Bombay High Court
Sudheer Gopinath Dadarkar vs Mrs.Rita Mahesh Dadarkar on 5 May, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-OS:7537
TS-39-2011.DOC
Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 39 OF 2011
IN
TESTAMENTARY PETITION NO. 534 OF 2010
Sudheer Gopinath Dadarkar,
Hindu, Indian Inhabitant,
Residing at Dadarkarwadi, Chiku Wadi
Shimpoli Village, Behind Gulmohar
Society, Boriwali (West), Mumbai - 92
Son of the deceased and Sole Legatee and
Beneficiary.
Since Deceased
1. Shruta Sudheer Dadarkar,
Through C.A. Neel Dadarkar,
2. Neel Sudheer Dadarkar,
Having address at
Residing at Dadarkar Wadi
Chiku Wadi, Shimpoli Village,
Behind Gulmohar Society, ...Plaintiffs
Borivali (West),
Mumbai 400 092.
ARUN
RAMCHANDRA
SANKPAL
Versus
Digitally signed by
ARUN
RAMCHANDRA
SANKPAL
1) Rita Mahesh Dadarkar,
Date: 2025.05.05
21:28:11 +0530 Widow of Late Mahesh Gopinath
Dadarkar, Adult, Indian Inhabitant
2) Poornima Mahesh Dadarkar,
Adult, Indian Inhabitant
3) Apoorva Mahesh Dadarkar
Adult, Indian Inhabitant,
1/54
::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 :::
TS-39-2011.DOC
4) Aditya Mahesh Dadarkar,
Adult, Indian Inhabitant,
All residing at B/303, Mugdha Apartment,
Satya Nagar, Borivali (West), ...Defendants
Mumbai - 400 092.
Mr. Rajesh Kachare, with Sonal Dabholkar, for the Plaintiff.
Mr. Aadil Parsurampuria, with Pragya, Ameya Khot & Darshana Vora,
i/b M/s Legal Vision, for the Defendants.
CORAM: N. J. JAMADAR, J.
JUDGMENT RESERVED ON : 20th DECEMBER 2024.
JUDGMENT PRONOUNCED ON : 5th MAY 2025.
JUDGMENT :
1. This is a Suit for grant of Letters of Administration annexed with
the Will (P1) dated 7th December 2022, and registered with the Sub-
Registrar of Assurances at Boriwali on 11 th December 2002 of Yesubai
Gopinath Dadarkar, ("the testatrix").
2. The background facts can be stated, in brief, as under:
2.1 Gopinath Govind Dadarkar was the husband of the
testatrix. Gopinath and the testatrix had four sons, namely,
Jayant, Ramesh, Mahesh and Sudheer, the deceased Plaintiff, and
a daughter, Shubhangi Alias Sujata Ramesh Raut. Gopinath
predeceased the testatrix. Her two sons, Jayant and Ramesh, also
predeceased the testatrix without leaving behind any
testamentary instrument. Both died as bachelor.
TS-39-2011.DOC
2.2 Mahesh, the husband of Rita, Defendant No.1 and father of
Apurva, Defendant No.2, Purnima, Defendant No.3 and Aditya,
Defendant No.4, passed away on 8th August 2005.
2.3 The testatrix had initially executed a Will on 20th July 1989.
By the purported Will dated 7th December 2002, the testatrix
revoked the said earlier Will dated 20 th July 1989. The Will was
executed before, and attested by, Ravindra Motiram Patil and
Bhakti Bharat Thakur. Dr. Basant R. Jain had certified the sound
and disposing state of mind of the testatrix vide certificate dated
7th December 2002.
2.4 Under the purported Will the testatrix bequeathed her
entire property, as described in the Schedule I and II, to Sudheer,
the deceased Plaintiff.
2.5 The testatrix passed away on 1st September 2009. Asserting
that under the Will, the testatrix had not appointed any Executor
and Sudheer was the sole legatee, Sudheer filed a Petition, being
Petition No. 534 of 2010, for grant of Letters of Administration
with the Will annexed to the property and credits of the testatrix.
2.6 Defendant Nos. 1 to 4, the wife and children of Mahesh,
entered Caveats. The Defendants resisted the grant of Letters of
Administration by filing Affidavits in Support of the Caveats. Rita
Dadarkar, Defendant No.1, filed a comprehensive Affidavit. The
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rest of the Defendants have adopted the resistance put forth by
Defendant No.1.
2.7 At the outset, the Defendants contend that the properties
which are bequeathed in the purported Will are the subject
matter of Suit No. 3149 of 2008 instituted by the Defendants
against Yesubai Dadarkar, the testatrix, and others, challenging
the Deed of Dissolution of Partnership Firm between the
predecessor-in-title of Defendant Nos. 1 to 4 herein, and the
Defendant Nos. 1 to 5, in the said Suit. The Defendants have also
claimed partition of the Suit properties.
2.8 In the said Suit, Defendant Nos. 1 to 4 contend, the
Plaintiff herein has admitted the execution of the Will dated 20 th
July 1989 whereby the testatrix had bequeathed her share in the
joint family properties in favour of the predecessor-in-title of
Defendant Nos. 1 to 4 herein and the Defendant Nos. 2 and 3
therein.
2.9 The Defendants have assailed the legality and validity of
the purported Will, the due execution and attestation thereof and
the testamentary capacity of the testatrix by raising a slew of
defences:
2.9A The Defendants contend the purported Will dated 7 th
December 2002 is ex-facie unnatural in as much as it seeks to
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disinherit the blood relatives of the testatrix. The Defendant No.1
contends she is the daughter of the sister of the testatrix and the
latter had always treated her with utmost love and affection. The
purported Will, which seeks to disinherit the Defendants in
contradistinction to the equitable disposition in the Will dated
20th June 1989, is suspicious, bogus and unnatural.
2.9B The Defendants contend the bequests under the purported
Will dated 7th December 2002 are not the result of the testatrix's
free will and mind. The testatrix was suffering from a debilitating
illness over the past 10 years, which had adversely affected the
mental faculties of the testatrix and in such a state, the testatrix
at the behest of the Plaintiff, used to sign blank papers without
understanding the nature, effect or purport thereof. Thus the
testatrix was not in a sound and disposing state of mind, memory
and understanding. The Defendants have also contested the
factum of attestation of the Will by Mr. Ravindra Patil and Ms.
Bhakti Thakur.
2.9C The Defendants further contend that the purported Will
dated 7th December 2002 is surrounded by suspicious
circumstances, which have not been adequately explained by the
propounder. The very date of execution of the Will is shrouded in
suspicion as the Will contains two dates. The first page shows
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that the purported Will was allegedly made on 7 th December
2002. However, the execution clause shows that it was executed
on 10th December 2002. Ex-facie the Will is illegal and invalid.
2.9D The signature of the testatrix on the purported Will dated
7th December 2002 does not appear to be the genuine signature
of the testatrix as it is materially different from the signature on
the Will dated 28th July 1989. The signature of the testatrix on
the purported Will does not appear to be her usual signature.
2.9E The deceased Plaintiff-propounder of the Will has taken a
prominent part in the execution of the purported Will.
2.9F Moreover, the purported Will surfaced for the first time in
the Chamber Summons in the above-numbered Suit. No family
member was aware of the execution of the purported Will dated
7th December 2002, prior to the death of the testatrix or even
after her death. Nor the purported Will was read out loud to the
relatives and family members of the deceased.
2.9G The testatrix was not familiar with English language. She
could not read, and write in, English. The purported Will did not
appear to have been translated or explained to the testatrix in
vernacular.
3. On these, amongst the other, grounds the Defendant Nos. 1 to 4
have prayed for dismissal of the Petition for Letters of Administration.
TS-39-2011.DOC
4. In the wake of the aforesaid pleading, by an order dated 15 th
September 2011 issues were settled. The word "intestate" in Issue No.1
appeared to be a typographical error. Thus Issue No.1 is recast by
substituting the word "intestate" with the word "testate". The recast
issues are reproduced below with my findings against each of them for
the reasons to follow.
Issues Findings
1 Whether the Plaintiff proves that Mrs. In the negative.
Yesubai Gopinath Dadarkar died
testate leaving behind her last Will
and Testament dated 7/10th December
2002?
2 Whether the Plaintiff proves that the In the negative.
Will dated 7/12th December 2002 is
legal and valid and has been executed
in accordance with law?
