Madhubala B Rao vs Jayashree Sharadchandra Gupte And 2 Ors
2025 Latest Caselaw 3484 Bom

Bombay High Court

Madhubala B Rao vs Jayashree Sharadchandra Gupte And 2 Ors on 26 March, 2025

Author: N.J.Jamadar

Bench: N.J.Jamadar

2025:BHC-OS:4812


                                                                         ts 14 of 2001.doc
                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         TESTAMENTARY AND INTESTATE JURISDICTION
                              TESTAMENTARY SUIT NO.14 OF 2001
                                            IN
                           TESTAMENTARY PETITION NO.1005 OF 2000

            1.     Smt. Tilottama Karsandas Toprani of
                   Mumbai, Hindu Inhabitant, Residing at
                   71, Dr. S.S.Rane Road, Parel (W),
                   Mumbai - 400 012.        (Deleted)
            2.     Dr. Miss Madhubala B. Rao, of Mumbai,
                   Hindu Inhabitant, Residinga at 1,
                   Sukhniwas, 535-536, 17th Road, Khar (W),
                   Mumbai - 400 052.

            3.     Ms. Adnya Manohar Rao of Mumbai,
                   Hindu Inhabitant, Residing at Flat
                   No.C-2, Metropolitan C.H.S. Ltd.,
                   25, Pali Hill, Bandra, Mumbai - 400 050
                   All executrices named in the Last Will
                   and Testament of the deceased abovenamed.

            4.     Ajay Samant, a Hindu Inhabitant of
                   Mumbai, Residing at 538-A, V. Patel
                   Road, Khar (W),
                   Mumbai - 400 052.

            5.     Mrs. Neena Ketan Mehta,
                   A citizen of U.S.A., residing at
                   4077, Bolled Hereford Drive,
                   Santa Rosa, C.A. 95404 USA.                    ...   Plaintiffs

                   versus

            1.     Jayashree Sharadchandra Gupte,
            2.     Rajan Sharadchandra Gupte
            3.     Sangita Ajit Karnik
                   All residing at 541, Laxmi Baug,
                   Block No.1, 17th Road, Khar (W),
                   Bombay - 400 052.                              ...   Defendants



            SSP                                                1/26
                                                                 ts 14 of 2001.doc
Mr. Sunny Shah with Mr. Ashish Mehta, Ms. Seema Gupta i/by Ethos Legal
Alliance, for Plaintiffs.
Mrs. Harshali R. Gupte, for Defendants.

            CORAM:      N.J.JAMADAR, J.

            RESERVED FOR JUDGMENT ON : 3RD OCTOBER 2024
            PRONOUNCED ON            : 26TH MARCH 2025

JUDGMENT :

1. This Suit is for grant of Probate of the last Will and Testament and

Codicil to the property and credits of Pramila Manohar Gupte (deceased).

2. Manohar Gajanan Gupte, the husband of the Testatrix, predeceased

her. Manohar Gupte had two brothers and a sister, namely Hemchandra and

Sharadchandra, and Firoz S. Tipnis, respectively. The Defendants are the

successor in interest of Shardchandra.

3. Late Manohar Gupte and the Testatrix had no issue out of the wedlock.

The Testatrix had two sisters : Tilottama K. Toprani (deceased Plaintiff No.1)

and Madhubala Rao - Plaintiff No.2. The Testatrix passed away on 3 July

2000. At the time of her death, she had a fixed place of abode at Flat No.1,

Sukhniwas, 535-536, 17th Road, Khar (W), Mumbai. The Testatrix left behind

the property within the Greater Mumbai and in the State of Maharashtra and

elsewhere in India. Plaintiff Nos.1 and 2 and Adnya Rao - Plaintiff No.3 and

the daughter of Plaintiff No.2, filed a Petition for grant of Probate being

Petition No.1005 of 2000 asserting that the deceased left behind two writings.

ts 14 of 2001.doc First, the will dated 9 July 1997 and the Codicil dated 15 May 2000. Plaintiffs

were named as the Executors in the said Will. The Plaintiffs assert, the

testamentary instruments have been duly and validly executed by the

Testatrix and attested by the witnesses.

