Bombay High Court
Suresh Sunderdas Harpalani And Anr vs Dayal Sunderdas Harpalani And Ors on 29 July, 2025
Digitally
2025:BHC-OS:12233
signed by 1/40 Ts-91-09.doc
MEERA
MEERA MAHESH
MAHESH JADHAV
JADHAV Date:
2025.07.30
20:25:34
+0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 91 OF 2009
IN
TESTAMENTARY PETITION NO. 1028 OF 2008
Suresh Sunderdas Harpalani & Anr. ....Plaintiffs
V/s
Dayal Sundersad Harpalani and Ors. ....Defendants
---------
Mr. Vishal Kanade a/w Rajesh Singh, Monil Punjabi, Ranjan Mishra, Rahul
Singh & Pallavi Singh i/by Rajesh Singh and Associates for the Plaintiffs.
Mr. V. N. Tendulkar for the Defendants.
---------
CORAM: ARIF S. DOCTOR, J.
RESERVED ON : 9th May, 2025
PRONOUNCED ON: 29th July, 2025
JUDGEMENT:
1 The captioned Testamentary Petition was filed seeking probate
of a Will dated 6th February 2008 ("the said Will") stated to be the
last Will and Testament of one Sunderdas Mulchand Harpalani ("the
Testator").
2 The Testator passed away on 6th February, 2008, leaving behind two
daughters, namely Nanki Varandani and Laxmi Rawtani, and four sons,
namely Dayal Sunderdas Harpalani, i.e., Defendant No. 1; Mohan Sunderdas
Harpalani, i.e., Defendant No. 2; Gul Sunderdas Harpalani, i.e., Defendant No.
3; and Suresh Sunderdas Harpalani, i.e., Plaintiff No. 1. The said Will named
Suresh Harpalani and his wife, i.e Lajwanti S. Harpalani, as the executors,
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and Suresh Harpalani is the major beneficiary of the estate of the Testator.
3 The Plaintiffs initially filed the captioned Testamentary Petition
seeking probate of the said Will, which was consented to by both the
daughters of the Testator. The Testamentary Petition was, however, opposed
by the Defendants, each of whom filed their respective Caveats and Affidavits
in Support thereof.
4 In view of the Caveats that were filed, the Testamentary Petition was
converted into the captioned Suit in which this Court had, vide an Order
dated 14th October 2016, framed the following Issues for determination viz.
"1. Whether the Plaintiffs prove that the writing dated 18th
November, 2000 was duly and validly executed and attested
in accordance with law as the last Will and testament of the
deceased, Sunderdas Mulchand Harpalani?
2. Whether the Plaintiff prove that at the time of the said
alleged Will, the deceased was of sound mind and disposing
state of mind, memory and understanding ?
3. Whether the Defendants prove that the alleged Will is
bogus and fabricated?
4. What reliefs and what orders ? "
5 The following evidence was led by the Parties:
i. The Plaintiffs led the evidence of Plaintiff No. 2, i.e Lajwanti Suresh
Harpalani (PW1); both the attesting witnesses, namely Praveen Basantilalji
Bapna (PW2) and Kripal Chandiram Kewalramani (PW3); and Hiral Mehta
(PW4), stated to be a handwriting expert.
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ii. The Defendants led the evidence of Defendant No. 2, i.e Mohan
Sunderdas Harpalani (DW1).
Submissions on behalf of the Plaintiff
6 Mr. Kanade, Learned Counsel appearing on behalf of the Plaintiffs, at
the outset invited my attention to Section 63(c) 1 of the Indian Succession Act,
1925 ("the Succession Act") to submit that a valid will was required to be
attested by two attesting witnesses. He then pointed out that the said Will
had, in accordance with Section 63(c) of the Succession Act, been duly
attested by two attesting witnesses, namely Praveen Basantilalji Bapna (PW2)
and Kripal Chandiram Kewalramani (PW3).
7 Mr. Kanade then, from the Affidavit of Evidence ("AOE") of PW2,
pointed out that PW2 had deposed as follows:
"6. I say that thereafter the said deceased has set and
subscribe his signature, which is his name at foot of the
last page of the said testamentary paper in the English
language and character, which is referred to in the
aforesaid Testamentary Petition and marked Exhibit 'A'
and declare and publish the same as his last Will and
Testament. I say that the said deceased has also put his
initials on each page of the said Will. I say that at the
time the said deceased subscribed his name and
1 63(c). The will shall be attested by two or more witnesses, each of whom has seen the
testator sign or affix his mark to the will or has seen some other person sign the will, in the
presence and by the direction of the testator, or has received from the testator a personal
acknowledgment of his signature or mark, or of the signature of such other person; and
each of the witnesses shall sign the will in the presence of the testator, but it shall not be
necessary that more than one witness be present at the same time, and no particular form
of attestation shall be necessary.
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signature to the said Will as "Sunderdas M.H.", he was
of sound and disposing mind, memory and published
the same of his free will and pleasure. I say that
thereafter at the request of the said deceased and in his
presence and in the presence of each other, all being
present at the time, I and said Mr. K.C. Kewalramani
have set and subscribed our respective names and
signatures at the foot of the said testamentary paper as
Attesting Witnesses thereto. I say that the name and
signature 'Sunderdas M. H.' subscribed at the foot of the
testamentary paper as of the party executing the same
is in the proper handwriting of the said deceased, I say
that the name, signature and additions Praveen
Basantilaji Bapna along with Mr. K.C. Kewalramani also
subscribed on the 18/11/2000 and written at foot of the
said testamentary paper as of the parties attesting
execution of the same are in the proper respective
handwriting of me and said Mr. K.C. Kewalramani,
respectively."
Mr. Kanade pointed out that PW3 had also filed an AOE, in which
PW3 had in similar terms, deposed to the execution of the said Will by the
Testator. He thus submitted that from the evidence of PW2 and PW3 it was
clear that (i) the Testator had, out of his own free will and accord, signed the
Will in the presence of both the attesting witnesses; (ii) that both the attesting
witnesses had thereafter subscribed their respective signatures on the said
Will at the request of and in the presence of the Testator and (iii) both the
attesting witnesses had subscribed their signatures to the said Will in the
presence of each other.
8 Mr. Kanade submitted that both the attesting witnesses had in cross-
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examination, sustained what had been stated by them in their respective
AOE's. In support of his contention he invited my attention to the following
answers, which were given by the attesting witnesses in cross-examination:
i. Cross-Examination of PW2:
"Q.55 Who all were present when you reached the
residence of the deceased on 18th November
2000?