3 Does the Defendant prove that the In the negative.
Will is shrouded in suspicious
circumstances and has not been
executed by the testator out of free
Will?
4 What order? Suit dismissed.
TS-39-2011.DOC
REASONS:
5. As it may not be possible to appraise the evidence on Issue Nos. 1
and 3 in water tight compartments, it may be expedient to decide the
Issue Nos. 1 and 3 by a common reasoning. I propose to do so.
ISSUE NOS. 1 TO 4.
EVIDENCE:
6. In order to substantiate his case, the deceased Plaintiff-Sudheer
(PW1) had examined himself,, Bhakti Thakur (PW2) and Ravindra Patil
(PW3); the attesting witnesses, and Dr. Basant R Jain (PW4), who had
certified the fitness of the testatrix. A number of documents were also
tendered in evidence.
7. In the rebuttal, Rita Dadarkar (DW1) entered the witness-box.
The Defendants have also tendered documents to bolster up their
defence.
8. Bhakti Thakur (PW2) deposed that the testatrix was her paternal
aunt. She often visited the testatrix at latter's residence. The testatrix
used to treat Bhakti Thakur (PW2), like her daughter. In the first
Affidavit in lieu of examination-in-chief, affirmed on 15 th December
2011, Bhakti (PW2) affirmed that the testatrix had informed her that
TS-39-2011.DOC
the testatrix had prepared a Will and requested her to attend the office
of the Sub-Registrar at Bandra, to act as a witness.
9. Bhakti Thakur (PW2) claimed to have visited the Sub-Registrar's
Office. Ravindra Patil (PW3), the second attesting witness, was present.
She had known Ravindra Patil (PW3) as the latter was also her relative.
Bhakti (PW2) testified to the fact that the Sub-Registrar read out the
contents of the Will (P1) to the testatrix and the latter admitted the
correctness thereof. Thereafter, the testatrix put her signature on the
Will (P1) in her presence and that of Ravindra (PW3). The testatrix
requested her and Ravindra (PW3) to put signature on the Will (P1) as
witnesses. In the presence and as per the directions of the testatrix, she
had put her name and address at the bottom of the Will (P1) and also
put signature on the Will (P1), in the presence of Ravindra (PW3).
Likewise, according to Bhakti (PW2), Ravindra (PW3) had also put his
signature on the Will (P1) in her presence and that of the testatrix.
Bhakti (PW2) identified her signature and that of the testatrix and
Ravindra (PW3) on the Will (P1). At the time of the execution of the
Will (P1), Bhakti (PW2) stated, the testatrix was physically and
mentally fit.
10. In the Affidavit in lieu of examination-in-chief, affirmed on 23 rd
December 2014, apart from affirming the execution and attestation of
the Will (P1), Bhakti (PW2) deposed that on 10 th December 2002 she
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had visited the residence of the testatrix, Ravindra (PW3) was present.
In addition, Mr. Harishchandra Raul was also present thereat. Mr. Raul
explained and interpreted the Will (P1) to the testatrix in Marathi. The
testatrix put signature on the Will (P1). Thereafter, the testatrix
requested her and Ravindra (PW3) to sign the Will (P1), as witnesses.
Thereupon, she and Ravindra (PW3) had put signatures on the Will
(P1) below their respective name and address. The testatrix requested
her to visit the office of the Sub-Registrar Office at Bandra on the next
day.
11. Bhakti (PW2) claimed to have visited the office of the Sub-
Registrar on the next day. Apart from the testatrix, Mr. Raul and
Ravindra (PW3) were present thereat. Bhakti (PW2) thereafter narrates
the process of reading over the contents of the Will (P1), admission of
the correctness thereof by the testatrix, execution by the testatrix and
attestation by the witnesses. Bhatki (PW2) added that the Doctor's
Certificate (Exhibit "P4/2") was annexed to the Will (P1) when she had
attested the Will.
12. Ravindra (PW3) also claimed to be a relative of the testatrix. The
latter treated him like her nephew. The testatrix had informed him that
her Advocate had prepared a Will as per her instructions and requested
him to act as a witness. When he gave consent, the testatrix asked him
to attend the office of the Sub-Registrar at Bandra to act as witness to
TS-39-2011.DOC
the Will(P1). When he visited the said office, the testatrix was present
thereat. Bhakti (PW2) came thereafter. The officer read out the contents
of the Will to the testatrix and the latter admitted the correctness
thereof.
13. Ravindra (PW3) was in unison with Bhakti (PW2) on the aspect
of the execution of the Will(P1) by the testatrix and attestation thereof
by him and Bhakti (PW2), at the direction and in the presence of the
testatrix. Ravindra (PW3) also vouched for the physical and mental
fitness of the testatrix at the time of the execution of the Will (P1).
14. Dr. Basant Jain (PW4) claimed to be a practicing Homeopath. He
had known the testatrix as the latter was his patient for over 15 overs.
The testatrix used to consult him over minor ailments. On 7 th December
2002, the testatrix had visited his dispensary for a routine check up. He
found her in a fit condition. He examined her and found her parameters
in order. Thereupon the testatrix handed him over the documents which
she was carrying. Dr. Jain claimed to have enquired with the testatrix as
to whether she understood the nature and contents of the said
documents. After finding her to be in good health and sound and
disposing state of mind, Dr. Jain claimed to have issued the Certificate
(Exhibit "P4/2").
15. Dr Jain testified that the name and age of the testatrix as well as
the date appearing in the first line of the Certificate (Exhibit "P4/2")
TS-39-2011.DOC
were in his handwriting. Dr. Jain further affirmed that he had put the
date appearing in the first paragraph of the Will (P1) and the same is in
his handwriting.
16. The deceased Plaintiff (PW1) and Rita (DW1), the Defendant
No.1, have deposed in line with their respective contentions.
17. At the conclusion of the trial, I have heard Mr. Rajesh Kachare,
the learned Counsel for the Plaintiffs, and Mr. Adil Parsurampuria, the
learned Counsel fo the Defendants, at length. The parties have also
tendered written submissions in elaboration of the submissions
canvassed across the bar.
BROAD SUBMISSIONS:
18. Mr. Kachare, the learned Counsel for the Plaintiffs submitted that
the Will(P1) in question has been proved in evidence in conformity with
the provisions contained in Section 63 of the Indian Succession Act
1925 ("the Act of 1925") and Section 68 of the Indian Evidence Act
1872 ("the Act of 1872"), beyond the shadow of doubt. The Plaintiff has
examined both the attesting witnesses who have testified to the due
execution and attestation of the Will(P1). Dr. Basant Jain who had
examined and certified the fitness of the testatrix has deposed about the
sound and disposing state of mind of the testatrix. Nothing material
could be elicited to cast doubt over the physical fitness and mental
TS-39-2011.DOC
alertness of the testatrix, at the time of the execution of the Will(P1). In
any event, Mr. Kachare would urge, since the testatrix passed away after
seven years of the execution of the Will(P1), the sound and disposing
state of mind of testatrix can hardly be questioned.
19. The due execution and attestation of the Will(P1) is further
fortified by the registration of the Will(P1) before the Registrar of
Assurances, who had also explained the contents of the Will(P1) to the
testatrix. In the face of such overwhelming evidence, according to Mr.
Kachare, the objections to the due execution and attestation of the
Will(P1), or for that matter, the testamentary capacity of the testatrix,
do not deserve any countenance.
20. Mr. Kachare would urge, the evidence on record unmistakably
indicates that, Mahesh, the predecessor-in-title of Defendant Nos. 1 to
4, was not only estranged from the testatrix but the relationship
between the testatrix and Mahesh had turned astray on account of vices
to which Mahesh was given in to. Consequently, the main plank of
defence of Defendant Nos. 1 to 4 that the disposition in the Will(P1) is
unnatural, unfair and improbable, does not hold any ground.
21. Elaborating the aforesaid submissions, Mr. Kachare would urge
that the testimony of Bhakti Thakur (PW2) and Ravindra Patil (PW3)
establishes beyond cavil that testatrix had executed the Will(P1) with
full knowledge and understanding of the nature and consequences of
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the dispositions thereunder. Both the witnesses have consistently stated
that they had seen the testatrix put her signature on the Will(P1) and
thereafter signed the Will(P1) in the presence of the testatrix. Both
were present before the Registrar of Assurance when the Will(P1) was
registered.