4. Under the Will, the Testatrix bequeathed the immovable property i.e.

Flat No.1, Sukhniwas to Plaintiff Nos.1 and 2 in equal shares and the

movables to the Plaintiffs as the residuary legatees, after making bequest in

favour of her nieces and nephews. The Plaintiffs, thus, prayed for the grant

of Probate.

5. Sharadchandra, brother of late Manohar Gupte, entered a caveat. In

the affidavit in support of the caveat filed on behalf of Sharadchandra,

predecessor in title of the Defendants, it was contended that the purported

Will dated 9 July 1997 and the Codicil dated 15 March 2000 are not genuine

writings executed by the Testatrix. Those two writings are got up, prepared

and manufactured documents, in collusion and conspiracy, by the three

alleged executors, who are themselves the beneficiaries under those writings

with a view to grab the property of the Testatrix.

6. In the alternative, it was contended that the executors have used their

undue influence and fraudulently obtained those writings without explaining

the contents thereof to the Testatrix. To put in contest the disposing capacity

of the Testatrix, it was contended that on account of the sickness, the

ts 14 of 2001.doc deceased was in a mentally upset state of mind and was unable to

understand the contents of those documents. The Caveator further

contended that the Will was not natural and it suffered from various suspicious

circumstances. The intrinsic evidence of the alleged Will rendered the Will

unnatural.

7. Lastly, the dispositive power of the Testatrix was questioned by

contending that the Testatrix was not absolute owner of the property which the

Testatrix had sold to M/s. West Coast Pillars Pvt. Ltd., and out of the sale

proceeds of which Flat No.1 Sukhniwas was acquired. Neither the Testatrix

nor her husband Manohar Gupte, were the absolute owners of the property

i.e. Plot No.544, Asha Bungalow, which was the ancestral property of

Manohar and his siblings. Yet the said property was sold to finance

acquisition of Flat No.1, Sukhniwas. The Caveator has, thus, instituted a suit

bearing No.1812 of 1995. Thus, the Testatrix could not have bequeathed the

property under the Will as she was not the absolute owner thereof.

8. In the wake of the aforesaid pleadings, the following issues were settled

and I have recorded my findings against each of them for the reasons to

follow :

Issues Findings

(i) Do the Plaintiffs prove that the documents dated 9 July 1997 and 15 May 2000 are the last Will and Testament and the first

ts 14 of 2001.doc Codicil to the said Will of Smt. Pramila Gupte ? In the affirmative.

(ii) Do the Defendants prove that the said documents dated 9 July 1997 and 15 May 2000 are forged and fabricated documents ? In the negative.

(iii) Do the Defendants prove that the said Pramila Gupte executed the said documents dated 9 July 1997 and 15 May 2000 under undue influence and coercion exercised by the Plaintiffs as she was not in sound condition and disposing mind ? In the negative.

(iv) What Order ? As per final order.

REASONS

9. In order to substantiate the claim for grant of Probate, the Plaintiffs

have examined three attesting witnesses, namely Netra A. Vijaykar (P.W.1),

legal practitioner who purportedly attested both the Will and Codicil; Dr.

S.M.Phanse (P.W.2), who claimed to be the family doctor of the Testatrix and

purportedly attested the Codicil dated 15 May 2000; and Dr. S.R.Sathe

(P.W.3), the then Dean of S.L.Raheja Hospital, who purportedly attested the

Will dated 9 July 1997.

