Bombay High Court
John D. Lobo vs Mrs. Cressie S. Vaz & Ors on 10 October, 2017
Bench: R.D. Dhanuka
ts61-89.doc
vai
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY & INTESTATE JURISDICTION
TESTAMENTARY SUIT NO.61 OF 1989
IN
TESTAMENTARY PETITION NO.233 OF 1988
1-A) Mr.Idrian Bryan Lobo )
)
1-B) Mr.Glen Bryan Lobo )
)
Great Grandsons of the deceased )
Both residing at 99, L.T. Nagar, )
6th Road, Goregaon (West) )
Mumbai - 400 104 )
)
2) Mr.Ashley P. Lobo )
)
3) Mr.Noel A. Lobo )
)
Nirmala Apartment, 2nd Floor, )
203, Murdha Village, Uttan - )
Bhayander Road (West) )
District Thane ) ...Plaintiffs
....Versus....
1) Mrs.Creesie S. Vaz )
Of Bombay, Indian Christian )
Inhabitant residing at 320/2552, )
Motilal Nagar, Part II, M.G. Road, )
Goregaon (West), Bombay - 62. )
)
2) Mrs.Edwiges Fernandes )
Of Bombay, Indian Christian )
Inhabitant residing at 99, )
Lokmanya Tilak Nagar, 6th Road, )
Goregaon (West), Bombay - 62. )
)
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3) Mrs.Olga Rodrigues )
Of Bombay, Indian Christian )
Inhabitant residing at "Davesh" )
Flat No.22, St.Francis Tech. School )
Nandpeshwar Road, Borivli )
Bombay - 400 103. ) ...Defendants
Mr.Ramgopal Tripathi for the Plaintiffs.
Mr.Vincent Pereira for the Defendants.
CORAM : R.D. DHANUKA, J.
RESERVED ON : 3RD AUGUST, 2017
PRONOUNCED ON : 10th OCTOBER, 2017
JUDGMENT :-
1. Mr.John Damasceno Lobo, who claimed to be the executor
of the alleged Will dated 3rd January, 1975 of late Mr.Reginald
Cajetan Lobo @ Mr.Reginald C. Lobo @ Mr.R.C. Lobo @ Mr.Lobo
Raginald filed Petition No.233 of 1988 inter-alia praying for probate of
the alleged Will dated 3rd January, 1975 in this Court. Some of the
relevant facts for the purpose of deciding this testamentary suit are as
under :
2. It was the case of the original plaintiff that the said
Mr.Reginald Cajetan Lobo had alleged to have executed his last Will
and Testament on 3rd January, 1975 and had appointed him as the
sole executor of the said Will. The said alleged Will was executed and
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signed in presence of the two witnesses i.e. Mr.Prabhakar
Bhalchandra Kamat and Mr.Jaygopal Naidu. It was the case of the
original plaintiff that under the said alleged Will, the deceased had
bequeathed substantial part of his estate to him.
3. It was the case of the original plaintiff that the said
Mr.Reginald Cajetan Lobo (for the sake of brevity described as the
said "deceased") left behind him a son by name Mr.John Damasceno
Lobo its original plaintiff and four married daughters i.e. (i) Mrs.Lizzie
Rodrigues, (ii) Mrs.Cressie S. Vaz, (iii) Mrs.Olga Rodrigues and (iv)
Mrs.Edwiges Fernandes. The said deceased died on 7th January,
1976.
4. The citation was served upon the legal heirs of the said
deceased. The defendants herein filed the caveat, and joint affidavit
of Mrs.Edwiges Fernandes and Mrs.Cressie S.Vaz for themselves
and on behalf of Mrs.Olga Rodrigues dated 27th November, 1989 and
raised various objections to the grant of probate in favour of the
original plaintiff. Mrs.Lizzie Rodrigues did not file caveat. The petition
was converted into Testamentary Suit No.61 of 1989.
5. The defendants in the affidavit in support of the caveat
alleged that the Will was bogus, false and fabricated and was not
signed by the said deceased. It was alleged that the signature on the
said Will had been obtained by force, coercion and undue influence
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and also when the said deceased was not in sound state of mind and
was sick. The relationship between the said deceased and the
plaintiff was always strained and he was not taking care of the said
deceased and used to quarrel with him. The original plaintiff used to
harass him. It was alleged that the original plaintiff had not even
cared to look after the said deceased during the life time of the said
deceased.
6. It was alleged in the affidavit in support of the caveat that
in the affidavit of Mr.Jaygopal Naidu, who was one of the alleged
attesting witness, it was stated that the date of execution of the Will
was 3rd January, 1976. The original plaintiff, who claimed to be the
executor of the alleged Will of the said deceased died on 5 th August,
2006, leaving behind his three legal heirs i.e. Mr.Bryan J. Lobo,
Mr.Ashely P. Lobo and Mr.Noel A. Lobo. Those three persons applied
for amendment of the testamentary suit and for conversion of the
probate petition to the Letters of Administration with the Will annexed.
On 30th November, 2006, this Court allowed the said Chamber Order
for amendment. Pursuant to the said order passed by this Court, the
said three legal heirs of the original plaintiff were brought on record in
the plaint. During the pendency of this suit, Mr.Bryan J. Lobo
expired. His legal heirs i.e. Mr.Idrian Bryan Lobo and Mr.Glen Bryan
Lobo were impleaded as the plaintiffs nos.1-A and 1-B in place of
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Bryan J. Lobo.
7. On 13th July, 2007, this Court framed the following issues :-
Sr.No. Issues Findings
1] Whether the deceased duly executed
the Will dated 3rd January, 1975 as
In negative.
alleged in paragraph 3 of the
Petition ?
2] Whether the deceased was not
capable of executing any Will for the
reasons and as alleged in paragraphs In affirmative.
3, 4 and 5 of the affidavit in support of
the caveat ?
3] What orders, if any ? As per order.
8. On 23rd March, 2010, the plaintiff no.1 filed his affidavit of
evidence with the list of documents in the testamentary suit. By an
order dated 19th November, 2010, passed by this Court, the Will and
six counter foils of the rent receipts were marked as Exhibits "A" and
"B" collectively respectively. This Court appointed a Court
Commissioner to record evidence of the parties. The plaintiff no.1
entered the witness box on behalf of the plaintiffs. The plaintiffs also
examined Mr.Prabhakar Bhalchandra Kamat, who was one of the
alleged attesting witness of the alleged Will. Both those witnesses
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were cross-examined by the learned counsel for the defendants
extensively. The defendant no.1 filed her affidavit of evidence dated
21st November, 2011 on behalf of herself and other two caveators
with a list of documents. No other witness was examined by the
defendants.
