Bombay High Court
Mr.Prakash D. Navghare And Anr vs Mrs. Sadhana D. Chachad on 3 April, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-OS:5836
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Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 45 OF 2005
IN
TESTAMENTARY PETITION NO. 23 OF 2004
1. Prakash Devendra Navghare,
Hindu Inhabitant of Bombay,
grand son of the deceased abovenamed,
residing at Plot No. 516A, R.P. Masani Road,
Matunga, Mumbai 400 019.
2. Vandana Shailesh Madan,
Hindu Inhabitant of Bombay,
grand daughter of the deceased
abovenamed, residing at Plot No.
521A, 2nd Floor, R.P. Masani Road,
Matunga, Mumbai 400 019. ..Plaintiffs
Versus
1. Sadhana D. Chachad,
aged about 68, Occupation: Housewife,
Hindu, Indian-Inhabitant,
daughter of deceased residing at :
Giado Co-op Hsg Society, 2nd floor,
Block No. 13, Ceaser Road,
Amboli, Andheri (W),
ARUN
RAMCHANDRA
Mumbai - 400 058.
SANKPAL
2. Revati Bhalchandra Mahajan,
Digitally signed by
ARUN
RAMCHANDRA
SANKPAL
aged about 78 years, Occupation Housewife,
Date: 2025.04.04
20:47:59 +0530 Hindu, Indian Inhabitant, daughter of
deceased abovenamed residing at C/o.
Suresh Pithale, Pawale Chawl, Ground
Floor, Tiwala Nanda, Titwala (W).
3. Sulbha E. Wagal,
ages about 75 years, occupation
Housewife, Hindu, Indian Inhabitant,
1/41
::: Uploaded on - 04/04/2025 ::: Downloaded on - 06/04/2025 05:48:50 :::
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daughter of deceased abovenamed residing at
Plot No. 69, Dattatray Niwas, Fourth Road,
L.T. Nagar, M.G. Road, Goregaon (W),
Mumbai 400 062.
4. Bharati Sushil Belapurkar,
aged about 42 years, occupation
Housewife, Hindu, Indian-Inhabitant
granddaughter of deceased abovenamed
residing at A/303, Devidayal Mill Compound
Road, Shivaji Nagar, Thane (W).
5. Nitin Motiram Nagawkar,
aged about 45 years, occupation
Business, Hindu Indian Inhabitant,
grandson of deceased abovenamed residing at
Chandra Mahal, 4th Floor, Room No.58,
Thakurdwar, Bombay-2. ...Defendants
Mr. Chaitanya Chavan, with Nikhil Jaykar, Christine Rewrie and
Unnati Bane, i/b L.R. & Associates, for the Plaintiffs.
Mr. Mayur Khandeparkar, with Aneesa Cheema, Shabbir Jariwala &
Sakshi Jain, i/b Pramod Belose and Ditendra Mishra, for the
Defendants.
CORAM: N. J. JAMADAR, J.
JUDGMENT RESERVED ON : 8th OCTOBER 2024.
JUDGMENT PRONOUNCED ON : 3rd APRIL 2025.
JUDGMENT:
1. This Suit is for grant of Letters of Administration with Will
annexed to the properties and credits of late Janardan Banduji
Navghare (the Testator).
2. The background facts can be stated in brief as under:
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2.1 The Testator was endowed with properties, including the
land and building bearing Plot No. 521A, new Survey No. 872,
admeasuring 623 sq yards, situated at Matunga, Mumbai
(Matunga property) and an agricultural land admeasuring 19
Acre and 39 gunthas, situated at Mouje Dedale, Taluka Dahanu,
District Thane (Dedale property).
2.2 The Testator passed away on 27th December 1969. Indira
Janardan Navghare, the wife of the Testator, had pre-deceased
him. The Testator left behind two sons, Devendra Janardan
Navghare and Surendra Janardan Navghare, and four daughters,
Ashalata Motiram Nagawkar, Sulbha Eknath Vagal, Revati
Balchandra Mahajan & Sadhana Digambar Chachad.
2.3 Devendra instituted a Petition for grant of Probate, being
Petition No. 23 of 2004, asserting inter alia that on 22nd
September 1967, in the presence of Devendra and Surendra, the
Testator had executed his last Will and Testament in Marathi
language. Devendra and Surendra had attested the execution of
the Will by the Testator. Under the Will the Matunga property
was bequeathed to Devendra and Dedale property was
bequeathed to Surendra. The Will, so far as the Dedale property,
was acted upon and the legal heirs of the Testator consented to
the mutation of the said property in the name of Surendra. As the
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Petitioner was not aware about the legal procedure to obtain the
Probate or Letters of Administration of the Will, there was delay
in filing the Petition for Probate.
3. Sulbha, Revati and Sadhana, the daughters of the Testator, Nitin
Nagawkar, son of Ashalata, another daughter of the Testator, and Bharti
Sushil Belapurkar, the daughter of Surendra, have filed Caveats
opposing the grant. The substance of the resistance of the Caveators can
be summarized as under:
3.1 That the Testator never executed any Will or testamentary
writing in respect of his assets.
3.2 The signature on the purported Will was not that of the
Testator. It did not appear that the Testator and the witnesses
signed the Will at the same time and in the presence of each
other. Thus the purported Will cannot be said to have duly
executed and attested in accordance with law.
3.3 At the time of the alleged execution of the Will, the Testator
was about 75 years of age. Consequently, the Testator's degree of
understanding was not normal. The Testator was not in a sound
and disposing state of mind. The Testator did not understand as
to what he was then doing. For 4-5 years prior to his death, the
Testator was bed-ridden. His eye-sight had become poor and he
was not able to read and write clearly. The Will has not been
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attested by or appended with a certificate issued by a Doctor.
Thus, the purported Will was not the last Will and Testament of
the Testator.
3.4 Devendra, the propounder, was himself a beneficiary under
the Will. The propounder, also being a purported attesting
witness, played a prominent role and, therefore, that constituted
a strong suspicious circumstance.