10. The Defendants did not lead any evidence in the rebuttal.

Admitted facts :

11. At the outset, it is necessary to note that there is not much dispute

about the relationship between the parties. Plaintiff Nos.1 and 2 are the

ts 14 of 2001.doc sisters of the Testatrix. Plaintiff No.3 is the daughter of Plaintiff No.2. The

Defendants are the successors in interest of Sharadchandra, brother of late

Manohar. There is also not much controversy about the fact that late

Manohar Gupte had another brother, Hemchandra Gupte, and sister, Firoz

Tipnis.

12. It is also imperative to note that, by and large, the paraties are not at

issue over the fact that Flat No.1, Sukhniwas was purchased after the sale of

the bungalow on Plot No.545, which allegedly devolved on late Manohar

alone. Indisputably, late Sharadchandra had instituted a suit for partition of

the said property being No.1812 of 1995, to which the other siblings and the

transferee of the said property were impleaded as party Defendants.

Eventually, after the trial, the said suit came to be dismissed by a judgment

and order dated 27 February 2020. In the said suit, this Court, inter alia,

returned a finding that the Plaintiff failed to establish that the suit property was

the joint family property.

Broad Submissions :

13. In the backdrop of the aforesaid rather uncontroverted facts, the

submissions of the Counsel for the parties deserve to be briefly noted.

14. Mr. Shah, learned Counsel for the Plaintiffs, submitted that all the

requirements of a valid execution and attestation of the Will have been duly

proved. The Plaintiffs have examined all the three attesting witnesses. In the

ts 14 of 2001.doc evidence of these witnesses, due execution and attestation of the Will and

Codicil has been proved. Nothing material could be elicited in the cross-

examination of these attesting witnesses. As regards the execution of the Will

and Codicil, the Defendants have not categorically denied that the Will and

Codicil do not bear the signature of the Testatrix. An evasive defence that the

signature does not appear to be the usual signature of the Testatrix has been

taken in the affidavit in support of the Caveat. Therefore, the Plaintiffs

discharged the initial onus of proof of the Will and the Codicil.

15. In contrast, Mr. Shah would urge that, though the onus was on the

Defendants to prove that the Will was allegedly obtained by the Plaintiffs by

exercising undue influence and playing fraud on the Testatrix, the Defendants

have not led any evidence.

16. Mr. Shah further submitted that the disposition under the Will and

Codicil cannot be said to be unnatural. On the contrary, the material on

record would indicate that the relations between the Testatrix and her in-laws

were strained and Sharadchandra had instituted a suit for partition of the

property i.e. Asha Bungalow, Plot No.545. In these circumstances, the

bequest of the property by the Testatrix in favour of her sisters, who were

residing with the Testatrix in Flat No.1, Sukhniwas, is consistent with the

wishes of the Testatrix conditioned by the circumstances occasioned by

Sharadchandra instituting the suit.

ts 14 of 2001.doc

17. Mr Shah strenuously urged that, the stand of late Sharadchandra that

the Testatrix was not the absolute owner of the property bequeathed under

the aforesaid testamentary instruments, indicates that the Defendants were,

in effect, assailing the title of the Testatrix to the property which is beyond the

remit of the jurisdiction of the testamentary Court. In fact, the said suit filed by

late Sharadchandra seeking partition of the property bearing Plot No.545,

Asha bungalow, came to be dismissed. In that view of the matter, according

to Mr. Shah, there is no impediment in granting Probate.

18. The alleged suspicious circumstances sought to be portrayed by the

Defendants fall in the realm of suspicion alone, without an iota of material to

substantiate the same. As the Defendants chose not to lead any evidence,

Issue Nos.3 and 4, which cast burden on the Defendants, cannot at all be

said to have been proved. Resultantly, the Probate deserves to be granted.

19. To buttress the submission that once the propounder establishes the

due execution and attestation of the Will and that the Testatrix was in a sound

and disposing state of mind, the onus shifts on the objectors, Mr. Shah placed

reliance on a decision of the Supreme Court in the case of Sridevi and Ors.

