Shanta Chatterjee vs Avijit Chatterjee (Since Deceased)

sbw TS-67-97.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION

TESTAMENTARY SUIT NO. 67 OF 1997 IN TESTAMENTARY PETITION NO. 360 OF 1995

Ms. Shanta Chatterjee alias Shanta Ashok Tolat residing at 509, Satyagraha Chhavani, Ahmedabad-380 054. ...Plaintiff vs. Avijit Chatterjee (since deceased) 1(a) Ashim Chatterjee residing at 1st floor, Pushpanjali Building, 290 Veer Savarkar Marg, Dadar (West), Mumbai-400 028.

1(b) Anouk Chatterjee residing at 509, Capri Building, Raheja Exotice Ocean City, Madh Island, Malad (West), Mumbai - 400 061. ...Defendants

Mr. H. S. S. Murthy i/b. Mr. Abhishek Patil for the Plaintiff. Mr. V. Y. Sanglikar a/w.Ms. Vaishali Ugle for the Defendant.

CORAM : A.K. MENON, J.

RESERVED ON : 18th OCTOBER, 2019

PRONOUNCED ON : 13th FEBRUARY, 2020.

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JUDGMENT:

1. The suit is the result of a challenge to a writing said to be the last Will

and testament of late Mr. Tarapada Chatterjee, a widower. The deceased's

wife Ruby Chatterjee predeceased him on 3 rd September, 1983 and the

deceased had two children one daughter Ms. Shanta Chatterjee alias Shanta

Ashok Tolat who is the plaintiff and son Mr. Avijit Chatterjee who filed the

caveat.

The pleadings, in brief reveal the facts set out below:-

2. The deceased Mr. Tarapada Chatterjee died on 24 th August, 1990 at

Mumbai. He was a resident of 32-A, Jaldarshan, Nepeansea Road, Mumbai-

400 036 and left movable and immovable properties in the States of

Maharashtra, West Bengal, Tamil Nadu and in Union Territory. According to

the plaintiff, the deceased left behind a Will said to have executed on 21 st

March, 1989. The plaintiff claims to be the sole beneficiaries and has filed

Testamentary Petition No. 360 of 1995 seeking probate of the Will, since no

executor was appointed.

3. The Caveat filed by the defendant is supported by affidavit dated 4 th

August, 1997 in which the defendant has contended that the Will dated 21 st

March, 1989 is not an authentic document. The defendant states that

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citation was served on him belatedly on 23 rd July, 1997. Since the plaintiff

and the defendant are the only legal heirs of late Tarapada Chatterjee, the

defendant claims he is entitled to half share in the estate of his father.

According to the defendant his father died intestate, had never made a Will

and the document which is produced as the Will does not bear his father's

signature. He further states that the plaintiff at no point of time ever

mentioned him of the existence of a Will of their father. The defendant has

filed Suit no. 852 of 1995 in this Court for administration of estate and

obtained ad-interim order appointing Court Receiver on 5 th April, 1995.

Even at that time there was no mention of any Will, though petitioner was

represented by an Advocate. Based on the aforesaid, the following issues were

settled on 6th January, 2011 :

(1) Whether the last Will and Testament of the deceased

Tarapada Chatterjee was validly executed ?

(2) What relief, if any, the Plaintiff is entitled to ?

4. The will is said to have been attested by one Sandeep Dave and Dr.

Nari N. Kriplani. Sandeep Dave (PW-1) as one of the attesting witnesses was

examined and cross examined. He has filed an affidavit in lieu of examination

in chief dated 30th November, 2007. The plaintiff also examined Hemant

Vishnu Prabhu, Manager of Jaldarshan CHS Ltd. (PW-2) wherein the

deceased was a member and owned a flat. Mr. Jatinder Kumar Sethi was the

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third witness (PW-3). He was a resident of Jaldarshan CHS Ltd. and a

member of the managing committee who has also deposed in support of the

plaintiff. Lastly, the plaintiff examined Dilip Pralhad Ahiwale, a forensic

examiner of documents (PW- 4). All these witnesses were cross examined by

Mr. Sanglikar. The original defendant-Caveator (since deceased) was the first

witness (DW-1) He filed his affidavit in lieu of examination-in-chief dated

23rd March, 2015. The original defendant expired on or about 23 rd August,

1990 and the heirs of the original defendant are on record. The second

witness was the son of the defendant who filed his affidavit dated 12 th

January, 2017 (DW-2). In support of the challenge to the Will defendants

also examined Hiral A. Mehta, a handwriting expert who filed her affidavit

on 27th May, 2017(DW-3). One Vijaysudha Talwar was also examined by

the defendant (DW-4). Her affidavit is dated 7 th December, 2017.

5. In support of the plaintiffs case, Mr. Murthy submitted that the Will is

genuine and that the testator had executed the same of his own free will. Mr.

Murthy submitted that the plaintiff being the daughter of the deceased had

been staying with him throughout her life. She had looked after her parents

including her late mother and the deceased. Mr. Murthy further submitted

hat the plaintiffs dedication was such that she did not even marry for long

years and that enabled her to look after her parents despite the fact that she

was employed.

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6. The original defendant no.1 on the other hand was never close to his

parents. According to him defendant was so engaged in his career that since

his school days he had ignored his parents. Mr. Murthy submitted that

defendant no.1 has always studied in boarding schools and was never close to

his parents. The defendant was not aware of the various health issues of the

parents. He submitted that the evidence, in particular the cross examination

of the defendant would establish that he was unaware of the state of affairs at

his parents home. Between 1965-1969 the defendant was a student in Delhi.

He had attended college in Delhi soon after he started working out of Thane

from there he moved to Chennai (earlier known as Madras) He was later

transferred from Chennai to Gomia in Bihar then towards Hyderabad and

back to Chennai. He was briefly in Mumbai after his marriage in the year

1970 but never stayed at the parental home. He stayed separately with his

wife and family. His parents were not present for his marriage though the

marriage took place in Mumbai, yet he has contended that he was very close

to the deceased.

7. Mr. Murthy sought to demonstrate from the evidence that the

defendant never bothered to stay in touch with his parents and in particular

with the deceased. When his mother died the defendant did not attend the

funeral claiming that he was working in a remote area. He submitted that the

defendant was unaware of the medical problems that his parents had suffered 5/81 ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 05:51:13 ::: TS-67-97.odt

and never bothered to look after them in their time of need. The defendant

had been contending that the plaintiff had spread rumors that the defendant

did not have good relations with his parents. Inviting my attention to the

documents on record, he submitted that the plaintiff had all along kept the

defendant informed of the state of health of their parents and the treatment

that they were undergoing. The plaintiff had faithfully looked after the

parents and the Will was a natural consequence of the love and affection that

the deceased had for his daughter.

8. On the other hand, the defendant was distant in his emotional

relationship with the parents and his physical presence. The defendant has

merely objected to the Will to seek benefits from the property Mr. Murthy

submitted that the plaintiff had acted in a selfless manner and to the

knowledge of the defendant she had discharged the responsibility of looking

after their parents. He therefore submitted that the suit is liable to be decreed

in favour of the plaintiff and the caveat discharged.

9. Mr. Murthy invited my attention to the evidence of Mr. Sandeep Dave,

PW-1 and submitted that perusal of the deposition would clearly establish

that the Will stands proved since PW-1 was the only available attesting

witness, the second attesting witness Dr. Kriplani having passed away. Mr.

Murthy submitted that there is nothing suspicious about the deceased

executing the Will. It was only natural that the plaintiff being the daughter 6/81 ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 05:51:13 ::: TS-67-97.odt

and who had looked after the deceased being the beneficiary under the Will.

The plaintiff was already the nominee in the records of the co-operative

society housing the flat. The fact that the nomination had been made is

evident from the deposition of PW-2 Hemant V. Prabhu.

10. The next witness examined in support of the plaintiffs case was

Jatinder Kumar Sethi (PW-3) followed by the forensic examiner Dilip

Ahiwale (PW-4). According to Mr. Murthy in order to avoid any doubt and

in the light of the defendant's contention that the Will was not signed by the

deceased, the plaintiff had taken the precaution of examining a very

experienced forensic document examiner who was formerly a Chief State

Examiner of Documents C.I.D. Crime. Mr. Murthy further submitted that the

forensic examiner PW-4 Ahiwale was further examined on 23 rd July, 2014

and extensively cross examined on behalf of the defendant. Commenting

on the evidence led on behalf of the defendant, Mr. Murthy submitted that the

defendant in his affidavit dated 23 rd March, 2015 (page 164) had deposed

that the defendant died intestate and that the Will was a bogus document. He

has admitted that he has been staying away from Mumbai but contended that

his relationship with his father was extremely cordial. He claimed that the

deceased had stayed with the defendants family for a long duration in

Hyderabad and Chennai but that is far from the truth. Mr. Murthy submitted

that there is absolutely no evidence of the deceased having stayed at

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Hyderabad and in Chennai. The deceased had only sought to prevent the

plaintiff from benefiting under the Will. He had filed a Suit for

administration of the estate in February 1995 and had taken up the

contention that the plaintiff had not disclosed existence of the Will, if any,

to the defendant, till after the filing of the Suit and passing off an ad-interim

order. According to Mr. Murthy the defendant had made incorrect statements

that the deceased had spent more time with the defendant and his family

than at Mumbai with the plaintiff who has emotionally blackmailed the

deceased.

11. Mr. Murthy submitted that the case set out in the affidavit of evidence

is different from the case of the defendant in the affidavit in support of the

Caveat. In the affidavit in support of the Caveat dated 4 th August, 1997 had

disputed the signature of the deceased and that the deceased died in August

1993, till June 1995 the petitioner had never disclosed the existence of the

Will. The only intention in filing the Caveat is to deprive the plaintiff of her

entitlement and Caveat is but an attempt to prevent the wishes of the

deceased being carried out. In this behalf, my attention was invited to

correspondence addressed by the plaintiff to the defendant in particular

letter at Exhibit D1/6 dated 11 th November, 1983, D1/7 dated 4th September,

1983, D1/8 dated 2nd April, 1993, D1/9 dated 14th January, 1999, D1/10

dated 1st September, 1983 and D1/11 dated 2 nd September, 1982 in support

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of the plaintiffs case that it was the plaintiff who all along kept the defendant

abreast of the deceased's health condition. He submitted that the aforesaid

correspondence showed that the defendant had not bothered to spend time

with his parents. It was the plaintiff who had kept in touch with the

defendant informing of the developments in Mumbai. On 4 th September,

1983, (see Exhibit D-1/7) the plaintiff had to write to inform the defendant

that their mother had passed away the previous afternoon at 12.10.

