Bombay High Court
Keyur Madhusudan Shah vs Nikhil Madhusudan Shah on 21 October, 2021
Bench: G.S. Patel
Keyur M Shah v Nikhil M Shah & Anr
ts-84-2012_in_tp-491-2009-J.doc
Shephali/Alessandra/Jyotika
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 84 OF 2012
IN
TESTAMENTARY PETITION NO. 491 OF 2009
Keyur Madhusudan Shah
Hindu Indian Inhabitant of Mumbai,
residing at 22/23, Purab Apartments, 42,
B.G. Kher Marg, Malabar Hill, Mumbai
400006 ...Plaintiff
~ versus ~
1. Nikhil Madhusudan Shah
Adult Indian Inhabitant of Mumbai,
residing at 201 Dilkoosha, 5/A,
Altamont Road, Mumbai 400026
2. Hemangini Sanjiv Sheth
306/B, Mangalkunj, Mt Pleasant
Road, Malabar Hill, Mumbai 400
SHEPHALI
SANJAY
006 ...Defendants
MORMARE
Digitally signed
by SHEPHALI
SANJAY
A PPEARANCES
MORMARE
Date: 2021.10.21
13:53:46 +0530
FOR THE PLAINTIFF Mr Anosh Sequeira, i/b Vrinda Daga
FOR THE None
DEFENDANTS
Page 1 of 13
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CORAM : G.S. PATEL, J.
JUDGMENT RESERVED ON : 15th September 2021
JUDGMENT PRONOUNCED ON : 21st October 2021
JUDGMENT:
A. OVERVIEW
1. The Plaintiff seeks probate of a registered Will dated 4th
January 2007 of his father, Madhusudan Dahyabhai Shah
("Madhusudan"), who died on 1st May 2007. The Plaintiff is the
sole executor and trustee appointed under the said Will
2. The Plaintiff is Madhusudan's elder son. His petition is
opposed by his younger brother, Nikhil, the 1st Defendant, and their
sister Hemangini, the 2nd Defendant. The Defendants filed their
respective Caveats on 9th December 2009. 1 They claimed that the
Will was forged, fabricated and executed under undue influence.
Another surviving sister, Harsha, entered no opposition to the
Petition.
3. After they filed their Caveats, the Defendants consistently
remained absent, though repeatedly served notices by the Plaintiffs.
Various orders of this Court have noted the Defendants' absence
1 Affidavit in Support of the Caveat of the 1st Defendant, File No. 2, pp.
67-74; Affidavit in Support of the Caveat of the 2nd Defendant, File No. 2, pp.
75-105.
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despite notice. Since the Defendants filed Caveats, the
Testamentary Petition was renumbered as a suit. It had to be tried as
such. The Plaintiff was compelled to lead evidence, even though the
Defendants were absent throughout. Ultimately, the evidence was
closed. The Defendants have never cross-examined the Plaintiff's
witnesses, never led evidence and never appeared to present any
arguments.
4. For the reasons that follow, I have decreed the Suit, allowed
the Petition and directed probate to issue.
B. FACTUAL BACKGROUND
5. Madhusudan and his wife Vijayaben had five children: Daksha
Shah; Harsha Shah; Hemangini, the 2nd Defendant; Nikhil, the 1st
Defendant; and Keyur, the Plaintiff. All three daughters were
married. Daksha died before Madhusudan, who was, therefore,
survived by his widow and four surviving children. Harsha did not
oppose the Petition. Vijayaben died on 4th February 2011. She, too,
did not oppose the Petition in her lifetime.
6. Madhusudan and Vijayaben both made their respective Wills
on 4th January 2007. Both Wills have the same two attesting
witnesses: Dr Mahesh J Kapadia, the family physician, and their
neighbour, Sanjiv Jhaveri.
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7. After Vijayaben died, the Plaintiff sought probate. This was
uncontested and probate was granted on 21st November 2018.2
8. Before this Petition was filed in 2009, on 4th April 2008, the
1st Defendant applied to the Talati to have an agricultural property
in Alibaug, of which he was the legatee under Madhusudan's Will,
transferred to him. He relied on Clause 5 of Madhusudan's Will.