V/s. Jayaraja Shetty and Ors.1. Reliance was also placed on a decision of the

Supreme Court in the case of Surendra Pal and Ors. V/s. Dr. Mrs. Saraswati

Arora and Anr.2.

1 (2005) 2 SCC 784 2 (1974) 2 SCC 600

ts 14 of 2001.doc

20. Per contra, Ms. Gupte, learned Counsel for the Defendants, forcefully

resisted the prayer to grant Probate. Ms. Gupte submitted that the Testatrix

had no power to bequeath Flat No.1, Sukhniwas as the said property was

inherited by the Testatrix from her father in law. The Will was executed before

the Testatrix's title to the property was crystalized.

21. On the aspect of the due execution and attestation of the Will, Ms.

Gupte submitted that the executors who are also the principal beneficiaries

under the Will, have prepared the documents to usurp the property of late

Manohar Gupte. Netra A. Vijaykar (P.W.1) the alleged eye witness, was fully

aware of the said suit instituted by Sharadchandra, yet there is not a whisper

about the said proceedings in the alleged Will. There are serious

discrepancies in the evidence of the three attesting witnesses as regards the

execution and attestation of the Will. Ms. Gupte laid emphasis on the

manner in which Dr. S.R.Sathe (P.W.3), the attesting witness, deposed.

22. Ms. Gupte further submitted that Dr. Phanse conceded that he had

treated the Testatrix in the year 1995 for breast cancer. Co-relating the

nature of illness, which the Testatrix was suffering from, to the fact that the

Testatrix passed away under three months of the execution of the Codicil, Ms.

Gupte made an endeavour to draw home the point that the Testatrix was not

in a sound and disposing state of mind. In the face of these grave suspicious

circumstances, according to Mr. Gupte, the Will cannot be said to have been

ts 14 of 2001.doc validly and legally proved.

23. In order to lend support to these submissions, Ms. Gupte placed

reliance on the judgment of the Supreme Court in the case of Murthy and Ors.

V/s. C. Saradambal and Ors.3; a Division Bench judgment of the Calcutta

High Court in the case of Smt. Krishna Bera and Ors. V/s. Sri Prabir Pramanik

and Ors.4 and a judgment of Punjab and Haryana High Court in the case of

Udmi and Ors. V/s. Birbal and Ors.5.

24. Ms. Gupte would assert that as the Plaintiffs miserably failed to prove

the Will and Codicil, it was not necessary for the Defendants to venture into

the witness box. Therefore, the Plaintiffs cannot be permitted to take any

advantage of the fact that the Defendants did not adduce any evidence.

Issue No.1 :

25. 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 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. Section 63 of the Act, 1925 is required to be read with 3 Civil Appeal No.4270 of 2010 dated 10 Dec. 2021 4 2007 SC Online Cal 41 5 2015 SCC Online P&H 2479

ts 14 of 2001.doc 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.

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. In the case of Ved Mitra

Verma V/s. Dharam Deo Verma6, the Supreme Court has laid emphasis on

the element of satisfaction of the conscience of the Court.

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 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

6 (2014) 15 SCC 578 7 (1977) 1 SCC 369 8 AIR 1959 SC 443

ts 14 of 2001.doc 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 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

ts 14 of 2001.doc 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 matter."

28. In the case of Sridevi and Ors. V/s. Jayaraja Shetty and Ors.

(supra), on which reliance was placed by Mr. Shah, 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

ts 14 of 2001.doc 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.9, 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. 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 light of the aforesaid position in law, reverting to the facts of the

case, first and foremost, it is necessary to note that on the aspect of the

signature of the Testator on the Will and the Codicil, Netra Vijaykar (P.W.1)

9 (2005) 1 SCC 40

ts 14 of 2001.doc and Dr. Phanse (P.W.2) have categorically asserted that the Testator had put

her signature on the Will and the Codicil, respectively, in their presence.