Reference was made to the letter written by the deceased to the defendant a

couple of days of earlier, a copy of that letter was also marked Exhibit D1/10

and which Mr. Murthy pressed into service. In this letter sent by the deceased

he informed the defendant that his mother's condition was serious.

12. Mr. Murthy relied upon the cross examination of the defendant and in

particular reference was made to admissions that the witness was not present

when his mother died on 3rd September, 1983 because news of her demise

was received several days after her demise. The defendant admitted that the

plaintiff was staying with his parents although he sought to deny that the

deceased never stayed with the defendant or his family. Making reference to

questions put in cross examination to the reasons for demise of his father and

ill health of his father, Mr. Murthy sought to demonstrate that the witness

had no knowledge at all of the cause of the death of the mother or the father

and that there is no evidence whatsoever of the deceased having stayed with

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the defendant and his family. He had no recollection of the doctors treating

his parents. He therefore submitted that the entire attempt of the defendant

was to obstruct grant of probate without any basis. He submitted that the

defendant had not made any case in support of his Caveat and submitted that

these are the documents disclosed by the defendants and therefore had

admitted.

13. Mr. Murthy submitted that reading of these documents established

that the defendant was not in regular touch with his parents or the plaintiff

and that he led a busy life with his family. Making reference to the evidence

of the present defendant no.1(a), the son of the original defendant, Mr.

Murthy said that there is no merit in the evidence sought to be filed in

affidavit dated 12th January, 2017 (page 170) wherein the defendant's son

seeks to support the defendant's case by making an attempt to establish that

the deceased stayed with the defendant in Hyderabad and Madras. He assailed

the deposition by making reference to paragraph 8 in which the deceased is

said to have signed in the Madras club in 1988 when the deceased was not a

member of the club. He submitted that in paragraph 6 of the very same

affidavit, the deponent had admitted that the original defendant was the

member of the Club and it is well known that non-members could not sign

for a member of a Club. Mr. Murthy highlighted this fact in support of his

contention that the evidence of the defendant/ his son was not believable. He

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also assailed the deposition of the witness in attempting to cast aspersions on

the plaintiffs behavior by seeking to rely upon evidence of one Manohar

Taribagil, maternal uncle of the plaintiff. In his affidavit particularly

paragraph 14, where the witness states that his father viz. the original

defendant had visited one Smt. Leela Chander widow of Susheel Chander.

Leela Chander is said to have complained about the plaintiffs behaviour with

the deceased attributing to the plaintiffs acts of collusion along with Smt.

Leela Chander's daughter Asha Chander to appropriate Susheel Chander's

property to herself i.e. the plaintiff. The witness refers to a communication

with Mrs. Chander, when Mrs. Chander is believed to have told the witness

DW-2 about the plaintiffs behavior. He submitted that this was not evidence

since the witness DW-2 had no personal knowledge.

14. Making reference to the evidence of DW-3, Hiral Mehta, Mr, Murthy

submitted that the deposition of Hiral Mehta, forensic examiner of

documents was of no assistance at all since the witness had not compared the

signature on the Will with any original signature. The witness admitted that

she had not enquired about the physical condition and health of the person

and not taken into consideration the fact that the author of the signature was

unwell suffering from disease affecting motor functions. She was unaware

that the deceased was suffering from Parkinson's disease for a few years

prior to his demise. She was aware that Parkinson's disease is a neurological

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condition which affecting the nervous system. She admitted that the

handwriting of a person suffering from Parkinson's disease could be shaky

and may not be able to sign like a normal person. Yet she deposed that even

assuming such health issues were involved her opinion would not differ. Mr.

Murthy had suggested to the witness DW-3 that she was not sure of the

genuineness of the signature because witness had used the word "probably"

in her report indicating a possibility that the signature could have been that

of the deceased. The witness had not even seen the original documents when

the first opinion was given. She gave a second opinion after she was allowed

to examine and compare signatures with some clearer copies. According to

Mr. Murthy, the evidence of the handwriting expert is of no assistance to the

defendant. On the contrary he submitted that the evidence of the witnesses

forensic examiner Ahiwale could be treated as conclusive of these issues.

15. DW-4 is one Vijaysudha Talwar who is the sister-in-law of the

original defendant (his wife Aruna's sister). Aruna expired on 30 th July, 2011.

Aruna was not examined prior to her demise. DW-4 Talwar seeks to refer to

communications between her and her late sister Aruna. She had not met the

deceased but claimed to be close to the defendant's late wife. She deposed

about the discussions she had with her sister Aruna about the death of the

deceased. She seeks to depose about the sister's visit to Hyderabad and

Madras and that Aruna had informed her about the deceased undergoing

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mental tension. All strange people moving through the suit flat. She refers to

certain notes allegedly written by late Aruna (Article Y-3) she seeks to depose

that Aruna and the defendant were aware of the deceased intended to divide

his estate in three equal parts, one for the plaintiff, one for the defendant and

third share for his grandchildren.

16. Reference is made to one Kavita Sabarwal, the daughter of the

deponent who had employed a caretaker for her child, who had earlier

worked for Leela Chander suggesting that Sushil Chander was involved

closely with the plaintiff, used to stay with the plaintiff and died in the suit

flat. The plaintiff was a colleague of the said Sushil Chander. The deponent

states that her brother Manohar Taribagil had met Leela Chander who had

allegedly bitterly complained about treatment meted out to her by the

plaintiff. The plaintiff claimed to be a legatee under the Will of Sushil

Chander. The deponent thus seeks to assail the character of the plaintiff but

the deponent has no personal knowledge. The affidavit had been filed before

the Commissioner and had therefore formed part of the record.

17. Mr. Murthy submitted that as far as issue no.1 is concerned, Section 63

read with Section 68 of the Evidence Act, provided for the basic requirements

in proving the will and one of the attesting witnesses Dave had clearly

identified the signatures of the deceased, his own signature and that of Dr.

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Kriplani. In view of the same plaintiff had discharged the burden cast upon

her. He submitted that the challenge to the Will is only a denial of a plaintiffs

case. No affirmative case has been set up, no positive evidence had been led.

The defendant no.1 had not relied upon any signature of the father of over 77

years, no letters had been written by the defendant to the deceased nor has

the defendant produced any evidence to justify his conduct. He has in fact

questioned the right of the deceased to the flat itself by contending that it was

ancestral property. He has accused his father of harassing the daughter-in-

law viz. the wife of the defendant although the defendant's wife late Aruna

had never stayed in the suit flat when the deceased was alive. He reiterated

the fact that defendant had obtained a scholarship soon after school and left

and since 1965 he had not bothered about the deceased. He reiterated that

there is nothing unnatural about the bequest. The plaintiff was faithful to the

testator. She was therefore named as the beneficiary under the Will, the

mother of the parties hereto having predeceased the testator in the year 1983.

In view of the indifferent attitude of the defendant it was the plaintiff who

alone came to the assistance of the deceased. Inviting my attention to D-1/3,

at page 518, Mr. Murthy submitted that when the deceased was hospitalized

in Calcutta and despite the defendant being present in Calcutta, he did not

meet his father. All the evidence points to the absolute lack of affection for

his deceased father. Nothing suspicious surrounded the execution of the Will

nor was it an unnatural Will.

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18. Mr. Murthy relied upon the following judgments :

1) Sridevi & Ors. v/s. Jayaraja Shetty & Ors. 1

2) Uma Devi Nambiar & Ors. v/s. T.C. Sidhan (Dead) 2

3) Rabindra Nath Mukherjee & Anr. v/s. Panchanan Banerjee (Dead) by LRS.

And others3

4) Pentakota Satyanarayana & Ors. v/s. Pentakota Seetharatnam & Ors. 4

5) Pushpavati & Ors. v/s. Chandraja Kadamba & Ors. 5

6) Smt. Malkani v/s. Jamdar & Ors.6

19. Mr. Sanglikar on behalf of the defendant contended that the Will was

fabricated for the reasons set out in the affidavit in support of the caveat and

the affidavit of evidence of the defendant since deceased. He submitted that

the execution of the Will was surrounded by suspicious circumstances,

rendering the Will susceptible to challenge. The plaintiff had maneuvered

her way to have the Will executed. According to Mr. Sanglikar, the

depositions of the defendant and DW-2, 3 and 4 clearly establish that the

Will was not genuine.

20. Mr. Sanglikar submitted that the probate is a judgment in rem and the

plaintiff should prove her case and not rely on the weakness of the

1 (2005) 2 SCC 784 2 (2004) 2 SCC 321 3 (1995) 4 SCC 459 4 (2005) 8 SCC 67 5 AIR 1972 SC 2492 6 AIR 1987 SC 767 15/81 ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 05:51:13 ::: TS-67-97.odt

defendants case, if any. The onus lies on the petitioner-plaintiff and there is a

duty cast upon the plaintiff to discharge Onus Probandi. The plaintiff had

failed to discharge this burden of proof and thus not entitled to probate. The

plaintiff was required to prove firstly, that this was the last will and testament

of the deceased as also the fact that this Will was executed by the deceased of

his free will and free of all doubts. The defendants had sought to challenge

the Will and by doing so had informed the Court of the fact that the Will was

not genuine. The Court must therefore conduct its own enquiry into the

plaintiff's case and satisfy itself as to the genuineness of the Will. The

deceased was suffering from Parkinson's disease and he could not sign on this

Will. He submitted that the signature on the Will was so shaky that it is a

suspicious circumstances whereas the alleged Will is drafted by the plaintiff

and that itself is a suspicious circumstances. The Will does not mention the

son of the deceased and the plaintiff had manipulated the deceased. The

distribution of assets was unnatural. Furthermore, the deceased was unwell

for a long period of time prior to his demise and hence there were suspicious

circumstances surrounding the execution of the Will which the propounder

must dispel. Alternatively he submitted that the signature on the Will is not

that of the deceased. According to Mr. Sanglikar, independent witnesses are

required to prove the Will and in the present case the plaintiff has failed to do

so. Neither the attesting witness Dave nor Prabhu, Sethi or Ahiwale were

independent witnesses. He submitted that on 10 th February, 1995 the

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defendant had filed Suit no.852 of 1995 seeking partition. It is only

thereafter that the will surfaced.

21. My attention was invited to an order dated 25 th January, 2011 passed

by this Court in which the plaintiff was permitted to lead evidence in rebuttal.

The plaintiff could have led evidence but yet she did not depose because she

did not want to face cross examination. This is also evident from order dated

22nd September, 2014. No evidence in rebuttal has been led. He submitted

that the plaintiff had ample opportunities to lead evidence; firstly when the

Suit no.852 of 1995 was filed, secondly, on 25 th January, 2011 when she was

granted liberty to lead evidence in rebuttal yet she led no evidence. In view

of the circumstances, surrounding the execution of the Will being suspicious,

it was for the plaintiff to discharge the burden which she has failed to do.