Ans. The deceased, Suresh uncle, Laju aunty, Mr.
Kewalramani, one family doctor and one of the
daughter of the deceased.
Q.60 Who told you the contents of the Will?
Ans. The doctor who was present read out the Will.
Q.61 Can you confirm whether the Will being shown to
you which is the same Will which was read out by
the Doctor as answered by you to Q.60?
Ans. Yes, this is the same Will.
Q. 69 Who asked the Doctor to read out the Will on
18th November 2000?
Ans. The deceased asked the Doctor to do so.
Q. 74 Do you know where you should sign when you
witness any document or Will?
Ans. Generally, where the word "witness" is mentioned
I would have to sign.
Q.75 Who signed the Will first?
Ans. First the deceased signed the Will.
Q. 76 On the day of execution, did any one inform the
deceased where to sign the Will?
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Ans. I do not remember.
Witness volunteers: The deceased was educated and
he had knowledge of where he should sign.
Q. 86 Did either the Doctor or the deceased ask you to
sign on page 8 of the Will?
Ans. Yes.
Q.137 I put it to you that the signature on the Will is not
of the deceased. Do you agree?
Ans. I do not agree. Witness volunteers: The deceased
executed the Will in my presence."
ii. Cross-Examination of PW3:
"Q. 109 Who all were present when you reached the residence of
the deceased?
Ans. The deceased, me, Bafna, and then the doctor was called
and Laxmidevi Gul Harpalani.
Q. 210 I put it to you the deceased has not signed on the said Will.
Do you agree ?
Ans. He has signed before me"
Basis the above, Mr. Kanade submitted that the Plaintiffs had, through
the evidence of both the attesting witnesses, clearly discharged the initial
burden of proving due execution of the said Will by the Testator in the
manner contemplated under Section 63(c) of the Succession Act. He thus
submitted that Issue No. 12 was therefore required to be answered in the
2 1. Whether the Plaintiffs prove that the writing dated 18th November, 2000 was duly
and validly executed and attested in accordance with law as the last Will and testament of
the deceased, Sunderdas Mulchand Harpalani?
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affirmative.
9 Mr. Kanade then, in support of Issue No. 2 3, invited my attention to the
cross-examination of PW3, from which he pointed out the following
answers given by PW3, viz.
Q. 174 Can you tell us the order in which things took
place after the Doctor arrived on 18th November
2000?
Ans. Doctor examined Sunderlal. Doctor has found
him mentally and physically correct and Doctor
has given certificate in his own handwriting. The
Will was executed after 4:30 or 5:00 p.m. and the
Will was read out before all the people and we
came to know of all things.
Q.207 I put it to you that when you met the deceased for
the first time, he was not in sound mind and good
health. Do you agree ?
Ans. I do not agree..
10 Mr. Kanade further, from the cross-examination of PW1, who was
also present during the execution of the said Will, pointed out that PW1 had
answered as follows:
"Q. 186 Who told you the contents of the Will?
3 2. Whether the Plaintiff prove that at the time of the said alleged Will, the deceased was
of sound mind and disposing state of mind, memory and understanding ?
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Ans. The Doctor read over the contents of the Will to all.
Q. 187 Who told Doctor to read over the contents of the Will?
Ans. The deceased himself."
Relying upon the above, Mr. Kanade submitted that not only did the
evidence establish that the Testator was in a sound and disposing state of
mind at the time of execution of the said Will but also that the Testator was
examined by a doctor who had certified the fact that the Testator was
physically and mentally fit in all aspects while executing the said Will. Mr.
Kanade thus submitted that the Plaintiff had proved that the Testator was in a
sound and disposing state of mind when executing the said Will and that the
Testator was not under any incapacity nor was any force and/or coercion
exerted upon the Testator when executing the said Will. Mr. Kanade
submitted that it was the mere ipse dixit of the Defendants that the Testator
was not in a sound and disposing state of mind and that the said Will was
executed by exerting force and/or coercion upon the Testator. He pointed out
that the Defendants had not led any evidence to support such contention. It
was thus he submitted that Issue No. 2 was also required to be answered in
the affirmative.
In dealing with Issue No. 34, Mr. Kanade submitted that the contention
of the Defendants that the said Will was a fabricated and/or a got-up
document was also equally baseless and untenable. In support of this
contention, Mr. Kanade first invited my attention to the following answers
4 3. Whether the Defendants prove that the alleged Will is bogus and fabricated?
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given by PW1 in cross-examination viz.
"Q.88 Do you know Sushma Singh?
Ans. Yes. At that time I have heard her name because
for courtesy purpose Sheru Ajwani told us to meet
her.
Q.89 What do you mean by courtesy?
Ans. Sheru Ajwani informed us that he was going to
take the help of Sushma Singh. First Sheru Ajwani
approached the deceased to see Sushma Singh.
Per Commissioner:
Since the answer recorded above, does not seem complete,
give the witness a fair chance she was shown the
question and answer and was asked if she wanted
to add to it. The witness had read Question Nos.
88 and 89 and its answers and does not wish to
elaborate further.
Witness is shown the Original Will.
Q.90 Is this the same Will drafted by Advocate Sheru
Ajwani as stated by you in answer to question No.
87?
Ans. Yes.
Q. 91 Why is the name of Advocate Sushma Singh
appearing on the docket when the Will was
drafted by Advocate Sheru Ajwani?
Ans. Because at the instructions of the deceased, the Will
was made by Sheru Ajwani with the help of
Sushma Singh.
Q. 135 Have you ever met Advocate Sushma Singh?
Ans. Yes, once.
Q. 183 When did the deceased tell you first time that you
are required to be executrix of the alleged Will of
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the deceased?
Ans. On 18th November 2000, on the day of the
execution."
Basis the above, Mr. Kanade submitted that PW1 had clearly deposed
to the fact that the said Will was prepared as per the instruction of the
Testator and was therefore not either a fabricated and/or interpolated
document.
11 Mr. Kanade then placed reliance upon the deposition of PW4, who he
submitted was a handwriting expert and forensic document examiner, to
point out that PW4 had also deposed to the fact that the signature on the said
Will was that of the Testator. He thus submitted that, based on the evidence
of PW1 and PW4, the Plaintiffs had clearly established that the said Will was
prepared on the basis of the instructions of and as per the wishes of the
Testator and was neither a fabricated nor a got-up document as alleged by
the Defendants. He pointed out that PW4 had confirmed that the signature
on the said Will was that of the Testator and that the Defendants had not
even attempted to prove otherwise. He thus submitted that Issue No. 3 was
required to be answered in the negative.