3.5 The Testamentary Petition also suffered from gross delay
and laches. The Petition was filed after about 35 years of the
death of the Testator. There was no explanation for the inordinate
and unexplained delay. Thus, the Petition was liable to be
dismissed on the said count.
DEVELOPMENTS DURING THE PENDENCY OF THE PROCEEDING:
4. Before adverting to the issues that came to be settled and the
evidence adduced by the parties, it may be appropriate to note the
developments that ensued in the Suit, which significantly bear upon its
determination.
4.1 Devendra, the original Plaintiff, had filed an Affidavit in
Support of the Petition (Exhibit "P2") affirming, inter alia, that he
and his brother, Surendra, had witnessed the execution of the
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Will and put signatures in attestation thereof in the presence of
the Testator.
4.2 Devendra, the original Plaintiff, passed away on 28 th
January 2007. Thereupon Prakash Navghare (P1) and Vandana
Madan (P2), the son and daughter, respectively, of Devendra were
brought on record as the Plaintiffs. As the necessary corollary, the
Petition for Probate came to be converted into a Petition for grant
of Letters of Administration with Will annexed.
4.3 Nitin Nagawkar, the grandson of the Testator, and one of
the Caveators, filed a Testamentary Petition, being Petition No.
391 of 2007, for grant of Letters of Administration in respect of
Matunga property only. In view of the Caveat by the Plaintiffs, the
said Petition came to be converted into Testamentary Suit No. 56
of 2007. By an order dated 18 th November 2009, this Court
directed that the said Suit would be taken only after the disposal
of the instant Testamentary Suit No. 45 of 2005.
4.4 On 23rd October 2007, the Plaintiffs filed the Chamber
Summons No. 104 of 2007 seeking permission to place on record
the Affidavits of Kusum Navghare, the widow of Devendra, and
mother of Prakash (P1) and Vandana (P2), and Lilawati Mahajan
Alias Asha A Vedak, the daughter of Revati Mahajan, and the
granddaughter of the Testator, purportedly under Rule 384 of the
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Bombay High Court (Original Side) Rules, affirming that the
Testator executed the Will in the presence of two attesting
witnesses whom they had not known personally.
4.5 However, the said Chamber Summons came to be
withdrawn pursuant to an order dated 17th March 2008.
4.6 In order to substantiate their claim of testamentary
disposition by the Testator, the Plaintiffs have examined Prakash
(PW-1) and Kusum (PW-2).
4.7 The Defendants chose not to lead any evidence.
4.8 By a judgment and order dated 12 th October 2010, a
learned Single Judge of this Court decreed the Suit and directed
that probate of the last Will and Testament of the Testator dated
22nd September 1967 be issued.
4.9 The Defendants preferred an Appeal, being Appeal No. 225
of 2011, before the Appellate Bench. On 15 th February 2021, by
consent of the parties, the judgment and order dated 12 th October
2010 granting Probate was set aside and the Suit was remitted
back to the Single Judge to hear the arguments on behalf of the
parties and decide the suit afresh.
5. In the backdrop of the aforesaid developments, I have heard Mr.
Chaitanya Chavan, the learned Counsel for the Plaintiffs and Mr. Mayur
Khandeparkar, the learned Counsel for the Defendants at some length.
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The learned Counsel for the parties took the Court through the
pleadings and evidence adduced by the parties and the material on
record.
6. Before adverting to note and appreciate the submissions of the
Counsel for the parties, it may be apposite to extract the issues settled
by the Court. The issues are thus reproduced below with my findings
against each of them for the reasons to follow.
Issues Findings
1. Whether the plaintiffs prove that the In the negative
deceased Janardhan Banduji Navghare
executed Will dated 22nd September, 1967?
2. Whether the defendants prove that the said Does not survive
will was fabricated by the plaintiffs?
3. What order? Suit dismissed
REASONS:
EVIDENCE:
7. Though the Plaintiffs have examined Prakash (PW1) and Kusum
(PW2), yet, the evidence of Prakash (PW1) is not of much assistance in
proof of due execution and attestation of the Will.
8. Prakash (PW1) conceded in no uncertain terms that he was born
after the execution of the purported Will (Exhibit "P4") and he had no
personal knowledge of any of the documents referred to in paragraph 7
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of his Affidavit in lieu of examination-in-chief. Thus, the fate of the
Plaintiffs' case hinges upon the testimony of Kusum (PW2) who claimed
that she had witnessed the execution and attestation of the Will (Exhibit
"P4").
9. Kusum (PW2) affirmed that her marriage was solemnized with
Devendra on 24th May 1967. On 22nd September 1967, the Testator, her
father-in-law, told her that, on that day, he was to execute the Will
which he had already prepared. The Testator asked her to be present
when he executes the Will on that day itself. Lilawati Mahajan, the
granddaughter of the Testator, was also present in the house. The
Testator executed the Will in the presence of two witnesses, one of
whom was Dr. Jaidev Borkar. She had not known the identity of the other
witness. Kusum (PW2) affirmed the Testator had set and subscribed his
name and signature in English at the foot of the testamentary papers in
Marathi language and character, in the presence of the two witnesses.
Thereafter Dr Jaidev Borkar and another witness did at the request of
the Testator and in his presence and in the presence of each other set
and subscribe their respective names and signatures at the foot of the
said testamentary paper as witnesses thereto, in her presence and that
of Lilawati Mahajan. Kusum (PW2) professed to identify the signature
of the Testator on the Will and also the signature of the attesting
witnesses. It was, further, affirmed that the Testator was of sound and
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disposing mind, memory and understanding at the time of the
execution of the Will.
BROAD SUBMISSIONS:
10. Mr. Chavan, the learned Counsel for the Plaintiffs would urge that
the instant Suit deserves to be determined in the light of the attendant
circumstances which cumulatively lead to an inference that the Will
(Exhibit "P4") has been duly executed by the Testator and attested by
two witnesses, one of whom was Dr. Jaidev Borkar.