22. Mr. Sanglikar relied upon the averments in the affidavit in support of

the Caveat wherein the defendant had contended that the deceased did not

make a Will. The signature on the Will was not of the deceased, no Will had

been disclosed earlier and that Citation was served only 2 years after the

filing of the petition. He submitted that the attesting witness oath had not

been filed. The testator died on 24 th August, 1990. Considering the date of

demise and that the Will is dated 21 st March, 1989, the oath of Dr. Kriplani

ought to have been annexed. He stated to be a witness to the execution of the

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Will but he did not depose in favour of the Will. This is according to

Sanglikar is a relevant factor since Dr. Kriplani would have been aware of

the state of health of the deceased and the fact that the deceased could not

have validly executed a Will and that is the reason why Dr. Kriplani was not

examined.

23. Firstly he submitted that DW-2 had no authority to produce the

document. The witness was a production witness in that sense he could not

have been examined despite which an affidavit by way of examination-in-

chief was filed. No doubt he was cross examined but that is subject to an

objection as to the right to examine Prabhu without authorization to produce

the documents viz. nomination form. The witness could not have been called

as a production witness at all. In the absence of authority, Prabhu would

only be the plaintiff's witness although he was a manager of the society

when the affidavit was made. The question is whether the documents has

been produced from proper custody.

24. According to Mr. Sanglikar, under section 162 of the Evidence Act a

production witness is a witness summoned to produce the document in his

power in possession and bring it to Court notwithstanding any objection to its

admissibility and the validity of such objection is to be decided by the Court.

The Court is entitled to inspect the document unless it refers to matters of

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state and to take other evidence to determine its admissibility. He submitted

that in the instant case, production of the documents itself is irregular.

Custody had not been established and in these circumstances, the

Commissioner had no authority to mark the document. Merely marking of

the document is not proof and therefore document ought not to be read in

evidence. Mr. Sanglikar submitted that once the document is marked he will

be compelled to cross examine the witness. Prabhu has played "flip flop" and

is not trustworthy and a statement once made cannot be retracted in the

manner sought to be done. Mr. Sanglikar also objected to the nomination

form being exhibited through witness PW-3 Sethi submitting that the

evidence of Sethi in paragraph 8 of his evidence was insufficient to prove the

contents of the document marked "X-1". The document was not the original

nomination form as claimed by the witness but was being 'passed off' as an

original. He therefore submitted that the witness has not stated anything

about the contents and custody of the document and hence the document

cannot be exhibited. It is subject to these objections that he has conducted

cross examination of the witnesses. Particular reference was made by Mr.

Sanglikar to the conduct of the witness on 12 th February, 2012 when PW-3

Sethi contended that he wished to clarify his answer to question no.12. The

request to clarify the answer was a voluntary statement of the witness who

was under cross examination and the Commissioner had no power to record

such suo moto statements. Furthermore, the witness was under cross

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examination, he was conversant with the English language and cannot be

allowed to make any statement which would amount to changing of his

deposition especially since the evidence that can be verified and corrected by

consent of the Commissioner. Mr. Sanglikar submitted that the attempt of

the witness was to improve upon his evidence and that the Commissioner

must record evidence as required under law. He was not empowered to

record voluntary statements made by the witness by way of clarification or

otherwise. The fact is that the witness was permitted to clarify his statement.

Without prejudice to these objections Mr. Sanglikar submitted that this Court

may decide upon those objections at the material time.

25. Mr. Sanglikar also assailed the evidence of Ahiwale. He submitted that

the witness had failed to establish his credentials which is evident from the

cross examination of the witness. He had no proof that he had undergone any

training in Forensic Examination at CID Crime Branch, Pune. He merely

relied upon an appointment letter issued by the State CID appointing him as

examiner of documents. Apart from his appointment letter, he had no

evidence that he has undergone any such training. He had no recollection of

when he had appeared in the High Court as an expert witness although he

claimed to have appeared as expert witness in more than 1000 cases. The

witness was unable to produce the evidence of having appeared in many

cases despite opportunities being given. There was no evidence of detailed

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training except that some letters were produced which were said to be letters

issued by higher authorities such as Deputy Director General of Police, but

they were not on letterhead but on plain paper. He was unable to make a

definite statement on when he appeared as expert witness for the State

Government. He was called upon to confirm that he had copies of witness

summons which he was called upon to produce, he wanted to recall his

previous answer since he had only 10 or 15 summons, three of which he

produced were marked Exhibit P-3 Colly. whereas other document produced

to establish his promotion were marked "X-4 and X-5" for identification.

After these were marked Mr. Sanglikar objected to the marking of letter dated

2nd February, 1980 which was taken on record by consent. The

Commissioner, has, however, disagreed and that the objection is also required

to be decided.

26. According to Mr. Sanglikar, the witness had not compared the

signature on the Will with any of the admitted signatures along with

"standard documents" for comparison which were signed by the testator.

According to him the deceased had signed certain documents in the normal

course which Ahiwale has used as admitted signatures for the purposes of

comparison. He had called upon the Advocates for the plaintiff to provide

signatures for comparison and in response they informed him that the

signatures in the society's books could be inspected for the purposes of the

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comparison with the signatures on the Will. At the same time that disputed

documents cannot be taken as standard documents for inspection. This

answer was in relation to a query as to whether he was aware or told that the

documents with the society were very seriously disputed by the defendant.

According to Mr. Sanglikar the witness evidence was not reliable since he

admitted in answer no.100 that he had no independent evidence that

documents given to him as standard documents were obtained from the

society's records.

27. Mr. Sanglikar further submitted that D1/11 was written on 2 nd

September, 1982 by the plaintiff in which the plaintiff had written in detail

about the ill health of the plaintiff's mother who suffered a mild stroke and

the details of her malady were narrated. Mr. Sanglikar submitted that these

were indicative of the fact that he was unable to visit at the material time and

that the plaintiff had not informed the defendant of their mother's ill health

earlier and she had assured the defendant that he need not be worried on

account of his mother's health. My attention was invited to D1/8 which Mr.

Sanglikar submitted was written after the demise of a relative in Calcutta and

almost three years after the demise of the father. The relationship between

the plaintiff and defendant was evidently cordial yet the Will had not been

disclosed.

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28. Mr. Sanglikar submitted that the mother of the attesting witness

Sandeep Dave had appeared for the plaintiff in Suit no.852 of 1995. Sandeep

Dave is therefore not an independent witness. The order dated 5 th April,

1995 passed in Suit no.852 of 1995 records her appearance at that stage Mrs.

Dave Advocate for the plaintiff did not mention existence of a Will, the Will

surfaced only in 1997. Furthermore, the testamentary petition was lodged on

3rd July, 1995. He also invited my attention to the order passed by this Court

on 25th January, 2011 by which the Court granted leave to the plaintiff to

lead evidence in rebuttal but the plaintiff had chosen not to lead any

evidence. The plaintiff had one more opportunity on 22 nd September, 2014

to lead evidence in rebuttal but once again the plaintiff has failed and

neglected to do so. Mr. Sanglikar submitted that reluctance to lead evidence

in rebuttal indicates lack of bonafides of the plaintiff who despite having

three opportunities led no evidence and therefore had not discharged onus

probandi. According to him, the circumstances surrounding the execution of

the Will were not free from doubt and hence the Will is suspect.

29. It is contended by the defendant that the father of the defendant did

not make a Will. The signature appearing on the writing purporting to be a

Will is not the signature of his father. No Will had been disclosed by the

plaintiff and citation was served only two years after the petition was filed.

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These are aspects which the defendants have focused in their opposition to

the grant. Considerable stress is laid on the fact that the oath of the attesting

witness was not filed on the record. It may be pointed out that testator died on

24th August, 1990, his wife Ruby, mother of the parties hereto predeceased

him on 9th August, 1993. The defendant's wife died on 29 th July, 2011 and

the defendant died on 14th February, 2019.

30. Drawing my attention to the various dates, Mr. Sanglikar points out

that while the deceased died at Bombay Hospital on 24 th August, 1990 the

Will is said to be dated 21 st March, 1989. He submitted that the statement in

paragraph 7(A) of the petition cannot be believed and that paragraph reads

as follows;

"7(A) The petitioner was not aware to apply for Probate so the delay

of filing Probate may be condone.* " (*sic)

He submitted that this is a incorrect statement. Furthermore, the statement in

paragraph 9 that the mother of the deceased predeceased the deceased was

also incorrect. The plaintiff had also omitted to annex the oath of Dr.

Kriplani. The Caveator has in the affidavit in support contended that the

citation was served only on 23 rd July, 1997 and that itself indicates suspicious

circumstances. Mr. Sanglikar invited my attention to paragraph 2 and 3 of

the affidavit of Sandeep Dave, attesting witness, and the relevant portion of

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he did not know the petitioner personally and prior to March 1989 when the

Will was said to be executed he had not met the plaintiff even casually. He

was introduced to the plaintiff by a solicitor in the firm where he was

working and who had instructed him to accompany the plaintiff. Thus he

questioned the independence of Dave. Once the independence of a witness is

doubted, there is sufficient reason to doubt the veracity of the evidence of the

witness and the correctness of the contentions of the plaintiff. Lack of

independence is cited is the primary reason for discarding the evidence of

Dave.

31. Mr. Sanglikar further stressed upon the fact that the witness Prabhu is

not an independent witness. Furthermore, Prabhu had no authority to give

evidence as he was not a production witness. The affidavits of H.V. Prabhu

have not been given in advance and therefore the defendant could not object.

32. Mr. Sanglikar then invited my attention to the affidavit of the Caveator

and submitted that all the documents sought to be produced are liable to be

marked under Section 32 of the Evidence Act being statements in writing of

persons who cannot be called as witnesses since they were dead. For these

reasons, he submitted Y-3 is liable to be marked in evidence. Mr. Ashim

Chatterjee had deposed prior to the death of the Caveator and hence the

documents produced by him could be marked. Similarly he stated that Y-1 &

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Y-2 also deserve to be marked. Referring to the cross examination of the

Caveator, he submitted that the plaintiffs had made a lame attempt to show

that the Will had been disclosed when in fact it had not been so disclosed. Mr.

Sanglikar submitted that during his cross examination, the witness had been

asked to explain the basis of his contention that the signature on the so called

Will is not of the deceased but that of the plaintiff to which he had responded

that his father had informed him and his wife that the plaintiff is used to sign

documents on behalf of the deceased.

