Bombay High Court
Surendra T. Malik vs Neha V. Malik & Ors on 26 September, 2017
Bench: Rajesh G. Ketkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO.83 OF 2000
IN
TESTAMENTARY PETITION NO.175 OF 1999
Surendra T. Malik ... Plaintiff
Vs.
Neha V. Malik and others ... Defendants
Ms Jahan-ara Sarkhot for Plaintiff.
Mr. G. S. Bhat for Defendants.
CORAM : R. G. KETKAR, J.
Reserved on : SEPTEMBER 15, 2017
Pronounced on: SEPTEMBER 26, 2017
JUDGMENT :
Heard Ms Sarkhot, learned Counsel for the plaintiff and Mr. Bhat,
learned Counsel for defendants at length.
2. The plaintiff has instituted Petition No.175 of 1999 for the grant
of Letters of Administration with the Will annexed to the property and
credits of Smt Shobhana Tukaram Malik (for short 'deceased) inter alia
contending that the deceased had died at Mumbai on or about
02.11.1998. The deceased had a fixed place of abode at Sainath Vijay
Nagar, 1st floor, 91, R.H.B. Road, Mulund (W), Mumbai 400 080 and
had left the property within Greater Mumbai in the State of Maharashtra.
The deceased had left a writing, which is her last Will and Testament.
The Will was duly executed at Mumbai on 28.08.1998. The plaintiff is a
sole legatee named in the Will of the deceased. The plaintiff has set
forth in Schedule I, all the property and credits which the deceased
possessed of or entitled to at the time of her death. It is further
contended that so far as the plaintiff is aware of or is able to ascertain,
there are no other properties and credits other than what is specified in
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Schedule I annexed to the petition. The deceased had left her surviving
as her only heirs and next-of-kins according to Hindu Succession Act,
1956, the following persons, who are residing at the addresses set out
against their respective names:
Name of the heirs Relationship Addresses
with the
deceased
1 Surendra Tukaram Son (petitioner) Sainath Vijay Nagar,
Malik 1st Floor, 91, R.H.B.Road,
Mulund (West),
Mumbai 400 080.
2 Prakash Tukaram Malik Son -do-
3 Neelam Arun Narvekar Daughter Garden View Bldg.,
4th floor, Thakur Complex,
Kandivli (E), Mumbai 67.
4 Shradha Ulhas Sirsat Daughter Sneha Bungalow,
Shanti Niketan Road,
Opp. Vasant Dada Patil
Sugar Factory, Sangli,
Maharashtra.
5 Neha Vijay Malik Daughter-in-law Sainath Surendra Niwas,
(widow of the 3rd floor, 91, R.H.B. Road,
deceased son of Mulund (West),
the deceased) Mumbai 400 080.
3. Plaintiff, therefore, prayed for issuing Letters of Administration
with the said Will annexed to him having effect throughout Maharashtra
State. Along with the Petition, plaintiff annexed supporting affidavit of
Sakharam Mhatarba Shelke, one of the attesting witnesses dated
02.02.1999. In paragraph 1 of the affidavit, it is stated that he knew and
was well acquainted with the deceased. On 28.08.1998, he was present
along with Y. G. Chaudhari (another attesting witness) at the place of the
deceased and they did then and there see the deceased set and subscribe
her thumb impression at the foot of the testamentary paper in Marathi
language and character. Thereupon, he and Y. G. Chaudhari did, at the
request of the deceased and in her presence and in the presence of each
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other all being present at the same time, set and subscribe their
respective names and signatures at the foot of the said testamentary
paper as witnesses thereto. In paragraph 5, it is stated that thumb
impression of the deceased appearing at the foot of pages 1 and 2 of the
Will did exist before the execution of the Will.
4. Defendant filed Caveat on 12.10.2000 and also filed affidavit in
support thereof on 19.10.2000. Defendant inter alia contended that the
Will of the deceased is totally false, manipulated and fabricated. The
deceased always used to sign in vernacular on all the papers and rent
receipts issued by her to the tenants of her property, whereas her thumb
impression has been got affixed at the foot of her alleged Will. This
very fact indicates that the alleged Will is a fabricated one as there is no
explanation in the alleged Will as to why she is affixing her thumb
impression and not her signature thereto. Defendant further contended
that the deceased and the plaintiff were not on good terms since about
1993 and on many occasions, petitioner used to beat the deceased, used
to assault her and cause her physical injuries. The deceased had lodged
a number of police complaints against the plaintiff at Mulund Police
Station upto October 1997. It was therefore, submitted that in the
aforesaid circumstances, it is not at all believable that the deceased
would bequeath all her property to the plaintiff.
5. Defendant further contended that deceased stayed at Sangli upto
May, 1998 when she had to be brought back to Mumbai as she showed
symptoms of loss of memory. As the deceased showed no improvement
in her mental condition, petitioner got her admitted in a hospital at
Jogeshwari in or about October, 1998. No relatives of the parties stay at
Jogeshwari and all are staying at Mulund. There are many good
hospitals at Mulund and yet with mala fide intention plaintiff got the
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deceased admitted in a hospital at Jogeshwari without any intimation to
her or to other near relatives. The behaviour of the plaintiff showed that
he wanted all of them to be kept away from the deceased till she died in
the said hospital on 02.11.1998.
6. Defendant contended that deceased was an old lady of more than
65 years of age and staying under the roof of the plaintiff. Deceased
under undue influence and pressure from the plaintiff had bequeathed
her property to the plaintiff and that she has not done so out of her free
will. Defendant further contended that in view of the loss of memory,
deceased was not in a mentally fit condition to execute the alleged Will.