11. Mr. Chavan, the learned Counsel for the Plaintiffs, laid emphasis
on the evidence of Kusum (PW2) which, according to Mr. Chavan,
establishes that the Testator had put signature on the Will (Exhibit "P4")
in the presence of Kusum and two attesting witnesses and the later had
also signed the Will (Exhibit "P4") in the presence of the Testator. Minor
discrepancies in the evidence of Kusum (PW2) do not merit much
weight as there is evidence to indicate that Dr. Jaidev Borkar passed
away on 5th June 1969 and the identity of another attesting witness
could not be ascertained. Consequently, the Will (Exhibit "P4") was
required to be proved in the manner envisaged by Section 69 of the
Indian Evidence Act 1872. Kusum's evidence, Mr. Chavan would urge,
satisfies the requirement of the proof of the Will as envisaged by Section
69 of the Evidence Act.
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12. Mr. Chavan would urge that apart from the challenge to the due
execution and attestation of the Will, based on mere technicalities, there
is no reason to doubt the genuineness of the Will (Exhibit "P4"). The
fact that the Testator was in a sound and disposing state of mind is
established beyond the pale of controversy. The Defendants have not
brought on record any material to show that the faculties of the Testator
were impaired. Since the Defendants chose not to lead any evidence,
the Defendants failed to discharge the onus to prove that the Will
(Exhibit "P4") was a fabricated document. Nor there are circumstances
which can be said to shroud the execution and attestation of the Will in
suspicion.
13. Lastly Mr. Chavan would urge that, the aspect of delay and laches
forcefully canvassed on behalf of the Defendants, does not merit
consideration as it is the consistent case of the original Plaintiff which
finds support in the material on record that the Will was, in fact, acted
upon so far as the Dedale property. The legal heirs of the Testator had
given consent for mutating the name of Surendra to the Record of
Rights of the Dedale property on the strength of the said Will (Exhibit
"P4").
14. Thus there was no occasion for the original Plaintiff to seek
Probate or Letters of Administration. At no point of time there was any
challenge to the Will (Exhibit "P4") or assertion of any rights in
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derogation thereof by any of the legal heirs of the Testator. Thus, the
right to sue for the Probate or Letters of Administration did not accrue
till the filing of the Petition.
15. To buttress the aforesaid submissions, Mr. Chavan placed reliance
on a judgment of a learned Single Judge of this Court in the case of
Rikin Ranchhodlal Chokshi Vs Shaila Abhay Shah, 1 an order passed by
the learened Single Judge of this Court in the matter of Jane Elizabeth
Cox (Constituted Attorney of Arun Badri-Narayan Sharma) Vs Rma
Badr-Narayan Sharma Alias Rama Sharma2, a Division Bench judgment
in the case of Bhika Cullianji and Co, Bombay Vs Avon Electric
Company, Bombay and Ors,3 a judgment of the learned Single Judge of
this Court in the case of Mirzban Darabshaw Surti Vs Cedric Vaz & Anr 4
and a judgment of the learned Single Bench of this Court in the case of
Suresh Manilal Mehta Vs Varsha Bhadresh Joshi.5
16. In opposition to this, Mr. Khandeparkar, the learned Counsel for
the Defendants, submitted that the Plaintiffs are required to surmount
impediments which appear to be insuperable. First, there is an
inordinate and unexplained delay in filing the Petition for grant of
Probate by the original Plaintiff. The Petition came to be filed after 34
1 2024 SCC OnLine Bom 1612.
2 Testamentary Petition No. 1587 of 2024, order dated 9 th August 2024.
3 1994 SCC OnLine Bom 88.
4 2015 (2) MhLJ 184.
5 2016 SCC OnLine Bom 10051.
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years of the demise of the Testator. There is a bald assertion in the
Petition that the original Plaintiff was not aware about the legal
procedure to obtain the Probate or Letters of Administration. Laying
emphasis on Rule 382 of the Bombay High Court (Original Side) Rules
which mandates the explanation for delay, it was submitted that the
aforesaid bald assertion does not amount to a satisfactory explanation
for such huge delay.
17. Secondly, Mr. Khandeparkar would urge, the execution and
attestation of the Will (Exhibit "P4") is far from proved. On the contrary,
the shifting stands of the Plaintiffs have presented as many as five
versions as regards the execution and attestation of the Will, which are
simply irreconcilable. After the demise of the original Plaintiff, a half-
baked attempt was made to prove the Will by resorting to the Provisions
contained in Section 69 of the Evidence Act and Rule 384 of the
Bombay High Court (Original Side) Rules. Mr. Khandeparkar would
urge that Rule 384 is an enabling Provision and does not dispense with
the requirement of proof of Will. Even the said attempt of the Plaintiffs
is riddled with such inconsistencies that it commands no semblance of
credence. The solemnity attached to the proof of Will is simply not
forthcoming in the case at hand, urged Mr. Khandeparkar.
18. Thirdly, the suspicious circumstances are abound. There are
contradictory versions regarding the execution and attestation of the
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Will which throw a cloud of doubt over the genuineness of the Will,
commencing from the language and character in which the Testator has
put signature on the purported Will (Exhibit "P4"), to the apparent
inconsistency in the admitted signature of the Testator and the
signature which appeared on the purported Will (Exhibit "P4"), to the
persons in whose presence the Will was purportedly executed, to the
persons who allegedly attested the Will (Exhibit "P4"), to the
circumstances in which the purported Will (Exhibit "P4") was drawn
and the disclosure and safekeeping of the Will (Exhibit "P4").
19. The disinheritance of the daughters of the Testator is rather
inexplicable. Equally, confounding is the role of Devendra, as an
attesting witness, which was dumped by the Plaintiffs soon after the
demise of Devendra.
20. Mr. Khandeparkar, placed reliance on a number of judgments of
the Supreme Court and this Court, reference to a few which bear upon
the determination of the controversy would be made in the course of
this judgment.