9. It was the case of the original plaintiff that the said
deceased had a half share in the immovable property with his son i.e.
bungalow (Lobo Villa) situated at Goregaon (West) comprising of
eight rooms and was residing with his family. Out of the eight rooms,
six rooms were in possession of the said deceased and his son's
family and two rooms were occupied by Mrs.Edwiges Fernandes, one
of the daughter of the said deceased and her husband and one
unmarried daughter Mrs.Olga Rodrigues. It was the case of the
original plaintiff that the elder daughters Mrs.Lizzie Rodrigues and
Mrs.Cressie S. Vaz were married during the life time of the deceased
and two remaining then unmarried daughters were married after the
death of the said deceased.
10. Mr.Tripathi, learned counsel for the plaintiffs invited my
attention to the averments made in the testamentary petition, in the
affidavit in support of the caveat and also various portions of the oral
evidence led by both the parties in this suit. He submits that since
one of the attesting witness i.e. Mr.Jaygopal Naidu died, the plaintiffs
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had examined another attesting witness i.e. Mr.Prabhakar B. Kamat.
Insofar as the issue no.1 i.e. "Whether the deceased duly executed
the Will dated 3rd January, 1975 as alleged in paragraph 3 of the
Petition ? " is concerned, learned counsel for the plaintiffs placed
reliance on paragraphs 8 and 9 of the affidavit in lieu of the
examination in chief of Bryan J. Lobo dated 23rd March, 2010, who is
the plaintiff no.1 in the suit and would submit that the said affidavit
would clearly show that the said deceased had duly signed and
executed the said Will on 3rd January, 1975 and in the presence of
the witnesses and his signature was supported by the counter foils of
the rent receipts signed by the said deceased and several other
documents.
11. Learned counsel placed reliance on Articles Of Agreement
dated February, 1960 between the said deceased and Mr.A.N.
D'Souza and would submit that the said document was signed by the
said deceased as R.C. Lobo on each page of the said document. He
also placed reliance on the documents on pages 339, 342, 344, 345
and 346 of Volume-D and would submit that on several documents
produced on record, the said deceased had signed as R.C. Lobo. He
submits that only on the Conveyance Deed, which was on record in
this proceeding, the said deceased had affixed his full signature since
the full signature was required on the Conveyance Deed. He submits
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that the signatures of the said deceased on various documents as
R.C. Lobo has not been challenged by the defendants. He submits
that the plaintiff no.1 as well as the attesting witness has proved the
due execution and attestation of the Will in question left by the said
deceased.
12. Mr.Tripathi, learned counsel for the plaintiffs also invited
my attention to the answer given by the plaintiff no.1 (PW-1) on the
issue of execution of the alleged Will and more particularly the
answers to questions 125, 280 to 285, 290 to 292 and also placed
reliance on the answers given by the witness examined by the
defendants and more particularly the answers to the questions 153 to
167 and 168 to 177. He also placed reliance on the answers given by
the said witness to questions 193 to 199.
13. Insofar as issue no.2 i.e. "Whether the deceased was not
capable of executing any Will for the reasons and as alleged in
paragraphs 3, 4 and 5 of the affidavit in support of the caveat ? '' is
concerned, learned counsel for the plaintiffs submits that the attesting
witness Mr.Prabhakar B. Kamat had specifically deposed in
paragraphs 3 and 11 of his affidavit in lieu of examination in chief that
the said deceased was of sound mind. He submits that the
relationship between the said deceased and the original plaintiff were
always cordial. In support of this submission, he invited my attention
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to the answers given by the attesting witness and in particular to
questions 28 to 31 regarding the execution of Will and questions 32
to 36, 41, 58 and 68 about the relation of the deceased with the
original plaintiff.
14. It is submitted that though the said deceased died of heart
attack, his mind was always sound at the time of execution of the
alleged Will. He also placed reliance on the reply of the attesting
witness to questions 101 to 104, 105 to 110, 124 to 128 and 135 to
174. He also invited my attention to some of the portions of the
evidence of DW - 1 - Mrs.Edwiges Fernandes and submits that in
the affidavit in lieu of examination in chief filed by the said witness, it
was not deposed by the said witness that the said deceased was of
unsound mind. He submits that most of the questions asked to the
witness examined by the defendants were relating to the properties.
There were no questions on the aspect of undue influence, fraud,
fabrication, which was alleged in the affidavit in support of the caveat.
There were also not much questions on the issue of the alleged
unsound mind of the said deceased. He submits that all the
daughters of the said deceased were sufficiently provided by the said
deceased during his life time. He submits that there is no delay in
filing the testamentary petition by the original plaintiff.
15. Learned counsel for the plaintiffs placed reliance on the
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judgment of this Court in case of Madhuri Pukharaj Baldota vs.
Omkarlal Daulatram Banwat & Ors. 2015(4) Mh.L.J. 327 and in
particular paragraph 16 in support of the submission that the onus
was on the defendants to prove that there was any fraud committed
on the said deceased by the original plaintiff in execution of the said
Will which the defendants failed to prove by leading any cogent
evidence. He submits that the plaintiffs have sufficiently proved the
execution and attestation of the said Will under section 63 of the
Indian Succession Act,1925.
16. Learned counsel for the plaintiffs placed reliance on the
judgment of the Supreme Court in case of Pushpavati & Ors. vs.
Chandraja Kadamba & Ors. AIR 1972 SC 2492 in support of the
submission that the signatures of the said deceased on several
documents as R.C. Lobo was not challenged by the defendants at all
and was duly proved by the plaintiffs in leading oral as well as
documentary evidence. The plaintiff has discharged all the burden of
proof cast on him. He submits that there is no substance in any of the
defences raised by the defendants in the affidavit in support of the
caveat and thus the objections raised by the defendants deserves to
be rejected and this Court shall allow the testamentary petition filed
by the original plaintiff.
17. Learned counsel for the plaintiffs relied on the judgment in
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case of Kamleshsingh Harnamsingh Chowhan v. Kishorsingh
Gangasingh Chowhan (2010 (1) Mh.L.J., 238) for the proposition that
this Court cannot decide the title of the property in a testamentary
suit, but only can decide the validity and genuineness of the Will.
18. Mr.Vincent Pereira, learned counsel for the defendants on
the other hand invited my attention to various objections raised by
the defendants in the affidavit in support of the caveat opposing grant
of probate in favour of the plaintiffs. He submits that the alleged Will
was dated 3rd January, 1976, whereas the said deceased died on 7 th
January, 1976. He invited my attention to the affidavit dated 1 st
February, 1988 filed by Mr.Jaygopal Naidu claiming to be one of the
attesting witness, which affidavit was annexed to the testamentary
petition filed by the original plaintiff. He submits that in paragraph 2 of
the said affidavit, originally it was alleged that on 3 rd day of January,
1976, the said alleged attesting witness together with Mr.Prabhakar
B. Kamat was present at the residence of the deceased and
subscribed his signature on the alleged Will and Testament. He
submits that the date mentioned as 3rd day of January, 1976 was
corrected by the plaintiff as 3rd January, 1975 purportedly under an
order dated 30th November, 2006 passed by the Court allowing the
plaintiff to carry out the amendment. He submits that there was in fact
no such amendment to the date permitted by this Court by the said
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order.