12 Mr. Kanade then placed reliance upon the judgements of the Hon'ble
Supreme Court in the case of Surendra Pal & Ors. vs. Dr. (Mrs.) Saraswati
Arora & Anr.5 and Raj Kumari & Ors. Vs. Surinder Pal Sharma 6 and pointed
out that the Plaintiffs had duly discharged the burden that was cast upon
them as propounders since they had, through cogent evidence, established
5 (1974) 2 SCC 600
6 (2021) 14 SCC 500
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that (i) the said Will was signed by the Testator, (ii) the Testator was in a
sound disposing state of mind and had understood the nature and effect of
the disposition made thereunder, and (iii) the Testator had signed in the
presence of two witnesses, both of whom had attested the said Will in the
Testator's presence. He submitted that in the facts of the present case, the
Plaintiffs have therefore duly proved due execution of the said Will by
satisfying the criteria laid down by the Hon'ble Supreme Court in the said
judgements and had also dispelled the existence of any suspicious
circumstances.
Submissions on Behalf of the Defendants
13 Mr. Tendulkar, Learned Counsel appearing on behalf of the
Defendants, submitted that the said Will was not a registered will and would
therefore require a higher degree of proof to prove its authenticity as also its
due execution, which the Plaintiffs had failed to discharge.
14 He then submitted that the execution of the said Will was surrounded
by suspicious circumstances which had not been explained, much less
dispelled, by the Plaintiffs. In support of his contention that both the making
and execution of the said Will were shrouded in suspicious circumstances,
he invited my attention to the evidence of the attesting witnesses and pointed
out that the same was replete with multiple contradictions between what had
been stated in the respective AOE's and the answers given in cross-
examination.
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15 He first from the AOE of PW2 pointed out that PW2 had in his AOE
stated as follows:
"3. ....I say that when I reached in the flat of the said
Deceased along with one Mr. Kripal Chandiram
Kewalramani who is his distant relative, were
present..."
He then pointed out that PW2 had, in cross-examination, answered as
follows:
"Q. 47 On 18th November 2000, who came to call you?
Ans. Either Suresh uncle or Laju aunty.
Q. 49 Did you go alone to the residence of the deceased?
Ans. I went alone.
Q. 50 Therefore, it is correct to say that when you went to
the residence of the deceased on 18 th November
2000 no one else accompanied you?
Ans. Yes.
Q. 51 Therefore, the statement made by you that "I
reached in the flat of said deceased along
with 0ne Mr. Kripal Chandiram Kewalramani,
who is his distant relative, were present" is
incorrect?
Ans. I do not agree. Witness volunteers: The meaning of
the sentence shown to me is that when I reached
the residence of the deceased Mr. Kripal
Chandiram Kewalramani was present and when I
went to the residence of the deceased I was alone.
Q. 52 What time you reached at deceased place on 18 th
November 2000?
Ans. I do not remember.
Q. 53 Was it morning, afternoon, evening or night of 18 th
November 2000?
Ans. I do not remember.
Q. 54 How is it that you do not remember anything except
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the date "18th November 2000"?
Ans. I remember the date because the date is mentioned in
the Will.
Q. 55 Who all were present when you reached the
residence of the deceased on 18 th November
2000?
Ans. The deceased, Suresh uncle, Laju aunty, Mr.
Kewalramani, one family doctor and one of the
daughter of the deceased.
Q. 56 Are you sure that all six people named by you were
already present at the residence of the deceased
when you reached there on 18 th November 2000?
Ans. Approximately
Q. 57 Do you remember for sure who all were present?
Ans. I am not sure whether the daughter was present but I
am sure that the remaining five mentioned in
answer to Q. 55 were present."
Basis the above, Mr. Tendulkar submitted that the evidence of PW2
could not be relied upon, and the answers given by PW2, in fact, seemed to
suggest that PW2 was not even present at the time when the alleged Will
was stated to have been executed.
16 Mr. Tendulkar then invited me to the cross-examination of PW3 and
pointed out the following answers given by PW3, viz.:
"Q. 101 Who requested you to sign as a witness in the
Will of the deceased?
Ans. I do not remember as much time has passed.
Q. 104 Did the deceased tell you the contents of his Will?
Ans. He told me and I agreed.
Q. 105 For the first time when did the deceased tell you
the contents of the Will?
Ans. Date I do not remember, but it was in November,
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2000.
Q. 106 Do you remember the date of the Will?
Ans. I cannot remember it at present but I know it very
well.
Q. 109 Who all were present when you reached the
residence of the deceased?
Ans. The deceased, me, Bafna and then the doctor was
called and Laxmidevi Gul Harpalani.
Per Commissioner:
After recording the above answer. Mr. Tendulkar asked
the witness that the question pertained to the time
he reached the house of the deceased and
therefore, to answer the question again. The
witness therefore further answered as under.
Ans. Bafna was not present, he was called afterwards.
Q. 168 Can you tell us what happened after Bapana
reached on 18th November 2000?
Ans. Doctor was also called. He came and examined the
deceased. The deceased was fit. Doctor gave the
Certificate. Laxmibai signed the Will. Doctor,
myself and Bapna signed the Will. Suresh and Laj
also signed the Will.
Q. 192 Since you have deposed that you have read the
entire Will before signing it, can you tell us who
are executors of the Will?
Ans. The deceased, Suresh Harpalani, Laj Harpalani,
Mohan Harpalani and Laxmibai."
Based on the above, Mr. Tendulkar submitted that PW3 had also given
equally evasive and inconsistent answers in cross-examination. He then laid
great emphasis on the fact that PW3 had in cross-examination clearly stated
that the said Will was signed by the doctor, Plaintiff Nos. 1 and 2, and the
daughter of the deceased, Laxmi, when infact neither the names nor
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signatures of any of these persons appeared on the said Will. He also pointed
out that PW3 had also named the Testator, Mohan Harpalani, i.e Defendant
No. 2 and the Testator's daughter, Laxmi as being executors of the said Will
when, in fact, only the Plaintiffs were the named executors in the said Will.