21. In the Rejoinder, Mr. Chavan, the learned Counsel for the
Plaintiffs, laid emphasis on the fact that the testimony of Kusum (PW2)
on the point that she had seen the Testator sign the Will (Exhibit "P4")
and had also seen Dr. Jaidev Borkar, one of the attesting witnesses, and
another person to whom she had not known, sign the Will as attesting
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witness, in the presence of the Testator, has gone unchallenged. That
proves the due execution and attestation of the Will. A strenuous effort
was made by Mr. Chavan to draw home the point that it is not necessary
for a witness to identify the signature of the attesting witnesses on the
Will. Mr. Chavan placed a very strong reliance on the decision of the
Supreme Court in the case of Mobarik Ali Ahmed Vs The State of
Bombay6 wherein it was enunciated that proof of genuineness of a
document may consist of direct evidence of a person who saw the
document being written or the signature being affixed.
22. Once the due execution and attestation of the Will stands proved
and there is no material to doubt the sound and disposing state of mind
of the Testator, the aspect of delay in filing the Petition for Probate pales
in significance, urged Mr. Chavan. What really tilts the scale in favour of
the Plaintiffs, according to Mr. Chavan, was the effect given to the
wishes of the Testator with regard to Dedale property. The said fact
operates as a formidable dyke against the Will (Exhibit "P4") not being
the last Will and Testament of the Testator.
23. The aforesaid submissions now fall for consideration.
24. Section 63 of the Indian Succession Act, 1925, provides the
manner in which the Will is to be executed. Clause (c) of Section 63
mandates the attestation of the Will by two or more witnesses; each of
whom must have seen the Testator sign or received from the Testator a
6 AIR 1957 SC 857.
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personal acknowledgment of the latter's signature on the Will; each of
the two witnesses must himself sign the Will in the presence of the
Testator. But it is not peremptory that, more than one witness should
be present and attest the Will at the same time.
25. Section 63 of the Act, 1925 is required to be read with Section 68
of the Indian Evidence Act, which specifies the requirements for
adducing evidence in proof of execution of a document which is
required by law to be attested. Section 68 of the Evidence Act, in terms
provides that if a document is required to be attested by law, it cannot
be used as evidence unless one attesting witness has been called for
proving the execution of the document if the attesting witness is alive.
Section 69 provides for the mode of proof of a document required to be
attested where no attesting witness can be found. Section 71 provides
that if the attesting witness denies or does not recollect the execution of
the documents, its execution may be proved by other evidence.
26. Though the Will has to be proved like any other document, which
is compulsorily required to be attested, yet the solemnity attached to
the Will necessitates that the conscience of the Court that the writing
propounded by the propounder is the last Will and Testament and it has
been legally and validly executed and attested, must be satisfied.
27. By a catena of decisions the nature and standard of evidence
required to prove the Will has been delineated. In the case of Jaswant
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kaur V/s. Amrit Kaur and Ors. 7, a three Judge Bench of the Supreme
Court has crystalized the propositions which govern the proof of Will, as
under :
"10. There is a long line of decisions bearing on the
nature and standard of evidence required to prove a will.
Those decisions have been reviewed in an elaborate
judgment of this Court in R. Venkatachala Iyengar v.B.N.
Thirnmajamma & Others8 The Court, speaking through
Gajendragadkar J., laid down in that case the following
positions :--
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 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
7 (1977) 1 SCC 369
8AIR 1959 SC 443
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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 emphasises 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 a doubt as to whether the testa- tor 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
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matter."
28. In the case of Sridevi and Ors. V/s. Jayaraja Shetty and Ors.9
(supra), the onus on the propounder was concisely encapsulated as
under :
"14. The propounder of the Will has to show that the Will
was signed by the testator; that he was at the relevant time in
sound disposing state of mind; that he understood the nature
and effect of dispositions and had put his signatures to the
testament of his own free will and that he had signed it in the
presence of the two witnesses who attested in his presence
and in the presence of each other. Once these elements are
established, the onus which rests on the propounder is
discharged."
29. It would be contextually relevant to note that, in the case of
Daulat Ram and Ors. V/s. Sodha and Ors.10, it was enunciated that the
propounder has to show that the Will was signed by the testator and
that he had put his signatures to the testament of his own free will; that
he was at the relevant time in a sound disposing state of mind and
understood the nature and effect of the dispositions and that the
testator had signed it in the presence of 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 is on the
propounder to remove the suspicion by leading appropriate evidence.
9 (2005) 2 SCC 784
10 (2005) 1 SCC 40
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The burden to prove that the will was forged or that it was obtained
under undue influence or coercion or by playing a fraud is on the
person who alleges it to be so.
30. In the case of Shivakumar and Ors. V/s. Sharanabasappa and
Ors.11, the Supreme Court after traversing through the relevant
decisions summerised the principles. The principles enunciated in
paragraph Nos.12.5 to 12.9 are instructive as regards the onus of proof
on the propounder to dispel the suspicious circumstances, when a
circumstance can be said to be suspicious and the illustrative cases
which may stoke such suspicion and the satisfaction of judicial
conscience of the Court. They read as under :
"12.5 If a person challenging the Will alleges fabrication or
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 give rise to the
doubt or as to whether the Will had indeed been executed by
the Testator and/or as to whether the Testator was acting of
his own free will. In such eventuality, it is again a part of the
initial onus of the propounder to remove all reasonable doubts
in the matter.
12.6 A circumstance is "suspicious" when it is not normal
or is 'not normally expected in a normal situation or is not
expected of a normal person'. As put by this Court, the
suspicious features must be 'real, germane and valid' and not
merely the 'fantasy of the doubting mind.'
12.7 As to whether any particular feature or a set of
features qualify as "suspicious" would depend on the facts and
11 (2021) 11 SCC 277
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circumstances of each case. A shaky or doubtful signature; a
feeble or uncertain mind of the Testator; an unfair disposition
of property; an unjust exclusion of the legal heirs and
particularly the dependants; an active or leading part in
making of the Will by the beneficiary thereunder etc. are some
of the circumstances which may give rise to suspicion. The
circumstances above-noted are only illustrative and by no
means exhaustive because there could be any circumstance or
set of circumstances which may give rise to legitimate
suspicion about the execution of the Will. On the other hand,
any of the circumstance qualifying as being suspicious could
be legitimately explained by the propounder. However, such
suspicion or suspicions cannot be removed by mere proof of
sound and disposing state of mind of the Testator and his
signature coupled with the proof of attestation.