The Will alleged is said to have been executed on 28.08.1998 and the
deceased died in the hospital on 02.11.1998. She, therefore, prayed that
Letters of Administration as prayed for by the plaintiff should not be
granted to him on the basis of the alleged Will.
7. On the basis of the pleadings of the parties, issues were framed on
03.02.2011 and the parties adduced evidence in respect of their
respective case. In support of his case, plaintiff examined himself as
P.W.1 by filing affidavit of examination-in-chief in lieu of evidence
dated 17.02.2011. He also examined Yashwant G. Chaudhari, attesting
witness as P.W.2. Both the witnesses were cross-examined at length by
the learned Advocate for the defendant. Defendant filed affidavit of
evidence in lieu of examination-in-chief dated 26.03.2015 and she was
cross-examined at length by the learned Counsel for the plaintiff.
8. Ms Sarkhot submitted that the deceased was unable to sign
because of her age and therefore, put her thumb impression on each
page. P.W.2 Y. G. Chaudhari has stated in paragraph 5 of his affidavit in
lieu of examination-in-chief that the deceased told them that her hands
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were shaking and hence she could not sign. He and other attesting
witness Sakharam Mhatarba Shelke then and there saw the deceased set
and subscribe / emboss her thumb impressions at the foot of the
testamentary paper written in Marathi language and character, which is
her last Will and Testament. The said Will was typed in Marathi. She
submitted that defendant had not adduced evidence to prove that the
Will was executed in the presence of the plaintiff. Defendant has also
not led evidence to prove that the Will is a fabricated document.
Though the defendant has raised a plea of undue influence and coercion,
defendant has not adduced any evidence to substantiate the said plea.
Defendant has also not adduced evidence to establish that plaintiff was
harassing the deceased or that he was beating or assaulting the deceased.
Defendant has also not adduced any evidence to prove that deceased
was meted out cruelty by the plaintiff. She submitted that property
belongs to the deceased and the said fact is admitted by the defendant.
Plaintiff has adduced evidence to establish that the Will is duly executed
and attested and thus, complied Section 63 of the Indian Succession Act,
1925 (for short 'Act').
9. Ms Sarkhot submitted that plaintiff was taking care of the
deceased as also Prakash, her physically handicapped son, till his death.
Prakash expired on 01.05.2017. She submitted that defendant had not
pleaded and proved that the Will is surrounded by the suspicious
circumstances. The deceased was in a sound state of mind and was
capable of disposing of her property by Will. The fact that deceased was
in a mentally fit condition is also established as she was issuing rent
receipts to the tenants. Ms Sarkhot has taken me through the evidence
of P.W.1 - plaintiff, P.W.2 - Y. G. Chaudhari as also of the defendant.
Mr. Sarkhot relied upon the following decisions:
a. Decision of Calcutta High Court in Sushila Bala Saha Vs.
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Saraswati Mondal, AIR 1991 Cal 166, and in particular paragraphs 18,
19, 23 and 24 thereof to contend that plaintiff being the propounder of
the Will has discharged the onus of proving due execution, attestation
and also possession of testamentary capacity by the testator. Section
63(a) of the Succession Act provides that the testator can sign or affix
his mark. Even if the testator is capable of writing but on account of
weakness he is unable to put his signature, he can execute the Will by
affixing a mark. Such thumb impression is held to be good. Ms Sarkhot
further contended that defendant did not adduce any contrary evidence
as to the testamentary capacity of the testatrix. The person, who has
alleged that there is no necessary testamentary capacity, has also to
establish that case. Defendant has also failed to lead any evidence on
undue influence. Defendant has also not adduced any evidence to
establish that the deceased was physically and mentally unfit as also that
the plaintiff has exercised undue influence on the testatrix.
b. Decision of Allahabad High Court in Manorama Srivastava Vs.
Smt. Saroj Srivastava, AIR 1989 All 17, and in particular paragraphs
20, 21 and 24 to contend that plaintiff has established that Will in
question was properly executed by the testatrix and all the formalities of
law were complied with. There is no evidence to show that the plaintiff
was in any way in dominating position to obtain the said Will and in the
absence of any evidence of undue influence, it cannot be said either that
the Will was not executed or if executed was obtained by undue
influence. In paragraph 21, the decision of the Apex Court in Surendra
Pal Vs. Dr. Saraswati Arora, AIR 1974 SC 1999 was referred to . In
that case, the Apex Court held that the propounder has to show that the
will was signed by the testator, that he was at the relevant time in a
sound disposing state of mind, that he understood the nature and effect
of the dispositions, that he put his signature to the testament of his own
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free will and that he has signed it in the presence of the two witnesses
who attested it in his presence and in the presence of each other. Once
these elements are established, the onus which rests on the propounder is
discharged. But where there are suspicious circumstances, the onus will
be on the propounder to explain them to the satisfaction of the Court
before the Will could be accepted as genuine, and where the caveator
allege as undue influence, fraud and coercion, the onus is on him to
prove the same. If the caveator does not discharge the burden which
rests upon him in establishing the circumstances which show that the
will had been obtained by fraud or undue influence a probate of the will
must necessarily be granted if it is established that the testator had full
testamentary capacity and had in fact executed it validly with a free will
and mind.