Mr. Sanglikar relied upon the following judgments :

1. Venkatachala Iyengar vs. B. N. Thimmajamma and Ors. 7

2. Rani Purnima Debi & Anr.vs. Kumar Khagendra Narayan Deb & Anr. 8

3. Gorantla Thataiah vs. Thotakura Venkata Subbaiah and Ors. 9

4. Pushpavati and Ors. vs Chandraja Kadamba and Ors.10

5. Smt. Jaswant Kaur vs. Smt. Amrit Kaur and Ors.11

6. Kalyan Singh vs. Smt Chhoti and Ors.12

7. Smt. Rukmani Devi and Ors. vs. Narendra Lal Gupta 13

8. Guro (Smt) vs. Atma Singh and Ors.14

9. N. Kamalam (Dead) and Anr. vs. Ayyasamy and Anr. 15

7 AIR 1959 SC 443 (V 46 C 56) 8 AIR 1962 SC 567 (V 49 C 86) 9 AIR 1968 sc 1332 (v 55 c 256) 10 AIR 1972 SC 2492 (V 59 C 481) 11 (1977) SCC 369 12 AIR 1990 SC 396 13 AIR 1984 SC 1866 14 (1992) 2 SCC 507 15 (2001) 7 SCC 503

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10. Union of India and Ors. vs. Vasavi Co-operative Housing Society

Limited and Ors.16

11. Anil Kak v/s. Kumari Sharada Raje & Ors.17

12. Rebendra Datta v/s. Seema Parab & Ors.201918

13. B. Venkatamuni v/s. C.J. Ayodhya Ram Singh19

33. I have heard the learned counsel at length. They have taken me

through the pleadings, evidence and the documents. It will be useful to

describe the nature of the deposition of these witnesses. Sandeep Dave was

examined as an attesting witness, Jatinder Kumar Sethi was a managing

committee member and later appointed as treasurer of the society. His

deposition pertains inter alia to the original nomination form in respect of the

shares held by the deceased in the society and also to support the plaintiffs

since he had witnessed the deceased's signing the nomination form. This

witness had also signed the form Exhibit P marked by the Commissioner.

Dilip Pralhad Ahiwale a former state examiner of documents has deposed in

relation to the signature appearing on the Will after comparing the same

with the sample signatures provided to him.

34. As far as the defendant's evidence is concerned, the original defendant

had disputed the Will which according to him was a bogus document. He

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has deposed that the Will does not bear his father's signature and goes on to

contend that it is unnatural, sham and fabricated and that his father wanted

to divide his estate into three parts, one to the plaintiff and one each to

himself and to the grandchildren. The defendant's son Ashim Chatterjee

supported the defendants case that his mother had been ill treated by her in-

laws viz. by the deceased and his wife.

35. The defendant did not depose to these writings. Hemant Prabhu-PW-2

was the manager of the society. He was called upon to produce the

nomination form. The nomination form was produced from the record of the

society and according to Mr. Murthy the cross examination of Mr. Prabhu

does not in any manner damage the plaintiffs case. The nomination form, he

submitted was executed on 27 th February, 1989 and was recorded in the

Society's books under sr.no.53. The deceased died on 23 rd August, 1993. The

nomination form was executed well before his demise and could not be

doubted.

36. PW-3 Jatindar Kumar Sethi had also been examined in support of the

plaintiffs case. Sethi had confirmed that the nomination was executed after

the society had issued a circular in December 1988 calling upon members to

submit nomination forms afresh and that executed the nomination forms on

30th January, 1989 in triplicate. PW-3 had deposed that he was present at

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the meeting when the application form was placed before the managing

committee. He was acquainted with the signature and confirmed that he had

affixed his signature on the form as well. He submitted that PW-3 was also

cross examined and his testimony has not been shaken.

37. Ahiwale-the examiner had taken photographs of the standard

signatures of the deceased from the record of the society and also inspected

and took photographs of the signatures on the original Will in the

testamentary department of this Court and has thereafter opined that the

signatures on the Will and the signatures on the record of the society were of

one and the same person thereby indicating that the Will was executed by the

deceased himself.

38. DW-2 Ashim had admitted that he had gone through the deposition

of his father the defendant and that he had been discussing his affidavit with

his Advocate for several years. He admitted that his father has discussed the

matter of his affidavit before it was filed and also admitted that he and his

father (the original defendant) and his maternal uncle Manohar Taribagil

had discussions about this matter when the said Taribagil was alive. My

attention was invited to the cross examination of the said witness by Mr.

Murthy. He submitted that although the witness was permitted to be re-

examined and had in the course of re-examination sought to produce certain

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photographs as evidence of his grandfather, the deceased, having stayed with

witness. Mr. Murthy submitted that he had objected to the said documents

since the photographs were not disclosed earlier and all that the witness

produced were three scanned copies of photographs which are marked

"Y-2". The original photographs were not produced and hence they were not

relevant and could not be considered in evidence.

39. DW-3 Hiral Mehta was an independent professional forensic

document examiner who has deposed that having examined the original Will

scientifically and concludes her opinion that the disputed signatures

appearing on the Will were not of the deceased. DW-4 Vijaysudha Talwar is

the sister-in-law of Avijit Chatterjee. She supports the defendant and

contends that certain handwritten notes shown to her were in the

handwriting of Aruna - the wife of the defendant. These notes attributed to

the said Aruna are being relied upon as evidence of the state of mind of the

deceased and the behavior of the plaintiff and in relation to one Susheel

Chander, a former colleague of the plaintiff. The plaintiff is alleged to have

appropriated large sums of money from the estate of Susheel Chander.

40. Vijaysudha Talwar, DW-4 was examined at her residence owing to

her advanced age. She had admitted that the affidavit signed by her was read

by her a week ago (cross examination on 6/3/18). It was given to her by her

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niece daughter of the defendant. She had spoken to the defendant Avijit

about a month ago. Mr. Murthy stressed upon the fact that the affidavit was

signed at her residence in the presence of her niece, the daughter of the

defendant and the son of the witness. Only these three persons including

deponent were present. He therefore submitted that the witness was not even

administered oath. She admitted that her brother-in-law Avijit had told her

about the case filed by the plaintiff. She was aware that the defendant had

also filed a case against the plaintiff and the defendant had asked her to file

this affidavit. She did not have any recollection about having visited the suit

flat and that the contents of the affidavit were not personally known to her

but based on information given by the employee working with the Chander's

(S. Chander/Leela Chander) She had not even seen the notes referred to by

her affidavit which were attributed to authorship of her sister Aruna. She

had not seen the original notes for over a year. She had seen them about 30

years ago but she did not remember when. She also admitted that she has

never met Leela Chander but her brother met Leela Chander since he was a

resident of Bangalore. She clearly had no personal knowledge of the

conversion between her brother Manohar & Leela Chander. Her brother did

not write to her but her brother Manohar is believed to have written to her

sister Aruna and the defendant. She had no recollection of when she had

seen the letter and admitted that she had filed the affidavit to support her, the

brother-in-law - the defendant. She claimed to know the truth "through

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Rama" an employee of the Chanders since she given true facts because

Rama, Manohar and Aruna were not living. Deposition of DW-4 leaves no

manner of doubt that she was tutored.

41. I may mention here that several other objections that had been taken

up during the course of the proceedings and those can be conveniently dealt

with together. Mr. Sanglikar while objecting to the marking of the

nomination form submitted that the nomination form was not required but

the plaintiff created it prior to the execution of the Will. He submitted that

the date of nomination form is 19 th January, 1989 and that the date of Will is

21st March, 1989 and the date of demise was 24 th August, 1990. He therefore

submitted that the nomination was manipulated and obtained only to suit the

plaintiff's purpose. In view of the challenge to the nomination, I had called

upon to Mr. Sanglikar to explain whether he had called upon the witness

PW-2 Prabhu or PW-3 Sethi to produce the original old nomination form to

which Mr. Sanglikar answered in the negative. Furthermore, it does not

appear that any questions have been put to the witness Prabhu or Sethi

regarding the nomination forms of other members and whether or not

nomination forms were obtained from other members and if so around the

same time. This in my view would be a relevant factor to consider whether

the plaintiff sought to obtain a fresh nomination form only from the deceased

or whether fresh nomination form was sought by the society as deposed by

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Jatinder Sethi. However, on this aspect there is obviously no evidence

forthcoming.

42. In further cross examination, the witness Ahiwale was asked as to why

he used the term "purporting" in relation to the Will. Whether he was

unsure which the signature of the deceased was as otherwise he would not

have used the word "purporting" The witness stated that since the plaintiff

had asked him to examine the signature of the deceased on the Will so he had

used the word "purporting".

43. When the defendant was asked what these documents were, the

defendant answered they were 'daily transactions and official requirement'.

In answer to question as to when and where the deceased had told the

defendant and his wife about the plaintiff signing documents for him,

defendant stated that the deceased had told him so during his stay with the

defendant at Hyderabad and later at Madras. Mr. Sanglikar stressed upon

the fact that in the cross examination his client was asked what steps the

defendant and his wife took in relation to the plaintiffs reportedly signing on

behalf of the deceased to which the witness answered as follows:

"I had asked my wife to make some notes regarding his important communications so that these will remain as evidence of misguided actions."

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He further deposed that he had told his wife to record these in or around

1983. Mr. Sanglikar submitted that the witness had made reference to these

notes which his wife is said to have made while refuting the suggestion that

the notes were a creation of the witness. Answers to question no.97 and 98

on behalf of the witness throw light on a different dimension of the

deposition.

"Q. 97. How was the relationship between you and your sister (plaintiff) prior to the death of your father? A. The relationship between my sister (plaintiff) and myself has always been cordial and continues to be so.

Q. 98. Is the relationship between you and your sister (plaintiff) strained after the present proceeding?

A. Not from any point of view and indeed my sister and her husband are mentioned by me during my temple visit every Friday and blessings of the deity are sought for these two."

44. I may observe here that Mr. Sanglikar has not made any submissions in

respect of the handwriting expert's opinion. He submitted that probate being

a judgment in rem the declaration of rights and the declaration of rights

being public to the world at large the plaintiff cannot rely upon weakness if

any in the evidence on behalf of the defendant. The Court cannot rely on

the reasons in the Caveat or the affidavit in support but the conscience of the

Court must be satisfied. The enquiry should be much wider in scope than the

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mere statements in the affidavits. According to him the burden of proof has

not been discharged by the plaintiff had not established that this was the last

Will made by free consent and free of all doubts. He reiterated the suspicious

circumstances surrounding the execution of the Will specifying them to be

shaky signature, unnatural distribution of the estate and the ill health of the

testator, was one other aspect which should be considered. The doubts cast

upon the validity of the Will must be removed by the propounder of the Will

and the plaintiffs had not proved the Will through independent witnesses

contemplated under Section 63 of the Succession Act and Section 69 of the

Evidence Act.