2.8 The test of satisfaction of the judicial conscience
comes into operation when a document propounded as the
Will of the Testator is surrounded by suspicious
circumstance/s. While applying such test, the Court would
address itself to the solemn questions as to whether the
Testator had signed the Will while being aware of its contents
and after understanding the nature and effect of the
dispositions in the Will?
12.9 In the ultimate analysis, where the execution of a
Will is shrouded in suspicion, it is a matter essentially of the
judicial conscience of the Court and the party which sets up
the Will has to offer cogent and convincing explanation of the
suspicious circumstances surrounding the Will."
(emphasis supplied)
31. On the aforesaid touchstone, reverting to the proof of Will in
question, of necessity, recourse is required to be made to the evidence of
Kusum (PW2). Before appreciating the manner in which Kusum (PW2)
stood the test of truth, it is necessary to note the progressive change in
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the Plaintiffs version as regards the execution and attestation of the Will
culminating in the Affidavit in lieu of examination-in-chief filed by
Kusum (PW2).
31.1 Devendra, the original Plaintiff in the Affidavit in Support
of the Petition (Exhibit "P2") affirmed that the Testator executed
the Will in his presence and that of Surendra. He and Surendra
attested the execution of the Will. Incontrovertibly, this version of
Devendra, the deceased Plaintiff, was plainly incorrect. Plaintiff
Nos. 1 and 2 did not profess to subscribe to said version. Instead,
an endeavour has been made to steer clear of the said assertion.
31.2 The manner in which Plaintiff Nos. 1 and 2 attempted to
deviate from the version of Devendra is also of material
significance. Intially, in the Affidavit in Support of the Chamber
Summons, the Plaintiffs asserted that they were not aware as to
the identity of the two witnesses who purportedly attested the
execution of the Will. Devendra had inadvertently filed the
Affidavit stating that Devendra and Surendra had attested the
execution of the Will. In addition, the Plaintiffs affirmed that
Kusum (PW2) and Lilawati Mahajan were present at the time of
the execution of the purported Will.
31.3 Interestingly, Kusum (PW2), in the Affidavit dated 23rd
October 2007, filed along with the aforesaid Chamber Summons
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purportedly under Rule 384 of the Bombay High Court (Original
Side) Rules affirmed that when the Will was executed by the
Testator she, Lalawati Mahajan and even her husband, Devendra,
were present. However, she had not known the two witnesses
who attested the execution of the Will by the Testator. Kusum
(PW2) did not assert that either her husband Devendra or
Surendra, her brother-in-law, who were initially stated to be the
attesting witness, attested the execution of the Will. In fact,
Kusum (PW2) did not refer to the presence of Surendra at the
time of the execution of the Will.
31.4 It would be contextually relevant to note that Lilavati
Mahajan the other witness, whose Affidavit was tendered under
Rule 384 of the Bombay High Court (Original Side) Rules, did not
refer to even the presence of Devendra, the original Plaintiff, at
the time of the execution of the purported Will (Exhibit "P4").
According to her, apart from her, only Kusum (PW2) and two
attesting witnesses, whom she had not known, were present at
the time of the execution of the Will (Exhibit "P4").
31.5 Then comes the Affidavit in lieu of examination-in-chief of
Kusum (PW2). In the said Affidavit (Exhibit "P5"), Kusum (PW2)
claimed that one of the of attesting witness was Dr. Jaidev Borkar,
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who was their family Doctor. She had not, however, known the
identify of the other attesting witness.
32. The position which thus emerges is that the Plaintiffs' case as
regards the execution and attestation of the Will (Exhibit "P4") wavered
from one end to another; from a positive case of Devendra and
Surendra, the sons of the Testator, being two attesting witnesses, to a
complete ignorance about the identity of the two attesting witnesses, to
a case of identity of one of the attesting witnesses, namely, Dr. Jaidev
Borkar, who passed away in 1969, and the identity of second witness
remaining unmasked throughout.
33. Keeping this backdrop in view, the manner in which Kusum
(PW2) fared in the cross-examination is required to be appreciated.
34. During the cross-examination, Kusum (PW2) was confronted with
her statements in the Affidavit in Support of the Chamber Summons
(Exhibit "3"), especially, her claim that she had not personally known
the two witnesses who attested the execution of the purported Will
(Exhibit "P4").
35. Kusum (PW2) attempted to wriggle out of the situation by
asserting that when the said Affidavit in Support of the Chamber
Summons was filed, she did not know about the identity of even one of
the attesting witnesses. Subsequently, she claimed to have seen some
documents in her cupboard and thereupon she realized that one of the
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attesting witnesses was Dr Jaidev Borkar. Those documents were not
placed on record. Though, Kusum (PW2) claimed that she has visited
the clinic of Dr. Jaidev Borkar and seen Dr. Jaidev Borkar put signature
on the Will, she had no occasion to see Dr Jaidev Borkar put signature
on document. Kusum (PW2) went on to admit that her husband,
Devendra had known Dr. Jaidev Borkar.
36. With regard to the knowledge and custody of the purported Will
(Exhibit "P4"), in the Affidavit in Support of the Chamber Summons,
Kusum (PW2) had asserted that after the execution of the purported
Will (Exhibit "P4"), the Testator had given the same to her for
safekeeping. During the course of cross-examination, however, Kusum
(PW2) conceded that the Testator had kept the Will in his cupboard.
After 13 days of the death of the Testator, cupboard was opened in the
presence of his legal heirs and, thereupon, the Will (Exhibit "P4") was
found. Kusum (PW2) conceded that the contents of the said Affidavit in
Support of the Chamber Summons dated 13th October 2007 were
explained and interpreted to her and whatever stated therein was true
and correct. Kusum (PW2), however, expressed her inability to state as
to why she has stated in the said Affidavit dated 23 rd October 2007 that
the Will (Exhibit "P4") was given to her by the Testator for safekeeping.