10. On the other hand, Mr. Bhat submitted that it has come on record
that the deceased was mentally depressed. She was bedridden. She was
not even able to move away from the bed. He submitted that the Will is
also surrounded by following suspicious circumstances:
a. Under the will, property is bequeathed to the plaintiff alone.
Plaintiff has not explained as to why preferential treatment is given to
him.
b. Plaintiff has also not explained as to why defendant who is widow
of Vijay, son of the deceased, and her minor children were excluded.
c. Advocate M. N. Deshmukh and S. V. Pikale & Co., Advocates
were not consulted before making the alleged Will.
d. Though there are several reputed hospitals in Mulund, why the
deceased was admitted in a far away hospital at Jogeshwari.
e. The Will does not bear certification of a medical practitioner that
the deceased was in a sound disposing state of mind.
f. The plaintiff deposed that he did not know the attesting witnesses.
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The attesting witnesses are not relatives of the deceased. In other words,
the attesting witnesses were strangers.
g. The alleged thumb impressions of the deceased bearing at the foot
of pages 1 and 2 of the alleged Will existed before the execution of the
Will.
11. Mr. Bhat submitted that plaintiff examined only one of the
attesting witnesses namely, Y. G. Chaudhari and did not examine other
attesting witness, Sakharam Mhatarba Shelke. He submitted that the
attesting witness has not proved that the Will is validly executed and
attested. He submitted that in fact, the deceased was well conversant
with the legal proceedings. He submitted that after the death of
Tukaram Savalaram Malik alias Tukaram Malik alias T. S. Malik, the
deceased being his widow had filed Petition No.324 of 1981 in this
Court for obtaining Letters of Administration with the Will annexed of
the property and credits of Tukaram. On 24.03.1987, this Court granted
Letters of Administration. As the dispute arose between the deceased,
the plaintiff and the defendant, the matter was referred to arbitration
under the Arbitration Act, 1940 and the award was made by the learned
Arbitrator on 20.08.1998 In short, he submitted that the deceased would
not have executed the Will without consulting Advocates S. V. Pikale
and Co. or M. N. Deshmukh. It has come on record that during the
arbitration proceedings, she was represented by Advocate. He submitted
that Advocate M. N. Deshmukh was looking after the property matters
of the family. The relations between the deceased and plaintiff were
strained. The plaintiff had issued notice through S. V. Rane, Advocate to
S. V. Pikale & Company alleging that the deceased had not given
accounts of income and expenses since 01.04.1994 among other things
and therefore, called upon them and the deceased to furnish the
statement of accounts and income and expenditure of the property of
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which she was the Administrator, within 7 days, failing which, he will
proceed against the deceased in the Court of Law and proceed for
contempt proceedings.
12. Mr. Bhat further submitted that it has come on record that
plaintiff had shifted to Goa in the year 1979 and he was there till 1991.
He has taken me through the evidence adduced by the parties. In
particular, he submitted that in the cross-examination, plaintiff admitted
that he was conducting business in Goa from 1979 till 1991-92. That
deceased was admitted in Dr. Wagh's Hospital, Jogeshwari, where she
ultimately expired. He admitted that attesting witness Sakharam Shelke
is not related to him. The other attesting witness Y. G. Chaudhari is also
not related to him. He further admitted that mother used to affix her
signature on the rent receipts and that 4-5 years before she expired,
deceased was mentally upset because of his brother's behaviour. He
further admitted that in the year 1995, his sister took the deceased to
Sangli and there she stayed for two years. He admitted that deceased
was very fond of her grand-children. He further admitted that the
relationship between the deceased and her daughters was good and that
the sisters never visited him for Bhaubij. He also did not visit sisters on
the occasions of Rakshabandhan. Other than Advocate M. N.
Deshmukh, the deceased had confidence in S. V. Pikale and Company.
Plaintiff had also admitted that he had sent notice dated 19.03.1997 to
Advocate S. V. Pikale and Company through Advocate S. V. Rane to the
deceased for not administering the property properly. Mr. Bhat
submitted that as the said document was confronted to plaintiff P.W.1,
the same may be marked as exhibit. In view thereof, it is marked as
exhibit 'D-1'. He also admitted that no doctor recommended for shifting
the deceased to Dr. Wagh's Hospital in Jogeshwari. The Will does not
bear certification of a medical practitioner that the deceased was
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mentally fit to execute the deed. P.W.1 further admitted that he does not
have any other document to show that the deceased had put thumb
impression instead of signature.
13. Mr. Bhat invited my attention to question No.17 posed to the
attesting witness Y. G. Chaudhari, P.W.2. While answering this
question, he stated that he had given instructions as regards paragraphs
2, 4 and 5 of his affidavit in lieu of examination-in-chief. In other
words, he did not give any instructions as regards rest of the paragraphs
of the affidavit in lieu of examination-in-chief of P.W.2 attesting
witness. He, therefore, submitted that P.W.2 has not proved attestation
of the Will in question. In support of his submissions, he relied upon the
following decisions:
a. H. Venkatachala Iyengar Vs. B. N. Thimmajamma, AIR 1959
SC 443;
b. Jaswant Kaur Vs. Amrit Kaur, (1977) 1 SCC 369;
c. Jagdish C. Sharma Vs. Narain Singh Saini, 2015 (3) Bom.C.R.
481.
14. In rejoinder, Ms Sarkhot submitted that as the Will is properly
executed and attested, this Court will grant Letters of Administration.