45. Mr. Sanglikar invited my attention to Exhibits D-1/3 which reveals

that the deceased had been hospitalized about three times and he had spent

45 days in a special room in Mumbai Hospital and gone through two

operations. He had to be attended to day and night. Exhibit D1/3 it is

submitted was written around 29 th May, 1989 by the plaintiff to the

defendant. He submitted that considering this admission by the plaintiff

herself, the fact that the deceased had undergone a very serious ill health

issue cannot be disputed and the execution of the Will around this time

would be obviously a suspicious circumstance. D1/3 is produced by the

defendant and is a response to the defendant's letter to the plaintiff. It

recalls a telephone call made by the plaintiff in November 1988 when the

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defendant had stated that he would call back over a weekend but nothing was

heard from the defendant. It appears that the defendant in his letter had

denied that he was negligent. The letter records that the plaintiffs office

colleagues and friends at Jaldarshan had been asking about the defendant and

that the plaintiff made up excuses saying that the defendant was out of India.

Whenever his father the deceased enquired about the defendant during his

first stay at the hospital she used to tell him that the defendant must be busy

etc. and these are the circumstances under which she refers to the repeated

hospitalization of the deceased and two operations including cataract

operation. It records the fact that the plaintiff had taken the deceased to

Calcutta for a change of scene and as recommended by the Surgeon and

Neurophysician. A week ago the plaintiff went to Calcutta to bring back the

deceased. What is lost sight of, is the later part of the letter in which the

plaintiff records as follows:

"His contention is still bad and get easily upset which gives rise to complications. That is why I have not told him that I met you in Calcutta when he was there. You did not met him would hurt him badly because of his condition my office work is also suffering."

What this letter reveals that the deceased was not well and had been taken

to Calcutta before the date of writing D1/3. The defendant was in Calcutta

while his father was in that city yet the defendant did not visit his father. The

plaintiff has recorded that she awakens at 4.20 a.m. and rarely goes to bed

before 11.30 p.m. She has further recorded in the letter that she showed the 36/81 ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 05:51:13 ::: TS-67-97.odt

defendants letter addressed to the plaintiff to the deceased who was

apparently pleased that he had written. It is in this background that we must

consider the submission on behalf of the defendant that the Will was

executed under suspicious circumstances referred to above. The defendant

was far away from home for 7 years and he was not accessible till 1984.

Prior to1989-90 the deceased had undergone 3 surgeries whereas the Will is

stated to be executed on 21 st March, 1989 and the deceased died on 24 th

August, 1990.

46. Mr. Sanglikar had submitted that from 1995 onwards the relationship

deteriorated and Suit no.852 of 1995 has since been filed, a copy of which

was tendered in evidence and marked as D1/2. It is also evident that since

1995 there was nothing on record to show where the defendant has been

residing. Mr. Sanglikar submitted that Dr. Kriplani was not examined and

his oath was not filed. Mr. Sanglikar further submitted that amongst the

compilations of documents Y-3 is required to be marked in evidence as an

Exhibit.

47. The defendants deposition that the relationship between the plaintiff

and the defendant was always cordial needs to be examined with contents of

D1/9. D1/9 in my view reveals a strained relationship in January 1999

wherein the plaintiff replies to the defendant's letter in the following words;

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"If you wish to mend our relationship under these circumstances, we will be happy to receive a call from you to set up an appointment to meet. A matter like this cannot be resolved by telephone. Ashok thinks that a face to face meeting is always better."

48. Particular reference was made to Prabhu's answers to question nos.5,

10, 21, 22, 23, 24, 38 and 39. Prabhu had admitted that it was the plaintiff

who requested the Secretary of the society to produce the records. The

secretary merely asked him to produce Article "X" and "X-1". The witness

was known to the plaintiff but he did not know where she stayed. He also did

not remember that she had met him on 16 th December, 2011 or when exactly

the witness had met the plaintiff. He admitted during cross examination that

neither he (Prabhu) nor the society received any witness summons to appear

in Court. When asked whether he had deposed on his own as a witness for

the plaintiff he answered in the negative and stated that he had attended to

give evidence under the instructions of the society. In view of these answers

the defendant had contended that the Prabhu is not a production witness he

cannot be examined in chief. Moreover, he had no authorization and

therefore the contention that he is a production witness cannot be sustained.

Prabhu was not a stranger and was known to the defendant as well. In

relation to the custody of the documents. Cross examination records

challenge the witnesses authority to depose by suggesting that he had

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witness countered this by stating that till date society had not issued any

circular informing members that he had resigned as manager of the society. It

is suggested that the witness had no authorization and that the document was

produced without authority an assertion which Mr. Prabhu denied. The

attempt of Mr. Sanglikar was to throw light on the aspect of custody of the

relevant nomination form. Under Section 164 of the Evidence Act when a

party refuses to produce a document after he was given notice, he cannot

afterwards use the document as evidence without the consent of the other

party or the order of the Court.

49. The contention of the defendant is that the witness who is summoned

to produce the document shall, if it is in his possession and power to bring it

to the Court, notwithstanding any objections of production or admissibility

and the validity of the objection is to be decided by the Court. In the instant

case, whether or not the Prabhu was a production witness was in my view is

not material. Prabhu was admittedly the manager of the society at the

material time. He had deposed that he had witnessed the deceased signing

on the nomination form. When confronted, he had offered to delete

paragraph 3 and 4 of his affidavit of evidence. When asked why the

paragraph proposed to be deleted was included in the first place, the witness

answered that he was the treasurer of the society at the material time when

the nomination form was submitted. One of the other objections of Mr.

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Sanglikar was the power of the Commissioner or lack of it to mark a

document. He contended that the marking of a document did not amount to

treating it as evidence.

50. It is settled law that marking of a document as an Exhibit is an

administrative act. Marking of documents have been considered by the

Supreme Court in Narbada Devi Gupta v/s. Birendra Kumar Jaiswal & Anr .20

The Supreme Court held that mere production or marking of a document is

quite enough that the execution by the admissible evidence and documents

are admitted by signatories thereto only when documents are produced and

readmitted by the signatories. Thus, in my view in the facts of the present

case there is no merit in the objection raised by Mr. Sanglikar for marking of

a document as an Exhibit. That having been said, I am not suggesting that

Commissioner should be encouraged to mark documents as Exhibits, a task

that is best left to the Court. Mr. Sanglikar's objection to the evidence of Mr

Sethi is twofold; firstly that once a document is marked, Mr. Sanglikar would

be compelled to cross examine the witness. If such an objection were to be

taken in Court while recording evidence, the issue would not arise. As far as

Mr. Sethis's evidence is concerned, the witness had done a flip-flop, he was

not trustworthy and had attempted to retract a statement which was again

not permissible.

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51. Let us now consider the judgments cited by the learned counsel. In

Rani Purnima Debi (supra), the Supreme court was considering Section 63 of

the Indian Succession Act and the effect of registration of a Will. The evidence

did not show that the relation between testator and the son-in-law was

strained. There was no satisfactory evidence that relations between testator

and daughters were bad and the Court observed they would have expected

the testator to make provision for the daughter particularly since she was

not well-off. The Will was therefore found to be unnatural and that exclusion

was a suspicious circumstance which was required to be satisfactorily

explained before the respondent can be granted letters of administration. The

respondent was alone to benefit from the Will and it was found necessary to

remove the suspicion by clear and satisfactory evidence. In the cross

examination, the attesting witness had stated that the testator signed in his

presence at the bottom of the Will. He did not say that the Will was read over

to the testator or read by him and that the testator admitted execution of the

Will. The registration of the Will notwithstanding, it is not sufficient to

dispel all suspicion regarding it and where suspicion exists and if it is

revealed that registration was made in such a manner that it was brought

home to the testator, but if the evidence as to registration shows that it was

done in a perfunctory manner and that the officer registering the Will did

not read it over to the testator or did not bring home to him that the testator

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was admitting execution of a Will or in any other manner such 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. In the present

case, the aspect of registration does not arise and the only aspect to be

considered is to whether the suspicious circumstances, if any, are dispelled.

52. In Gorantla Thataiah (supra), the Supreme Court was considering the

effect of Section 74 of the Succession Act in the matter of construction of Will

and suspicious circumstances, the Court has reiterated that suspicious

circumstances must be touched in the facts and circumstances of the each

case and it is this decision in which the Will is prepared under circumstances

which raises suspicion of the Court indicating that it does not express the

mind of the testator. It is for those who propound the Will to remove that

suspicion. The propounder takes a prominent part in the execution of the

Will which confers substantial benefits on him that itself is a suspicious

circumstance. Reference was made to Williams on "Executors and

Administrators" Vol. I, 13th Edition. Page 92 which observes as follows:

"Although the rule of Roman Law that 'Qui se scripsit haeredem' could take no benefit under a will does not prevail in the law of England, yet, where the person who prepares the instrument, or conducts its execution, is himself benefited by its dispositions, that is a circumstance which ought generally to excite the suspicion of the court, and calls on it to be vigilant and zealous in examining the

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evidence in support of the instrument in favour of which it ought not to pronounce, unless the suspicion is removed, and it is judicially satisfied that the paper does express the true will of the deceased."

53. In Pushpavati & Ors. (supra), the Supreme Court reiterated that the

burden of proof of the Will is on the propounder of the Will especially when

it is alleged to be a forgery. In the instant case, the affidavit in support of the

caveat does not allege forgery but it indirectly suggests that the deceased

died intestate and the document which is propounded as Will does not bear

the signatures of the deceased. There is no specific allegation that the Will

has been forged. In the affidavit in lieu of examination-in-chief of the

Caveator, he reiterates that the deceased had Parkinson's disease, had

difficulty in signing and on several occasions he is alleged to have been

informed that the plaintiff used to sign for the deceased. There is an assertion

in paragraph 8 that the signature on the so called Will is not of the deceased

but that of the plaintiff and it is for this reason that the plaintiff engaged a

handwriting expert. There is no specific contention taken up that the

signature appearing on the Will is a forgery, therefore the allegation has not

been taken to its logical conclusion. The Supreme Court held that where the

signature of the testator is challenged as a forged one, and the will does not

come from the custody of a public authority or a family solicitor the fact that

the disposition made in the will were unnatural, improbable or unfair would

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undoubtedly create some doubt about the will, especially when the document

is unregistered and comes from the custody of a person who is the major

beneficiary under the Will.