Yet, Kusum (PW2) was steadfast in asserting that she had seen the Will
for the first time after the death of her father-in-law.
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37. With regard to the mode and manner of the execution of the Will
(Exhibit "P4"), Kusum (PW2) conceded that Indenture dated 10 th July
1942 (Exhibit "P6") contains the full signature of her father-in-law.
Kusum (PW2), however, did not cave in to the suggestion that the
Testator was in the habit of making complete signature and not used to
put truncated signature. Kusum (PW2) asserted that the Testator used
to sometimes sign in full and sometimes put a short signature.
38. Kusum (PW2) affirmed that the statement in paragraph 5 of the
Affidavit in lieu of examination-in-chief, that the deceased had set and
subscribed his name and signature at the foot of the testamentary
papers in Marathi language and character was correct. She conceded
that the names of the attesting witness do not find mention in the Will
(Exhibit "P4").
39. The aforesaid manner in which Kusum (PW2) fared in the cross-
examination renders it extremely unsafe to place implicit reliance on
the testimony of Kusum (PW2). As noted above, the material on record
indicates that the Plaintiffs case was simply ever-changing. In fact, the
multiple versions regarding the execution and attestation of the Will
(Exhibit "P4") were so inconsistent that one version worked out the
retribution of another.
40. Devendra, the original Plaintiff, claimed that the Will (Exhibit
"P4") was executed before and attested by Devendra and Surendra.
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Even if, this version is discounted completely as, Mr. Chavan wants the
Court to do, on the specious premise that Devendra, the original
Plaintiff, passed away before his evidence could be recorded and,
therefore, the Affidavit filed in the support of the Petition does not
constitute evidence, yet, the testimony of Kusum (PW2) is equally
baffling.
41. First and foremost, the Court cannot loose sight of the fact that
no attesting witness could be examined. Nay, it is a case where the very
identity of the attesting witness is shrouded in mystery.
42. Kusum (PW2) initially asserted that she had not known who
allegedly attested the execution of the Will (Exhibit "P4"). Plaintiff Nos.
1 and 2 who came to be substituted in place of Devendra, the original
Plaintiff, were equally unaware of the identity of the attesting witnesses.
Having realized the impediment which the Plaintiffs may face in
proving the due execution and attestation of the Will (Exhibit "P4"),
Kusum (PW2) improved her version to state that one of the attesting
witness was Dr. Jaidev Borkar.
43. The aforesaid version of Kusum (PW2) that one of the attesting
witness was Dr Jaidev Borkar, does not merit implicit reliance for
reasons more than one.
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43.1. Firstly, Kusum (PW2) came with an improved
version under two years of filing an Affidavit in Support of
the Chamber Summons.
43.2 Secondly, the explanation offered that one of the
attesting witnesses, namely, Dr. Jaidev Borkar, was the family
doctor and Kusum (PW2) had seen certain documents in the
intervening period and, therefore, she could recollect that
the one of the signatures on the Will (Exhibit "P4") was that
of Dr Jaidev Borkar, does not appeal to human credulity.
Kusum (PW2) conceded that Devendra had known Dr Jaidev
Borkar. She had visited the clinic of Dr Jaidev Borkar on a
number of occasions. Had these been the facts, neither
Devendra could have missed to state that Dr. Jaidev Borkar
was one of the attesting witnesses nor Kusum (PW2) could
have missed to state, at the first possible opportunity that Dr.
Jaidev Borkar had attested the execution of the Will.
43.3 Thirdly, it defies comprehension that when the Will
(Exhibit "P4") was allegedly entrusted to Kusum (PW2) for
safekeeping, or for that matter the Will was discovered after
13th day of the death of the Testator and disclosed in the
presence of the legal heirs, no effort whatsoever was made to
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ascertain the identity of the persons who attested the
execution of the Will.
43.4 Fourthly, intrinsic evidence of the Will (Exhibit
"P4") erodes the credibility of the version of Kusum (PW2).
Neither the name of the Testator is mentioned below the
purported signature of the Testator on the Will (Exhibit "P4")
nor the names of any of the attesting witnesses find mention
below their respective signatures on the purported Will
(Exhibit "P4"), which runs counter to the version of Kusum
(PW2) that the Testator and the attesting witnesses had set
and subscribed their names and signatures at the foot of the
Will (Exhibit "P4").
44. Mr. Chavan, the learned Counsel for the Plaintiffs, attempted to
salvage the position by canvassing a submission that Kusum (PW2) was
called upon to depose after decades of the execution of the Will and
while she was 73 years of age and thus the inability to recollect the
things, according to Mr. Chavan, does not render the testimony of
Kusum (PW2) unworthy of credence. This submission, in the peculiar
facts of the case, does not merit countenance.
45. The circumstances adverted to above and the manner in which,
Kusum (PW2) stood the test of cross-examination lead to an inexorable
inference that the testimony of Kusum (PW2) is riddled with
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irreconcilable inconsistencies. Her version cannot be accepted as
ungalvanized truth for the only reason that she had right and
opportunity to be present at the place where the Will (Exhibit "P4") was
purportedly executed. Such an approach would defeat the very purpose
of incorporating provisions for the special mode of proof of the Will on
account of solemnity attached to the testamentary disposition for the
reason that a Will speaks from the death of the Testator.
46. I also find it rather difficult to accede to the submission of Mr.
Chavan that the Will (Exhibit "P4") has been proved in the manner
contemplated by Rule 384 of the Bombay High Court (Original Side)
Rules. Indeed Rule 384 is an enabling provision and comprises two
parts. In the first part where it is not possible to file an Affidavit of any
of the attesting witnesses, the said Rule enables filing of an Affidavit of
some other person, if any, who may have been present at the time of
execution of the Will. In the second part, where it is neither possible to
file an Affidavit of any of the attesting witnesses nor the Affidavit of any
person who may have been present at the execution of the Will,
evidence on Affidavit shall be produced of that fact and of the
handwriting of the deceased and the attesting witnesses, and also of any
circumstance which may raise a presumption in favour of due
execution.