She submitted that the very purpose of executing the Will by the
deceased will be lost if the Letters of Administration is not granted. She,
therefore, submitted that Suit may be decreed thereby granting Letters of
Administration with the Will annexed to the property and credits of the
deceased.
15. I have considered the rival submissions advanced by the learned
Counsel appearing for the parties. I have also perused the material on
record. The following points arise for my consideration:
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(1) Whether the plaintiff has established that the last Will and
Testament of Smt. Shobhana Tukaram Malik dated 28.08.1998
was validly and duly executed and attested?
(2) Whether the Will is surrounded by suspicious
circumstances?
(3) Whether the Will was manipulated and fabricated?
(4) Whether the deceased executed the said Will under undue
influence and pressure?
(5) What reliefs?
16. In the present case, plaintiff who is the sole legatee under the Will
is also the propounder of the Will. The plaintiff, therefore, has to lead
satisfactory evidence to prove the due execution and attestation of the
Will by the deceased. In cases where the execution of a will is shrouded
in suspicion, its proof ceases to be a simple lis between the plaintiff and
the defendant. What, generally, is an adversary proceeding becomes in
such cases a matter of the court's conscience and then the true question
which arises for consideration is whether the evidence led by the
propounder of the Will is such as to satisfy the conscience of the court
that the will was duly executed by the testator. It is impossible to reach
such satisfaction unless the party which sets up the Will offers a cogent
and convincing explanation of the suspicious circumstances surrounding
the making of the Will. In the case of R. Venkatachala Iyengar
(supra), the Apex Court speaking through Gajendragadkar, J. (as the
learned Chief Justice of India then was) laid down the following
propositions:
"1. Stated generally, a will has to be proved like any other
document, the test to be applied being the usual test of the
satisfaction of the prudent mind in such matters. As in the ease
of proof of other documents, so in the case of proof of wills,
one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be
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attested, it cannot be used as evidence until, as required by
Section 63 of the Evidence Act, 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.
3. Unlike other documents, the will speaks from the death
o[ the testator and therefore the maker of the will is never
available for deposing as to the circumstances in which the
will came to be executed. This aspect introduces an element of
solemnity in the decision of the question whether the document
propounded is proved to be the last will and testament of the
testator. Normally, the onus which lies on the propounder can
be taken to be discharged on proof of the essential facts which
go into the making of the will.
4. Cases in which the execution of the will is surround- ed by
suspicious circumstances stand on a different footing. A shaky
signature, a feeble mind, an unfair and unjust disposition of
property, the propounder himself taking a leading part in the
making of the will under which he receives a substantial
benefit and such other circumstances raise suspicion about the
execution of the will. That suspicion cannot be removed by the
mere assertion of the propounder that the will bears the
signature of the testator or that the testator was in a sound and
disposing state of mind and memory at the time when the will
was made, or that those like the wife and children of the
testator who would normally receive their due share in his
estate were disinherited because the testator might have had his
own reasons for excluding them. 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 suspicions before the document can be
accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is
surrounded by suspicious circumstance that the test of
satisfaction of the judicial conscience has been evolved. That
test emphasizes that in determining the question as to whether
an instrument produced before the court is the last will of the
testator, the court is called upon to decide a solemn question
and by reason of suspicious circumstances the court has to be
satisfied fully that the will has been validly executed by the
testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in
regard to the execution of the will, such pleas have to be
proved by him, but even in the absence of such pleas, the very
circumstances surrounding the execution of the will may raise
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a doubt as to whether the testator was acting of his own free
will. And then it is a part of the initial onus of the propounder
to remove all reasonable doubts in the matter."
17. The Will in question runs into 3 pages. It is typed in Marathi
language. In the opening paragraph, the testatrix declared that she has
revoked all her earlier Wills and Codicils, if any, and the dispositions
made thereunder and this Will is her last Will and Testament. In the
second unnumbered paragraph, she refers to Letters of Administration
dated 24.03.1987 granted by this Court in Petition No.324 of 1981 in
respect of the properties and dues of her late husband Tukaram
Savalaram Malik. The said Letters of Administration is enclosed with
the Will. As there were disputes and differences among the legal heirs
of late Tukaram Malik regarding distribution of the property, the matter
was referred to arbitration. As per the Award made by the Arbitrator, she
was allotted and accordingly became owner of immovable property i.e.
Chawl No.B with 7 rooms and building B with 7 shops and 19 room
situate at Sainath Vijaynagar, Plot No.91, Survey No.1239 at R.H.B.
Road, Mulund. Apart from the immovable property, she also received
jewellery, gold ornaments, cash and bank balance. The third
unnumbered paragraph recites that she being aged, her elder son
Surendra (plaintiff herein) looks after her and she resides with him along
with her younger son, Prakash, who is handicap. The fourth
unnumbered paragraph recites that she had given sufficient jewellery,
cash and other articles to her married daughters, Shraddha Vishram
Shirsath and Neelam Arun Narvekar at the time of their marriages.
Hence, she is not making any provision for them under the Will. In the
fifth unnumbered paragraph, it is recited that she thereby bequeaths the
above described immovable property, jewellery, gold ornaments, cash
and bank balance, which she possesses at the time of her death to the
elder son, Surendra and that during the life time of Prakash, he should
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properly look after Prakash. Surendra should also look after and
maintain the ancestral property, namely, 'Prakash Niwas' situate at
Vengurle, District Sindhudurg for the benefit of handicap son Prakash
and after the death of Prakash, it will devolve upon Surendra. The sixth
unnumbered paragraph recites that she has made this Will as per her
wish and desire and in a sound state of mind.