54. In Jaswant Kaur (supra) the Supreme Court observed that the

defendant was the propounder of the will and the principal legatee probably

the sole legatee who had set up the will in answer to the defendant's claim in

the suit for a one-half share. The burden as it was commonly held was to test

whether a party would fail in the suit if no evidence was led on the fact

alleged by him. In that case it was held that the defendant ought to have led

satisfactory evidence to prove the due execution of the Will by his

grandfather. The Court observed that in cases where the execution of a will

is shrouded in suspicion, proof cannot be simple and in adversarial

proceedings, urged the Courts to consider whether the evidence led by the

propounder would satisfy the conscience of the Court and the Will was duly

executed by the testator and further that it was impossible to reach such

satisfaction unless the party which sets up the will offers a cogent and

convincing explanations of the suspicious circumstances.

55. In Kalyan Singh (supra), the principle reiterated is similar, that

trustworthy and unimpeachable evidence should be produced before the

court to establish genuineness and authenticity of the will that the Court

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could consider circumstances brought out in evidence or which would

appear in the nature of the contents of the documents itself. The Court would

have to consider the credibility of the witnesses and disengage the truth from

falsehood. In another case of Rukmani Devi (supra), the Supreme Court held

that a decision of the probate court is a judgment in rem and a probate

granted by a competent court is conclusive of its validity until it is revoked

and no evidence can be admitted to impinge on it except in a proceeding for

revocation of probate.

56. In Smt. Guro (supra) the Supreme Court noticed and summarized

certain suspicious circumstances which are as follows;

" (1) The will mentioned that the testator had been ill for a long time and was seriously ill at the time of execution of the will. (2) The testator stated that he did not have any sister, which was not correct.

(3) The respondent, the sole legatee, had been wrongly described as the real brother of the testator.

(4) No reasons were mentioned in the will why the appellant, who was the natural heir of the testator, was being ignored. (5) Although the testator was literate, the will bore his thumb impression.

(6) The will was an unregistered document not scribed by a regular deed writer and as such could be prepared at any time. (7) Within eight days of the execution of the will the testator died. The appellate court also found that contradictory statements had been made by the respondent with regard to his

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presence at the time of execution of the will, by the scribe as well as by K. The appellate court, therefore, reversed the decree of the trial court and dismissed the suit of the respondent. But the High Court allowed the second appeal filed by the respondent and restored the judgment and decree of the trial court on the view that the will had been validly executed."

57. In N. Kamalam(dead) and another (supra), it was held that signature of

scribe of the will cannot be granted equality of status with signatures of

attesting witnesses, must be proved by evidence to have animus attestandi

and every such signatures of such witness would be valid. The Court inter

alia held that onus probandi and animus attestandi are the two basic features

that a court was concerned with in its testamentary jurisdiction. Onus

probandi is on the party propounding to will and animus attestandi means

intention to attest the will. Thus, these two factors must co-exist. The will

being a solemn document and probate being in rem, it is only appropriate

that stringent standards be applied. Onus probandi lies on every person

propounding a will and who must satisfy the conscience of the court that the

will was executed when the testator was of sound and disposing mind and

memory. Attestation is required under Section 68 of the Evidence Act

meaning thereby that if a document is required by law to be attested, it

cannot be used in evidence until at least one attesting witness has been called

for proving execution of the will except in cases of registered wills. In cases

where surrounding circumstances were shrouded in suspicious, it is the duty

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of the propounder to remove suspicion by leading satisfactory evidence. In

the case at hand Dave was an attesting witness.

58. In Vasai CHS Ltd. (supra), while considering a suit for declaration of

title and possession under the Specific Relief Act, the Court had occasion to

observe, under Section 35 of the Indian Evidence Act, relevancy of a public

record. An entry in the register was held to be relevant but not proof and

cannot confer any title. This judgment was pressed into service by

Mr. Sanglikar in support of his submission that the entry in the revenue

records are of no assistance. I do not however, find this of much assistance to

the plaintiffs case.

59. In B. Venkatamuni (supra), the Supreme Court was considering an

appeal and scope of interference on facts. The Court relied on its decision in

Umabai v/s. Nilkanth Dhondiba Chavan. [(2005) 6 SCC 243] and observed

that the proving of execution of a will does not only mean proving of the

signatures of the executors and the attesting witnesses. The Court must satisfy

its conscience having regard to the totality of the circumstances of the case

that the Will was valid. A will is not an ordinary document and though it

required to be proved like any other document, the statutory conditions

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Proof of signature alone would not prove the execution of a Will, if the

mind of the testator appears to be very feeble and debilitated but if a defence

of fraud, coercion or undue influence is raised, the burden would be on the

Caveator, as decided by the Supreme Court in the case of Madhukar D.

Shende v/s. Tarabai Aba Shedage (2002) 2 SCC 85 , Sridevi v/s. Jayaraja Shetty

(2005) 2 SCC 784. The Court also reiterated the requirement of satisfying its

conscience and the fact that animus attestandi is a necessary ingredient. The

Supreme Court has set aside the Division Bench judgment which had held

that upon compliance of legal formalities, the suspicious circumstances

surrounding the execution of the Will are not of much significance. In

Rebendra Datta (supra), the father and wife of the executor were attesting

witnesses. The testator was neither showed the alleged Will to the daughters

of the testator nor did he send them any communication. The affidavits of

attesting witnesses were not filed as required under law. There were serious

discrepancies and contradictions in the two affidavits filed by the executor

about the place of alleged execution of Will. The Court held that the Will

could not be probated, interalia, the Will being registered with the Registrar

of Assurance and collection of the original will by the father of the plaintiff

was ex facie in violation of provisions of law. It was contended that there was

no original will. There were allegations of delay in filing the affidavit of

attesting witness of more than 7 years.

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60. In Sridevi and others v/s. Mr. Jayaraja Shetty (supra), the Supreme

Court held that the propounder of a Will has to show that the Will was

signed by the testator; that at the relevant time he was of sound and disposing

state of mind and had understood the effect and nature of the disposition and

had put his signatures to the testament of his own free will. Further that he

had signed in the presence of two witnesses who attested the Will in his

presence and in the presence of each other. Once these elements were

established, the onus resting on the propounder is discharged, DW 2 the

scribe, in his testimony has categorically stated that the Will was scribed by

him at the dictation of the testator. The attesting witnesses have deposed that

the testator had signed the Will in their presence while in sound disposing

state of mind after understanding the nature and effect made by him. In the

cross examination, the appellants had failed to elicit anything to persuade the

Court to disbelieve testimony. The testimony of the scribe and the two

attesting witnesses were fully corroborated. The Court therefore held that the

Will had been duly executed. As far as suspicious circumstances are

concerned, in that case the testator was about 80 years of age. He died 15

days after execution of the Will. Two attesting witnesses had categorically

stated that the testator was in a sound state of health and possessed his full

physical and mental faculties and nothing had been brought on record that

the testator was not in good health or not possessed of his physical or mental

health. The appellants had failed to bring out anything which could have put

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a doubt regarding the physical or mental incapacity of the testator to execute

the Will. Although the appellant in that case had contended that the

respondent had played a prominent part in execution of the Will and he was

present in the house at that time. Mere presence in the house is not proof

that he had taken prominent part in executing the Will. In Sridevi (supra),

the Will was disclosed after a period of 4 years and that was stated to be a

suspicious circumstance. The Court however, on facts did not find any merit

in the contention. It is thus contended on behalf of the petitioners that the

presence of the petitioner at the time of execution of the Will, advanced age

of the petitioner, the presence of the plaintiff when the Will was being

executed in the house were suspicious circumstances. Delay in disclosing the

will was not found to be a suspicious circumstances in that case.

61. In Uma Devi Nambiar (supra), natural heirs were excluded. It was

held that merely excluding natural heirs or giving them lesser share by itself

cannot be said to be a suspicious circumstances. Similarly in Rabindra Nath

Mukherjee v/s. Panchanan Banerjee (supra) the Supreme Court held that

depriving natural heirs should not raise suspicion because the whole idea

behind execution of the Will is to interfere with the normal line of succession.

Paragraph 3, 4 and 8 in Panchanan Banerjee (supra) reveals that the natural

heirs had been deprived by the testatrix. The testatrix was identified before

the Sub-Registrar by an Advocate of Calcutta who had acted as a lawyer of

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one of the executors in some cases. The witnesses to the documents were

interested in the appellants and the close relative of Rabindra, one of the

executors in executing the Will. Apropos the first aspect, to deprive all

natural heirs the Court observed that itself would not raise suspicion because

the whole idea behind execution of Will is to interfere with the normal line

of succession. The natural heirs can be debarred in any Will some partially

and completely in others. Likewise, identification of the testatrix by an

Advocate who was contacted by one of the parties was not a suspicious

circumstances.

62. In Pentakota Satyanarayana (supra), the Supreme Court held that the

initial onus is on the propounder. In paragraph 24, the Court found that the

propounders were called upon to show by evidence that the Will was signed

by the testator and that the testator was not in a sound and disposing state of

mind. The onus was discharged by the propounder adducing prima facie

evidence, proving competence of the testator and execution of the Will in the

manner contemplated by law. The onus shifts to the persons opposing the

Will to bring the material on record meeting such prima facie case in which

event the onus shifts back on the propounder to satisfy the court affirmatively

that the testator did know well the contents of the Will and executed the same

in a sound and disposing capacity. That every circumstance is not a

suspicious one and therefore active participation of the beneficiaries and the 51/81 ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 05:51:13 ::: TS-67-97.odt

execution of the Will by the propounders and beneficiaries, cannot create

doubt about the testamentary capacity or genuineness of the Will. Mere

presence of the beneficiary at the time of execution would not prove that the

beneficiary had taken a prominent part in execution of the Will. This aspect

had been considered in Sridevi v/s. Jayaraja Shetty (supra). It is also necessary

to observe that in Pushpavati (supra), the Court found that evidence of

handwriting experts was relied upon. They were of the opinion that the

disputed signatures on the Will was that of the testator. Both the witnesses

did not know Kannada or the Kannada script. The trial court rejected the

evidence of both attesting witness. The High Court did not agree. The judges

knew Kannada and also the Kannada script were inclined to accept the

evidence as reliable. Evidence was given as to number of "pen lifts". There

were more pen lifts in the disputed signature than in the admitted signatures

but the handwriting expert was not cross examined in that case. The High

Court took a view that the Will was genuine.

63. In Malkani (supra), the Supreme court considered the circumstances

in which the plaintiff knew that her mother was about to execute a Will and

she tried to prevent her from doing so but the testatrix did execute the Will.