Netra Vijaykar (P.W.1) testified to the fact that on 9 July 1997, she had

accompanied the Testator to S.L.Raheja Hospital, and in the presence of Dr.

Sathe (P.W.3) and herself, the Testator executed the Will by initialing each

page and putting her full signature on the execution clause of page 4 of the

Will.

31. As regards the Codicil, Dr. Phanse (P.W.2) also deposed that on 15

March 2000, he had visited the residence of the Testator, where Netra

Vijaykar (P.W.1) was present. The Testator had shown the Codicil to him.

The Testator executed the Codicil in his presence and that of Netra Vijaykar

(P.W.1) by initialing the first page and putting her full signature against the

execution clause on the second page. Both the witnesses have stated that,

thereafter they had put signatures in attestation of the Will and Codicil,

respectively, in the presence of the Testator. Each of the witnesses has

identified his/her own handwriting and signature as well as the signature and

hand writing of the other attesting witness.

32. It is imperative to note that while disputing the signature of the Testatrix

on the Will and the Codicil, the Defendants have made a bald statement that

the signature on those writings does not appear to be the usual signature of

the Testatrix. No effort whatsoever was made to indicate what was the usual

ts 14 of 2001.doc signature of the Testatrix and how the signature of the testatrix on the Will and

Codicil differs from such usual signature, either by eliciting admissions in the

cross-examination or by adducing evidence. Nothing material could be

elicited in the cross-examination of Netra Vijaykar (P.W.1) to discard her

version on the aspect of execution and attestation.

33. It is of significance to note that the evidence of Dr. Phanse (P.W.2) went

unchallenged. The Defendants declined to cross-examine Dr. Phanse (P.W.2).

Thus, the untraversed testimony of Dr. Phanse (P.W.2) as regards the

execution and attestation of the Codicil corroborates the version of Netra

Vijaykar (P.W.1).

34. The thrust of the cross-examination of Netra Vijaykar (P.W.1) was with

regard to the title dispute between late Sharadchandra and the Testatrix.

Netra Vijaykar (P.W.1) was the Advocate of the Testatrix. However, the said

evidence does not bear upon the due execution and attestation of the Will.

35. As noted above, the due execution and attestation of the Will was

principally assailed on the basis of the manner in which Dr. Sathe (P.W.3)

deposed before the Court. Taking the court through the evidence of Dr.Sathe,

Ms. Gupte submitted that the due execution and attestation of the Will cannot

be said to have been proved as Dr. Sathe categorically stated that he was not

familiar with the signature of the Testatrix and cannot identify the signature of

the Testatrix. He blamed his memory to state whether he had put signature on

ts 14 of 2001.doc the Will in the presence of the Testatrix and Netra Vijaykar (P.W.1). He went

on to admit that he had known the Testatrix through Dr. Rao, Plaintiff No.2,

who was working in the Pathology Department of Raheja Hospital. He again

blamed his memory to state as to whether the executor was his patient at any

point of time. Lastly, Dr. Sathe claimed that he had merely signed the affidavit

in lieu of examination in chief and had not scribed it. This evidence of Dr.

Sathe, according to Ms. Gupte, completely demolishes the case of the

Plaintiffs.

36. Mr. Shah, learned Counsel for the Plaintiffs submitted that the fact that

Dr. Sathe (P.W.3) was examined 15 years after he acted as an attesting

witness, is required to be kept in view. In any event, the evidence of Netra

Vijaykar (P.W.1) is sufficient to establish the factum of execution and

attestation of the Will. At best, according to Mr. Shah, Dr. Sathe (P.W.3) can

be said to have failed to recollect the execution of the document. In that

event, as provided under Section 71 of the Indian Evidence Act, 1872, the

execution may be proved by other evidence. Such evidence, in the instant

case, according to Mr. Shah, has been provided by the testimony of Netra

Vijaykar (P.W.1) which went unimpeached.