19. It is submitted that the defendants had raised a specific
objection in the affidavit in support of caveat about the date
mentioned in the affidavit of the said alleged attesting witness as 3 rd
day of January, 1976, whereas the alleged Will of the deceased
annexed to the petition was dated 3 rd January, 1975. The defendants
had contended in the said affidavit in support of the caveat that the
alleged Will was thus bogus and was not signed by the said
deceased. He submits that the plaintiff has unilaterally carried out the
said amendment in the affidavit of the alleged attesting witness
though there was no such order granting such permission to carry out
the amendment insofar as the date of the alleged Will is concerned.
The said alleged attesting witness had also not initialled the
correction.
20. It is submitted that the testamentary petition came to be
filed by the original plaintiff after expiry of about 12 years from the
date of death of the said deceased. The plaintiff has not explained
the delay in the testamentary petition though was obliged to explain
as per the provisions of the Bombay High Court (Original Side) Rules.
He submits that the testamentary suit thus deserves to be dismissed
on this ground itself.
21. It is submitted by the learned counsel that during the
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pendency of the suit, the original plaintiff expired. Bryan J. Lobo was
one of the son of the said deceased, also expired. One of the grand-
son of the said deceased was examined as a witness by the plaintiff,
who was nine years old on the date of the alleged execution of the
said Will. He submits that there was no age of the said deceased
mentioned on the said alleged Will. Further the said deceased must
be of about 75 years old on the date of the execution of the alleged
Will. He submits that two of the daughters of the said deceased were
admittedly residing with the said deceased on the date of his death.
22. It is submitted by the learned counsel for the defendants
that the description of the property mentioned on page 16 of the
testamentary suit i.e. part of the alleged Will of the said deceased
was a jointly owned property of the said deceased and one of the
daughter. Learned counsel for the defendants placed reliance on the
Deed of Gift dated 20th May, 1969 executed by the said deceased in
favour of one of the daughter Ms.Olga and grand-son of the said
deceased Bryan J. Lobo. He submits that the said gift was given by
the said deceased and his wife. Learned counsel submits that the
said Deed of Gift thus could not have been cancelled by the said
deceased under the said alleged Will and could not have given the
said property to the original plaintiff.
23. It is submitted by the learned counsel that the said
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deceased was not in proper state of mind on the date of the
execution of the alleged Will. He placed reliance on the Deed of
Conveyance dated 13th April, 1959 between Mr.Rameshwar Pitambar
Bhatt and Mr.Chimanlal Poonamchand as vendors and the said
deceased and Mr.John D.Lobo as the purchasers. He submits that
admittedly the said property i.e. Lobo Villa was jointly purchased by
the said deceased along with his wife. However,in the said alleged
Will, the said entire property is alleged to have been given by the said
deceased to the original plaintiff exclusively. He submits that several
discrepancies about the entitlement of the said deceased in the
alleged Will to bequeath the said properties in favour of the original
plaintiff itself created a suspicious circumstances.
24. It is submitted that the said deceased was expected to
know the ownership of the property he had allegedly bequeathed in
favour of the original plaintiff. It would also show that the said
deceased was not in proper mind on the date of the execution of the
alleged Will.
25. Learned counsel for the defendants invited my attention to
page no.17 of the testamentary suit on the 4th page of the alleged Will
stating the date "3rd" and would submit that the said date mentioned
on page 17 (internal page 4 of the alleged Will) is not in the
handwriting of the said deceased. There are no initials in front of the
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said date mentioned by hand. He submits that the ink used for writing
the date and the alleged signatures on the said alleged Will is
different. The deceased used to make full signature on the
documents and was not signing as "R.C. Lobo". In support of this
submission, learned counsel for the defendants invited my attention
to the Deed of Conveyance dated 13th April, 1959 executed by the
vendors of the plot in favour of the said deceased and Mr.John D.
Lobo and would submit that on the said document, the said deceased
had affixed his fill signature.
26. Insofar the Articles of Agreement dated February, 1960
relied upon by the plaintiffs is concerned, it is submitted that there
was a a gap between the alphabets "R." & "C." and the surname
"Lobo" of various signatures on the said document. There was no
such gap in the signature on the alleged Will. He submits that
similarly on the rent receipts also there was a gap between the
alphabets "R." & "C." and the surname "Lobo". He submits that the
signature of the said deceased on the said Will has been forged by
the propounder of the said Will.
27. Learned counsel for the defendants invited my attention to
the affidavit in lieu of examination in chief of Bryan J. Lobo, who was
examined by one of the witness of the plaintiff. He submits that the
said witness has admitted that the said deceased, who was the
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grand-father of the said witness was 71 years old at the time of his
death. He admitted that the leg of the said deceased was imputed
some years ago and that the said deceased died by heart attack. In
paragraph 6 of the affidavit of evidence, he has deposed that the said
deceased never informed the said witness of any Will that he had
executed. The said deceased had also not informed the late father of
the said witness that the said deceased had left any Will. After the
death of the said deceased, Mr.Jaygopal Naidu and Mr.Prabhakar B.
Kamat, the friends of the said deceased had informed the late father
of the witness about the said Will alleged to have been executed by
the said deceased. He has deposed that he was present when his
father was informed by the said Mr.Jaygopal Naidu and
Mr.Prabhakar B. Kamat had informed about the alleged Will to his
father by the said deceased.
28. Learned counsel for the defendants invited my attention to
further examination in chief of the plaintiff no.1, who deposed that
Mrs.Lizzie Rodrigues and Mrs.Cressie S. Vaz were the daughters not
staying with the deceased in the "Lobo Villa". He admitted that the
said deceased had undergone the surgical operation of imputation of
leg some time in the year 1972. He invited my attention to the answer
given by the said witness in reply to questions 69 and 70 in the
examination in chief admitting that he was not personally aware of the
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Will of the said deceased and had not personal knowledge. The said
witness admitted that on the date of retirement of the said deceased
in 1969, the said witness was not even born.
29. Learned counsel for the defendants invited my attention to
reply to question no.91 and would submit that the said witness
admitted that the said "Lobo Villa" property was purchased by the
said deceased and Mr.John D. Lobo and that the said deceased was
aware of it that the said property was jointly purchased by him and
Mr.John D. Lobo. He also admitted that the said "Lobo Villa" was
jointly standing in the name of the deceased and Mr.John D. Lobo.
