Advocate to prepare affidavit of evidence of her brother Mr.Edakuda
Panankandiyil Dhanadas (PW-2). The plaintiff was present when the
alleged will was executed by the said deceased. The husband of the
plaintiff was alleged to be present at the time of registration of the said
Will. The plaintiff and her two children were exclusive beneficiaries
ppn 76 ts-59.03 (j).doc
under the said alleged Will. The plaintiff herself in her evidence admitted
that the said deceased, the plaintiff herself, Mr.Kishor V. Tembe and his
wife Mrs.Nila K. Tembe were present. She admitted that considering the
long standing cordial relations, Mr.Kishor V. Tembe agreed to be witness
of the Will. The husband of the plaintiff fixed an appointment in
Registrar's Office for registration of the said Will. She deposed that the
said alleged Will was signed in her presence. She however, did not
depose that the said Will was signed by the said deceased or by the
alleged attesting witness in her presence on the date of alleged execution
on 18th August, 2002.
123. In her cross-examination, plaintiff admitted that when both
the witnesses were signing the Will, she was present. She could not
produce any documentary evidence to support her contention that the
deceased could speak English, Hindi, Marathi, Tamil, Gujrathi and could
read English. Though she deposed that she was going to examine a
witness to prove that the said deceased knew English and could read
English and speak Hindi, Marathi, Tamil and Gujrathi, she did not
examine any witness to prove the said allegation. It is thus clear beyond
reasonable doubt that the plaintiff, who was staying with the said
deceased for last several years had played a prominent role in
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preparation and execution of the said alleged Will and also in registration
of the said alleged Will. The Supreme Court as well this Court in catena
of decisions has already held that shaky signature, the feeble mind and
unfair and unjust disposing of property, propounder himself taking a
leading part in making of the Will under which he or she receives a
substantial benefit and such other circumstances raised suspicion about
the execution of the Will and such suspicion cannot be removed by some
assertion of propounder that the will bears the signature of the testator or
that the testator was in a sound and disposing mind and memory at the
time when Will was made. It is held that the wife and children of the
testator, who was normally receive their due share, were disinherited
because the testator might have his own reasons for excluding them.
124. It has been held by the Supreme Court that the presence of
suspicious circumstances makes the initial onus heavier and therefore in
cases where the circumstances attendant upon the execution of the Will
excite the suspicion of the Court, the propounder must remove all
legitimate suspicion before execution of last Will of the testator. It is held
that in such circumstances, the test of satisfaction of the judicial
conscience has been evolved. The propounder has to remove such
suspicion from the mind of the Court by cogent and satisfactory evidence.
ppn 78 ts-59.03 (j).doc
In my view, there is no cogent evidence led by the plaintiff to prove that
the said deceased with several diseases including disease of serious nature
and at the age of 88 years, was in sound and disposing state of mind and
that he had understood nature and effect of the disposing and had affixed
the signature on the alleged Will after understanding the contents thereof
and of his own free-will. A perusal of the evidence clearly indicates that
none of the witnesses examined by the plaintiff by cogent evidence
proved that the said deceased was explained contents and consequences
of the execution of the said alleged Will in the language known to him i.e.
Malayalam nor could prove that he could read and write English.
125. A perusal of the evidence further indicates that the witness
examined by the plaintiff and the witness DW-2 clearly proves that all the
sons of the said deceased including the defendant were taking care of the
said deceased and had attended all the rituals even after his death. It is
also proved by the defendant that the said deceased had love and affection
for the defendant and also with the son of the defendant, the defendant
being the youngest in the family. The plaintiff could not prove that the
said deceased had any strained relations with the defendant, which could
dis-inheritate the defendant completely from the bequest alleged to have
been made by the said deceased in the said alleged Will and would have
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given the entire property exclusively to the plaintiff and her two children.
In my view, the learned counsel for the defendant is thus right in his
submission that the said alleged Will was unnatural and cannot be
accepted by this Court even on that ground.
126. A perusal of the affidavit of Mr.Kishor V. Tembe dated 17 th
August, 2003 initially produced indicates that contents of the said
affidavit was not incorporated in the affidavit of the evidence filed by
said Mr.Kishor V. Tembe. The deposition made in the affidavit of the
evidence filed by said Mr.Kishor V. Tembe, Advocate were vague and did
not advance or prove the case of the plaintiff in any manner whatsoever.
127. In my view, the public notice referred to and relied upon the
learned counsel for the plaintiff in support of his submission that the
relations between the defendant and the said deceased were strained and
thus on that ground the defendant could have been disinherited by the
said deceased, cannot be relied upon as the same was not proved by the
plaintiff and was not exhibited in evidence.