18. The next unnumbered paragraph recites that in verification
thereof, she has affixed her signature below the Will at Mumbai on
28.08.1998 (date is handwritten). The Will is attested by Sakharam
Mhatarba Shelke and Y. G. Choudhari. At the bottom of pages 1 and 2,
her thumb impression is affixed. On pages 3, on the top left hand side,
her thumb impression is affixed and on the right hand side also two
thumb impressions are affixed.
19. A perusal of the Will shows that immovable and movable
properties are bequeathed to the plaintiff absolutely, save and except,
'Prakash Niwas' situate at Vengurle, District Sindhudurg, which is given
to Prakash, during his life time and after his death, it has to go to the
plaintiff. A perusal of the Will does not disclose any reason for
excluding defendant, who is daughter-in-law of the deceased. Vijay,
husband of the defendant predeceased the deceased. Equally, no
explanation is given for excluding children of the defendant, namely
Chetan Vijay Malik an Mayur Vijay Malik, who at the relevant time,
were minors.
Point No.(1)
(1) Whether the plaintiff has established that the last Will and
Testament of Smt. Shobhana Tukaram Malik dated 28.08.1998
was validly and duly executed and attested?
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20. In order to prove due execution and attestation of the Will,
plaintiff has examined P.W.2, Y. G. Choudhari, one of the attesting
witnesses. He has filed affidavit of evidence in lieu of examination-in-
chief dated 23.07.2014. In paragraph 2 thereof, he stated that he retired
as a principal. He was conducting tuition classes for the students of V
and X standard till the year 2000. In paragraph 3, it is stated that he
knew and well acquainted with Smt. Shobhana Tukaram Malik
(deceased). In paragraph 5, he stated that he is aware that the said Will
dated 28.08.1998 was executed by the deceased. On 28.08.1998, Smt.
Shobhana Tukaram Malik called him at her residence where she was
residing, viz. Sainath Vijaynagar, 1st floor, 91, R.H.B. Road, Mulund
(W), Mumbai 400 080. Upon reaching the said premises, the deceased
showed him the typewritten will. He was present with Sakharam
Mhatarba Shelke. He read the contents of the Will shown by the
deceased. The deceased told them that her hands were shaking and
hence she could not sign and they did then and there saw the deceased
set and subscribe / emboss her thumb impressions at the foot of the
testamentary paper written in Marathi language and character as her last
Will and Testament. The said Will was typed in Marathi.
21. In paragraph 6, it is stated that the deceased informed them her
desire of bequeathing the property mentioned in the said Will to
Surendra Tukaram Malik (plaintiff) as her other two daughters namely,
Shraddha Vishram Shirsath and Neelam Arun Narvekar both were
happily married and during the lifetime of the deceased, at the time of
their marriage, she had given both of them sufficient jewelleries and
cash. She also informed him that the award was made by virtue of
which, major properties were physically handed over to Naha Malik
(defendant) being widow of the deceased Vijay Malik. She further
informed him that since Surendra Malimk was looking after the
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deceased and her younger son Prakash, she desired to bequeath her
properties mentioned in the Will in favour of Surendra Malik, plaintiff.
In paragraph 7, it is stated that after being satisfied that the deceased had
intentions to bequeath the suit properties to Surendra Malik, he put his
signature in English language. In paragraph 8, it is stated that after
speaking to the deceased, he found that at the time of putting her thumb
impression at the bottom of the Will and on each page the Will, the
deceased was of sound mind and good health and had disposing
capacity.
22. In paragraphs 5 and 9 to 12, it is stated thus,
"5. I am aware that the said Will dated 28.08.1998 was
executed by the deceased. On 28.08.1998, Smt. Shobhana
Tukaram Malik called me at her residence where she was
residing i.e. Sainath Vijaynagar, 1st Floor, 91, R.H.B. Road,
Mulund (W), Mumbai 400 080. Upon reaching the said
premises, the deceased showed me the typewritten Will. I was
present together with Shri Sakharam Mhatarba Shelke. I read
the contents of Will shown by the deceased. The deceased told
us that her hands were shaking and hence she could not sign
and we did then and there saw the deceased set and
subscribed / emboss her thumb impressions at the foot of the
testamentary paper written in Marathi language and character
which is referred to in the Petition herein and marked Exhibit
"A" and declared and published the same as her last Will and
Testamentary. The said Will was typed in Marathi.
9. That thereupon I and the said Shri Sakharam Mhatarba
Shelke did at the request of the said deceased and in her
presence and in the presence of each other, all being present
together at the same time set and subscribed our respective
signatures at the foot of the said Testamentary paper as
witnesses thereto.
10. That the name and thumb impression at the foot of the
Testamentary paper is of the party executing the same i.e. of
the said deceased, Smt. Shobhana Tukaram Malik. The names
added and signatures of Shri Sakharam Mhatarba Shelke and
Shri Yashwant Girdhar Chaudhari i.e. myself subscribed and
written at the foot of the said testamentary paper as the parties
attesting execution of the same are proper and in the respective
handwriting of Shri Shelke and myself.
11. I say that on each page of the Testamentary paper, the
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deceased had put her thumb impression. The thumb
impressions are put in my presence and hence I recognize the
same.
12. That at the time when the said deceased embossed her
thumb impression on the said Will dated 28.08.1998 as
aforesaid, she was of sound and disposing mind, memory and
understanding and to the best of my belief made and published
the same of her own free will and without any coercion and
undue influence."