22. Defendant Nos. 1 to 4, according to Mr. Kachare, have made an
endeavour to draw mileage from the minor discrepancies in the date of
the execution of the Will(P1). The time-lag between the execution of
the Will(P1) and the date on which the witnesses were called upon to
depose deserves to be taken into account. Inability to recollect the exact
date, thus, does not detract materially from the veracity of the
testimony of the attesting witnesses.
23. Mr. Kachare would urge the very fact that the testatrix passed
away after seven years of the execution of the Will(P1) negates the bald
contention of the Defendants that the testatrix was not in a sound and
disposing state of mind. There is not a shred of material to lend support
to the defence that testatrix was suffering from debilitating illness as
alleged. At any rate, the testimony of Dr. Basant Jain could not be
impeached. In addition, there is material to show that the testatrix had
executed instruments contemporaneous with the execution of the
Will(P1) and even thereafter. Mr. Kachare would urge, the very claim of
the Defendants that the testatrix used to visit their residence which was
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located on the third floor of a building (which had no lift) by climbing
up the stairs, proves the physical and mental soundness of the testatrix.
24. Mr. Kachare would urge that the alleged suspicious circumstances
are non-existent. The purported suspicious circumstances, according to
Mr. Kachare, are not worthy enough to return a finding that the
conscience of the Court is not satisfied. Reliance was placed on the
judgments of the Supreme Court in the case of Indu Bala Bose & Ors Vs
Manindra Chandra Bose & Anr1 and Vrindavanibai Sambhaji Mane Vs
Ramchandra Vithal Ganeshkar & Ors.2
25. Mr. Kachare, further submitted that there is material to show that
the testatrix was actively managing the affairs of the partnership firm.
She had studied up to 7th standard. She was familiar with English
language. She has executed documents in English. Therefore, the
contention of the Defendants that testatrix had not known English is
without substance.
26. Mr Kachare would urge that the alleged disinheritance of the
blood relations especially that of Mahesh stands explained by the
material on record. In the wake of disputes between Mahesh and
testatrix, the former had addressed a communication to the bank to
restrain the testatrix from operating bank account. The bank account
was freezed. Defendant No.1 herself had admitted in the legal notice
1 (1982) 1 SCC 20.
2 (1995) 5 SCC 215.
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dated 27th July 1995 that Mahesh was a heavy drinker. All these factors
fortify the reasons which weighed with the testatrix to disinherit
Mahesh.
27. To buttress the aforesaid submissions, Mr. Kachare placed reliance
on the judgment of the Supreme Court in the cases of Dhanpat Vs Sheo
Ram (Deceased) Through Legal Representatives & Ors, 3 Madhukar D.
Shende Vs Tarabai Aba Shedage4 and Ramabai Padmakar Patil (Dead)
Through LRs & Ors Vs Rukminibai Vishnu Vekhande & Ors.5
28. Mr. Kachare would further urge that since the Defendant Nos. 1
to 4 have alleged that the Plaintiff had got the purported Will(P1)
executed by exercising coercion and undue influence, onus rests on the
Defendants to establish the said fact. The Defendants have miserably
failed to prove the said fact. To this end, reliance was placed on the
judgment of the Supreme Court in the case of Savithri & Ors Vs
Karthyayani Amma & Ors.6
29. Minor contradictions in the evidence of PW1 and PW2 or inability
of the witnesses to recollect the exact dates, does not justify the
discarding of the testimony of the attesting witnesses. To buttress this
submission, Mr. Kachare placed reliance on the decision of the Supreme
3 (2020) 16 SCC 209.
4 (2002) 2 SCC 85.
5 (2003) 8 SCC 537.
6 (2007) 11 SCC 621.
TS-39-2011.DOC
Court in the cases of Durga Vs Anil Kumar7 and Pentakota
Satyanarayana and Ors Vs Pentakota Seetharatnam & Ors.8
30. Mr. Adil Parsurampuria, the learned Counsel for Defendant Nos. 1
to 4 would urge that the Plaintiffs have miserably failed to prove that
the purported Will(P1) was validly executed by the testatrix and
attested by PW2 and PW3.
31. Mr. Parsurampuria urged with tenacity that the very execution of
the Will(P1) itself, is shrouded in doubt. There are as many as three
dates, first, 7th December 2002; on the first page of the Will(P1),
second, 10th December 2002; on the second page of the Will(P1) and
third, 11th December 2002; the date of Registration. The dates 7 th and
10th are inserted in the purported Will(P1) in English language. There
are a number of admissions especially that of Sudheer (PW1) that the
testatrix had not known English and could not read and write English.
Thus, first and foremost, the very execution of the Will(P1) on a
particular date cannot be said to have been established.
32. Mr. Parsurampuria would urge the examination of both attesting
witnesses, in the case at hand, instead of advancing the case of the
Plaintiff, erodes the Plaintiff's case. Taking the Court through the cross-
examination of PW2 and PW3 and comparing and contrasting the same,
Mr. Parsurampuria would urge that the testimony of PW2 and PW3 on
7 (2005) 11 SCC 189.
8 (2005) 8 SCC 67.
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the aspect of execution and attestation of the Will(P1) is inconsistent to
such an extent that one's testimony renders the other's testimony
wholly unreliable.
33. Mr. parsurampuria would urge that after realizing that the
material would show that the testatrix could not read, and write in,
English, an endeavour was made to file an Additional Affidavit of the
attesting witness to introduce a case that the contents of the Will(P1)
were explained by Mr. Harishchandra Raul, whose presence was not
deposed to earlier. Interestingly, Mr. Raul was not examined by the
Plaintiff.
34. Mr. Parsurampuria would further urge that if the evidence of the
attesting witnesses is read, it becomes evident that there is material
variance not only in the testimony of these witnesses but also in the first
Affidavit in lieu of examination-in-chief and the second Affidavit in lieu
of examination-in-chief of Bhakti Thakur (PW2) as to the place where
the purported Will(P1) was executed, the date on which the Will(P1)
was executed, the presence of Mr. Raul and on the aspect as to whether
Mr. Raul or any official in the office of the Registrar of Assurances,
interpreted and explained the contents of the purported Will(P1) to the
testatrix.
35. An endeavour was made by Mr. Parsurampuria to draw home the
point that the discrepancies in the date of the execution of the Will(P1)
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and the fact that the testatrix was not knowing the English language in
which the purported Will(P1) has been written, cumulatively, demolish
the Plaintiff's case.
36. On the aspect of the disinheritance of Mahesh, Mr. Parsurampuria
would submit that the explanation sought to be offered is unworthy of
credence. The fact that Mahesh had addressed a communication to the
bank regarding the operation of the bank account of the partnership
firm was too insignificant to justify the disinheritance of Mahesh when
in the Will(P1) dated 20th July 1989, the testatrix had made a bequest
in favour of Mahesh. On the contrary, there is material to show that
instruments were jointly executed by the testatrix, Mahesh and the
Plaintiff. That itself negates the case that relations between the testatrix
and Mahesh were so strained as to justify disinheritance of Mahesh.
37. Lastly, Mr. Parsurampuria would urge that the Plaintiff has
singularly failed to discharge his burden to explain the suspicious
circumstance. Reliance was placed by Mr Parsurampuria on the
judgments of the Supreme Court in the cases of Jaswant Kaur Vs Amrit
Kaur,9 Benga Behera & Ors Vs Braja Kishore Nanda & Ors, 10 Bhankumar
9 1997 1 SCC 369.
10 2007 9 SCC 728.
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Vs Dashrath11 and Dhani Ram Vs Shiv Singh12 and a judgment of the
Delhi High Court in the case of Kavita Kanwar Vs State, NCT of Delhi.13
PROOF OF WILL:
38. 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.
39. Section 63 of the Act, 1925 is required to be read with Section 68
of the Indian Evidence Act, which specifies the requirements for
adducing evidence in proof of execution of a document which is
required by law to be attested. Section 68 of the Evidence Act, in terms
provides that if a document is required to be attested by law, it cannot
be used as evidence unless one attesting witness has been called for
proving the execution of the document if the attesting witness is alive.
Section 69 provides for the mode of proof of a document required to be
attested where no attesting witness can be found. Section 71 provides
11 2010 SCC OnLine SHH 95.