The 1st Defendant sought the consent of the other heirs. They gave
it. No one objected.
9. On 5th June 2009, the Plaintiff filed this Petition for probate.
The two Defendants entered Caveats on 9th December 2009. The
Petition was renumbered as a Testamentary Suit.
C. THE TWO CAVEATS
10. In the Affidavit in Support of his Caveat, the 1st Defendant
denied the genuineness of Madhusudan's Will. 3 He said that before
the Will was made, there was a meeting. The 2nd Defendant and the
other sister, Harsha, were not present. According to the 2nd
Defendant, Madhusudan orally told the Plaintiff to pay Rs 2 crores
each to the 2nd Defendant and Harsha. The Will contains no such
provision. Therefore, the 1st Defendant said, the Will did not reflect
Madhusudan's true intentions. The 1st Defendant also alleged that
Madhusudan suffered from Parkinson's, diabetes and heart
2 Exhibit "P3/7", File No. 3, pp. 149-154.
3 1st Defendant's Affidavit in Support of the Caveat, paragraphs 3-10,
File No. 2, pp. 68-69.
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conditions. He spent the last six months of his life in a wheelchair.
He could not speak clearly. Therefore, according to the 1st
Defendant, Madhusudan was not of sufficiently sound mind,
memory and understanding when he made the alleged Will. Further,
the Plaintiff, his wife and children lived with Madhusudan and
Vijayaben, and therefore exercised undue influence over
Madhusudan. He also alleged that the date on page 7 of the Will and
the page numbers on each page were in the handwriting of the
Plaintiff. The 1st Defendant claimed that the Plaintiff had made a
rubber stamp of the signature of the deceased and used it for bank
transactions. Therefore, the 1st Defendant alleged, it was not
possible for Madhusudan to sign and affix his thumb impression on
the said Will. The bequests in the Will were allegedly unnatural.
11. In the Affidavit in Support of her Caveat, the 2nd Defendant
broadly made the same allegations. She also alleged that the Will
was forged and fabricated.4
D. ISSUES
12. The Caveats having been entered, the Testamentary Petition
was renumbered as a suit. On 16th August 2016, I framed issues.
These are set out below with my finding against each.
Sr. Issues Findings
No.
1. Whether the Plaintiff proves that the writing Yes
4 2nd Defendant's Affidavit in Support of the Caveat, paragraphs 11-12,
File No. 2, pp. 78-79.
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Sr. Issues Findings
No.
dated 4th January 2007 was duly and validly
executed and attested in accordance with law
as the Last Will and Testament of the
deceased, Madhusudan Dahyabhai Shah?
2. Whether the Plaintiff proves that at the time Yes
of the said alleged Will, the deceased was of
sound and disposing state of mind, memory
and understanding?
3. Whether the Defendants prove that the No
alleged Will was obtained by undue influence
and coercion?
4. Whether the Defendants prove that the No
alleged Will is unnatural?
5. Whether the Defendants prove that the No
signature of the deceased is fabricated and
forged?
6. Whether the Defendants prove that the No
alleged Will is a fabricated and got up
document?
7. What relief and what order? Suit
decreed.
13. The burden of proving Issues Nos. 1 and 2 was on the
Plaintiff. Issues Nos. 3 to 6 were for the Defendants to prove.