Whereas the water tax and the bills were also standing in the joint
names.
30. Insofar as Goa property is concerned, the said witness
admitted that the said property was standing in the name of Ms.Olga,
Bryan Lobo and Mr.Ashley P. Lobo in Goa record of rights. The said
Goa property was gifted by the said deceased in the name of those
three persons by a registered Gift Deed.
31. Learned counsel for the defendants invited my attention to
the answers given to question 116 by the PW-1, who deposed that
the said deceased expired at his residence in Goregaon (West)
whereas actually the deceased had expired in the hospital.
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32. Learned counsel for the defendants invited my attention to
the answers given to questions 129 to 131 of the cross-examination
of PW 1, who admitted that the said deceased and Mr.John D. Lobo
used to collect the rent from the tenants. He however, had no idea
upto which period they had collected the rent or that the father of the
witness was issuing the rent receipts to the tenants.
33. In reply to question 136, the said witness replied that he
did not have personal knowledge of the property prior to 1966. The
witness admitted in reply to question 139 that in respect of the
balance two rooms, his aunt Ms.Olga, who was unmarried, was
residing there. In reply to question 45, the witness deposed that the
relation of his father with the defendants and other sister were
strained. In reply to question 170, the witness admitted that he
remembered that the leg of the said deceased was imputed twice.
However, he could not say as to when his leg was imputed for the
first time or second time. My attention is invited to the reply of the
PW-1 to question 171 deposing that he was not aware of the Will
when he was asked as to how he came to know that the said
deceased had executed the Will.
34. It is submitted by the learned counsel that though the
mother and sister of the said witness are the legal heirs of Mr.John D.
Lobo, they are not impleaded as parties to the present proceedings.
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He admitted that after imputation of the leg of the said deceased
above the knees, he used to walk with crutches. In reply to question
199, the witness admitted that two of the daughters of the said
deceased were residing in bedroom where the said deceased and
his wife was staying. Their names were Ms.Olga Lobo and
Mrs.Edwiges Fernandes. In reply to question 239, the witness
admitted that in the year 1976, he was nine years old and his sister
was 11 years old. There was no maid servant in the house in the year
1975. He admitted that in 1975, Mrs.Edwiges Fernandes and
Mrs.Olga Lobo were staying in the suit property till they were married.
In reply to question 284, the witness admitted that his father used to
prepare the rent receipts. However, he deposed that his father used
to take the signature of the said deceased on the rent receipts.
35. It is submitted by the learned counsel that on the basis of
the evidence led by the witness, examination of the plaintiffs, it is
clear that their evidence was shaky and inconsistent. PW 1 had no
personal knowledge about the alleged execution of the Will. He
submits that execution of the alleged Will as well as attestation of the
Will is this not proved. The Will is ex-facie forged and fabricated.
36. It is submitted by the learned counsel that Mr.Jaygopal
Naidu was not examined as a witness by the plaintiff. The plaintiff did
not produce any proof of the date of death of Mr.Jaygopal Naidu. He
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invited my attention to the deposition of Mr.Prabhakar B. Kamat, one
of the alleged attesting witness. In his examination in chief, the said
witness admitted that he was a regular visitor to the house of the said
deceased. In paragraph 2 of his affidavit, he deposed that on 3 rd
January, 1975, he along with Mr.Jaygopal Naidu had visited the
residence at about 6:30 p.m. Only the deceased was present with the
said witness and Mr.Jaygopal Naidu. He had deposed that the
deceased had not called them to his house that day. After little
discussion, the deceased asked them whether they would become
the witness to his Will to which the witness and the said Mr.Jaygopal
Naidu agreed. In paragraph 3 of the said affidavit, the witness
deposed that the said deceased was of a sound and capable mind
when he signed the Will.
37. Learned counsel invited my attention to some of the
questions asked to the said witness by his advocate by way of his
further examination in chief. The witness deposed that he had not
read the petition. In reply to question 29 in his examination in chief,
the witness admitted that he had not seen the Will at all and was
shown the Will for the first time on the date of his further examination
in chief. In his examination in chief, he deposed that he did not know
the full name of Mr.R.C. Lobo. He did not know the contents of the
Will. He did not know as to how many children the said deceased
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had. He did not know where Mr.John D. Lobo was staying. He used
to visit "Lobo Villa" whenever he got time.
38. Learned counsel for the defendants invited my attention to
some of the answers given by the said witness in the cross-
examination. The said witness admitted that he did not know as to in
which year the said deceased visited the Churchgate station. The
said witness deposed that he knew the deceased since 1957 and
knew him upto 1972 and thereafter he had no contact with him. It is
submitted by the learned counsel that even according to the said
alleged attesting witness, he knew the said deceased only upto 1972
and thereafter had no contact with him, he could not have attested
the Will in the month of January, 1975 or 1976. The said witness did
not know the other children of the said deceased though he claimed
to have acquaintance with the said deceased since 1957 and had
claimed to have visited the said deceased many times. He was not
aware as to whether the wife of the said deceased was alive or dead
on the date of funeral of the said deceased.
39. In reply to question 117, the witness admitted that the said
deceased was not able to walk of his own in the year 1975-76. It is
submitted by the learned counsel that the said alleged attesting
witness was admittedly not with by the said deceased for attesting the
said alleged Will. He did not know anything about four daughters of
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the said deceased, some of whom were all through out staying with
the said deceased though the said alleged witness was allegedly
visiting the residence of the said deceased for about 18 years. He
submits that the evidence of the said witness was totally false and
cannot be relied upon.
40. Learned counsel for the defendants invited my attention to
the examination in chief of Mrs.Edwiges Maria Fernandes, denying
the execution of the attestation of the Will, on the issue of
unsoundness of the said deceased on the date of execution of the
said Will, on the issue of forgery and fabrication of the alleged Will
and various issues. It is submitted that there was no cross-
examination of DW 1 on her deposition that the Will was fabricated,
forged and that the said deceased had died in the hospital and that
his leg was amputated.
41. It is submitted that since the Will was surrounded by
suspicious circumstances set out and proved by the defendants, the
plaintiffs were to dispel the suspicious circumstances to the
satisfaction of this Court. He submits that the burden was on the
plaintiff to prove the execution and attestation of the alleged Will
which the plaintiff failed to prove. Learned counsel for the defendants
placed reliance on the judgment of the Delhi High Court in case of
Satish Chander Sabharwal & Anr. vs. State & Ors., AIR 2005
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Delhi 125, the judgment of the Supreme Court in case of Niranjan
Joshi vs. Mrudula Rao, AIR 2007 SC, 614 in support of the
aforesaid submissions.