23. In the cross-examination conducted on 25.07.2014, he was asked
questions as regards preparation of the affidavit in lieu of examination-
in-chief. The questions and answers are as under:
"Q.3: Did you receive the witness summons from the Court?
A: No, I have not received.
Q.4: Who requested to remain present today as witness?
A: I was requested by the Advocate for the plaintiff.
Q.5: When did you receive the phone?
A: On 23rd July 2014.
Q.6: At what time did you receive the phone call?
A: Afternoon 4.00 p.m.
Q.7: When did you meet the Advocate for the plaintiff?
A: On Thursday, 24th July 2014.
Q.8: At what time did you meet the Advocate for the
plaintiff?
A: At 1.30 p.m. on 24th July, 2014.
Q.9: On 24th July 2014, the Advocate for the plaintiff had
prepared the Affidavit in lieu of evidence and you put your
signature on it?
A: Yes.
Q.10: At what time, did you go to the Notary?
A: Around 3.30 p.m.
Q.14: Was the plaintiff with you when you met the Advocate
on the 24th July 2014?
A: Yes.
Q.15: For how long were you with the Advocate on 24 th July
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2014?
A: For about an hour.
Q.16: I put it to you that the plaintiff Mr. Surendra Malik has
instructed the Advocate for the plaintiff the contents of your
Affidavit in lieu of Evidence?
A: The draft of the Affidavit was ready upon certain
instructions given by me.
(The original affidavit is shown to the witness.)
Q.17 The Witness is requested to point out the paragraphs
contained in the affidavit which were prepared on the basis
of instructions given by him.
A: I have given her my address, contents of para nos. 2,
4, 5. In para no.5, the Advocate for the plaintiff questioned
me about the situation at the house of the deceased when I
went to put my signature on the said Will as a witness. The
Advocate for the plaintiff objects to the questions as these
are internal instructions given by the witness which cannot
be disclosed. In para no.8, the contents that after speaking to
the deceased Smt. Shobhana Tukaram Malik and after
reading the contents of the Will, the said deceased put her
thumb impression at the bottom of the Will and on each page
of the Will."
24. A perusal of the above extracted portion shows that at 4.00 p.m.
on 23.07.2014, he received a phone call for preparing affidavit in lieu of
examination-in-chief. He met plaintiff's Advocate on 24.07.2014 at 1.30
p.m. On 24.07.2014, Advocate for the plaintiff had prepared affidavit in
lieu of evidence and he put signature on it at 3.30 p.m. before Notary. As
against this, the affidavit in examination-in-chief is dated 23.07.2014.
25. It is material to note that the cross-examination was conducted on
25.07.2014 i.e. hardly after 2 days and still, he did not remember
making of the affidavit on 23.07.2014.
26. A perusal of answer given to question No.17 shows that the
contents of paragraphs 2, 4 and 5 of the affidavit in lieu of examination-
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in-chief were prepared on the basis of the instructions given by P.W.2 to
the plaintiff's Advocate. In paragraph 5, the Advocate for the plaintiff
questioned him about the situation at the house of the deceased when he
went to put up his signature on the said Will as a witness. At that time,
plaintiff's Advocate objected to the question as these were internal
instructions given by the witness which cannot be disclosed. Witness
stated that in paragraph 8, the contents that after speaking to the
deceased, Smt. Shobhana Tukaram Malik and after reading the contents
of the Will, the said deceased put her thumb impression at the bottom of
the Will and on each page of the Will. Ms Sarkhot submitted that
contents of paragraph 8 of the affidavit in lieu of examination-in-chief is
also as per the instructions given by P.W.2 to the plaintiff's Advocate.
On the other hand, Mr. Bhat submits that only paragraphs 2, 4 and 5 of
the affidavit in lieu of examination-in-chief are based on the instructions
given by P.W.2. In other words, Mr. Bhat contends that the contents of
paragraphs, other than paragraphs 2, 4 and 5, are not on the basis of the
instructions given by P.W.2, Y. G. Chaudhari to the plaintiff's Advocate.
27. I have already extracted question No.17 and answer given by
P.W.2. A perusal of paragraph 8 of the affidavit in lieu of examination-
in-chief shows that it dealt with sound mind and good health and
disposing capacity of the deceased. P.W. 2 does not state that the
contents of paragraph 8 were also prepared on the basis of the
instructions given by him to the plaintiff's Advocate. Even if for the
time being I accept submission of Ms Sarkhot that contents of paragraph
8 are also based upon the instructions given by P.W.2, nonetheless, it is
evident that the contents of paragraphs 9 to 12 of the affidavit in lieu of
examination-in-chief of P.W.2 are not based upon the instructions given
by him to the plaintiff's Advocate. Ms Sarkhot submitted that contents
of paragraph 5 of the affidavit in lieu of examination-in-chief meet the
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requirements of Section 63 of the Act. I have also extracted paragraph 5
of the affidavit in lieu of examination in chief of Y. G. Chaudhari. All
that it says that the deceased told the attesting witnesses that her hands
were shaking and hence she could not sign and the attesting witnesses
then and there saw the deceased set and subscribe / emboss her thumb
impressions at the foot of the testamentary paper written in Marathi
language and character which is her last Will and Testament. The said
Will is typed in Marathi. As far as the attestation is concerned, attesting
witness Sakharam Shelke and P.W.2 setting and subscribing their
respective signatures at the foot of the said testamentary paper as
witnesses thereto in her presence and in the presence of each other, all
being together present at the same time is stated in paragraph 9. The
contents of paragraph 9 are not on the basis of the instructions given by
P.W.2. In other words, P.W.2 did not depose about attestation by two
witnesses as per Section 63(c) of the Act. In view thereof, I find
substance in the submission of Mr. Bhat that due attestation by the
attesting witnesses is not proved in the present case. The contents of
paragraphs 9 to 12 are prepared by the Advocates not on the basis of the
instructions given by P.W.2.