After execution of the Will, the testatrix lived with the plaintiff till her

demise. If the allegation that the defendants have procured the Will by fraud

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against the defendants or revoked the Will. If the testatrix had been abducted

by the defendants, the testatrix could have but did not seek to revoke the Will

or alter it and the Court thus found the Will to be a genuine one.

64. In this suit, it cannot be disputed that the petitioner was the only

person who was available at hand for assisting the testator, his daughter, the

plaintiff was living with him. There were only two heirs. The plaintiff's

daughter had been staying with him since her birth till her father's demise.

She was the only person to look after her parents till their demise. She was

unmarried for large part of the time and a bequest by a father to his only

daughter who had lived with him for all these long years cannot be termed as

a suspicious in the face of a few allegations. Apropos the exclusion of a

natural heir, there is a little or no evidence that the son is lived with his

parents or vice versa. There is no evidence to suggest that he looked after his

parents for a substantial length of time. Ever since he completed his

education and till the demise of the father, the defendant was employed at

various places. There was no evidence to show regular contact with the

parents. It is not in dispute that the parents did not attend his marriage and

were reportedly unaware of his marriage. Although while in Bombay, he

stayed in close proximity to his parents house, there is no evidence of any

regular visit to the parents. Although the decision to stay independent and

separately is not uncommon, even when he was in Thane, he did not opt to

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visit or spend time with his parents. The defendant also did not ask the

parents to stay with him in Thane. The case of the plaintiffs is that the

defendant was unaware of the state of health treatment of the father, filing of

tax returns properties and hospitalization of the father towards later part of

his life. It is contended that the testator would have been disappointed with

the defendants conduct and although he did not express such displeasure.

Merely because the bequest is made in favour of the daughter cannot be

termed as a suspicious circumstance.

65. As far as the attesting witness Dave is concerned he was an Advocate

and attested execution of the Will and merely because Dave's mother was the

Advocate representing the plaintiff it cannot lead to the conclusion that he

was an interested witness. As far as shaky signature is concerned, it was

contended that Exhibit P is the nomination form along with original letter.

The signature on the nomination form was used for comparison and an

elderly person is likely to have a shaky signature. As far as the sound and

disposition state of mind is concerned, it is contended that no evidence has

been brought on record to justify the alleged incapacity of the testator. No

doubt Mr. Sanglikar had time and again pointed out that a neurophysician

has been consulted by the deceased but that in my view is not proof that the

testator was not sound mind or that he was incapable of making a

testamentary disposition. Reliance was placed on Section 63 and 68 of the

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Evidence Act and it was contended that secondary evidence has been led and

a copy was made from the original oral accounts of a person who has

himself seen it, is also relevant as secondary evidence. Merely because Dr.

Kriplani the second attesting witness was not examined is no ground to reject

the plaintiffs case.

66. I have also had occasion to peruse Exhibit D1/2 being the copy of

plaint in Suit no.852 of 1995 filed by the defendant against the plaintiff

herein. The plaint proceeds on the basis that the defendant had been posted

at different places during the course of his employment. He had no residence

of his own and he was working in Hong Kong at the time of demise of his

father. The plaintiff herein the sister was residing in the suit flat and her

name was entered in the records of the society. She got married in April

1992 and was permanently residing in Ahmedabad. She travels most of the

times. Reference is made to the fact that the flat had been let out and that he

had made attempts to meet his sister on several occasions but had failed. He

then wrote to her on 25 th November, 1994 to meet and discuss the issue

pertaining to the flat but there was no response and therefore he was left with

no alternative but to seek administration of the estate to recover his half

share and his personal belongings and for consequential reliefs. The plaintiff

had allegedly surreptitiously, got transferred to her name some of the assets

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including the flat. The deceased father died intestate in Mumbai and therefore

he is entitled to a decree for administration of the estate.

67. In the affidavit in support of the Caveat and in the affidavit of evidence

of the defendant, there are no allegations of forgery of the Will at all. The

language used in the plaint is that the plaintiff has "surreptitiously" got

transferred to her name "some" of their late father's assets including the flat.

Thus the allegations of surreptitious transfer of the flat and properties would

in my view could indicate exercise of undue influence. If that be so the

burden shifts to the defendant-brother. Exhibit D1/2 contains annexures

which include a letter written by Mrs. Nayana Dave, Advocate, mother of the

attesting witness Sandeep Dave informing the defendant that a caveat has

been filed and notifying her as the plaintiff's Advocate to be contacted by the

defendant. He has sought to contend that the property is ancestral property

and called upon the plaintiff to settle the matter. The correspondence

initiated by the defendant and referred to in the suit field by him does not

contain any allegations of fraud or forgery or exercise of undue influence.

68. In the course of recording evidence it appears that both sides raised

several objections. Objections were raised by Mr. Sanglikar in respect of the

several questions put to Sandeep Dave, Hemant Vishnu Prabhu and Jatindar

Kumar Sethi by way of further examination in chief and on one occasion

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clarification sought to be introduced by the witness. Likewise in the evidence

of Mr. Avjit Chatterjee and the defendant Ms. Hiral Mehta, Mr. Sanglikar

raised objection to question put to the witness in cross examination. During

the cross examination of the plaintiff witness Mr. Nilesh Modi Mr. Rajesh

Shah, Ms. Bhramania and Mr. Murthy had also raised objections to questions

put to the witness in cross examination as also certain questions put to Mr.

Avjit Chatterji and Mr. Ashim Chatterjee by way of further examination in

chief. It will be appropriate to deal with these objections at this stage. For

convenience the objections raised with respect the examination of each of

these witness are being separately set out :

Objections to evidence of Sandeep Dave

Certain questions were put to the attesting witness by way of further

examination in chief to which Mr. Sanglikar raised objections interalia

contending that once an affidavit in lieu of examination in chief has been

filed the deposition could not be improved upon by asking further questions.

These objections cannot be sustained since even in order to administer oath to

the witness it may be necessary to put further questions to him by way of

examination in chief. Considering the nature and the number of questions

put to him I am of the view that the objection to further examination in chief

of Sandeep Dave cannot be sustained.

Objections to evidence of Mr Hemant Vishnu Prabhu

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As far as Hemant Vishnu Prabhu is concerned Mr. Sanglikar had objected on

the ground that the witness was purportedly being examined to produce

document but in fact he was not a production witness. Mr. Sanglikar's

contention appears to be that the witness is not production witness because

no summons was issued to him. Prabhu has appeared only at the request of

the plaintiff and not pursuant to notice under Section 162. Section 162

contemplates a witness summons to produce a document and the right of the

party to object thereof. Section 162 empowers the Judge to put question and

order production. Prabhu was examined on oath not merely as witness to

produce document. He was cross examined as well albeit without prejudice

to Mr. Sanglikar's contention that Prabhu is not a production witness. I find

no substance in this objection and hence it cannot be sustained. Although

cross examination of Prabhu was opposed by the counsel on behalf of the

plaintiff on the basis that he was witness to produce documents, Mr.

Sanglikar had correctly contended that the said witness had filed detailed

affidavit and was not merely producing documents and therefore liable to

cross examination. This objection has since been given up and Mr. Sanglikar

contention that he was entitled to cross examine witness was fully justified.

There is no merit in the objection based on this behalf.

69. The next objection to Prabhus' evidence was raised by Mr. Sanglikar on

the basis that evidence of the witness in paragraph 8 was insufficient to mark

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Article X-1 as an Exhibit. The nomination form in evidence that X-1 is

allegedly not the original nomination form and is being passed off as one.

Secondly the witness had not said anything about the contents or custody and

hence the document cannot be executed. Thirdly the witness had not said

anything about the contents. Document has since been proved through

Jatinder Kumar Sethi and in view of the evidence of Mr. Sethi I find no

difficulty in marking this document. Objection in relation to marking of the

nomination form is overruled. The nomination form is marked Exhibit P.

Objection to evidence of Mr Jatinder Kumar Sethi

As regards objection to evidence of Sethi is concerned Mr. Sanglikar had

contended that the Commissioner could not record voluntary statements of

the witness under cross examination and that the witness was attempting to

change his deposition on a subsequent date, after corrections were carried out

by consent and only to improve his evidence. No doubt it was a voluntary

statements normally need not be disregarded by the Commissioner provided

the context and objections thereto are also recorded but considering the fact

that this so called clarification was sought to be made after examination was

made on a subsequent date, I find the objection is justified. A witness cannot

be permitted to "clarify" an answer unless the background was laid out which

justifies it. Eventually Mr. Sanglikar had stated that subject to orders of the

Court the witnesses voluntary statement should be recorded verbatim and it

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was so recorded. In this case the witness wished to clarify that the affidavit in

question was prepared by the plaintiff lawyer and not the plaintiff. Thus

while upholding the objection generally in this particular instance I am of

the view that the clarification although belated may be permitted.

Objection to evidence of Mr. Avijit Chatterjee

I now deal with the objection raised to the evidence of Avjeet Chatterjee.

Objection to the question 59 and 60 in my view were justified whereas

objection to question no. 63 is not. Likewise objection to question 148 and

149, 150 and 157 are sustainable and hence answers to this question shall

not be read in evidence.

70. Apropos the evidence of Hiral Mehta, objections to question no.29

cannot be sustained. Objections to question nos. 37, 38, 73, 74 and 75 are

sustained.

As regards objections raised on behalf of the plaintiff on question no. 44 put

to Mr. Dave and question no. 42 and 52 to Mr. Prabhu and question no. 8 to

Mr. Sethi they were in my view justified. Answers to these questions will be

read in evidence. Answers to question no. 8, 44, 50 and 123 is also to be read

in evidence.

Objection to question no. 44 is upheld. Objection to question nos. 42 and 52

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and 123 are justified. However, objection to question nos. 29, 99, 100, 105,

106 and 119 are not justified and the answers will be read in evidence. In

the evidence of Ahiwale, objection raised by Ms. Bhramania to question no.

59 is not justified. The objection raised to questions nos. 1 to 3 put to Mr.

Avjit Chatterjee by way of further examination in chief are justified.

Question in re-examination

Since these are clearly improvements, objection to question nos. 1 and 3 are

justified whereas objection to question no. 2 cannot be sustained.

As far as evidence of Ashim Chatterjee is concerned objection raised by Mr.

Murthy in re-examination of question nos. 1 and 2 are not sustainable.