42. Mr.Tripathi, learned counsel for the plaintiffs in rejoinder
submits that even if the description of one of the property or the
ownership in respect of those properties is not mentioned correctly,
the same would not make the Will invalid. This Court has to see
whether the Will executed by the said deceased was genuine or not.
The validity of the Will cannot be disputed on the basis of the wrong
ownership of the deceased mentioned in the Will. He submits that
since the said Mr.Jaygopal Naidu expired in the year 2010, he could
not have been examined by the plaintiffs. He submits that only one
attesting witness is required to be examined to prove the execution
and attestation of the Will and the said attesting witness was already
examined by the plaintiffs. He submits that the execution and
attestation of the Will is thus proved by the plaintiffs.
43. Insofar as the allegations of forgery and fabrication made
by the defendants is concerned, it is submitted that the defendants
did not examine any handwriting expert to prove such allegations. He
submits that there is no substance in any of the objections raised by
the defendants. He submits that this Court thus shall pass an order
for grant of Letters of Administration with the Will annexed in favour of
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the plaintiffs.
REASONS AND CONCLUSIONS
44. Both the issues are inter connected and are thus dealt with
together.
45. The said deceased has alleged to have executed his last
will and testament dated 3rd January, 1976 and died on 7th January,
1976. In the testamentary petition, however, in paragraph no.4, the
original petitioner had averred that the said will was duly executed at
Bombay on or about 3rd January, 1976. The date mentioned as 3rd
January, 1976 in paragraph no.4 is corrected by hand in pencil as 3rd
January, 1975. The said deceased died leaving behind four legal
heirs and next of kin i.e. the defendants herein and Mrs.Lizzie
Rodrigues. The question as to whether the alleged will was dated 3 rd
January, 1975 or 3rd January, 1976 will be dealt with in the later part
of this judgment.
46. Under the said alleged will, the said deceased had alleged
to have appointed the only son i.e. Mr.John Damasceno Lobo as
executor and had alleged to have bequeathed the major portion of
the property alleged to have been owned by the said deceased. Out
of four daughters of the said deceased, three of them filed affidavit in
support of caveat alongwith caveat.
47. In the affidavit in support of caveat, the caveators raised
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various objections to the grant of probate in favour of the original
petitioner. The caveators had disputed the execution and attestation
of the alleged will and have contended that the same was bogus,
false and fabricated document and was not signed by the said
deceased. The said deceased used to sign on all important
documents in full as "Reginald C. Lobo" and not in short "R.C. Lobo".
The caveators had also referred to the affidavit filed by the attesting
witness Mr.Jaygopal Naidu stating that the will was executed on 3 rd
day of January, 1976 by the said deceased. The photocopy annexed
to the testamentary petition and more particularly the last page
thereof indicates that the alleged will was dated 3rd January, 1975.
48. In view of the caveat and affidavit filed in support of the
caveat by the three daughters out of four daughters, the testamentary
petition was converted into the testamentary suit. Mrs.Lizzie did not
file any caveat and affidavit in support though was served with
citation.
49. Alongwith the testamentary petition, the original petitioner
filed affidavit in support of the alleged attesting witness Mr.Jaygopal
Naidu affirmed on 15th January, 1988. In paragraph no.2 of the said
affidavit, the said alleged attesting witness averred that on 3 rd day of
January, 1976, he was present togetherwith Shri Prabhakar
Bhalchandra Kamat at the residence of the deceased and he and the
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said Prabhakar Bhalchandra Kamat then and there saw the said
deceased who set and subscribed his signature at the foot of the
testamentary paper in English language and character. The said
alleged attesting witness and said Mr.Prabhakar Kamat thereafter set
and subscribed their respective names and signatures at the foot of
the said testamentary paper as witnesses therein. It is also averred
in the said affidavit that at the time when the said deceased so
subscribed his name and signature to the said will, he was of sound
and disposing mind, memory and understanding and to the best of
his belief, had made and published the said will as of his free will and
pleasure.
50. During the pendency of the testamentary suit, the original
plaintiff Mr.John Damasceno Lobo expired leaving behind him three
legal heirs. The first legal heir of the original petitioner Mr.Bryan John
Lobo, one of the legal heirs of Mr.John Damasceno Lobo i.e.
Mr.Bryan John Lobo who was impleaded as plaintiff no.1 also expired
during the pendency of this testamentary suit. His two sons were
accordingly brought on record in place and in substitution of said
Mr.Bryan John Lobo.
51. The plaintiffs examined the said Mr.Bryan John Lobo as
PW-1 and filed his affidavit in lieu of examination-in-chief dated 23 rd
March, 2010. The said witness was the grandson of the said
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deceased. His father died on 5th August, 2006. The said deceased
died due to heart attack. In reply to question no.69, when a question
was asked whether he was personally aware of the will of the
deceased of his grandfather, he deposed that he was not personally
aware. The said deceased had retired from the services of the
Western Railway in the year 1969. In reply to question no.88, the
said witness admitted that at the time of retirement of the said
deceased in 1969, the said witness was not even born. He was not
aware, for how many years, the said deceased remained at Dadar
and as to when the said deceased went to Goregaon.
52. In reply to question nos.125 to 129, the witness deposed
that his grandfather and Mr.John Lobo used to collect rent from the
tenants. He had no idea as to for what period, they had collected the
rents. In reply to question no.36, when the witness was asked
whether prior to 1966, he had any personal knowledge of the
property, the witness answered that he did not have personal
knowledge of the property except the documents. The witness was
asked as to where his father and mother were staying when the
deceased grandfather expired, he deposed that his father and mother
were staying in 'Lobo Villa'. In the balance two rooms, his aunt Olga
Lobo, who was unmarried at that time, was residing. In reply to
question no.45, the witness answered that relations between his
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father and his sister were strained. In reply to question no.170, the
witness admitted that the leg of the said deceased was amputated
twice. In reply to question no.179 when the witness was asked as to
how he came to know that his grandfather had executed the will, the
witness answered that he was not aware of the will. The witness
admitted that the leg of said deceased was amputated above the
knees. In reply to question no.199, the witness admitted that his two
aunts were unmarried and were staying in the bed room of his
grandfather.
53. In reply to question nos.239 and 240, the witness admitted
that in the year 1975, he was 9 years old and his sister was
approximately 11 years old. There was no maid servant in the house
in the year 1975. In 1975, the aunts Mrs.Edwiges and Mrs.Olga were
staying in the suit property and continued to stay till they were not
married. The leg of the grandfather was amputated in the year 1972.
54. In reply to question nos.281 to 285, when the witness was
put a suggestion by the learned counsel for the defendants that he
did not have any document to show that the said deceased used to
sign as "R.C. Lobo" on the rent receipts, the witness deposed that the
rent receipts have already been produced in the Court. The witness
admitted that his father used to prepare the rent receipts. He
however, further deposed that his father used to take his
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grandfather's signature and then issue to the tenants for the
payments.