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47. Mr. Chavan was justified in canvassing a submission that the
present case apparently falls in the first part as Kusum (PW2) claims to
have been present at the execution of the Will (Exhibit "P4"). However,
the evidence and material on record does not advance the cause of the
Plaintiffs any further. The evidence of Kusum (PW2), on account of
infirmities adverted to above, does not give the necessary assurance to
draw an inference that Kusum (PW2) witnessed the execution and
attestation of the Will (Exhibit "P4")
48. Nor the Will (Exhibit "P4") can be said to have been proved under
Section 69 of the Indian Evidence Act. Under Section 69, which is again
an enabling provision, where no attesting witness can be found, it must
be proved that the attestation of one attesting witness at least is in his
handwriting and that the signature of the person executing the
document is in the handwriting of that person.
49. The first requirement of establishing that the attestation of one
attesting witness at least in his handwriting, in my considered view,
made Kusum (PW2) to improve her version to affirm that Dr. Jaidev
Borkar was one of the attesting witnesses and the Will (Exhibit "P4")
bears the signature of Dr Jaidev Borkar as an attesting witness. Apart
from the oath put behind the said assertion, there is no material in the
nature of contemporaneous circumstance or document to show that Dr.
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Jaideo Borkar was the attesting witness or the attestation is in the
handwriting of Dr. Jaidev Borkar.
50. As regards the signature of Janardan Navghare, the Testator, the
Indenture (Exhibit "P6") contains the signature of the Testator in full. In
contrast, the signature of the Testator on the Will (Exhibit "P4") is
abridged. It is true that Kusum (PW2) did not cave in to suggestion that
the Testator always used to put the signature in full length and, claimed
that at times the Testator used to put abridged signature. It is also true
that it would be hazardous to compare the signature of the Testator in
the margin of the Indenture (Exhibit "P6") with the signature on the
Will (Exhibit "P4") to draw an inference about the genuineness of the
signature. Yet, in the totality of the circumstances, the evidence of
Kusum (PW2) does not lend assurance to satisfy the conscience of the
Court that the signature on the Will (Exhibit "P4") is that of the
Testator.
51. The conspectus of the aforesaid consideration is that the due
execution and attestation of the Will (Exhibit "P4") cannot be said to
have been proved.
52. In view of the aforesaid finding, in a sense, the further journey to
appreciate the other points urged on behalf of the parties may not be
strictly warranted. Conversely, even if the due execution and attestation
of the Will is established, that does not conclude the inquiry in a
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proceeding for grant of probate or Letters of Administration with the
Will annexed. The Court's conscience that the Will is the last Will and
Testament of the deceased needs to be satisfied before the Court grants
its imprimature.
53. In the case of Lilian Coelho And Ors Vs Myra Philomena Coalho, 12
the Supreme Court enunciated that if a Will is found not validly
executed, in other words invalid owing to the the failure to follow the
prescribed procedures, then there would be no need to look into the
question whether it is shrouded with suspicious circumstances. Even
after the propounder is able to establish that the Will was executed in
accordance with the law, that will only lead to the presumption that it is
validly executed but that by itself is no reason to canvass the position
that it would amount to a finding with respect to the genuineness of the
same. In other words, even after holding that a Will is genuine, it is
within the jurisdiction of the Court to hold that it is not worthy to act
upon as being shrouded with suspicious circumstances when the
propounder failed to remove such suspicious circumstance to the
satisfaction of the Court.
54. To being with, in the facts of the case at hand, apart from the
extremely unsatisfactory manner of the execution and attestation of the
Will (Exhibit "P4"), the element of delay in propounding the Will
(Exhibit "P4") and seeking its Probate, assumes critical salience. The
12 (2025) 2 SCC 633.
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Will (Exhibit "P4") was propounded after 34 years of the death of the
Testator. I am mindful of the fact that the provisions contained in Rule
382 of the High Court (Original Side) Rules, on which reliance was
sought to be placed by Mr. Khandeparkar, are required to be read in
consonance with the well recognized position in law as regards the
applicability of the period of limitation to an Application for grant of
Probate or Letters of Administration. Mr. Chavan was also justified in
canvassing a submission that once the due execution and attestation of
the Will and sound and disposing state of mind of the Testator is
proved, the aspect of delay pales in significance. However, it cannot be
said that the aspect of delay is wholly inconsequential.
55. Article 137, which is a residuary Article, provides a period of
limitation of three years for any other Application for which no period
of limitation is specifically provided. The crucial expression in Article
137 is 'the time begins to run when the right to apply accrues'. It is well
recognized Article 137 of the Limitation Act governs a proceeding for
grant of Probate or Letters of Administration.
56. In the case of Kunvarjeet Singh Khandpur Vs Kirandeep Kaur &
Ors,13 on which reliance was placed by Mr. Khandeparkar, the Supreme
Court, considered the question as to whether Article 137 of the
Limitation Act applies to a proceeding for a grant of Probate and Letters
of Administration and held that such proceeding merely seeks
13 (2008) 8 SCC 463.
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recognition from the Court to perform a duty and because of the nature
of the proceeding, it is a continuing right. Yet it cannot be said that the
Application for grant of Probate or Letter of Administration is not
covered by Article 137 of the Limitation Act.
57. Referring to a judgment of this Court in the case of Vasudeo
Daulatram Sadarangani vs. Sajni Prem Lalwani 14, the Supreme Court
held that the enunciation by this Court that the assumption that under
Article 137 the right to apply necessarily accrued on the date of the
death of the deceased is unwarranted, was not correct. However, the
proposition that an application for grant of Probate or Letters of
Administration is for the Court's permission to perform legal duty
created by a Will or for recognition as a testamentary trustee and is a
continuous right, which can be exercised any time after the death of the
deceased, as long as the right to do so survives and the object of the
trust exists or any part of the trust, if created, remains to be executed,
was the correct position in law.
58. The aforesaid pronouncement was followed by the Supreme
Court in the case of Ramesh Nivrutti Bhagwat Vs Dr Surendra Manohar
Parakhe,15 on which reliance was placed by Mr. Khandeparkar. In
paragraph 14 of the judgment, the Supreme Court held that in
Kunvarjeet Singh Khandpur (Supra), the Supreme Court had concluded
14 1983 Bombay 268.