He thus submitted that the evidence of PW3 was not only contradictory to
what had been stated by PW3 in his AOE and also to the evidence of PW2 but
that the answers infact suggested that PW3 was deposing in respect of an
entirely different document. He thus submitted that the evidence of PW3 was
damning and could in no manner be construed to have proved due
execution of the said Will.
17 Mr. Tendulkar thus submitted that the evidence of PW2 and PW3,
namely both the attesting witnesses, was not only replete with material
contradictions and inconsistencies but also such that the same did not meet
the test which was required to be met under Section 63(c) of the Succession
Act. He thus submitted that the Plaintiffs could not rely upon the evidence of
either of the attesting witnesses to prove due execution of the said Will.
Additionally, Mr. Tendulkar submitted that from the answers given by both
the attesting witnesses, it was clear that they both could not have been
present at the same time since both the attesting witnesses had named
different persons who were stated to have been present at the time when the
said Will was alleged to have been executed. He thus submitted that Plaintiffs
had therefore not proved that the said Will had been executed in accordance
with Section 63(c) of the Succession Act, and Issue No.1 7 therefore would
7 1. Whether the Plaintiffs prove that the writing dated 18th November, 2000 was duly
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have to be answered in the negative.
18 Mr. Tendulkar then pointed out that the medical certificate upon
which reliance was placed by the Plaintiffs to prove that the Testator was of a
sound and disposing state of mind had been marked in evidence subject to
proof of the truth of its contents. Mr. Tendulkar submitted that the Plaintiffs
had, however, not led the evidence of the doctor, i.e., Dr. Jotwani, who was
stated to have issued the said certificate. He submitted that the medical
certificate could therefore not be relied upon. He thus submitted that the
Plaintiffs had therefore not been able to discharge the initial burden that was
cast upon the Plaintiffs as the propounders, namely that of proving that the
Testator was of a sound and disposing state of mind, and hence Issue No. 2 8
was also required to be answered in the negative.
19 Mr. Tendulkar then pointed out that from a plain look at the manner
in which the signatures of the Testator and the attesting witnesses were
placed on the said Will, it was clear that the execution thereof was extremely
suspect. He first invited my attention to the signature of the attesting
witnesses and pointed out that the same were placed where the Testator
ought to have signed and then pointed out that the signature of the Testator
was placed above the same near the date viz.
and validly executed and attested in accordance with law as the last Will and testament of
the deceased, Sunderdas Mulchand Harpalani?
8 2. Whether the Plaintiff prove that at the time of the said alleged Will, the deceased
was of sound mind and disposing state of mind, memory and understanding ?
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20 Mr. Tendulkar submitted that the Deceased was not only literate but
was also well qualified and would therefore know where to affix his
signature. He submitted that the Plaintiffs had not been able to explain how
these signatures appeared in the manner in which they did on the said Will.
Basis this, Mr. Tendulkar submitted that the manner in which the signatures
appeared on the said Will made clear that the same were not intended to give
effect to the said Will and would therefore not satisfy the requirement of
Section 63(b)9 of the Succession Act. He submitted that it was clear, therefore,
that the said Will was a colourable and highly suspect document, which fact
remained unexplained by the Plaintiffs. Mr. Tendulkar also pointed out that
the evidence of PW4 was required to be disregarded in its entirety since PW4
9 63. Execution of unprivileged Wills.--
...
(b) The signature or mark of the testator, or the signature of the person signing for him,
shall be so placed that it shall appear that it was intended thereby to give effect to the
writing as a Will.
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had, in cross-examination, in answer to Question Nos. 1 and 2, stated as
follows:
Q. 1 What is your educational qualification?
Ans. My primary educational qualification is B.Com and
M.Com.
Q.2 Have you obtained any degree from any University in
respect of Forensic document examination?
Ans. No"
From the above, he pointed out that PW4 was admittedly not a qualified
forensic expert, and thus the opinion of PW4 was not worth the paper it was
written on, and therefore Issue No. 3 would have to be answered in the
affirmative.
21 Mr. Tendulkar then pointed out that the major beneficiary under the
said Will was Plaintiff No. 1 , who was present at the time of its alleged
execution and had actively participated in its execution. Similarly, he pointed
out that Plaintiff No. 2, who was the wife of Plaintiff No. 1 and was also a
proponent of the said Will had played an active part in the making of the
said Will and in its execution.
22 Mr. Tendulkar then pointed out that in the present case, there could
be no dispute that (i) the Plaintiffs, being the major beneficiaries, played an
active role in the execution of the said Will (ii) in the said Will there is an
unequal distribution of assets among the Testator's legal heirs and (iii) there
are discrepancies in the evidence led by the attesting witnesses. He then
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placed reliance upon the judgement of the Hon'ble Supreme Court in the
case of Kavita Kanwar vs Pamela Mehta and Ors 10, wherein similar facts
were held to constitute suspicious circumstances surrounding the execution
of the will, to submit that when the execution of a will is surrounded by
suspicious circumstances, such suspicious circumstances would have to first
be removed/dispelled by the propounder before such a will can be accepted
as being a valid will. Mr. Tendulkar then submitted that in the present case,
the Plaintiffs had not only failed to explain the suspicious circumstances but
had not even attempted to do so. He thus submitted that the question of
granting probate of such a Will would therefore not arise, and the Suit was
required to be dismissed on this count alone.
Submissions in Rejoinder on behalf of the Plaintiffs
23 Mr. Kanade, in response to the Defendant's submission that the said
Will was not a registered document and thus casts doubt on its execution,
placed reliance upon the judgement of the Hon'ble Supreme Court in the
case of Ishwardeo Narain Singh vs. Kamta Devi & Ors. 11 to point out that
there is no requirement under law for a Will to be registered. He submitted
that merely because the said Will was not registered would not ipso facto
cast any doubt on its validity or that it had not been duly executed.
24 Mr. Kanade then submitted that the contention of the Defendants that
the said Will had not been duly executed since the signatures of the Testator
and the attesting witnesses were not affixed in the right place was also
10 (2021) 11 SCC 209
11 (1953) 1 SCC 295
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untenable and devoid of any merit since DW1 had admitted that the
signature on the said Will, which he pointed out from the following answer
given by DW1 in cross-examination:
"Q. 19. I put it to you that Sunderdas Harpalani has signed
above the witness on page 8 of the original Will
shown to you. What do you have to say?