55. The plaintiffs examined Mr.Prabhakar Bhalchandra Kamat
who was one of the alleged attesting witnesses to the said alleged
will. In his affidavit in lieu of examination-in-chief dated 19 th March,
2010, he deposed that he knew the deceased since last 18 years
prior to 1975 and was a regular visitor to the house of the deceased.
In paragraph no.2 of his affidavit, he deposed that on 3 rd January,
1975, he alongwith Mr.Jaygopal Naidu had visited the deceased at
his residence at about 6-30 p.m. Only the deceased was present
with him. The deceased had not called him and the other witness to
his house that day. The deceased thereafter asked them whether
they would become witnesses to his will. The witnesses agreed to
his request. It is deposed that the said deceased thereafter signed
the will in presence of both the witnesses and also put his signature
on each page of the will. It is further deposed that after putting his
signature, he put the figure upon "3rd" in the blank space of the date
on the will.
56. The witness deposed in his affidavit that he was not aware
as to who had drawn up the said will. The witness deposed that all of
them were present on 3rd January, 1975, at the time the will was
signed by the said deceased and thereafter they had put their
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signatures on the will. In paragraph no.3 of the affidavit, it is
deposed that the said deceased was in a sound mental state when
he signed the will. He also deposed that though the leg of the said
deceased was amputated, the deceased was of sound mind and had
never complained of any sickness to the said witness. He deposed
that the said deceased and Mr.John Lobo were on friendly terms and
when the said witness was present at the house, John Lobo also
used to sit and talk with all of them in the presence of the deceased
without any objection from the deceased.
57. The said witness Mr.Jaygopal Naidu was asked further
questions in examination-in-chief. In reply to question no.29 of his
further examination-in-chief when the witness was asked as to
whether he had seen the original will, the witness answered that he
had not seen the will at all. It is only that day he had been shown the
will. He deposed that he had signed the will on 3rd January, 1975 and
after that date till today, he was not aware of the will. He did not
know the full name of R.C. Lobo. When he was asked, since when
he knew R.C. Lobo, he deposed that the said Mr.R.C.Lobo used to
come some times to the headquarters of Western Railway at
Churchgate when the said witness and Mr.Jaygopal Naidu used to
work with him in the Personnel Department. The witness did not
know the name of the house where the said deceased was residing.
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He did not know how many children the said deceased had. In his
cross-examination, when he was asked whether he knew where
Mr.John Lobo was residing, he answered that he did not know. In
reply to question No.49, when he was asked whether he was
regularly visiting 'Lobo Villa', he answered that whenever he had
leisurely time, he used to visit 'Lobo Villa'.
58. In reply to question nos.65 and 66, when the witness was
asked, how many times the said Mr.R.C. Lobo had visited the
Churchgate office, the witness answered that he did not know. He
also deposed that he did not know in which year the said
Mr.R.C.Lobo had visited Churchgate office. In reply to question
nos.68 and 69, when the witness was asked, for how many years, he
knew Mr.R.C. Lobo, he answered that he knew Mr.R.C.Lobo since
1957 and upto 1972. Thereafter, he had no contact with him. In reply
to question no.72, when the witness was asked as to whether he
knew how many children the said deceased Mr.R.C. Lobo had, the
witness answered that he knew only Mr.John Lobo. The witness had
seen the daughters of the said deceased only now. He was asked to
tell, how many times, he had visited the deceased R.C.Lobo's
residence, he answered that he had visited the said Mr.R.C.Lobo
many times. He, however, could not state the exact number of years.
When he was asked whether he knew, when Mr.R.C.Lobo died, the
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witness answered that he did not know. In reply to question no.97,
when he was asked whether wife of Mr.R.C.Lobo was alive or dead
on the day of his funeral, the witness answered that he did not know.
59. The witness was asked that in 1974, what was the
condition of the said deceased, the witness answered that he was in
sound state of mind. He, however, did not know whether the said
deceased was hospitalized in the year 1974-1975. He answered that
he was not able to walk in the year 1974-75. His one leg was
amputated and he used to walk with crutches. In reply to question
no.149 when the witness was asked whether figure "3" was written by
the deceased by the same pen, the witness replied that he did not
remember.
60. The defendants examined Mrs.Edwiges Maria Fernades,
one of the defendants as their witness who filed affidavit in lieu of
examination-in-chief dated 21.11.2011. In her affidavit, she has
deposed that she and her sisters were looking after the household
affairs of the said deceased. The witness was staying in 'Lobo Villa'
alongwith her parents and sister Olga till the said witness got married
on 24.1.1976. The said witness produced a copy of the marriage
certificate. In paragraph no.6 of her affidavit, the witness deposed
that prior to the death of the said deceased, he was suffering from
high blood pressure and also suffered a heart attack. His right leg
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was amputated twice on 7.9.1972 and 21.12.1972. Both the parents
never stayed with the original petitioner at any time. The said
deceased used to stay with the said witness and her sister Olga in
'Lobo Villa' separately. In paragraph no.7 of her affidavit, she
deposed that in view of the heart attack of the said deceased in the
year 1975, he was not in proper state of mind and was admitted in
Nanavati Hospital in the month of January / February, 1975. He
suffered another massive heart attack on 27.12.1975 and was
admitted in Cooper Hospital on 5.1.1976 in ICU and expired on
7.1.1976 at Cooper Hospital. She deposed that she alongwith her
sister had paid the hospital charges for the treatment of the said
deceased. The original petitioner was never looking after the parents.
61. In paragraph no.8 of the affidavit of the said witness in lieu
of examination-in-chief, she deposed that the said witness and her
sister Olga were always residing at 'Lobo Villa' alongwith their
parents. She had never seen the alleged witnesses i.e. Mr.Prabhakar
B. Kamat and Mr.Jaygopal Naidu nor had they ever visited their
house. The said witness and her sister Cressie had seen the alleged
witness Mr.Prabhakar Kamat for the first time at his residence at the
time of his evidence. She has deposed that the said alleged will of
the said deceased is bogus, false and fabricated document and had
not been signed by the said deceased. She deposed that the said
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deceased used to always sign on important documents in full
"Reginald Cajetan Lobo" and not in short "R.C. Lobo". She further
deposed that the relations between the said deceased and the
original petitioner were always strained and they were not on talking
terms and often used to quarrel. The original petitioner used to
harass the said deceased father. the original petitioner never took
care of the said deceased during the life time of the deceased.
62. In paragraph no.9 of the said affidavit, the said witness
deposed that in the affidavit filed by the alleged attesting witness
Mr.Jaygopal Naidu and in the testamentary petition, it is stated that
the will was executed on 3rd January, 1976, whereas the will of the
deceased annexed to the petition was dated 3rd January, 1975.