15 (2020) 17 SCC 284.
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that right to apply for Probate accrues on the death of the Testator.
However, the issue in the said case arose out of the applicability of the
period of limitation for an application to revoke the Probate or the
Letters of Administration.
59. In the instant case, even if maximum latitude is given to the case
of the Plaintiffs with regard to the time at which right to apply accrued,
the period of 34 years cannot be construed to be too small not to
present a cause for the Plaintiffs to apply for Probate. To add to this, the
bald assertion that in the Petition that Devendra, the original Plaintiff,
was unaware of the legal requirement and procedure to obtain the
Probate or Letters of Administration, however, impairs the Plaintiffs'
case.
60. Mr. Chavan, the learned Counsel for the Plaintiffs, made an
endeavour to wriggle out of the situation by canvassing a submission
that the need to apply for Probate did not arise as the Will was, in fact,
acted upon qua Dedale property. This submission was also pressed into
service to bolster up the case of genuineness of the purported Will
(Exhibit "P4"). A very strong reliance was placed on mutation of the
name of Surendra to the Record of Rights of Dedale property on the
strength of the purported Will (Exhibit "P4").
61. Firstly, the daughters of the Testator cannot be bound down by
the said mutation entry. At best, the legal representatives of Surendra
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may be estopped from questioning the Will (Exhibit "P4"). However,
even that cannot be an absolute proposition. Reliance placed by Mr.
Khandeparkar on a judgment of a learned Single Judge of this Court in
the case of Shobhana Sahadev Shah & Ors Vs Sangeeta Porbanderwala &
Ors16 appeared to be well founded. In the said case, the learned Single
Judge adverted to the circumstances in which the doctrine of election
applies under Sections 180 and 187 of the Indian Succession Act. The
observations in paragraph 90 are material and hence extracted below.
"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
16 2017 SCC OnLine Bom 3947.
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is not of this type, viz., that the person receiving it would
have done so anyway even without the document, or
would have received a much larger amount without the
document, then no question of approbation and
reprobation can be said to arise. Consider three examples:
(a)A testator's niece, not otherwise in the line of
succession, is bequeathed a large sum of money. On
intestacy, she would receive nothing. She cannot both
receive the legacy and impugn the document that makes
the bequest.
(b)A testator's daughter is entitled to 50% of her father's
estate on intestacy. She is bequeathed 25%. She can
accept the 25% and yet maintain a challenge to her
father's Will.
(c) A testator's daughter is entitled to 50% of her father's
estate on intestacy. She is bequeathed 90%. She cannot
take the 90% and yet maintain a challenge to the Will
(indeed, to do so would be self-defeating and illogical)."
62. The learned Singl Judge went on to further observe that, in any
case for any of the above to be of consequence, the Will must be shown
to be valid in the first place. If the Will is not proved, this issue is
academic. The Will cannot be proved in its solemn form on account of
some action or inaction on the part of the objectors who had received
some benefit under the Will. It does not shut out the challenge from the
other objectors who did not receive any benefit thereunder. In any
event, it is no substitute for proving the due execution of the Will,
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removing all suspicious circumstances and establishing tesmentary
capacity.
63. Mr. Chavan then urged that the sound and disposing state of
mind of the Testator could not shown to be infirm or impaired. Nothing
could be elicited in the cross-examination of Kusum (PW2) to impeach
her evidence on this score. This submission is required to be stated to be
repelled. This submission presupposes the reliability of the testimony of
Kusum (PW2) for the purpose of due execution and attestation of the
Will. Once the Court finds that Kusum's (PW2) testimony is of no
assistance to establish due execution and attestation of the Will, it may
not be permissible to place reliance on the very same testimony of an
infirm witness, to buttress the case of testamentary capacity of the
Testator.
64. Mr. Chavan further submitted that the disinheritance of the
daughters is required to be appreciated in the light of the then
prevailing societal values. Since the daughters of the Testator were all
married, the fact that they were excluded from the bequest does not by
itself amount to a suspecious circumstance in the context of the time at
which the Will (Exhibit "P4") was executed, urged Mr. Chavan. This
submission cannot be faulted at.
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65. Reliance by Mr. Chavan on the decision of the Supreme Court in
the case of Uma Devi Nambiar & Ors Vs T.C. Sidhan (Dead) 17 is well
placed. The Supreme Court inter alia enunciated that a Will is executed
to alter the ordinary mode of succession and by the very nature of
things, it is bound to result in either reducing or depriving the share of
natural heirs. The fact that the natural heirs have either been excluded
or a lesser share has been given to them, by itself, without anything
more, cannot be held to be a suspicious circumstance, especially in a
case where the bequest has been made in favour of an offspring.
66. The aforesaid pronouncement would have advanced the cause of
the submission on behalf of the Plaintiffs had the Plaintiffs succeeded in
establishing the due execution and attestation of the Will. The failure
of the Plaintiffs to establish the said primary fact, renders the issue as to
whether the disinheritance of the daughters constitutes such a
suspicious circumstance as to cast onus on the propounder to dispel the
same, superfluous.
67. The upshot of the abovesaid consideration is that the Plaintiffs
have failed to prove that the Will (Exhibit "P4") is the last Will and
Testament of the Testator. Issue No. 1 is, therefore, requried to be
answered in the negative.
17 (2004) 2 SCC 321.
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68. Since the primary fact of due execution and attestation of the Will
(Exhibit "P4") has not been proved by the Plaintiffs, the Defendants
were not required to discharge the onus to prove that the said Will
(Exhibit "P4") was fabricated by the Plaintiffs. Thus, Issue No2 does not
survive for determination. Resultantly, the Suit deserves to be dismissed.
69. Hence the following order:
:ORDER:
(i) The Suit stands dismissed.
(ii) In the circumstances, the parties shall bear their respective
costs.
(iii) Decree be drawn accordingly.
[N. J. JAMADAR, J.]