E. EVIDENCE
14. Sanjiv Chandrakant Jhaveri, one of the attesting witnesses
filed his Affidavit in lieu of Examination-in-Chief on 21st September
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2016.5 He was a neighbour. In paragraph 2 of his Evidence Affidavit,
he said that he had known Madhusudan and his family for many
years. In paragraph 4, he said that at the time of execution and
attestation of the Will, he found Madhusudan to be of sound mind,
memory and understanding and was fully aware of his actions. He
believed that Madhusudan made the said Will of his own free will
and pleasure. In paragraph 5, he noted that the numbering on all the
pages and the date were already handwritten at the time of
execution. Jhaveri saw Dr Mahesh Kapadia, the second attesting
witness attest execution by signing on the last page of the Will. The
two attesting witnesses and Vijayaben were present when
Madhusudan signed the Will and put his thumb impression at the
foot of each page and next to the word 'Testator' on the last page. 6
15. Dr Mahesh J. Kapadia, the family doctor filed his Affidavit in
lieu of Examination-in-Chief on 29th September 2016. 7 Dr Kapadia
deposed that he was well acquainted with Madhusudan and the
family and has been their family doctor since 1985. He was also
witness to an earlier will of Madhusudan, made on 22nd March
2003. In paragraph 5, Dr Kapadia deposed that on the date of
execution of the present Will he examined Madhusudan and found
him to be of sound mind, memory and understanding. Madhusudan
was fully aware of his actions. Dr Kapadia believed Madhusudan
made the said Will of his own free will and pleasure. In paragraph 6,
5 Exhibit "P1/1", File No. 3, pp. 119-122
6 Affidavit in lieu of Examination-in-Chief of Sanjiv Jhaveri, paragraphs
6-8, File No. 3, pp. 120-121.
7 Affidavit in lieu of Examination-in-Chief of Dr Mahesh Kapadia, File
No. 3, pp. 123-126.
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he too said that the date of the Will and the page numbers were
already handwritten at the time of execution. He confirmed the
signatures on the Will and the presence of Jhaveri, himself and
Vijayaben at the time of execution and attestation.
16. The Plaintiff filed his Affidavit in lieu of Examination-in-
Chief on 21st September 2016. 8 In paragraph 5, he deposed that
Madhusudan wanted to change an earlier Will dated 22nd March
2003 in which, too, the Plaintiff was appointed as the executor. On
4th January 2007, on Madhusudan's instructions, the Plaintiff
cancelled out the words "December 2006" and wrote "4th January
2007" on page 7 and also wrote the page numbers on all the pages of
the said Will. He further deposed that despite health concerns, his
father was of sound and disposing mind, was fully aware of his
actions and was competent to prepare and execute his last Will and
Testament. Madhusudan made the said Will of his own free will
and pleasure. The two Caveators in the present Testamentary Suit
raised no objections to Vijayaben's Will, which was executed on the
same day and occasion and was witnessed by the same two
witnesses. The 1st Defendant had prepared an affidavit consenting
to the probate to Vijayaben's Will. The Plaintiff was Madhusudan's
nominee for the residential apartment where the Plaintiff and his
family lived with Madhusudan and Vijayaben. He pointed out that
the 1st Defendant himself had relied on Madhusudan's Will to get
the Alibaug property transferred to his name under a specific
bequest to that effect in the very Will he was challenging.
8 Affidavit in lieu of Examination-in-Chief of Keyur Madhusudan Shah,
File No. 3, pp. 127-134.
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17. By an order dated 2nd February 2017, this Court took on
record Jhaveri's Evidence Affidavit. Jhaveri was present in Court.
He was administered oath. He confirmed the contents of his
Affidavit and identified his signature. At that time, the Defendants
were represented by their advocates, who said they had received no
instructions. Their Advocate-on-Record sought a discharge.
Between 16th February 2017 and 9th March 2017, the Evidence
Affidavits of Dr Kapadia and the Plaintiff were taken on record. On
9th March 2017, nobody appeared for the Defendants to cross-
examine any of the Plaintiff's three witnesses. The cross-
examination of the two attesting witnesses was closed and the
matter was adjourned to 30th March 2017 for the cross-examination
of the Plaintiff. On that day, too, nobody appeared for the
Defendants to cross-examine the Plaintiff and thus Defendants'
cross-examination was closed. The Plaintiff closed his case. The
Court adjourned the matter directing the Defendants to file the
Evidence Affidavit of their first witness. The Defendants did
absolutely nothing. On 21st April 2017, the Court closed the
evidence of the Defendants and listed the matter on 22nd June 2017
for arguments.
18. Thereafter, the Defendants were repeatedly given notice.
There are as many as six affidavits of service. The Defendants
stayed away.