28. One more aspect which requires to be dealt with is as regards the
affidavit made by the other attesting witness namely, Sakharam Shelke
dated 02.02.1999 in support of the Testamentary Petition. In paragraph
5, Shelke stated that the thumb impression of Smt. Shobhana Tukaram
Malik, appearing at the foot of pages 1 and 2 did exist before execution
of the said Will. Plaintiff, however, did not examine Sakharam Shelke.
That apart, plaintiff also did not obtain clarification as regards giving
instructions by P.W.2 before preparing his affidavit in lieu of
examination-in-chief by putting questions in re-examination. In view
thereof, I have no hesitation to conclude that the plaintiff has failed to
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prove due attestation of the Will. Point No.1 is accordingly answered in
the negative.
29. In view of the above finding, really speaking, it is not necessary
to record any findings on rest of the points. However, if it is held that
my finding against point No.1 is not correct, I am dealing with the other
points.
Point No.(2)
(2) Whether the Will is surrounded by suspicious circumstances?
30. Mr. Bhat submitted that plaintiff has not explained as to why he
was given preferential treatment. Though the Will recited that
daughters, Shraddha Vishram Shirsath and Neelam Arun Narvekar were
given sufficient jewellery, cash and other articles at the time of their
marriages, and therefore, she has not bequeathed any property to them,
still, considering the financial position of the deceased, it is highly
improbable that she will exclude the married daughters. This is more so
when for more than two years i.e. between 1995 and 1997, the deceased
was residing at Sangli with one of her daughters, Shraddha Shirsath. He
submitted that during the course of evidence, no explanation is given by
the plaintiff as regards this circumstance. Mr. Bhat submitted that in
the cross-examination, P.W.1 plaintiff admitted that during the period of
1998, there were many good hospitals in Mulund. However, no
explanation is forth coming as to why plaintiff admitted deceased in
hospital at Jogeshwari, which is far away from Mulund. He further
admitted that the attesting witnesses were strangers to the deceased.
They are also not related to the deceased. In the cross-examination,
plaintiff admitted that Sakharam Shelke, one of the attesting witnesses is
not related to him. He further admitted that Shelke never visited his
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residence and that he was not a family friend.
31. As far as the other attesting witness Y. G. Chaudhari, P.W.2, he
admitted that he is also not related to him. He was put to the question
that "Did he ever visit his (plaintiff's) residence?" To that also , he
answered in the negative. He also admitted that he had no relationship
with the deceased. As regards his meeting the deceased, following are
the questions put to and answers given by P.W.2:
"Q.34:I put it to you that prior to 1998, you had not met the
deceased?
A: After 1997, I used to enquire about her health.
Q.35: How many times did you meet her after 1997?
A: Two to three times a week.
Q.36: When did you start the class?
A: May 1997.
Q.37: Did you meet the deceased in May or June 1997?
A: No.
Q.38 When did you first meet her?
A: In July 1997.
Q.39 I put it to you that the deceased was not in Bombay from
October 1997 to April 1998, she was in Sangli.
A: I do not remember."
32. A perusal of answers given by P.W.2 to questions No.35 and 39
clearly shows inconsistency. Whereas while answering question No.35,
P.W.2 stated that he used to meet the deceased two to three times a week
after 1997, while answering question No.39, as to deceased was not in
Bombay from October 1997 to April 1998 and she was in Sangli, he
answered that he did not remember. A perusal of the testimony of P.W.2,
as a whole, shows that he was not related to the plaintiff as also the
deceased. In this state of affairs, it is inconceivable that deceased will
choose him as attesting witness to a very solemn and important
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document. The contents of paragraphs 2, 4 and 5 were on the basis of
instructions given by him to plaintiff's Advocate. The contents of the
rest of the paragraphs are not based on his instructions.
33. In the case of Jaswant Kaur (supra), The Will was attested by
two persons called Dinshaw H.M. Framjee and Pali Ram. In paragraph
17, Apex Court observed that "It is intriguing that a person in the
position of Sardar Gobinder Singh should choose these two strangers as
attesting witnesses to a very solemn and important document. Dinshaw
Framjee was a trader in Simla and Pali Ram was his servant. Framjee
has stated in his evidence that he did not remember where Gobinder
Singh used to stay in Simla, that he did not know for how long he was
staying in Simla before the attestation of the will, that he was unable to
state whether he had met Gobinder Singh after the attestation of the will
and that he was unable to give the approximate time of the day when the
will was attested - forenoon, afternoon or evening. Pali Ram, the other
attesting witness, did not remember the date or the year of the execution.
In paragraph 19, the Apex Court observed thus,
"19. The utter improbability of the testator accosting these
two strangers for getting his will attested and the funda- mental
contradictions in their evidence render it impossible to hold that
they attested the will at the instance of the testator as alleged. A
man of importance that the testator was, he could not ever have
left the validity of his will to depend on the unpredictable
attitude of unknown elements like Framjee and Pali Ram. Pali
Ram claims to have read the will before attesting it. It iS not
known why. if he knew that the property was bequeathed to the
defendent, he did not, at least after the testator's death, inform
the defendant of the existence of the will."