12 Civil Appeal No. 8172 of 2009, decided on 6 th October 2023.
13 2014 SCC OnLine Del 3399.
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that if the attesting witness denies or does not recollect the execution of
the documents, its execution may be proved by other evidence.
40. 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.
41. 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 (Supra), on which a very strong reliance was placed by Mr.
Parsurampuria, a three Judge Bench of the Supreme Court has
crystalized the propositions which govern the proof of Will, as under :
"9. In cases where the execution of will is
shrouded in suspicion, its proof ceases to be a simple
lis between the plaintiff and the defendant. What,
generally, is an adversary proceeding becomes in
such cases a matter of the Court's conscience and
then the true question which arises for consideration
is whether the evidence led by the propounder of the
will is such as to satisfy the conscience of the Court
that the will has duly executed by that testator. It is
impossible to reach such satisfaction unless the party
which sets up the will offers a cogent and convincing
explanation of the suspicious circumstances
surrounding the making of the will.
10. There is a long line of decisions bearing on
the nature and standard of evidence required to
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prove a will. Those decisions have been reviewed in
an elaborate judgment of this Court in R.
Venkatachala Iyengar v.B.N. Thirnmajamma &
Others14 The Court, speaking through
Gajendragadkar J., laid down in that case the
following positions :--
1. Stated generally, a will has to be proved like any
other document, the test to be applied being the
usual test of the satisfaction of the prudent mind in
such matters. As in the ease of proof of other
documents, so in the case of proof of wills, one
cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a
will to be attested, it cannot be used as evidence
until, as required by Section 63 of the Evidence Act,
one attesting witness at least has .been called for the
purpose of proving its execution, if there be an
attesting witness alive and subject to the process of
the court and capable of giving evidence.
3. Unlike other documents, the will speaks
from the death o[ the testator and therefore the
maker of the will is never available for deposing as to
the circumstances in which the will came to be
executed. This aspect introduces an element of
solemnity in the decision of the question whether the
document propounded is proved to be the last will
and testament of the testator. Normally, the onus
which lies on the propounder can be taken to be
discharged on proof of the essential facts which go
into the making of the will.
4. Cases in which the execution of the will is
surround- ed by suspicious circumstances stand on a
different footing. A shaky signature, a feeble mind,
an unfair and unjust disposition of property, the
14 AIR 1959 SC 443
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propounder himself taking a leading part in the
making of the will under which he receives a
substantial benefit and such other circumstances
raise suspicion about the execution of the will. That
suspicion cannot be removed by the mere assertion of
the propounder that the will bears the signature of
the testator or that the testator was in a sound and
disposing state of mind and memory at the time
when the will was made, or that those like the wife
and children of the testator who would normally
receive their due share in his estate were disinherited
because the testator might have had his own reasons
for excluding them. The presence of suspicious
circumstances makes the initial onus heavier and
therefore, in cases where the circumstances attendant
upon the execution of the will excite the suspicion of
the court, the propounder must remove all legitimate
suspicions before the document can be accepted as
the last will of the testator.
5. It is in connection with wills, the execution
of which is surrounded by suspicious circumstance
that the test of satisfaction of the judicial conscience
has been evolved. That test emphasises that in
determining the question as to whether an
instrument produced before the court is the last will
of the testator, the court is called upon to decide a
solemn question and by reason of suspicious
circumstances the court has to be satisfied fully that
the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence,
coercion etc. in regard to the execution of the will,
such pleas have to be proved by him, but even in the
absence of such pleas, the very circumstances
surrounding the execution' of the will may raise a
doubt as to whether the testa- tor was acting of his
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own free will. And then it is a part of the initial onus
of the propounder to remove all reasonable doubts in
the matter."
42. In the case of Sridevi and Ors. V/s. Jayaraja Shetty and Ors, 15 the
onus on the propounder was concisely encapsulated as under :
"14. The propounder of the Will has to show that
the Will was signed by the testator; that he was at the
relevant time in sound disposing state of mind; that
he understood the nature and effect of dispositions
and had put his signatures to the testament of his own
free will and that he had signed it in the presence of
the two witnesses who attested in his presence and in
the presence of each other. Once these elements are
established, the onus which rests on the propounder is
discharged."
43. It would be contextually relevant to note that, in the case of
Daulat Ram and Ors. V/s. Sodha and Ors.16, 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
15 (2005) 2 SCC 784
16 (2005) 1 SCC 40
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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.
44. In the case of Benga Behera (Supra) the Supreme Court observed
that existence of suspicious circumstances itself may be held to be
sufficient to arrive at a conclusion that execution of the Will has not
been duly proved.
45. In the case of Shivakumar and Ors. V/s. Sharanabasappa and
Ors.17, the Supreme Court after traversing through the relevant
decisions summerised the principles. The principles enunciated in
paragraph Nos.12.5 to 12.9 are instructive as regards the onus of proof
on the propounder to dispel the suspicious circumstances, when a
circumstance can be said to be suspicious and the illustrative cases
which may stoke such suspicion and the satisfaction of judicial
conscience of the Court. They read as under :
"12.5 If a person challenging the Will alleges
fabrication or alleges fraud, undue influence, coercion
etc. in regard to the execution of the Will, such pleas
have to be proved by him, but even in the absence of
such pleas, the very circumstances surrounding the
execution of the Will may give rise to the doubt or as to
whether the Will had indeed been executed by the
Testator and/or as to whether the Testator was acting
of his own free will. In such eventuality, it is again a
17 (2021) 11 SCC 277
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part of the initial onus of the propounder to remove all
reasonable doubts in the matter.
12.6 A circumstance is "suspicious" when it is not
normal or is 'not normally expected in a normal
situation or is not expected of a normal person'. As put
by this Court, the suspicious features must be 'real,
germane and valid' and not merely the 'fantasy of the
doubting mind.'
12.7 As to whether any particular feature or a set
of features qualify as "suspicious" would depend on the
facts and circumstances of each case. A shaky or
doubtful signature; a feeble or uncertain mind of the
Testator; an unfair disposition of property; an unjust
exclusion of the legal heirs and particularly the
dependants; an active or leading part in making of the
Will by the beneficiary thereunder etc. are some of the
circumstances which may give rise to suspicion. The
circumstances above-noted are only illustrative and by
no means exhaustive because there could be any
circumstance or set of circumstances which may give
rise to legitimate suspicion about the execution of the
Will. On the other hand, any of the circumstance
qualifying as being suspicious could be legitimately
explained by the propounder. However, such suspicion
or suspicions cannot be removed by mere proof of
sound and disposing state of mind of the Testator and
his signature coupled with the proof of attestation.
12.8 The test of satisfaction of the judicial
conscience comes into operation when a document
propounded as the Will of the Testator is surrounded
by suspicious circumstance/s. While applying such test,
the Court would address itself to the solemn questions
as to whether the Testator had signed the Will while
being aware of its contents and after understanding the
nature and effect of the dispositions in the Will?
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12.9 In the ultimate analysis, where the execution
of a Will is shrouded in suspicion, it is a matter
essentially of the judicial conscience of the Court and
the party which sets up the Will has to offer cogent and
convincing explanation of the suspicious circumstances
surrounding the Will."
(emphasis supplied)
46. Kavita Kanwar Vs Pamela Mehta & Ors18 reiterates the afore-
extracted principles in the case of Shivakumar (Supra).
47. A useful reference can also be made to a recent pronouncement
of the Supreme Court in the case of Lilian Coelho And Ors Vs Myra
Philomena Coalho,19 wherein the Supreme Court postulated that if a
Will is found not validly executed, in other words invalid owing to the
the failure to follow the prescribed procedures, then there would be no
need to look into the question whether it is shrouded with suspicious
circumstances. Even after the propounder is able to establish that the
Will was executed in accordance with the law, that will only lead to the
presumption that it is validly executed but that by itself is no reason to
canvass the position that it would amount to a finding with respect to
the genuineness of the same. In other words, even after holding that a
Will is genuine, it is within the jurisdiction of the Court to hold that it is
not worthy to act upon as being shrouded with suspicious circumstances
18 (2021) 11 SCC 209.
19 (2025) 2 SCC 633.
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when the propounder failed to remove such suspicious circumstance to
the satisfaction of the Court.