Ans. My father and both witnesses have signed on the
right hand side of the page whereas, both
witnesses should have signed on the left side of
the page below the signature clause. Further, my
father should have signed against the middle of
signature clause on the right side of the page."
Basis the above, Mr. Kanade submitted that the only objection of the
Plaintiffs pertained to the placement of the signatures on the said Will and
not that the Testator had not signed/executed the said Will. He thus
submitted that the Defendants had infact admitted that the signature on the
said Will was that of the Testator and therefore could not deny that the
Testator had executed the same. He reiterated that the evidence of both the
attesting witnesses conclusively established that the said Will had been duly
executed by the Testator in accordance with Section 63(c) of the Succession
Act.
25 Mr. Kanade then additionally submitted that the Defendants had also
failed to adequately plead and prove that the said Will was executed under
undue influence and/or force and coercion. He took pains to point out that
the contention of undue influence was an implicit admission of the fact that
the Testator had in fact executed the said Will. Alternatively, he submitted
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that the Defendants had not produced any evidence in support of the
contention that the Testator had executed the said Will under undue
influence, force, or coercion.
26 In regard to the Defendants' contention that PW3 had stated that the
said Will was signed by other individuals, Mr. Kanade submitted that this
submission was also incorrect. He submitted that the answer to Question
10912 of the cross-examination of PW3 had to be read in conjunction with
the answer to Question 210 13, in which PW3 had clearly stated that the
Testator had signed the said Will in his presence and in the presence of PW2.
He submitted that this was the only intelligible way of reading these answers.
27 Mr. Kanade, then, in reply to the Defendant's contention that the
certificate of Dr Jotwani has not been proved, pointed out that the
Defendants had neither attempted to disprove the said certificate by cross-
examining any of the witnesses on the aspect of said certificate nor had they
proved that the Testator was not of sound health.
28 In response to the contention that the evidence of PW4 was required
to be rejected, Mr. Kanade first pointed out that PW4 had been practicing as
a forensic expert since 2008 and had received extensive practical training
from an expert with over 25 years of experience. Secondly, he pointed out
that PW4 had also worked independently on more than 1,000 cases and that
12 Q. 109 Who all were present when you reached the residence of the deceased?
Ans. The deceased, me, Bafna and then the doctor was called and Laxmidevi Gul
Harpalani.
13 Q. 210 I put it to you the deceased has not signed on the said Will. Do you agree ?
Ans. He has signed before me
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even if the evidence of PW4 was disregarded, the same would not be of any
consequence since DW1 had not denied that the signature on the said Will
was that of the Testator but had only questioned the placement of such
signature on the said Will.
29 Basis the above, Mr. Kanade submitted that the Plaintiff had
sufficiently proved Issue No. 1 and 2 and the Defendants had failed to prove
Issue No. 3, and thus reiterated that probate of the said Will ought to be
granted.
Reasons and Conclusions
A) Before proceeding further, given the evidence that is on record and
the Issues that fall for determination in the present case, in my view, it would
be apposite to make reference to the observations of the Hon'ble Supreme
Court in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma 14 which
is considered the locus classicus on the law regarding proof of wills and the
relevant portions of which are quoted in the judgment of the Hon'ble
Supreme Court in the case of Kavita Kanwar upon which the Defendants
have placed reliance. In the said judgement, the Hon'ble Supreme Court has,
inter alia, held as follows:
"18. What is the true legal position in the matter of
proof of wills? It is well-known that the proof of
wills presents a recurring topic for decision in courts
and there are a large number of judicial
14AIR 1959 SC 433
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pronouncements on the subject. The party
propounding a will or otherwise making a claim
under a will is no doubt seeking to prove a document
and, in deciding how it is to be proved, we must
inevitably refer to the statutory provisions which
govern the proof of documents. Sections 67 and 68
of the Evidence Act are relevant for this purpose.
Under Section 67, if a document is alleged to be
signed by any person, the signature of the said
person must be proved to be in his handwriting, and
for proving such a handwriting under Sections 45
and 47 of the Act the opinions of experts and of
persons acquainted with the handwriting of the
person concerned are made relevant. Section 68
deals with the proof of the execution of the
document required by law to be attested; and it
provides that such a document shall not be used as
evidence until one attesting witness at least has been
called for the purpose of proving its execution. These
provisions prescribe the requirements and the nature
of proof which must be satisfied by the party who
relies on a document in a court of law. Similarly,
Sections 59 and 63 of the Indian Succession Act are
also relevant. Section 59 provides that every person
of sound mind, not being a minor, may dispose of his
property by will and the three illustrations to this
section indicate what is meant by the expression "a
person of sound mind" in the context. Section 63
requires that the testator shall sign or affix his mark
to the will or it shall be signed by some other person
in his presence and by his direction and that the
signature or mark shall be so made that it shall
appear that it was intended thereby to give effect to
the writing as a will. This section also requires that
the will shall be attested by two or more witnesses as
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prescribed. Thus the question as to whether the will
set up by the propounder is proved to be the last will
of the testator has to be decided in the light of these
provisions. Has the testator signed the will? Did he
understand the nature and effect of the dispositions
in the will? Did he put his signature to the will
knowing what it contained? Stated broadly it is the
decision of these questions which determines the
nature of the finding on the question of the proof of
wills. It would prima facie be true to say that the will
has to be proved like any other document except as
to the special requirements of attestation prescribed
by Section 63 of the Indian Succession Act. As in the
case of proof of other documents so in the case of
proof of wills it would be idle to expect proof with
mathematical certainty. The test to be applied would
be the usual test of the satisfaction of the prudent
mind in such matters.
19. However, there is one important feature which
distinguishes wills from other documents. Unlike
other documents the will speaks from the death of
the testator, and so, when it is propounded or
produced before a court, the testator who has already
departed the world cannot say whether it is his will
or not; and this aspect naturally introduces an
element of solemnity in the decision of the question
as to whether the document propounded is proved to
be the last will and testament of the departed testator.
Even so, in dealing with the proof of wills the court
will start on the same enquiry as in the case of the
proof of documents. The propounder would be called
upon to show by satisfactory evidence that the will
was signed by the testator, that the testator at the
relevant time was in a sound and disposing state of
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mind, that he understood the nature and effect of the
dispositions and put his signature to the document of
his own free will. Ordinarily when the evidence
adduced in support of the will is disinterested,
satisfactory and sufficient to prove the sound and
disposing state of the testator's mind and his
signature as required by law, courts would be
justified in making a finding in favour of the
propounder. In other words, the onus on the
propounder can be taken to be discharged on proof
of the essential facts just indicated.