37. Upon appraisal of evidence, this Court finds that, there is no reason to

discard the evidence of Netra Vijaykar (P.W.1). She was representing the

Testatrix in the title dispute. In these circumstances, it was but natural for the

ts 14 of 2001.doc Testatrix to avail services of Netra Vijaykar (P.W.1). In the cross-examination

of Netra Vijaykar (P.W.1) nothing material could be extracted so as to doubt

the due execution of the Will. In fact, in the further examination in chief,

Netra Vijaykar (P.W.1) clarified that, in the Affidavit of Evidene, it was

inadvertently stated that at the request of the Testatrix, she had filled in the

date and month on page 4 of the Will. She had only filled in the date and

month on the docket and the Testatrix had put the date and month on page

No.4. This version of Netra Vijaykar (P.W.1) was not at all challenged during

the course of her cross-examination. As noted above, the entire cross-

examination was directed against the title dispute between the Testatrix and

Sharadchandra and the purported role of Netra Vijaykar (P.W.1) therein.

38. In the aforesaid view of the matter, I am impelled to hold that the

Plaintiffs have succeeded in establishing that the Will and the Codicil were

signed by the Testatrix and those testamentary instruments were duly attested

by the attesting witnesses.

39. On the aspect of sound and disposing state of mind of the Testatrix and

that she understood the nature and effect of the disposition, the timeline

deserves to be kept in view. The Will was executed on 9 July 1997. The

Codicil came to be executed on 15 May 2000. The Testatrix passed away on

3 July 2000. Under the Codicil, the only change that the Testatrix made was

with regard to the disposition of Flat No.1, Sukhniwas. Under the Will, the

ts 14 of 2001.doc Executors were commanded to sell the said flat and utilise part of the net sale

proceeds to purchase one 1BHK flat for and in the name of her sisters

Tilottama and Madhubala and the balance would constitute the residuary

estate. By the Codicil, the Testatrix desired that the said Flat be given to

Tilottama and Madhubala absolutely as joint tenants in equal shares. The

Testatrix referred to the fact that she had already constituted Plaintiff Nos.1

and 2 as the nominees in the record of the Society. In this view of the matter,

the fact that the Testatrix passed away under 50 days of execution of the

Codicil, may not lead to suspicion on account of change in the mode of

disposition, as there was no substantial change in the fundamental nature of

the disposition.

40. An endeavour was made by Ms. Gupte to urge that Dr. Phanse (P.W.2)

stated that he had treated the Testatrix for breast cancer in the year 1995.

Therefore, there was a strong suspicion that the Testatrix might not have been

in a sound and disposing state of mind. This submission is required to be

appreciated in the light of the fact that at the same breath, Dr. Phanse (P.W.2)

stated that, at all times during his interaction with the Testatrix, he found her to

be in a sound and disposing state of mind. On 15 March 2000 as well, the

Testatrix was in a sound and disposing state of mind when she executed her

Codicil. This testimony of Dr. Phanse (P.W.2) has gone unchallenged.

41. The Will was executed on 9 July 1997. The deceased passed away

ts 14 of 2001.doc after three years of the execution of the Will. Indeed, the interval of time

between the execution of the Codicil and the death of the Testatrix was less

than 50 days. However, the nature of change in the bequest incorporated by

way of Codicil cannot be lost sight of. Moreover, the evidence of Dr. Phanse

(P.W.2) who categorically asserted that on the date of the execution of the

Codicil and, at all the times he had interactions with the Testatrix, he found her

mentally alert, seals the issue.

42. Reliance placed by Ms. Gupte on the judgments in the cases of Smt.

Krishna Bera and Ors. V/s. Sri Prabir Pramanik and Ors.(supra), and Udmi

and Ors. V/s. Birbal and Ors. (supra), does not advance the cause of the

Defendants as those decisions were rendered in a completely different fact-

situation.