48. In the backdrop of the aforesaid exposition of law, reverting to
the appreciation of the evidence adduced by the parties, it is imperative
to first consider the material on record with regard to the due execution
and attestation of the Will, being alive to the position in law that the
finding as to the genuineness of the Will, is not be all or end all, and the
conscience of the Court must be satisfied that the testatrix had signed
the Will being aware of its contents and after understanding the nature
and effect of the dispositions thereunder.
49. Of necessity, the order of evaluation would be; the due execution
of the Will (P1) by the testatrix, the due attestation of the Will (P1) by
Bhakti (PW2) and Ravindra (PW3), whether the testatrix was in a
sound and disposing state of mind, did the testatrix understood the
contents of the Will (P1) and the nature and effect of dispositions
thereunder, are there any suspicious circumstance which surrounded
the execution and attestation of the Will (P1) and, if so, whether the
Plaintiff-propounder has succeeded in offering cogent and convincing
explanation with regard to those circumstances.
50. On the aspect of the due execution of the Will (P1), the signature
of the testatrix on the Will (P1), as such, was not put in serious contest
by the Defendants. With regard to the signature of the testatrix on the
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Will (P1), in the Affidavit in Support of the Caveat, the Defendants
contended that the signature of the testatrix on the Will (P1) did not
appear to be genuine if compared with the admitted signature on the
Will dated 28th July 1989. The signature of the testatrix appeared to be
doubtful and did not appear to be her usual signature.
51. Nothing material could be elicited, in the cross-examination of
Sudheer (PW1), Bhakti (PW2) and Ravindra (PW3), to impeach their
claim that the signature on the Will (P1) is that of the testatrix. Nor
anything could be elicited to show that the testatrix used to sign either
in a different language or fashion. Conversely, there are documents
including the Will dated 28th July 1989, the execution of which is
admitted by the Defendants, to show that the testatrix used to put
signature on the documents in an identical fashion as the signature on
the Will (P1). For instance, the supplemental Agreement dated 28 th
August 2002 to which Defendant No.1 was also a witness, the testatrix
appeared to have put identical signature. It is also necessary to note
that the testatrix appeared before the Registrar and admitted the
execution before the Registrar by putting identical signatures on
Schedule I and Schedule II.
52. As regards the sound and disposing state of mind of the testatrix,
Dr. Jain (PW4) has testified that on 7th December 2002, he had
examined the testatrix and found her in good health and sound and
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disposing state of mind. Though Dr. Jain (PW4) conceded that the
Certificate (Exhibit "P4/1") was not issued on his letter head, and that
he had signed the Certificate which was already prepared and presented
to him as a part of the Will, yet, his testimony that the testatrix was
then in a sound and disposing state of mind could not be impeached. It
is also imperative to note that apart from the contentions of the
Defendants that the testatrix was suffering from debilitating illness,
nothing material could be brought on record to show that the testatrix
was either sick or infirm at the time of the execution of the Will. The
Court also cannot loose sight of the fact that the testatrix lived for about
seven years after the execution of the Will (P1).
53. Reliance placed by Mr. Kachare on a decision of the Supreme
Court in the case of Savithri (Supra) appears to be well-placed. In the
said case, the Supreme Court, observed that the testator therein had
lived for seven years after execution of the Will, which was registered.
He could change his mind; he did not. The very fact that the testator did
not take any step for cancellation of the Will is itself a factor which the
Court may take into consideration for the purpose of upholding the
same.
54. As noted above, an endeavour was made on behalf of the
Defendants to demonstrate that the relations between the testatrix and
the Defendants were cordial even after the demise of Mahesh. Rita
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(DW1) affirmed that the testatrix used to frequently visit the house of
the Defendants. During the course of the cross-examination, Rita (DW1)
conceded that they were residing at B-3 on the third floor of Mugdha
Apartment, Boriwali (West), and the said building had no lift facility. If
it was the case that the testatrix used to visit the house of the
Defendants at Boriwali by climbing up three stairs, the challenge to the
physical fitness and mental alertness of the testatrix must fail.
55. The situation which thus emerges is that on the strength of the
testimony of Bhakti (PW2) and Ravindra (PW3) coupled with the
evidence of Dr. Jain and the attendant circumstances, an inference
about the execution of the Will (P1) and the attestation thereof by
Bhakti (PW2) and Ravindra (PW3) may be drawn. It could be urged
that testimony of Bhakti (PW2) and Ravindra (PW3) is sufficient to
establish the factum of due execution and attestation of the Will.
Likewise, the sound and disposing state of mind of the testatrix, in the
light of the time lag from the execution of the Will (P1) dated 7 th
December 2002 and the death of the testatrix on 1 st September 2009, in
absence of any material to show to the contrary, has also been proved.
These factors, by themselves, are not sufficient to satisfy the conscience
of the Court. If there are suspicious circumstances, it is trite, suspicion
cannot be removed by mere proof of sound and disposing state of mind
of the testatrix and her signature on the Will coupled with the proof of
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attestation. If there are suspicious circumstances, the onus rests on the
Propounder to offer cogent and convincing explanation of the
suspicious circumstances surrounding the Will.
56. This takes me to the crucial aspect; whether Bhakti (PW2) and
Ravindra (PW3) witnessed the due execution of the Will (P1), in the
sense that the testatrix knew and understood that what she was
executing was a Will (P1) and also the contents thereof and dispositions
thereunder. The thrust of the submissions on behalf of the Defendants
was on the inconsistency in depositions of Bhakti (PW2) and Ravindra
(PW3), and the improvement made by Bhakti (PW2) by filing a further
Affidavit in lieu of examination-in-chief.
57. Mr. Parsurampuria would urge that if the first Affidavit in lieu of
examination-in-chief dated 15th December 2011 and the second
Affidavit dated 23rd December 2014, are perused, the stark
improvement in the version of Bhakti (PW2) with regard to the
execution and attestation of the Will (P1) becomes self-evident. In the
first Affidavit, the place of execution of the Will was at the office of the
Sub-Registrar at Bandra, the date on which the Bhakti (PW2) attested
the will does not find mention nor there is a reference to the presence
of Mr. Raul, who purportedly explained the contents of the Will to the
testatrix.
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58. The second Affidavit in lieu of examination-in-chief purports to
fix both the place and the date of the execution of the Will (P1) and the
fact that Mr. Raul was present when the purported Will (P1) was
supposedly executed and Mr. Raul read over and explained the contents
of the Will (P1) to the testatrix. On the next date, the Will was
purportedly registered at the office of the Sub-Registrar, Bandra.
59. Mr. Parsurampuria would urge, to fill in the lacuna in the
Plaintiffs' case, which became evident after the cross-examination of
Sudheer (PW1), namely, the deceased could not read or write English,
in which language and character the Will (P1) has been drafted, Bhakti
(PW2) filed a fresh Affidavit in lieu of examination-in-chief. There is no
explanation for such material improvement in the two versions in the
first and the second Affidavit in lieu of examination-in-chief.
60. In the case at hand, the suspicion principally surrounds around
three factors. First, the date of the execution of the Will (P1). Second
the place at which the Will (P1) was executed. Third, and most crucial,
whether the testatrix knew and understood the contents of the Will (P1)
and the dispositions thereunder.
DATE OF EXECUTION OF THE WILL (P1):
61. Evidently, there are two dates in the body of the Will (P1). In the
first paragraph the date "7th" and month "Dec" are inserted in
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handwriting. On the second page of the Will (P1), above the execution
clause, the date "10th" and month "December" have been inserted in
handwriting. Both the dates appear to have been inserted by two
different writers and in different ink. The Will (P1) was apparently
registered on 11th December 2002 with an endorsement that the Will
was executed on 10th December 2002. Is there any material to resolve
the discrepancy in the date of the execution of the Will (P1)?
62. Recourse to the evidence of Bhakti (PW2) and Ravindra (PW3) is
indispensable. In the first Affidavit in lieu of examination-in-chief,
Bhakti (PW2) did not depose to the date on which the Will (P1) was
executed. Instead Bhakti (PW2) deposed that in one of her visits to the
house of the testatrix, the latter had told her that the testatrix had
prepared a Will and asked her to attend the office of the Sub-Registrar
at Bandra to act as a witness. From the tenor of the evidence of Bhakti
(PW2) in the Affidavit dated 15th December 2011, it becomes evident
that the Will (P1) was executed and registered on one and the same day
at the office of the Sub-Registrar at Bandra.