20. There may, however, be cases in which the
execution of the will may be surrounded by
suspicious circumstances. The alleged signature of
the testator may be very shaky and doubtful and
evidence in support of the propounder's case that the
signature, in question is the signature of the testator
may not remove the doubt created by the appearance
of the signature; the condition of the testator's mind
may appear to be very feeble and debilitated; and
evidence adduced may not succeed in removing the
legitimate doubt as to the mental capacity of the
testator; the dispositions made in the will may appear
to be unnatural, improbable or unfair in the light of
relevant circumstances; or, the will may otherwise
indicate that the said dispositions may not be the
result of the testator's free will and mind. In such
cases the court would naturally expect that all
legitimate suspicions should be completely removed
before the document is accepted as the last will of the
testator. The presence of such suspicious
circumstances naturally tends to make the initial
onus very heavy; and, unless it is satisfactorily
discharged, courts would be reluctant to treat the
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document as the last will of the testator. It is true
that, if a caveat is filed alleging the exercise of undue
influence, fraud or coercion in respect of the
execution of the will propounded, such pleas may
have to be proved by the caveators; but, even without
such pleas circumstances may raise a doubt as to
whether the testator was acting of his own free will
in executing the will, and in such circumstances, it
would be a part of the initial onus to remove any
such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to
which we have just referred, in some cases the wills
propounded disclose another infirmity. Propounders
themselves take a prominent part in the execution of
the wills which confer on them substantial benefits.
If it is shown that the propounder has taken a
prominent part in the execution of the will and has
received substantial benefit under it, that itself is
generally treated as a suspicious circumstance
attending the execution of the will and the
propounder is required to remove the said suspicion
by clear and satisfactory evidence. It is in connection
with wills that present such suspicious
circumstances that decisions of English courts often
mention the test of the satisfaction of judicial
conscience. It may be that the reference to judicial
conscience in this connection is a heritage from
similar observations made by ecclesiastical courts in
England when they exercised jurisdiction with
reference to wills; but any objection to the use of the
word "conscience" in this context would, in our
opinion, be purely technical and academic, if not
pedantic. The test merely emphasizes that, in
determining the question as to whether an
instrument produced before the court is the last will
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of the testator, the court is deciding a solemn
question and it must be fully satisfied that it had been
validly executed by the testator who is no longer
alive.
22. It is obvious that for deciding material
questions of fact which arise in applications for
probate or in actions on wills, no hard and fast or
inflexible rules can be laid down for the appreciation
of the evidence. It may, however, be stated generally
that a propounder of the will has to prove the due
and valid execution of the will and that if there are
any suspicious circumstances surrounding the
execution of the will the propounder must remove
the said suspicions from the mind of the court by
cogent and satisfactory evidence. It is hardly
necessary to add that the result of the application of
these two general and broad principles would always
depend upon the facts and circumstances of each
case and on the nature and quality of the evidence
adduced by the parties. It is quite true that, as
observed by Lord Du Parcq in Harmes v. Hinkson
"where a will is charged with suspicion, the rules
enjoin a reasonable scepticism, not an obdurate
persistence in disbelief. They do not demand from the
Judge, even in circumstances of grave suspicion, a
resolute and impenetrable incredulity. He is never
required to close his mind to the truth". It would
sound platitudinous to say so, but it is nevertheless
true that in discovering truth even in such cases the
judicial mind must always be open though vigilant,
cautious and circumspect."
(emphasis supplied)
From the above, it is clear that "suspicious circumstances" would
include (i) a propounder taking a prominent part in the execution of a will
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that confers major benefit upon the propounder, (ii) the appearance of the
signature of the Testator and (iii) unnatural, improbable, or unfair bequests.
(B) The present case it is clear that the Plaintiffs who are the major
beneficiaries under the said Will have played an active role, both in its
preparation and in its execution. This is evident from the following:
i. Affidavit of Evidence of PW1:
"6.....I say that during the aforesaid occasion and while
drafting of the "Last Will and Testament" of the said
deceased, the Plaintiffs along with Mrs. Laxmi Gul
Rawtani also visited ot the office of Advocate Shri Sheru
Ajwani at Chembur, Mumbai.....
7. I say that during the entire process i.e drafting the
Suit Will and till execution of the same by the said
deceased, Mrs. Laxmi Gul Rawtani was present at all
occasions and further she has extended all the
assistance to the deceased in respect there of. I further
say that at the time of drafting of the Suit Will and
Testament of the said deceased, even Mrs. Nanki Dayal
Varandani was also in constant touch with the said
deceased and Plaintiffs as well as her sister Mrs. Laxmi
Gul Rawtani, and further she was having full
knowledge of execution and contents of the Suit
Will......"
The above evidence makes clear that PW1 was intricately aware
of all those involved in the making of the said Will. In cross-
examination, the direct involvement of PW1 in the making of the said
Will has further emerged, since PW1 has specifically answered as
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follows:
ii. Cross-examination of PW1:
"Q.83 Have attended the office of Advocate Sheru Ajwani
before execution of the alleged Will?
Ans. On the request of the deceased, I along with Laxmi
Rautani visited the office of Advocate Sheru Ajwani
to fix an appointment for the deceased.
Q.84 How many times have you attended the office of
Advocate Sheru Ajwani?
Ans. As and when the deceased asked me to pass on his
message, I visited the office of Advocate Sheru
Ajwani.
Q.86 Did the deceased ever attend the office of Advocate
Sheru Ajwani?
Ans. No, the deceased used to call Sheru Ajwani due to
the age of the deceased.
Q.88 Do you know Sushma Singh?
Ans. Yes. At that time I have heard her name because for
courtesy purpose Sheru Ajwani told us to meet her.
Q. 135 Have you ever met Advocate Sushma Singh?
Ans. Yes, once."
iii. Cross-examination of PW2
"Q.36 How did the deceased contact you?
Ans. Suresh uncle or Laju aunty came to my house and
told me that the deceased was calling me. I do not
remember who came but it was either Suresh Uncle
or Laju aunty.
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Q.38 Did Suresh uncle or Laju aunty tell you why the
deceased was calling you?
Ans. I do not remember
Q. 44 When did the deceased tell you for the first time
that you would be required to be a witness to the
Will of the deceased?
Ans. On 18th November 2000, when the deceased called
me.