128. In so far as the submission of the learned counsel for the
plaintiff that since defendant had alleged to have admitted the signature
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of the said deceased in the alleged original Will and thus plaintiff was not
required to prove the execution and attestation of the said alleged Will
under Section 88 of the Indian Evidence Act is concerned, in my view
there is no merit in submission of the learned counsel of the plaintiff. The
defendant in his affidavit in support of caveat has raised several
objections in respect of the alleged execution and attestation of the Will
and has also challenged the alleged Will on a ground of fraud, fabrication,
the alleged Will being unnatural and surrounded by suspicious
circumstances. The onus was thus on the plaintiff to prove the due
execution and attestation of the alleged Will by leading cogent evidence,
which the plaintiff in my view has miserably failed.
129. The plaintiff has not even proved the existence of the
original Will by producing the same in evidence. None of the witnesses
examined by the plaintiff were shown alleged Will in the evidence. The
said alleged Will was marked by this Court for identification and was
never marked as exhibit at any stage in view of the said Will not having
been proved. Thus I am not inclined to accept the submission of the
learned counsel for the plaintiff that the alleged Will was duly executed
and attested under Section 63 of the Indian Succession Act, 1925 and
under Section 68 of the Indian Evidence Act, 1872. I am also not
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inclined to accept the submission of the learned counsel that the said
Mr.Kishor V. Tembe, Advocate, who was known to the family of the
deceased testator had drawn the Will in question. The said Mr.Kishor V.
Tembe in his cross-examination admitted that he has hardly visited twice
or thrice at the residence of the said deceased though he claimed to have
known the said deceased for last several years.
130. There is no merit in the submission of the learned counsel
for the plaintiff that the said Mr.Kishor V. Tembe was only put a
suggestion in the cross-examination that Will was not signed by the said
deceased testator or by said attesting witness. The execution and
attestation of the Will was disputed by the defendant and thus onus was
on the plaintiff to prove execution and attestation of alleged Will by
cogent evidence. The defendant himself entered in the witness box to
prove the allegations made in affidavit in support of caveat, which were
duly proved by him.
131. In so far as reliance placed by learned counsel for the
plaintiff on the consent affidavit filed by the two other brothers of the
plaintiff and the defendant for grant of probate in favour of the plaintiff is
concerned, a perusal of the record indicates that one of the brother, who
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had filed such consent affidavit in favour of the plaintiff was examined as
a witness by the defendant. The said brother had in his evidence deposed
that the said consent affidavit was prepared by the plaintiff's Advocate
and he has signed it since he was not interested in share in the property of
the said deceased. The plaintiff in her evidence admitted the consent
affidavit. It is not in dispute that the said affidavit was prepared by the
Advocate of the plaintiff. The said witness examined by defendant also
proved that when he visited office of the Advocate, the said affidavit was
already ready for signature of the said witness. Be that as it may, the said
witness (DW-2) in his cross-examination deposed that whenever he had
visited the said deceased, he was always found lying down and was not
able to talk to him. He further deposed that whenever deceased signed
the cheques in front of him, the said signature was different. The said
witness had also deposed that the deceased was fond of the defendant.
132. So far as the submission of the learned counsel for the plaintiff
that the evidence of the said Dr. Nobhojit Roy and in particular his
answers in cross-examination cannot be considered by this Court on the
ground that the defendant had not applied for declaring the said witness
as hostile witness or that he was not re-examined by the defendant as
concerned, in my view, the learned counsel for the defendant is right in
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his submission that the medical reports were produced pursuant to the
witness summons issued by this Court upon the BARC hospital. The said
Dr. Nobhojit Roy was examined to prove the illness of the deceased. The
plaintiff, who had examined herself and Mr.Kishor V. Tembe did not
depose that the said deceased was of sound and disposing mind. It was
nobody's case that the deceased testator had read and understood the
contents of the alleged Will. The defendant has not asked any question to
the said witness about sound and disposing mind of the deceased.
133. In my view, the defendant has rightly placed reliance on
Section 154 of the Indian Evidence Act, 1872. Be as it may, this Court
has to consider the entire evidence in right perspective and not slight
inconsistency, if any in the evidence led by the said Dr.Nobhojit Roy,
who was examined by the defendant for a limited purpose and more
particularly in view of the fact that the answers given by the said witness
were ex-facie, contrary to the medical reports produced on record by the
said hospital and contrary to his earlier deposition, which was based on
the medical reports. In my view, there is no merit in the submission of
the learned counsel for the plaintiff that said Dr.Nobhojit Roy was not
having declared as hostile witness or that the defendant did not seek an
opportunity to reexamine him in the circumstances, this Court cannot
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ignore the said part of the evidence of Dr.Nobojit Roy.