63. In the further Affidavit Bhakti (PW2) makes amends. Bhakti
(PW2) asserts she had visited the residence of the testatrix on 10 th
December 2002 and the Will (P1) was executed on that day in the
presence of Ravindra (PW3) and Mr. Raul. Bhakti (PW2) further added
that Mr. Raul had explained and interpreted the Will (P1) to the
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testatrix in Marathi and thereafter testatrix had put signature on the
Will and she and Ravindra (PW3) attested the same.
64. Indeed, there is material departure in the further Affidavit in lieu
of examination-in-chief of Bhakti (PW2) from her initial version. First, a
specific date of execution of the Will (P1), i.e., 10 th December 2002.
Second, the place of execution of the Will (P1), i.e., the residence of the
testatrix. Third, the reading over and explanation of the contents of the
Will (P1) drafted in English language and character to the testatrix in
Marathi by Mr. Raul.
65. Could Bhakti (PW2) offer a satisfactory explanation regarding
departure from her earlier version?.
66. When confronted with the said aspect of the matter, Bhakti
(PW2) replied that as all had happened a long time ago, and she had
explained the incidents to the lawyer as she could recollect. It would be
contextually relevant to note that this Court also gave an opportunity to
Bhakti (PW2) to explain the patent contradictions in paragraphs 4 and
5 Bhakti's (PW2) first Affidavit and paragraph 5 of her further Affidavit
dated 23rd December 2014. The Court questions and answers thereto
deserve extraction:
84. To Court (Shown paragraphs 4 and 5 of the witness's affidavit
dated 15th December 2011 and paragraph 5 of her
further affidavit dated 23rd December 2014. The
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contents of these two paragraphs are explained to
the witness by the Official Interpreter and the Court
Associate in Marathi. There is a material and patent
contradiction in these two paragraphs as to the
events of 10th/11th December 2002. In fairness to
the witness, she must be afforded an opportunity to
explain)
You have been explained the differences in these
paragraphs of these two affidavits. Which of these
affidavits is correct?
Ans. The second affidavit is correct.
85. To Court How did you come to make such a mistake in your
first affidavit?
Ans. I cannot explain.
Witness volunteers: I have signed the document.
Some of the details I cannot readily recall after so
many years.
67. Keeping in view the aforesaid explanation of Bhakti (PW2), the
manner in which she fared in the cross-examination deserves to be
appreciated. On the aspect of the date of visit to the office of the Sub-
Registrar, (without showing the Will (P1) to the witness), Bhakti (PW2)
asserted that she had visited the said office on 10th December 2002.
68. Bhakti (PW2) blamed her memory to state the year or month in
which the testatrix had informed her that she wished to execute a Will
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and the date on which the testatrix had prepared the Will (P1). To a
pointed question whether testatrix had told her to attend the Sub-
Registrar office on the vary day the testatrix had informed her that the
Will was prepared, Bhakti (PW2) answered that, it was on a later date.
Bhakti (PW2) stated she could not recollect that date (Question Nos. 33
and 34).
69. Ravindra (PW3), on his part, deposed in line with the first
Affidavit in lieu of examination-in-chief of Bhakti (PW2). His testimony
indicates that on the instructions of the testatrix he attended the office
of the Sub-Registrar at Bandra and the Will (P1) was executed and
registered thereat. Like Bhakti (PW2)'s initial version, Ravindra (PW3)
does not disclose the date on which the Will (P1) was executed.
70. Ravindra (PW3) also blamed his memory to state as to when the
testatrix had apprised him that she intended to execute a Will and had
prepared the Will. Ravindra (PW3) expressed his inability to explain as
to why two different dates were mentioned in the Will (P1) and who
had written those two different dates on the Will (P1).
71. The evidence of both Bhakti (PW2) and Ravindra (PW3) on the
aspect of the date of the execution of the Will (P1) is plainly
unsatisfactory. In their Affidavit in lieu of examination-in-chief both the
witnesses had not disclosed the date of execution of the Will. Nor
during the course of their cross-examination they could state the precise
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dates on which the testatrix has initially made known her intent to
execute the Will, factum of preparation of the Will and the execution
thereof.
72. The confusion regarding the date of the execution of the Will
(P1) is further confounded by the testimony of Dr. Jain (PW4). Dr. Jain
affirmed that he had put the date appearing in the first paragraph of the
Will (P1). When called upon to explain the reason for putting a date on
the Will (P1), when he was supposed to certify the fitness of the
testatrix, Dr Jain attempted to wriggle out of the situation by asserting
that he was not aware that he should not have put the date on the Will
(P1). At the same time, Dr Jain expressed his inability to state as to who
had written the date "10th December" on the second page of the Will
(P1). It is not the case of Dr. Jain that when he had certified the fitness
of the testatrix, the latter had already executed the Will (P1). If that be
the case, the insertion of the date by Dr. Jain on the first page of the
Will (P1), without filling in the date of execution of the Will, is
inexplicable.
73. Mr. Kachare, the learned Counsel for the Plaintiff would urge that
inability of the witnesses to state the date of execution and attestation
of the Will after a long lapse of time, does not erode the evidentiary
value of their testimony. Mr. Kachare placed reliance on the decision of
the Supreme Court in the case of Indu Bala Bose (Supra) wherein the
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Supreme Court in the context of the suspicious circumstances pressed
into service, in that case, had observed that, it may be remembered that
the witness were deposing 13 years after the execution of the Will. It
will be difficult for any witness after such a long lapse of time to give
the dates when the testator went to the house of his lawyer or when the
draft was given by the lawyer to the testator or when the testator sent
for the lawyer for correction of the draft.
74. It is true, where the witnesses are called upon to depose after
years of the execution and attestation, it would be rather harsh to
expect the witnesses to state the precise dates. However, where the
testamentary instrument itself contains two different dates and the
witnesses initially do not state the date of execution and attestation of
the Will, the discrepancy cannot be explained away by submitting that
the witnesses would not be in a position to state the exact dates after a
number of years. In the facts of the case, this discrepancy in the date of
the execution of the Will (P1), unless satisfactorily accounted for,
throws a cloud of doubt over the very factum of execution and
attestation of the Will (P1).
PLACE AT WHICH THE WILL WAS EXECUTED:
75. As is evident, if the Affidavits in lieu of examination-in-chief of
Bhakti (PW2) and Ravindra (PW3) are appreciated, the witnesses were
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in unison on the point that the Will (P1) was executed in the office of
the Sub-Registrar at Bandra. There is no reference, even remotely to the
execution of Will (P1) at a point of time anterior to the registration of
the Will (P1). Both were in unison on the point that the testatrix asked
them to attend the office of the Sub-Registrar at Bandra and the
testatrix executed the Will (P1) in their presence at the said place and
thereafter attested the Will (P1). It is interesting to note that though
Bhakti (PW2) filed a further Affidavit in lieu of examination-in-chief
and made a significant departure therein, as noted above, the testimony
of Ravindra (PW3) remained intact. It does not seem that Ravindra
(PW3) filed a further Affidavit adverting to the date and place of the
execution of the Will (P1), like Bhakti (PW2). Nor the intrinsic evidence
of the testamentary instrument (P1) gives any indication as to the place
at which the Will (P1) was executed.
76. Apparently, there is a disconnect in the testimony of Bhakti
(PW2) and Ravindra (PW3) as regards the place of execution of the Will
(P1), though they both assert that they had attested the Will (P1) in the
presence of the testatrix as well as in each other's presence. There is no
evidence which resolves the discrepancy as to the place of execution of
the Will (P1). It would be contextually relevant to note that despite an
opportunity to explain the discrepancy as regards her versions in the
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two Affidavits in lieu of examination-in-chief, Bhakti (PW2) could not
furnish a satisfactory account.
WHETHER THE TESTATRIX KNEW THE CONTENTS OF THE WILL
(P1):
77. The place at which the Will (P1) was executed also significantly
bears upon the knowledge of the testatrix as to the contents of the Will
(P1) and the dispositions thereunder.
78. The Will (P1) is in English language and character. In the Will
(P1), there is an endorsement, "SIGNED by he above named Testatrix
after the same has first read over explained and interpreted to her in
Marathi in our Presence at the same time and both of us have in the
presence and under the directions of the Testatrix Signed our names
hereunder as attesting witnesses."