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F. MAHDUSUDAN'S WILL
19. Madhusudan's Will is an eight-page typed document. His
thumb impression and signature appear at the foot of each page. On
page 7, the typewritten date "December 2006" is scored out. The
full date, i.e. the words "4th" and "January 2007" are written in
hand. Madhusudan's signature and thumb impression are on the last
page. Here, the two witnesses have also signed. Each has
handwritten the date and written their name. Dr Kapadia affixed a
rubber stamp with his address. Jhaveri handwrote his address.
20. The bequests in the Will are divided between the two sons,
the Plaintiff and the 1st Defendant. The residential flat at Purab
Apartments is left to the Plaintiff. The Alibaug property is left to the
1st Defendant, who is also bequeathed two rental office properties in
Mumbai, an ancestral property in Gandhinagar, Gujarat, and some
investments. The Plaintiff is also given a rental office in Mumbai and
some investments. The Plaintiff is required to discharge debts of
Rs2,21,62,000/-. The 1st Defendant's debt obligation is to the
extent of Rs.8.43 lakhs. The Plaintiff and his family (his wife and
their three children) are the residuary legatees.
21. The Defendants not having cross-examined any of the
Plaintiff's three witnesses, and not having led any evidence of their
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own, it will have to be held that the Plaintiff has discharged his
burden of proof.
22. Further, as regards Defendant No.1, it is a matter of record
that he sought and obtained by consent the bequest to him of the
Alibaug property under Clause 5 of the Will. The 1st Defendant
cannot both receive a bequest and impugn the document under
which that bequest is made. In Shobhana Sahadev Shah & Ors v
Sangeeta Porbandarwala & Ors,9 I considered a very similar situation.
I held:
90. The foundational doctrine is the principle against
approbation and reprobation. Generally stated, a person
may not simultaneously seek benefit under a document and
repudiate or renounce it. This is a species of estoppel -- an
estoppel by conduct -- and it is, therefore, both a rule of
evidence and a rule in equity. In evidence, both the
acceptance and repudiation must be shown to be clear and
unequivocal. There cannot be slightest shred of doubt about
either. The benefit must also be shown to be one such that
but for the document the recipient would not have received
it. Once this is established, as a matter of equity, the person
receiving the benefit (one only available under the
document and not otherwise) cannot repudiate or renounce
the document itself. This stands to reason. Crucial to this is
the establishing in evidence that the benefit is such that but
for the document, the person taking under the document
would not have received it at all, or, at any rate, would have
received much less. Once it is shown that the benefit is not
of this type, viz, that the person receiving it would have
done so anyway even without the document, or would have
9 2017 SCC OnLine Bom 3947 : (2017) 2 AIR Bom R 595 : (2017) 3 Bom
CR 155
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received a much larger amount without the document, then
no question of approbation and reprobation can be said to
arise.
23. This principle will apply exactly to the present case as against
Defendant No.1.
24. Issues Nos.1 and 2 are proved, and are answered in the
affirmative.
H. RE: REMAINING ISSUES
25. The burden of proving the remaining issues was on the
Defendants. They had to lead affirmative evidence in support of
their pleaded contentions. Their failure to do so has an inevitable
result. Issues Nos. 3 to 6 are not proved and are answered in the
negative.
I. FINAL ORDER
26. The suit is decreed. The Petition succeeds. The Plaintiff is
entitled to probate. The Registry will proceed to issue the grant as
expeditiously as possible, and, in any event, within four weeks from
today.
27. In the circumstances of the case, I believe an order of costs is
warranted. The two Defendants have deliberately held up
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administration of the estate. This, despite their not having objected
to -- indeed, consented to -- probate to Vijayaben's Will. The
conduct of the 1st Defendant is especially egregious, given that he
actually sought and took a legacy under the Will in question and
then purported to challenge it, something he could not have done.
The Plaintiff has needlessly been put to enormous delay, cost and
trouble. There will be an order jointly and severally against the
Defendants payable to the Plaintiff in the amount of Rs.2.5 lakhs, a
sum I consider reasonable having regard to the likely litigation costs.
The amount is to be paid in four weeks and, if not paid in that time,
will carry interest at 9% per annum simple interest until payment or
realization. The Plaintiff is entitled to a separate drawn up order or
decree in these terms jointly and severally against the Defendants.
(G.S. PATEL, J.)
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