63. In paragraph no.9 of the said affidavit, the witness has
deposed that the date "3rd" on the will was written in different
handwriting and was in different ink put subsequently by the petitioner
and it was not initialed by the said deceased. In paragraph no.12 of
the said affidavit, the said witness deposed that the immovable
property situated at Goa as mentioned in the alleged will has been
jointly owned by the deceased and by the mother of the witness
Mrs.Jacinta R. Lobo, who had jointly gifted the said property to
Mrs.Olga Rodrigues and their grand sons by registered gift-deed
dated 31.5.1969 bearing Registration No.24475. She produced a
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copy of the gift deed alongwith the said affidavit.
64. The said witness was cross-examined by the plaintiffs'
Advocate. In reply to question no.9, the witness deposed that she
had gone through the copy of the will annexed to the petition in 1989.
Her reply to the petition was filed on the basis of copy of the alleged
will, which she had gone through. In reply to question no.11, the
witness deposed that she had never seen the original will earlier
when she was shown the original will at the time of cross-
examination. She deposed that the alleged original will was shown to
the Court by the Advocate for the plaintiffs and at that time, she had
seen the original will. In reply to question no.61 when the witness
was asked as to for how many years, she was staying with her
husband at 'Lobo Villa', she deposed that she stayed with her
husband at 'Lobo Villa' since marriage. She deposed that she had
not shifted with her husband from 'Lobo Villa' after her marriage.
65. A perusal of the aforesaid evidence led by both the parties
clearly indicates that the said deceased used to affix his full signature
on all the important documents, which obviously would include the
execution of a will also. A perusal of the alleged will indicates that on
the said document, the alleged signature of the said deceased was
not in full but was as "R.C.Lobo". There was gap between the
alphabets "R" and "C" and between "C" and "Lobo", which was not
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found in the rent receipts, which were alleged to have been signed by
the said deceased.
66. A perusal of the evidence led by the PW-1 clearly indicates
that he had no personal knowledge about the execution and
attestation of the alleged will. He admitted that the said deceased
was 71 years old at the time of his death. In the year 1976, the PW-1
was 9 years old, whereas his sister was 11 years old. The PW-1 had
never seen the alleged original will and was not even aware of the
alleged will. The alleged attesting witness examined by the plaintiffs
admitted in his evidence that he had not seen the will at all and was
shown the will for the first time on the date of his further examination-
in-chief. He did not know the full name of R.C.Lobo. He did not know
as to how many children the said deceased had. He did not know
where Mrs.John Lobo was staying. He used to visit 'Lobo Villa'
whenever he got time.
67. The said witness claimed that he knew the deceased
since 1957 and knew him upto 1972 and thereafter he had no contact
with him. The said witness did not know the other children of the said
deceased though he claimed to have acquaintance. The said witness
was not aware as to whether the wife of the said deceased was alive
or dead on the date of funeral of the said deceased.
68. A perusal of the evidence of the said Mr.Prabhakar B.
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Kamat clearly indicates that according to the said witness, the said
deceased had not called him and Mr.Jaygopal Naidu to his house on
the date of alleged execution of the will. Though he claimed to have
visited the residence of the said deceased number of times, he did
not know who else was staying with the said deceased including their
names. In his affidavit of attesting witness filed alongwith copy of the
petition, he averred that the will was signed on 3rd January, 1976,
whereas copy of the alleged will annexed to the petition was dated 3rd
January, 1975.
69. During the course of the arguments, Mr.Tripathi, learned
counsel for the plaintiffs, contended that an amendment in the
testamentary suit was carried out pursuant to an order passed by the
learned Prothonotary and Senior Master in the Chamber Order. A
perusal of the Chamber Order clearly indicates that there was no
prayer for carrying out any amendment in the testamentary suit
insofar as the date of the alleged will mentioned in the petition as 3 rd
January, 1976, or in the affidavit of the attesting witness. A perusal of
the original testamentary petition clearly indicates that the year 1976
is corrected in pencil as 1975 without any initials in the testamentary
petition as well as in the affidavit of attesting witness filed by
Mr.Jaygopal Naidu. Even the date mentioned in the said affidavit of
Mr.Jaygopal Naidu as 3rd January, 1976, is corrected by pencil as 3rd
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January, 1975. Neither there is any initial put by the deponent on the
said affidavit nor by the original petitioner who had verified the
testamentary petition.
70. Though this issue was specifically raised by the
defendants in the affidavit in support of caveat, the plaintiffs did not
examine Mr.Jaygopal Naidu as a witness. The plaintiffs did not
produce any death certificate of the said witness Jaygopal Naidu.
Though Mr.Prabhakar B. Kamat was examined as a witness and who
also claimed to be present on the date of alleged execution and
attestation of the alleged will, he did not prove that there was a so
called mistake in the date of 3rd January, 1976, in the petition as well
as in the affidavit of Mr.Jaygopal Naidu filed alongwith testamentary
petition. I am, therefore, of the considered view that the alleged will
was ex-facie fabricated and forged by the propounder of the said
alleged will. The said deceased was in hospital from 3rd January,
1976 and expired on 7th January, 1976.
71. A perusal of the evidence of the alleged attesting witness
indicates that though he claimed that he had acquaintance of long
period with the said deceased and used to visit his house on several
occasions, he was not able to inform the Court in his cross-
examination the names of the family members of the said deceased
and more particularly two daughters who had been staying with the
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said deceased in the house 'Lobo Villa' alongwith the said deceased.
He also was not aware as to whether the wife of the said deceased
was alive on the date of funeral of the said deceased. It is thus clear
beyond reasonable doubt that the said alleged attesting witness had
filed a false affidavit with a view to mislead this Court and to support
the false case of the original petitioner. Two daughters of the said
deceased who were staying with the said deceased had never seen
the said witness at the residence of the deceased.
72. The first witness examined by the plaintiffs had no
personal knowledge at all of the alleged execution of the will. The
execution and attestation is thus not proved by the plaintiffs, though
the onus to prove was on the plaintiffs. The issue no.1 is accordingly
answered in negative.
73. Insofar as issue no.2 is concerned, a perusal of the record
clearly indicates that the said deceased was suffering from various
diseases and his leg was amputated twice above the knee. The
witness examined by the defendants has deposed about the sickness
of the said deceased in her deposition. She has also brought on
record that the said deceased was suffering from heart attack and
blood pressure. Few days prior to his death, he had suffered from
severe heart attack and was admitted in ICU in Nanavati Hospital.