79. The aforesaid endorsement implies that the testatrix did not
know English and the contents of the Will (P1) were read over and
explained and interpreted to the testatrix in Marathi, in the presence of
the attesting witnesses, Bhakti (PW2) and Ravindra (PW3). Who read
over, explained and interpreted the Will (P1) to the testatrix in Marathi?
80. Before exploring an answer to the aforesaid question which bears
upon the satisfaction of the pivotal aspect as to whether the testatrix
fully knew and understood the contents of the Will and nature and
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effect of the dispositions thereunder, it may be appropriate to note the
evidence as regards the situation in life of the testatrix.
81. At this juncture, the testimony of Sudheer (PW1), the
propounder, assumes critical salience. Sudheer (PW1) conceded in the
cross-examination that the testatrix had studied up to the 7 th standard
in Marathi medium. She used to write and communicate in Marathi.
Apart from Marathi, she understood Hindi. Sudheer (PW1) candidly
admitted that the testatrix could not read, or write in, English. Probed
further Sudheer's reply was as under:
Q. 19 Would it be correct to say that your mother did not
understand anything if it was read out to her in English
language?
And: Yes.
Witness volunteers: She did not understand the English language but
she could understand what was being read out to her.
Q. 20 If she was able to understand what was being read out to her,
why was it necessary to explain the contents of the
correspondence, etc. to her again in Marathi language?
Ans: She could not understand fully what were the contents of the
letter, but she could understand the meaning.
82. The aforesaid evidence is required to be appreciated in the light
of the fact that the Will (P1) contains a clear and unequivocal
endorsement that the contents of the Will were read over, explained and
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interpreted to the testatrix in Marathi. It thus become abundantly clear
that the testatrix could not have read and understood the contents of
the Will (P1), on her own, unless they were read over and explained to
her in the language she understood, i.e., Marathi.
83. Mr. Kachare attempted to salvage the position by canvassing a
submission that the testatrix was a partner in a partnership firm which
entered into transactions in relation to real estate development. The
testatrix had executed a number of documents along with the Plaintiff
and deceased Mahesh. Even the Will dated 20 th July 1989, which the
Defendants do not dispute, was executed in English language and
character. Therefore, according to Mr. Kachare, the contention that the
testatrix did not understand English is devoid of any substance. To this
end Mr. Kachare invited the attention of the Court to the Will dated 20 th
July 1989, the supplemental Agreement dated 28 th August 2002
referred to above, to which Rita (DW1) was an attesting witness, the
registered Power of Attorney dated 19 th March 1999 (Exhibit "P5")
executed by the testatrix in favour of the Plaintiff and the Deed of
Dissolution of Partnership dated 4th May 1995, which is the subject
matter of challenge in the Suit instituted by the Defendants, being Suit
No. 3149 of 2008, against the testatrix and others. All of these
documents are in English and have been executed by the testatrix in
Marathi. Therefore, according to Mr. Kachare, the challenges which the
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testatrix allegedly faced, on account of not being conversant with
English, were also associated with those documents and, yet, the
Defendants rely upon few of those documents, especially the Will dated
20th July 1989.
84. I am unable to persuade myself to accede to the aforesaid
submission of Mr. Kachare. The submission looses sight of the peculiar
nature of the testamentary instrument and the duty of the testamentary
Court to satisfy its conscience that the testatrix fully knew and
understood the contents of the Will and the nature and effect of the
dispositions thereunder. The knowledge about the contents of the
particular testamentary instrument sought to be imputed to the testatrix
on the basis of the previous instruments inter-vivos or testamentary,
does not merit acceptance. Not only the instruments but also the
situations stand on different footings. It would be a fallacious to draw
an inference that since the testatrix was a party to earlier instruments
executed in English, the testatrix also knew the contents of the Will (P1)
though she did not know and understand English
85. At this stage, the departure in the version of Bhakti (PW2)
becomes significant. The identity of the person who allegedly read over
and explained the contents of the Will (P1) to the testatrix in Marathi
was disclosed in the further Affidavit of Bhakti (PW2), filed on 23 rd
December 2014. The cross-examination of Sudheer (PW1), during the
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course of which the aforesaid admissions regarding inability of the
testatrix to read or write English were elicited, was recorded on 13 th
August 2014. The omission to name Mr. Raul, the person who read over
and explained the contents of the Will (P1) in the Affidavit of Bhakti
(PW2) dated 15th December 2011, therefore, cannot be said to be
immaterial or inconsequential. The improvement as regards date of the
execution of the Will (P1) and the persons in whose presence the Will
(P1) was executed, especially the introduction of the character of Mr.
Raul, as the person who explained and interpreted the Will (P1),
deserves appreciation in the aforesaid backdrop.
86. Interestingly, Ravindra (PW3) did not depose to either the
presence of Mr. Raul when the testatrix executed the Will or the fact
that Mr. Raul had read over and explained the contents of the Will (P1)
to the testatrix. On the contrary, Ravindra (PW3) stated that on the date
he claimed to have visited the house of the testatrix to witness the
execution of the Will (P1), his sister Mrs. Laila Sudheer Dadarkar, the
wife of Sudheer (PW1) was present.
87. It is not the case that the attesting witness Bhakit (PW2) and
Ravindra (PW3) attested the execution of the Will (P1) at different
points of time. Both were firm on the point that the testatrix executed
the Will in their presence and they attested the Will in each other's
presence. It is also imperative to note that neither Bhakti (PW2) nor
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Ravindra (PW3) claimed to have read over and explained the contents
of the Will (P1) to the testatrix.
88. The situation which thus emerges is that save and except a stark
improvement in the version of Bhakti (PW2) that Mr. Raul read over
and explained the contents of the Will (P1), there is no
contemporaneous material to demonstrate that Mr Raul was present at
the time of the execution of the Will (P1) and he had read over and
explained the Will (P1) to the testatrix. Thus, there is substance in the
submission of Mr. Parsurampuria that Mr. Raul was brought in the
frame to tide over the difficulty in proving the Will on account of the
admissions in the cross-examination of Sudheer (PW1).
89. Mr. Kachare, the learned Counsel for the Plaintiff, submitted that
there is unimpeachable evidence of the registration of the Will, on 11 th
December 2002. Both the attesting witnesses have categorically stated
that the Registrar had read over the contents of the Will (P1) to the
testatrix. She had admitted the correctness thereof and thereafter the
Will (P1) came to be executed and attested.
90. The aforesaid version of the attesting witness does not find
support in the intrinsic evidence of the Will (P1). There is no
endorsement that the Registrar had read over, explained and interpreted
the contents of the Will to the testatrix. Nor the concerned official from
the Sub-Registrar's office was examined to substantiate the said claim.
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In the absence of such evidence, it would be a matter of surmise and
conjecture that the Registrar might have read over, explained and
interpreted the contents of the Will (P1) to the testatrix.
91. The registration of the Will (P1) may give rise to the presumption
that the particulars contained in the endorsement of the registration
were regularly performed and duly recorded. But where there is
material to show that the testatrix did not know and understand the
language in which the Will (P1) is written, in the absence of positive
evidence that the contents of the Will (P1) were read over and
explained to the testatrix, mere registration of the Will (P1) cannot be
pressed into service as the proof of the fact that the testatrix knew and
understood the contents of the Will.
92. In the case of Pentakota Satyanarayana (Supra), on which
reliance was placed by Mr. Kachare, the Supreme Court observed, inter
alia, as under:
"24. ........ It is true that registration of the Will does
not dispense with the need of proving, execution and
attestation of a document which is required by law to be
proved in the manner as provided in Section 68 of the
Evidence Act. The Registrar has made the following
particulars on Ex.B-9 which was admitted to
registration, namely, the date, hour and place of
presentation of document for registration, the signature
of the person admitting the execution of the Will and the
signature of the identifying witnesses. The document
also contains the signatures of the attesting witnesses
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and the scribe. Such particulars are required to be
endorsed by the Registrar along with his signature and
date of document. A presumption by a reference to
Section 114 of the Evidence Act shall arise to the effect
that particulars contained in the endorsement of
registration were regularly and duly performed and are
correctly recorded. In our opinion, the burden of proof
to prove the Will has been duly and satisfactorily
discharged by the appellants. The onus is discharged by
the propounder adducing prima facie evidence proving
the competence of the testator and execution of the Will
in the manner contemplated by law. In such
circumstances, the onus shifts to the contestant opposing
the Will to bring material on record meeting such prima
facie case in which event the onus shift back on the
propounder to satisfy the court affirmatively that the
testator did know well the contents of the Will and in
sound disposing capacity executed the same."