43. With regard to the understanding the nature and effect of the disposition

made by the Testatrix, it is evident that the Testatrix was embroiled in a

litigation over the property and that conditioned her disposition. The Testatrix

had no issue. The siblings of Manohar Gupte, her late husband, were

questioning the exclusive title of Manohar Gupte and the Testatrix over the

property. Plaintiff Nos.1 and 2, her sisters, were staying with the Testatrix. In

such a situation, the bequest of the properties by the Testatrix to her blood

relatives is both natural and understandable.

44. Reliance placed by Mr. Shah on the decision of the Supreme Court in

ts 14 of 2001.doc the case of M.B.Ramesh (dead) by Lrs. V/s. K.M.Veeraje Urs (dead) and

Ors.10 appears to be well found. The observations in paragraph 29 are

material, and, hence, extracted below :

"29. The issue raised in the present matter was with respect to the due execution of the will, and what we find is that the same was decided by the trial Court, as well as by the first appellate Court on the basis of an erroneous interpretation of the evidence on record regarding the circumstances attendant to the execution of the will. The property mentioned in the will is admittedly ancestral property of Smt.Nagammanni. She had to face a litigation, initiated by her husband, to retain her title and possession over this property. Besides, she could get the amounts for her maintenance from her husband only after a court battle, and thereafter also she had to enter into a correspondence with the appellant to get those amounts from time to time. The appellant is her stepson whereas the respondents are sons of her cousin. She would definitely desire that her ancestral property protected by her in a litigation with her husband does not go to a stepson, but would rather go to the relatives on her side. We cannot ignore this context while examining the validity of the will." (emphasis supplied)

45. The aforesaid pronunciation appears to be on all four with the facts of

the case at hand. This inference regarding the disposition being natural and

stemming out of a predominant desire to give property to her sisters, is

fortified by the decision in Suit No.1812 of 1995 whereby the challenge to the

title of late Manohar and the Testatrix was negatived. 10 (2013) 7 SCC 490

ts 14 of 2001.doc

46. Ms. Gupte then urged that there are suspicious circumstances and the

propounders have not offered cogent and convincing explanation.

Resultantly, it cannot be said that the Will was duly executed by the Testatrix.

47. By the very nature of the things, whether there are suspicious

circumstances which warrant the explanation from the propounder and

whether a particular circumstance leads to nurturing of a suspicion, are the

questions of facts peculiar to the given case. Though, the suspicious

circumstance cannot be enumerated in a straight jacket, yet few broad

features which may qualify as suspicious circumstances generally emerge in

a majority of cases.

48. In the case of Bharpur Singh and Ors. V/s. Shamsher Singh 11, the

Supreme Court enumerated the illustrative suspicious circumstances, as

under :

"23. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will :

(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.

(ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time.

(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.

(iv) The dispositions may not be appear to be the result of the testator's free will and mind.

11 (2009) 3 SCC 687

ts 14 of 2001.doc

(v) The propounder takes a prominent part in the execution of the will.

               (vi)     The testator used to sign blank papers.
               (vii)    The will did not see the light of the day for long.
               (viii)   Incorrect recitals of essential facts."

49. At the same time, the Court must be on guard against treating any and

every circumstance as a suspicious circumstance. Mere allegation of

existence of suspicious circumstance, without anything more, may not be a

justifiable ground to discard a legitimately proved Will.

50. In the case of V. Prabhakara V/s. Basavaraj K. and Ors.12, the Supreme

Court enunciated that the testamentary court is not a court of suspicion but

that of conscience. It has to consider the relevant materials instead of

adopting an ethical reasoning. A mere exclusion of either brother or sister per

se would not create a suspicion unless it is surrounded by other

circumstances creating an inference.

51. Ms. Gupte, learned Counsel for the Defendants placed a very strong

reliance on the decision in the case of Murthy and Ors. V/s. C. Saradambal

and Ors.(supra), to draw home the point that the suspicious circumstances

which are raised in the instant case found favour with the Supreme Court in

the said Case.