Q.47 On 18th November 2000, who came to call you?
...
Ans. Either Suresh uncle or Laju aunty."
iv. Cross-examination of PW3
"Q.162. Can you tell us approximately what time you
leave the residence of the deceased on 18th
November 2000?
Ans. I came to the house of the deceased with Suresh.
Things were fixed and Laxmi was also there.. I
stayed over the night and next day I left.
Thus, the evidence clearly indicates, beyond the pale of doubt, that the
Plaintiffs, i.e., Suresh and Lajwanti (Laju Aunty), who are the major
beneficiaries under the said Will, had actively participated in both the
making of the said Will and its execution.
(C) The evidence also crucially makes clear that the Testator had never
met either Sheru Ajwani or Sushma Singh the advocate whose name appears
on the docket of the said Will. This is borne out from the following answers
given by PW1 in cross-examination:
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"Q.86. Did the deceased ever attend the office of
Advocate Sheru Ajwani ?
Ans: No, the deceased used to call Sheru Ajwani due to
the age of the deceased.
Q87. So it is correct to say that the alleged Will dated
18th November 2000 of the deceased was drafted by
Advocate Sheru Ajwani?
Ans. Yes,
(Witness volunteers: My answer is based on the meetings
held between the deceased and Sheru Ajwani)
Q.90. Is this the same Will drafted by Advocate Sheru
Ajwani as stated by you in answer to question No.
87?
Ans. Yes.
Q.91 Why is the name of Advocate Sushma Singh
appearing on the docket when the Will was drafted
by Advocate Sheru Ajwani?
Ans. Because, at the instructions of the deceased the Will
was made by Sheru Ajwani with the help of Sushma
Singh.
Q.142 If the Will was made by Advocate Mr. Sheru
Ajwani with the help of Advocate Sushma Singh as
you have claimed, why Advocate Sheru Ajwani's
name is missing from the docket of the Will?
Ans. I do not know.
It is also crucial to note that neither Sheru Ajwani nor Sushma Singh
were examined by the Plaintiffs, so as to explain the manner in which the
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said Will was made and under whose instructions. Thus, there remains grave
doubt as to at whose instance and on whose instructions the said Will was
prepared. It was incumbent upon the Plaintiffs to have dispelled this
suspicious circumstance and the Plaintiffs could have done so by leading the
evidence of Sheru Ajwani and/or Sushma Singh, but chose not to.
(D) Additionally, a careful appreciation of the evidence of both the
attesting witnesses is also telling. It is well-settled that compliance with
Section 63 of the Succession Act cannot be purely mechanical 15. In this case,
a perusal of the AOEs of both the attesting witnesses disclose that they are
virtually identical, with the only differences being their respective names and
their relationship with the Testator. Thus, both the AOEs could, for all
practical purposes, be copies of each other. This by itself would not have
been an issue if the said Will had not been contested. However, in the facts of
the present case, it assumes importance and relevance since the Defendants
have specifically challenged due execution of the said Will, which was
required to have been proved by the evidence of the attesting witnesses.
(E) Further, the evidence of both attesting witnesses is riddled with the
following inconsistencies:
Cross-examination of PW2 Cross-examination of PW3
Q. 55 Who all were present Q. 113 Who came first to the
when you reached the residence residence of the deceased,
of the deceased on 18th November Bafna or the Doctor?
2000?
15 State of Haryana vs. Harnam Singh and Ors [(2002) 2 SCC 238]
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Ans. The deceased, Suresh Ans. I do not remember.
uncle, Laju aunty, Mr.
Q. 164. Can you tell us who all
Kewalramani, one
were present when you
family doctor and one
reached the house of the
of the daughter of the
deceased on 18th November
deceased.
2000?
Ans. Suresh Harpalani, Laj
Harpalani, Laxmidevi were
present.
Q.165. What about the second
witness, Mr. Bapna?
Ans. He was called.
Q. 168 Can you tell us what
happened after Bapana
th
reached on 18 November
2000?
Ans. Doctor was also called.
He came and examined the
deceased. The deceased was
fit. Doctor gave the Certificate.
Laxmibai signed the Will.
Doctor, myself and Bapna
signed the Will. Suresh and
Laj also signed the Will.
Q. 70 According to you, the Q177. Who read the Will?
Doctor read out the Will
Ans. I cannot remember.
as shown to you now?
Ans. According to me, the Doctor
read out the Will which is
being shown to me but
since I do not English I do
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not know what the
Doctor read out.
While it is well settled that cross-examination is not a memory test,
and minor inconsistencies would not by themselves cause evidence to be
disregarded. However, in the facts of the present case, the evidence of both
the attesting witnesses does not bear out that the Testator had read and
understood the said Will or that the same was read out and explained to the
Testator before he allegedly signed. On the contrary, PW3 has stated that he
could not remember, and PW2 has stated that he himself did not understand
English but claimed the said Will was read out in English. Equally, neither of
the attesting witnesses have, in cross-examination, deposed at whose
instance they had signed as attesting witnesses. Additionally, the
inconsistencies in the evidence of both the attesting witnesses, coupled with
the fact that Dr. Jotwani was not even produced as a witness, give rise to a
grave doubt as to whether Dr. Jotwani was even present at the time of the
alleged execution of the said Will or had even issued the alleged medical
certificate.
(F) Additionally, and crucially, PW3 has, in his AOE, inter alia deposed
that;
(i) Only the Testator, PW2 and him set and subscribed their
signature to the said Will.
(ii) the said Will had appointed only Plaintiff No. 1, i.e Suresh
Harpalani and Plaintiff No. 2, i.e. Lajwanti Suresh Harpalani as
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Executors.
However, in cross-examination PW-3 has given the following answers:
"Q.162. Can you tell us approximately what time you
leave the residence of the deceased on 18th
November 2000?
Ans. I came to the house of the deceased with Suresh.
Things were fixed and Laxmi was also there.. I
stayed over the night and next day I left.
Q. 168 Can you tell us what happened after Bapana
reached on 18th November 2000?
Ans. Doctor was also called. He came and examined the
deceased. The deceased was fit. Doctor gave the
Certificate. Laxmibai signed the Will. Doctor,
myself and Bapna signed the Will. Suresh and Laj
also signed the Will.
Q. 192 Since you have deposed that you have read the
entire Will before signing it, can you tell us who
are executors of the Will?
Ans. The deceased, Suresh Harpalani, Laj Harpalani,
Mohan Harpalani and Laxmibai."