Within few days of his admission in the hospital, the said deceased
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died. The hospital bills of the said deceased are also borne by the
defendants. The witness examined by the plaintiffs has admitted in
his evidence that the relations of his father with the defendants were
strained. The witness examined by the defendants have also brought
on record that the original petitioner never used to take care of the
said deceased and was harassing and quarreling with the said
deceased. This part of the deposition in the affidavit in lieu of the
examination-in-chief of the defendants' witness was not controverted
in the cross-examination. Substantial part of the evidence of the
defendants' witness in her examination-in-chief remained
uncontroverted and was not shattered in the cross-examination.
74. None of the witnesses examined by the plaintiffs could
prove before this Court by any cogent evidence that the deceased
was capable of executing any will or was of sound and disposing
mind on the date of execution of the alleged will. The witnesses
examined by the plaintiffs admitted that the said deceased was
suffering from various diseases. The first witness of the plaintiffs was
hardly 9 years old on the date of death of the said deceased and had
no personal knowledge of the fact whether the said deceased was of
sound and disposing mind and was capable of executing any will or
not. The second witness examined by the plaintiffs also could not
prove that the said deceased was of sound and disposing mind. On
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the contrary, the allegations made by the defendants in paragraph
nos.3,4 and 5 of the affidavit in support of the caveat have been
proved by the witness examined by the defendants and by cross-
examining the witnesses examined by the plaintiffs.
75. A perusal of the record further indicates that the first
witness examined by the plaintiffs has admitted in his cross-
examination that various properties, which were alleged to have been
bequeathed by the said deceased in the alleged will did not belong to
the said deceased exclusively or did not belong to him or ceased to
belong to him in view of the said deceased and his wife having gifted
one of such properties in favour of the family members. A person
who was not the owner of the property exclusively or was part owner
of any property would not have bequeathed that property exclusively
in favour of a party knowing fully well that he was not authorized to
deal with such property. Though the testamentary Court cannot
decide the issue of title in respect of the properties of the deceased
testatrix, a deceased dealing with the property, which did not belong
to him exclusively or partly, would in ordinary course would not have
made a bequest of such property.
76. The alleged will is ex-facie surrounded by suspicious
circumstances. The date of alleged will also was surrounded by
suspicious circumstances. It was in these circumstances, the onus
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was on the plaintiffs to dispel such surrounding circumstances to the
satisfaction of this Court by leading cogent evidence, which the
plaintiffs failed miserably.
77. In my view, the learned counsel for the defendants is right
in his submission that since the relations of the said deceased with
the original petitioner were strained, the said deceased would not
have given the entire property to the original petitioner and
disinheriting the two daughters who were all throughout staying with
the said deceased and were exclusively taking care of him. The
plaintiffs, in my view, failed to dispel such suspicious circumstance to
the satisfaction of this Court by leading any cogent evidence.
78. This Court in the case of Madhuri Pukharaj Baldota (supra)
held that the onus lies on the propounder of the will that the same
was validly executed, that the testator had understood the contents of
the document to which he put his signature and that he did so in his
own volition. Any legitimate doubts raised in the mind of the Court
with regard to the validity of the execution of the will must also be put
to rest by the propounder independent of whether any accusations
made by any caveator or not. In this case, the defendants had not
only made various allegations and having pointed out various
surrounding suspicious circumstances in execution of alleged will but
had proved the same by leading evidence, the plaintiffs had failed to
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dispel such suspicious surrounding circumstances. The principles
laid down by this Court in case of Madhuri Pukharaj Baldota (supra)
would thus assist the case of the defendants and not the case of the
plaintiffs.
79. Insofar as judgment of the Supreme Court in case of
Pushpavati & others (supra) relied upon by the learned counsel for
the plaintiffs is concerned, it is held by the Supreme Court in the said
judgment that the proof of execution and attestation is on the
propounder of the will especially when it is alleged to be a forgery. In
my view, the said judgment would clearly support the case of the
defendants. The plaintiffs have failed to prove that the will was
executed and attested in accordance with law and had not removed
the suspicious circumstances.
80. Insofar as judgment of this Court in case of Kamleshsingh
Harnamsingh Chowhan (supra) relied upon by the learned counsel for
the plaintiffs is concerned, there is no dispute about the proposition of
law that the Court only decides the question of genuineness and
validity of the will and does not enter into the question of title. This
Court has not decided any question of title in respect of the estate of
the said deceased in this judgment.
81. Delhi High Court in case of Satish Chander Sabharwal &
Another (supra) relied upon by the learned counsel for the defendants
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has held that if there are suspicious circumstances in execution of the
will and has created doubt on veracity of will and if there are glaring
contradictions and discrepancies in evidence of witnesses of the
plaintiffs, will cannot be probated by the testamentary Court. In my
view, the said judgment would squarely apply to the facts of this case
and would support the case of the defendants.
82. The Supreme Court in case of Niranjan Joshi (supra) relied
upon by the learned counsel for the defendants has held that there
are several circumstances which would have been held to be
described by the Supreme Court as suspicious circumstances, such
as, (1) when a doubt is created in regard to the condition of mind of
the testator, his signature on the will; (2) when the disposition
appears to be unnatural or wholly unfair in the light of the relevant
circumstances; and (3) where propounder himself takes prominent
part in the execution of the will, which confers on him substantial
benefit. It is held that the burden of proof that the will has been
validly executed and is a genuine document is on the propounder.
The propounder is required to prove that the testator has signed the
will and that he had put his signature out of his own free will having a
sound disposition of mind and had understood the nature and effect
thereof.
83. In my view, the principles laid down by the Supreme Court
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in the aforesaid judgment clearly applies to the facts of this case. The
plaintiffs have failed to prove even the correct date of the alleged will.
The corrections made in the testamentary petition and in the affidavit
of the attesting witness insofar as year is concerned, by pencil and
without initials and even without any order allowing such amendment
that itself creates a serious doubt. There are neither any initials on
the said correction made in pencil nor any such order came to be
passed by this Court allowing such amendment. Within few days of
the date of alleged execution of will i.e. 3 rd January, 1976 mentioned
in the testamentary petition as well as in the affidavit of attesting
witness, the said deceased expired in the hospital.
84. In my view, the said alleged will cannot be accepted as
proved before this Court also on the ground that the said deceased
would not have disinherited the two daughters atleast who were all
throughout were staying with him and were taking absolute care of
the said deceased and would not have bequeathed his entire
property in favour of the original petitioner whose relations with the
said deceased were strained and who was never taking care of the
said deceased. The alleged will, in my view, is unnatural in these
circumstances and cannot be accepted. The issue no.2 is
accordingly answered in affirmative.
85. I, therefore, pass the following order.
ts61-89.doc
ORDER
The Testamentary Suit No.61/1989 is dismissed with costs
quantified at Rs.1,00,000/- (Rupees one lakh only), which
shall be paid by the plaintiffs to the defendants within two
weeks from today.
(R.D. DHANUKA, J.)