52. I find it difficult to accede to this submission. Such an analogy cannot

12 (2022) 1 SCC 115

ts 14 of 2001.doc be readily drawn. It is trite, presence of one additional fact or absence of one

fact makes a world of difference in the final determination, and, therefore, a

judgment in one case cannot be readily imported to another case without

properly appreciating the fact-situation in the context of which the said

judgment was rendered. A decision is, therefore, said to be an authority for

what it actually decides and not for what logically flows therefrom.

53. In the case at hand, Ms. Gupte made an endeavour to urge that the

absence of place at which the Will and Codicil were executed, absence of the

certificate of fitness issued by the treating doctor or any other medical officer,

the death of the Testatrix under 50 days of the execution of the Codicil,

reluctance of Dr. Sathe (P.W.3) to support the case of the propounder and the

inconsistencies in the version of the prosecution witnesses, create grave

suspicion about the validity of the Will.

54. I am unable to persuade myself to agree with the aforesaid

submissions of Ms. Gupte. As regards the place of execution of the Will and

the Codicil, the witnesses have categorically stated the place where the Will

and Codicil were executed. The absence of certificate of fitness, in the

circumstances of the case, does not detract materially from the genuineness

of the Will and the Codicil. Both the instruments were attested by the legal

practitioner and the medical officers. Dr. Phanse (P.W.2) categorically stated

that he was the family doctor of the Testatrix. She was in a sound and

ts 14 of 2001.doc disposing state of mind at the time of the execution of the Codicil. The

testimony of Dr. Phanse (P.W.2) went untraversed. The Testatrix passed

away after more than three years of the execution of the Will. The testimony

of Dr. Phanse (P.W.2) dispels any doubt about the state of mind of the

Testatrix on the date of the execution of the Codicil. Thus, mere short interval

of time between the execution of the Codicil and the death of the Testatrix

does not constitute a suspicious circumstance.

55. The reluctance of Dr. Sathe (P.W.3) to support the execution and

attestation of the Will, is essentially in the nature of failure to recollect the

execution. As there is other evidence which proves due execution and

attestation of the Will, the said fact pales in significance. This Court does not

find such inconsistency in the evidence of attesting witnesses as to jettison

away the Will.

56. In the totality of circumstances, this Court does not find that there are

such suspicious circumstances which render it unsafe to place implicit

reliance on the Will as the last Will of the Testatrix. I am, therefore, inclined

to answer issue No.1 in the affirmative.

Issue Nos.2 and 3 :

57. The onus to prove that the Will and Codicil are forged and fabricated

and the Testatrix had executed the said Will and Codicil under the undue

influence and coercion exercised by the Plaintiffs lay on the Defendants. The

ts 14 of 2001.doc said onus has not been discharged by the Defendants either by eliciting

material in the cross-examination of the Plaintiffs' witnesses or by adducing

evidence aliunde. Therefore, these issues are required to be answered in the

negative.

58. The conspectus of aforesaid discussion and findings on Issue Nos.1 to

3, especially in the context of strained relations between the Testatrix, on the

one part, and the siblings of her late husband Manohar, on the other part,

evidenced by the institution of Suit No.1812 of 1995 for partition by late

Sharadchandra against the Testatrix and others, lead to an irresistable

inference that the Testatrix had executed the Will and Codicil out of her own

volition and driven by a desire to protect the property by bequeathing the

same to her blood relatives. I am, therefore, inclined to grant Probate.

59. Hence, the following order :

ORDER

(i) The suit stands decreed with costs.

(ii) Probate be granted to Plaintiff Nos.2 and 3 having its effect

throughout India.

(iii) Decree be drawn up accordingly.

( N.J.JAMADAR, J. )

Signed by: S.S.Phadke Designation: PS To Honourable Judge Date: 26/03/2025 17:54:54