134. In so far as submission of the learned counsel for the
plaintiff that even if the said deceased was suffering from various
ailments, that would not be sufficient to declare a person of unsound
mind or that he was not able to understand as to what he was doing, in my
view, in view of the admitted fact that the said deceased was suffering
from several diseases including some of which were serious in nature and
considering the age of the said deceased as 88 years on the date of alleged
execution of the date, the Court has to consider the cumulative effect of
such serious diseases being suffered by the said deceased, his advance
age and in view of the said deceased having expired within 17 days from
the date of the alleged execution of the Will. The plaintiff could not
dispel the surrounding suspicious circumstances by leading cogent
evidence and could not clear the doubt from the mind of the Court that in
such circumstances, the said deceased would have executed the alleged
Will as propounded by the plaintiff.
135. In my view, conscience of the Court has to be satisfied by
producing cogent evidence by the plaintiff that the Will was executed and
attested in accordance with law, was not an unnatural Will and was not
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surrounded by any suspicious surroundings. There is no merit in the
submission of the learned counsel for the plaintiff that the witnesses
including PW-2 and Mr.Kishor V. Tembe could prove that the said
deceased was of sound and disposing mind on the date of execution of the
alleged Will. In my view, there is no merit in the submission of the
learned counsel for the plaintiff that the suspicious circumstances
highlighted by the defendant are abnormal. There is no evidence
produced by the plaintiff to show that the defendant had not supported the
said deceased.
136. In so far as Judgment of the Division Bench of this Court in
case of Bhika Cullianji & Company, Bombay (supra) relied upon by the
learned counsel for the plaintiff in support of his submission that since
there was no cross-examination of the witness on the material aspects, it
amounted to admission on the part of the defendant is concerned, in my
view all the witnesses examined by the plaintiff were extensively cross-
examined by the learned counsel for the defendant. Be as it may, the
plaintiff could not point out any part of the deposition of the plaintiff or
his witness, which remained un-controverted by the defendant by
allegedly not cross-examining all such witnesses as canvassed by the
learned counsel for the plaintiff. The Judgment of this Court in Bhika
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Cullianji & Company (supra) thus would not advance the case of the
plaintiff and is clearly distinguishable in the facts of this case.
137. In so far Judgment of the Supreme Court in case of
Madhukar D. Shende (supra) relied upon by the learned counsel for the
plaintiff is concerned, the Supreme Court in the said Judgment had
considered a situation where the Will was not opposed by any of the
relatives of the deceased, who would have succeeded as legal heirs of the
deceased, if the Will would not have been there. The challenge to the
Will was thrown by the stranger to the family and the person, who had
trespassed upon the property. The Supreme Court also recorded a finding
that there was nothing to show that the said deceased was physically or
mentally incapacitated from executing the Will. The Supreme Court also
considered that the factum of execution of Will by the deceased was
denied by a trespasser without raising any specific pleadings. However,
in the facts of this case, it is an admitted position that the said deceased
was totally bedridden and was suffering from several diseases some of
which were serious in nature and also that the said deceased was 88 years
old on the date of alleged execution of Will. In my view, the Judgment of
Supreme Court in case of Madhukar D. Shende (supra) would thus not
advance the case of the plaintiff. The facts before the Supreme Court in
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the said Judgment were totally different and are clearly distinguishable in
the facts
138. In so far as Judgment of the Supreme Court in the case of
Seth Beni Chand (supra), which is relied upon by the learned counsel for
the plaintiff is concerned, the Supreme Court gave a finding in the facts
of that case that there were civil and criminal proceedings vehemently
fought between the deceased and his son between each other and thus in
such circumstances, the exclusion of the son from the estate of the said
deceased, could not be considered as unnatural. The facts before the
Supreme Court in the said Judgment are totally different and are clearly
distinguishable in the facts of this case. The plaintiff could not prove by
any cogent evidence that the relations between the said deceased and the
defendant were not cordial. On the contrary, the evidence on record
clearly indicates that the said deceased was fond of the defendant and that
the defendant also used to take care of the said deceased and had also
attended all the rituals after the death of the said deceased.
139. For the reasons recorded aforesaid, Issue No.(i) is answered
in negative. In so far as Issue No.(ii) is concerned, in my view the
alleged Will dated 18th August, 2002 is surrounded by suspicious
ppn 88 ts-59.03 (j).doc
circumstances and thus cannot be accepted. The said issue is answered
accordingly. I therefore, pass the following order:-
ORDER
(I) The Testamentary Suit No.59 of 2003 is
dismissed.
(II) There shall be no order as to costs.
(R.D.DHANUKA, J.)
spt/