Based on the above, it is clear that the answers given by PW3 were not
in respect of the said Will since the same was (i) never signed by the doctor
and the Plaintiffs and (ii) the Testator, Mohan Harpalani, i.e Defendant No. 2,
and the Testator's daughter, Laxmi, were not the executors. The evidence of
PW3 appears to be in respect of an entirely different document and not the
said Will.
(G) In my view, other compounding factors in this case that add to the
suspicious circumstances are; (i) the placement of the signatures of the
Testator and the attesting witnesses on the said Will do not appear where
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they ought to have been placed and (ii) the Plaintiffs sought to lead the
evidence of PW4 well after the cross-examination of the attesting witnesses
was completed. This is clearly on the realisation that the evidence of the
attesting witnesses was materially lacking, and crucially, (iii) PW4 was
admittedly not even a qualified forensic expert. Thus, not only does the
evidence of PW4 have to be disregarded in its entirety, but the fact that the
Plaintiffs have, in the guise of leading the evidence of a handwriting expert,
led the evidence of PW4, who is not in any manner qualified as a
handwriting expert, is itself an extremely suspicious circumstance.
(H) Another factor I must note is that both the attesting witnesses have
consistently attempted to evade questions put to them in cross-examination
as is evident from the following:
i. Cross-examination of PW2:
Q.52 What time you reached at deceased place on
18th November 2000?
Ans. I do not remember.
Q.53 Was it morning, afternoon, evening or night
of the 18th November 2000?
Ans. I do not remember
Q.54 How is it that you do not remember anything
except the date "18th November 2000"?
Ans. I remember the date because the date is
mentioned in the Will.
ii. Cross-examination of PW3
"Q.101 Who requested you to sign as a witness in
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the Will of the deceased?
Ans. I do not remember as much time has passed.
Q 102. When did the deceased discusses with you
about his Will for the first time.
Ans. In November 2000.
(Witness volunteered: The deceased called me and
told me.)
Q.106 Do you remember the date of the Will?
Ans. I cannot remember it at present but I know it
very well.
Q.111 Who called Mr. Bafna?
Ans. I do not remember, somebody called him.
Q.112 After you arrive who came next to the
residence of the deceased?
Ans. I do not remember."
The above answers are not only evasive but also lend grave doubt as to
the credibility of the attesting witnesses and whether, in fact, the attesting
witnesses were at all present at the time when the said Will is stated to have
been executed.
(I) Apart from the fact that it is well settled that the initial burden to
prove whether the Testator was of a sound and disposing state of mind at the
time of execution of a Will lies on the propounder, in the present case, Issue
No. 216 has specifically been framed, which casts this burden upon the
Plaintiffs. The Plaintiffs, in an attempt to discharge this burden, have placed
16 2. Whether the Plaintiff prove that at the time of the said alleged Will, the deceased was of sound
mind and disposing state of mind, memory and understanding ?
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reliance upon a medical certificate stated to have been issued by Dr Jotwani.
The said medical certificate was marked in evidence subject to proof.
However, Dr. Jotwani was never produced as a witness, and thus, the medical
certificate was never proved and thus cannot be relied upon. Furthermore,
PW1 has, in cross-examination, stated as follows:
"Q.198 In the said paragraph you have deposed
"and thereafter he handed over the Suit Will
to the Doctor T.D. Jotwani with request to
read over and explained the same to him as
well all, who were present there". If the
deceased was educated person, why was Will
read over and explained to him?
Ans. To check the deceased's mental fitness.
Q.233 Why has Doctor issued Medical Certificate
first and then read over the Will to the
deceased as mentioned in your Affidavit?
Ans. Because as the Doctor came to our house the
Doctor just started talking on general talks
with the deceased and when the deceased
told the Doctor that the deceased needs the
Certificate of the Doctor to execute his Will
that is why the Doctor first examined the
deceased and after that he read over the
contents of the Will."
From the above answers, it is crucial to note that (i) Dr. Jotwani did
not visit at the Testator's behest, and (ii) the alleged medical certificate was
issued even before the said Will was allegedly read out to the Testator. Thus,
even accepting that the medical certificate was issued by Dr. Jotwani, the
same ought to be disregarded, as PW1 has deposed to the fact that Dr.
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Jotwani read the Will to assess the Testator's mental fitness, which was
clearly not the case since the medical certificate was allegedly issued even
before the said Will was allegedly read out to the Testator. The alleged
certificate was clearly given on demand by Dr. Jotwani and without any
examination of the Testator.
(J) Lastly, the Plaintiffs' contention that the Defendants, by admitting that
the signature on the said Will was that of the Testator could now contend
that the said Will had not been executed by the Testator is also entirely
misplaced. It is well settled that in order to prove due execution of a will a
propounder is required to establish that (i) the testator signed in the presence
of two witnesses and (ii) the two witnesses each signed in the presence of the
testator. In the facts of the present case, considering the evidence on record, I
have no hesitation in holding that the Plaintiffs have failed to proved that the
said Will was duly executed by the Testator in the manner contemplated
under Section 63 of the Succession Act. Thus the mere fact that the
Defendants had not denied that the signature appearing on the said Will was
that of the Testator would not ipso facto mean that the Defendants had
admitted due execution of the said Will. To accept such a contention would
be in the teeth of Section 63 and effectively render the same nugatory.
30 Hence, for the aforesaid reasons, I find that the Defendant's reliance
upon the judgement of the Hon'ble Supreme Court in the case of Kavita
Kanwar (supra) is entirely apposite. The Plaintiffs have, in my unhesitating
view, failed to dispel the suspicious circumstances surrounding both the
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making of the said Will and its execution. The Plaintiffs have also failed to
prove (i) that the Testator was of sound and disposing state of mind at the
time when the said Will was allegedly executed and (ii) that the alleged
execution was in accordance with the requirements of Section 63 of the
Succession Act. I therefore proceed to answer the Issues framed for
determination as follows:
i) For the reasons recorded in A to H and J above, Issue No. 1 is
answered in the negative.
ii) For the reasons recorded in E and I above, Issue No. 2 is
answered in the negative.
iii) Given that Issue Nos. 1 and 2 have been answered in the
negative, Issue No. 3 does not survive and is answered accordingly.
iv) The Suit is accordingly dismissed.
v) No costs.
(ARIF S. DOCTOR, J.)
Meera Jadhav