(emphasis supplied)
93. The registration of the Will may be one of the circumstances
which may lend credence to the case of the propounder. However, it is
well neigh settled that registration of the Will does not dispense with
the proof of due execution and attestation of the Will.
94. A useful reference, in this context, can be made to a decision of
the Supreme Court in the case of Rani Purnima Debi and another vs.
Kumar Khagendra Narayan Deb and another, 20 wherein the Supreme
Court enunciated the law as under:
20 AIR 1962 SC 567.
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"23. There is no doubt that if a will has been
registered, that is a circumstance which may, having
regard to the circumstances, prove its genuineness. But
the mere fact that a will is registered will not by itself be
sufficient to dispel all suspicion regarding it where
suspicion exists, without submitting the evidence of
registration to a close examination. If the evidence as to
registration on a close examination reveals that the
registration was made in such a manner that it was
brought home to the testator that the document of
which he was admitting execution was a will disposing
of his property and thereafter he admitted its execution
and signed it in token thereof, the registration will dispel
the doubt as to the genuineness of the will. But if the
evidence as to registration shows that it was done in a
perfunctory manner, that the officer registering the will
did not read it over to the testator or did not bring home
to him that he was admitting the execution of a will or
did not satisfy himself in some other way (as, for
example, by seeing the testator reading the will) that the
testator knew that it was a will the execution of which
he was admitting, the fact that the will Was registered
would not be of much value. It is not unknown that
registration may take place without the executant really
knowing what he was registering. Law reports are full of
cases in which registered wills have not been acted
upon: (see, for example, Vellasaway Sarvai v. L.
Sivaraman Servai, (ILR 8 Rng 179: (AIR 1930 PC 24),
Surendra Nath v. Jnanendra Nath (AIR 1932 Cal 574)
and Girji Datt Singh v. Gangotri Datt Singh (S) (AIR
1955 SC 346). Therefore, the mere fact of registration
may not by itself be enough to dispel all suspicion that
may attach to the execution and attestation of a will;
though the fact that there has been registration would
be an important circumstance in favour of the will being
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genuine if the evidence as to registration establishes that
the testator admitted the execution of the will after
knowing that it was a will the execution of which he was
admitting."
(emphasis supplied)
95. On the aforesaid touchstone if the evidence in the case at hand is
appreciated, it would be rather difficult to draw an inference that the
registration of the Will in question establishes that the testatrix
admitted the execution of the Will after knowing the nature and
contents of the Will (P1) and the nature and effect of the dispositions
therein.
96. Mr. Kachare, the learned Counsel for the Plaintiff would urge that
the aforesaid aspects are required to be considered as a whole in the
context of the strained relations between the parties. Amplifying the
submission, Mr. Kachare would urge, Mahesh was given in to the voice
of drinking liquor. Mahesh was instrumental in freezing of the joint
account No. SB 18756 maintained with Janseva Sahakari Bank Ltd of
the testatrix. Sudheer (PW1) deposed to the fact that Mahesh objected
to the philanthropical work of the testatrix. Therefore, the testatrix
disinherited Mahesh. Moreover, there is evidence to indicate that the
Defendants did not attend the funeral of the testatrix. In the intervening
period the Defendants have instituted a Suit bearing Suit No. 3149 of
2008 against the testatrix and others. Thus the challenge to the Will
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(P1) on the ground that the disposition thereunder is unnatural and
unfair is without any substance.
97. In the case of Ramabai Padmakar Patil (Supra) on which reliance
was placed by Mr. Kachare, it was enunciated that a Will is executed to
alter the mode of succession and by the very nature of the things it is
bound to result in either reducing or depriving the share of a natural
heir. If a person intends his property to pass to his natural heirs, there is
no necessity at all of executing a Will. It is true that a propounder of the
Will has to remove all suspicious circumstances. Suspicion means doubt,
conjecture or mistrust. But the fact that the natural heirs have either
been excluded or a lesser share has been given to them by itself,
without anything more, cannot be held to be a suspicious circumstance,
especially in a case where the bequest has been made in favour of an
offspring.
98. There can be no duality of opinion on the point that mere
exclusion of the natural heirs or giving of a relatively lessor share to one
heir qua another, by itself, is not a suspicious circumstance, especially
when the bequest has been made in favour of an offspring. A useful
reference in this context can be made to the decision of the Supreme
Court in the case of Uma Devi Nambiar & Ors Vs T.C. Sidhan (Dead) 21
wherein the Supreme Court enunciated the law as under:
21 (2004) 2 SCC 321.
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" Will is executed to alter the ordinary mode of succession and by
the very nature of things, it is bound to result in either reducing or
depriving the share of natural heirs. If a person intends his
property to pass to his natural heirs, there is no necessity at all of
executing a Will. It is true that a propounder of the Will has to
remove all suspicious circumstances. Suspicion means doubt,
conjecture or mistrust. But the fact that natural heirs have either
been excluded or a lesser share has been given to them, by itself
without anything more, cannot be held to be a suspicious
circumstances especially in a case where the bequest has been
made in favour of an offspring. As held in P.P.K. Gopalan Nambiar V
P.P.K. Balakrishnan Nambiar and Ors (AIR 1995 SC 1852) it is the
duty of the propounder of the Will to remove all the suspected
features, but there must be real, germane and valid suspicious
features and not fantasy of the doubting mind. It has been held
that if the propounder succeeds in removing the suspicious
circumstance, the Court has to give effect to the Will, even if the
Will might be unnatural in the sense that it has cut off wholly or in
part near relations. (See Puspavati and Ors. v. Chandraja Kadamba
and Ors. (AIR 1972 SC 2492). In Ravindra Nath Mukherjee And
Anr V Panchanan Banerjee (Dead) by LRs and Ors (1995 (4) SCC
459), it was observed that the circumstance of deprivation of
natural heirs should not raise any suspicion because the whole
idea behind execution of the Will is to interfere with the normal
line of succession and so, natural heirs would be debarred in every
case of Will. Of course, it may be that in some cases they are fully
debarred and in some cases partly.
99. This position in law would not, however, advance the case of the
Plaintiff. Had the Plaintiff succeed in establishing that the testatrix
executed the Will (P1), after fully understanding the contents thereof
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and the nature and effect of disposition thereunder, and the challenge
to the legality and validity of the Will (P1) was restricted to unnatural
and unfair dispositions thereunder, the evidence of strained relations
between the parties would have furnished a justification for the
exclusion of Mahesh from the bequest. However, where the propounder
fails to satisfy that the testatrix knew and understood the contents of
the Will (P1) and the dispositions thereunder, the strained relations of
the testatrix with the heirs, who have been excluded from the estate,
cannot be pressed into service in the proof of the Will (P1), as such.
100. It is also imperative to note that the the Suit was instituted by the
Defendants after the demise of Mahesh. At that stage, it appeared a
wedge was already driven. However, the Will (P1) was executed in the
year 2002 much before the death of Mahesh.
101. The upshot of the aforesaid consideration is that as a
testamentary Court, this Court has to satisfy its conscience that the
testatrix had fully knew and understood the contents of the Will (P1)
and the nature and effect of the dispositions therein.
102. In the face of clear evidence to show that the testatrix could not
read, or write in, English and, conversely, the absence of positive
evidence to show that the contents of the Will (P1) were explained to
the testatrix, it would be hazardous to record a satisfaction that the
testatrix fully knew and understood the contents of the Will. The
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evidence on record does not induce the necessary assurance that the
contents of the Will (P1) were read over and explained to the testatrix
in Marathi and she knew and understood the contents of the Will (P1)
and the nature and effects of the dispositions thereunder.
103. I am, therefore, inclined to answer Issue Nos.1 and 2 in the
negative and Issue No.3 in the affirmative.
104. Resultantly, the Suit deserves to be dismissed.
105. Hence the following order:
: O R D E R :
(i) The Suit, and consequently, the
Petition, stand dismissed.
(ii) In the circumstances of the case, the
parties shall bear their respective costs.
(iii) Decree be drawn accordingly.
[N. J. JAMADAR, J.]