34. In my opinion, the said decision applies on all fours to the facts of
the present case. In my opinion, this is one of the suspicious
circumstances surrounding the Will, which is also not explained by the
plaintiff. The plaintiff has also not explained as to why the deceased
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was shifted from Mulund to Jogeshari in Dr. Wagh's Hospital when he
himself admitted that during the period of 1998, there were good
hospitals in Mulund. The plaintiff has also not explained as to why the
defendant, who is a widow of the predeceased son Vijay and her grand
children Mayur and Chetan were excluded.
35. It has come on record that during her lifetime, deceased was
signing on rent receipts issued to the tenants occupying the premises.
There is no explanation as to why Will does not bear her signature and
bears her thumb impressions. There is no explanation as regards
paragraph 5 of the affidavit of Sakharam Shelke where he stated that the
thumb impression of the deceased appearing at the foot of pages 1 and 2
existed before execution of the Will.
36. Mr. Sarkhot submitted that defendant has not pleaded and proved
the suspicions circumstances. I do not find any merit in this submission.
In the case of H. Venkatachala Iyengar (supra), in paragraph 31,
decision of Privy Council in Sarat Kumari Bibi Vs. Sakhi Chand, (1929)
31 BOM.L.R. 270, wherein it was made clear that "the principle which
requires the propounder to remove suspicions from the mind of the
Court is not confined only to cases where the propounder takes part in
the execution of the will and receives benefit under it. There may be
other suspicious circumstances attending on the execution of the will
and even in such cases it is the duty of the propounder to remove all
clouds and. satisfy the conscience of the court that the instrument
propounded is the last will of the testator." This view is supported by the
observations made by Lindley and Davey, L. JJ., in Tyrrell v. Painton,
1990 AC 1742. The rule in Barry v. Butlin, 1964 SC 529, Fulton v.
Andrew, 1971 SC 2236, and Brown v. Fisher, 1977 SC 63, said Lindley,
L. J., " is not in my mind confined to the single case in which the will is
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prepared by or on the instructions of the person taking large benefits
under it but extends to all cases in which circumstances exist which
excite the suspicions of the court."
37. It is material to note that the deceased had filed Testamentary
Petition No.324 of 1981 in this Court for grant of Letters of
Administration with Will annexed of the property and credits of the late
Tukaram S. Malik. This Court granted Letters of Administration on
24.03.1987. As there were differences and disputes among the
deceased, plaintiff and the defendant, the matter was referred to
arbitration under the Arbitration Act, 1940. The Award was made on
20.08.1998 by the learned Arbitrator. It has also come in evidence of the
plaintiff that Mr. M. N. Deshmukh was family Advocate and he was
looking after family property matters and tenancy matters. The plaintiff
also admitted in cross-examination that other than Advocate M. N.
Deshmukh, deceased had confidence in S. V. Pikale and Company,
Advocates. He also admitted that neither Advocate Pikale nor Advocate
Deshmukh made the Will. It is inconceivable that the deceased, who has
obtained the Letters of Administration from this Court and also
participated in the arbitration proceedings will not consult Advocate of
confidence in preparing the Will. The plaintiff has also not explained
this circumstance. The plaintiff also admitted that he was conducting
the business in Goa from 1979 till 1991-1992. Shraddha Shirsath took
deceased with her to Sangli from 1995 to 1997. Plaintiff brought
deceased back from Sangli in March / April 1998. The deceased
executed Will on 28.08.1998 and died at Mumbai on 02.11.1998. She
was with the plaintiff hardly for 3 ½ years. It has also come on record
that on 19.03.1997, plaintiff had issued notice through Advocate S. V.
Rane to S. V. Pikale and company alleging the mismanagement by the
deceased and not rendering account of income and expenses of the
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property in which she was the administrator. By that notice, plaintiff
even threatened that if the deceased does not furnish the statement of
account of income and expenditure of the property within the period of 7
days from the receipt of the notice, he will proceed against her for
initiating contempt proceedings.
38. The plaintiff has not adduced any evidence to clear cloud as to
why under such state of affairs, entire property would be bequeathed to
him to the exclusion of others. In the light of the aforesaid discussion, it
has to be concluded that the Will is also surrounded from suspicion and
the plaintiff has not adduced any evidence to clear the suspicious
circumstances. Point No.2 is answered accordingly.
Points No.(3) and (4)
(3) Whether the Will was manipulated and fabricated? and
(4) Whether the deceased executed the said Will under undue
influence and pressure?
39. These two issues can be clubbed together. Ms Sarkhot submitted
that burden is on the defendant to establish that the Will propounded by
the plaintiff is manipulated and fabricated and that plaintiff exercised
undue influence and pressure on the deceased to execute the Will in his
favour. Defendant has not adduced any evidence for substantiating
these pleas. I find merit in this submission. As held by the Apex Court
in H. Venkatachala Iyengar (supra), if a Caveator alleges fraud, undue
influence, coercion, etc. in regard to execution of the Will, such plea has
to be proved by him. In the present case, defendant has not adduced any
evidence to substantiate these pleas. Issues No.(3) and (4) are answered
in the negative.
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40. In the light of the aforesaid discussion, plaintiff must fail. The
Suit is accordingly dismissed. In the circumstances of the case, there
shall be no order as to costs.
(R. G. KETKAR, J.)
Minal Parab