71. In Venkatachala Iyengar(supra) the Supreme Court was considering

the duty of the Court in the matter of proving of Will, in particular the

manner of appreciation of evidence. In paragraph 18, 20, 29 and 39 the

Court had occasion to consider these aspects and since the Court found it

was a recurring topic which Courts are called upon to decide certain

principles were culled out. After making reference to the relevant provisions

the Court observed that the testator is required to sign or affix his mark to the

will and which shall be signed by some other persons in his presence and by

his direction and that the signature or mark should appear in the manner

that it was intended to give effect to the writing as a will. Two or more

witnesses were required to attest the will. Apart from considering whether 61/81 ::: Uploaded on - 15/02/2020 ::: Downloaded on - 09/06/2020 05:51:13 ::: TS-67-97.odt

the testator signed the Will the Court will consider whether he understood

the nature and effect of the depositions and signed it after noting its contents.

The propounder would be required to show by satisfactory evidence whether

the Will was signed by the testator who was in a sound and disposing state

of mind and understood the nature and effect of the dispositions and put his

signature to the document of his own free will.

72. The Court observed that ordinarily when the evidence adduced in

support of the will is disinterested, satisfactory and sufficient to prove the

sound and disposing state of the testator's mind and his signature as required

by law. According to Mr. Sanglikar in the instant case execution of the Will

was since surrounded by suspicious circumstances as much as the shaky and

doubtful signature of the testator and evidence in support of the

propounder's case that the signature in question is that of the testator may

not remove the doubt created by the appearance of the same signature. If the

testator's mind appears feeble and debilitated it may not succeed in removing

the legitimate doubt as to the mental capacity of the testator. Disposition may

appear unnatural, improbable or unfair. In such cases the court would

naturally except that all legitimate suspicion should be completely removed.

The onus cast upon the propounder is very heavy and unless it is

satisfactorily discharged, the Courts would be reluctant to treat the

document as the last Will of the testator. In the event of caveat being filed

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alleging the exercise of undue influence fraud or coercion such pleas made

by the Caveator have to be proved. Propounders taking a prominent part

in the execution of the Wills which also confer upon them substantial

benefits would also give rise to suspicious circumstances and the propounder

is required to remove such suspicion by satisfactory evidence. Reference was

also made to decision of the English Courts which mentioned tests of

satisfaction of judicial functions. For instance in Fulton v. Andrew, 1875-7

L 448 The House of Lords observed "those who take a benefit under a will,

and have been instrumental in preparing or obtaining it, have thrown upon

them the onus of showing the righteousness of the transaction". In Barry v.

Butlin, 1837-2 Moo P C 480 two rules of law set out by Baron Parke which

are as below :

"first, that the onus probandi lies in every case upon the party

propounding a will; and he must satisfy the conscience of the Court

that the instrument so propounded is the last will of a free and

capable testator". The second is , that, if a party writes or prepares a

will under which he takes a benefit, that is a circumstances that

ought generally to excite the suspicion of the Court and calls upon it

to be vigilant and zealous in examining the evidence in support of the

instrument in favour of which it ought not to pronounce unless the

suspicion is removed, and it is judicially satisfied that the paper

propounded does express the true will of the deceased".

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The same principle is said to be imposed by the Privy Council in Vellasawmy

Servai v. Sivaraman Servai 57b Ind App 96 (AIR 1930 P C 24) where it was

held that the Will propounded by the chief beneficiary and who was taking

a leading part in giving instructions for preparation and procuring its

execution, probate should not be granted unless the evidence removes all

suspicion.

73. In Anil Kak (supra), the Supreme Court was considering the mode of

proving a Will and in the facts of that case, it was held that the execution of

the Will had not been proved since there were appendices that were not

signed by the attesting witnesses. The will had remained in the custody of the

petitioner who did not examine himself as a witness. The division of the

properties was unequal and the petitioner took part in the preparation of the

will. It is therefore alleged that these all were suspicious circumstances and it

was therefore contended that the High Court had fell in error in passing the

judgment to consider that the testatrix had divided her properties equally

amongst her four daughters and her grandchildren and there was no reason

suspecting the genuineness of the will and the grandchildren were

beneficiaries and appendices were annexed to the will for proving out

equality in relation to division and medical certificates annexed showed that

she had a sound disposing mind and the burden of proof was on the caveator.

The will was said to be executed in presence of a notary. Two medical

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certificates were annexed. It was not denied that the appellant took part in the

preparation and execution of the Will and for proving the will, the

appellants examine one of the executors who was not aware of the contents

of the Will. The will was not executed in his presence. The Court held that

the proving of execution of a will does not prove that the attesting witness

do something more. Although the will is required to be proved unlike any

other document but the statutory conditions imposed by reason of Section

63(c) and Section 68 of the Evidence Act cannot be ignored. The Court

adverted to its decision in the B. Venkatamuni (supra) which observed that

compliance with statutory requirements itself is not sufficient.

74. Section 68 of the Evidence Act postulates the mode and manner of

proof of execution of document which is required by law to be attested

stating that the execution may be proved by at least one attesting witness.

That an order granting probate being a judgment in rem, the Court must

satisfy its conscience and interalia animus attestandi is a necessary ingredient

for proving the attestation. In B. Venkatamuni (supra) it is also held that each

case may be determined in facts obtaining therein and held that the division

bench of the High Court was entirely wrong in proceeding that compliance

with legal formalities as regards proof of the will would sub-serve the

purpose and the suspicious circumstances surrounding the execution thereof

is not of much significance.

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75. Having gone through the entire gamut of facts and the law as

canvassed by both sides there can be no quarrel on the requirements of a

proof of will. The judgments that both counsel have adverted to clearly set

out the need of the propounder of the will to prove beyond doubt that the will

was genuine and that it was made by the testator with clear intention that he

chose. The will ought to have been executed by the testator when he was of

sound and disposing mind and without being influenced by the parties whose

assistance he may have taken in preparation of the will. The requirement of

an attesting witness affirming the execution of the will is only one of those

preconditions of proving the will.

76. In the present case, much has been stated about the failure to examine

Dr. Kriplani who was said to be one of the witness to the execution of the will

specially being a Doctor. Mr. Sanglikar stressed upon the fact that Dr.

Kriplani was in all likelihood aware of the mental condition of the testator

and knew that he was not in a position to make a will and therefore, he had

deliberately not been examined. In my view, what needs to be considered is;

whether the legal requirement of proof of the Will were completed, the

circumstances under which the Will was executed, the doubts cast upon the

signature of the testator upon the Will. I have no doubt that as far as the legal

requirements are concerned, execution of the will is proved inasmuch as

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there is no reason to doubt the veracity of the deposition by the attesting

witness Sandeep Dave who has been subjected to cross examination. It is

pertinent to note that at no stage during the cross examination of Mr. Dave

was he asked about the physical or mental state of the testator. PW-1 Dave

being the only person who claims to have witnessed the execution of the Will

and who had deposed it was incumbent upon the cross examiner to put to

the witness the defendants case that the Will was not signed by the testator

and/or that it was signed by the plaintiff. More particularly the witness

ought to have been cross examined on the mental faculties of the testator

when PW-1 was with the testator, whether the witness observed that

testator's general demeanour, his reactions when PW-1 met him, his

interactions with the testator and vice versa. None of these aspects were put

to the witness Dave. This was all the more necessary because the defendant

knew that Dr. Kriplani was not being examined by the plaintiff and apart

from the plaintiff, Dr. Kriplani and Dave, no other person is believed to have

been present. Dr. Kriplani and the plaintiff not having deposed, the defendant

ought to have cross examined PW-1 Dave on these aspects. This omission is

fatal to the defendant's case. The other contention of Mr. Sanglikar that Dave

is not an independent witness does not commend itself to me. The fact that

the mother of the witness was an Advocate for the petitioner in the suit filed

for administration of the estate of the defendant is no ground to question the

independence of the attesting witness. The attesting witness was an Advocate

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& Solicitor in his own right was requested by another professional to attend to

the execution of the will. The fact that the mother of the attesting witness

was also a practicing Advocate and the fact that she had represented or was

engaged to represent the plaintiff would not by itself be sufficient to establish

any wrong doing on the part of the attesting witness. The fact that the

attesting witness did attend has not been disproved. It appears that the chain

of events which led to the execution of the will have no bearing on the fact

that the engagement of the attesting witness's mother in the suit. That

would not justify casting aspersions on the attesting witness' independence.

The will is seen to have been executed on 21 st March, 1989 whereas the

attesting witness mother has been engaged in the suit in or about April 1995.

The engagement of the attesting witness's mother as Advocate in the suit for

administration of the partition of the estate was subsequent in point of time

compared to the execution of the will. The defendant has not proved that

the will was not validly executed. In fact the only issue framed was whether

the last will and testament of the deceased was validly executed. The affidavit

in support of the Caveat, the defendant does not alleged forgery. It is not

alleged that the attesting witness was party to its forgery or that Dr. Kriplani

was party to such forgery. If Dr. Kriplani was so aware of the state of health

of the deceased, there was no reason why the defendant not summon Dr.

Kriplani at the appropriate time. One fact is evident that the defendant has

not questioned the fact that Dr. Kriplani was known to the deceased. The

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contention that the attesting witness was a interested party or that his mother

was an interested party is not something that has been seriously pursued by

the petitioner.

77. Mr. Dave was a legal practitioner. He has identified the other attesting

witness as Dr. Kriplani and in the cross examination he has clearly admitted

that the affidavit was drafted by solicitors who were on record of the cases

for the plaintiff. The witness had made factual changes to the affidavit and

after being satisfied with the facts and he had signed the affidavit. He has

deposed in March 1989 he was working as Senior Clerk with Kanga & Co.

and worked there till 1992. He has also clearly stated that he did not know

that the plaintiff was the client of Kanga & Co. and he did not know the

plaintiff personally at that time. He had not met the plaintiff at any time prior

to the day the Will was executed. It transpires that the partner of the firm

where he was employed had introduced him to the plaintiff and instructed

him to accompany her to attest the Will of the father. The plaintiff was

introduced to the witness as a friend of a partner with whom he was then

employed. He also did not know him. Apropos the other attesting witness Dr.

Kriplani, in answer to cross examination Dave has stated that he could not

recollect the appearance of the testator. He did not deny that Nayana Dave

was the Advocate for the plaintiff who had later withdrawn her appearance.

Dave disagreed with the suggestion that Dave had not witnessed the

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execution of the Will and that he did not ever visit Jaldarshan Building to

witness the execution of the will and that he had simply signed on a Will

which was already signed by the somebody, PW-1 has reiterated in answer

to question no.56 that the documents bears the signature of the deceased, the

attesting witness Dave and that of Dr. Kriplani. He has denied the suggestion

that Dr. Kriplani did not sign as a witness and that he had signed the

document already signed by somebody only to oblige the partner of the firm

where he was working. However, he clarified that he was not working

under a gentleman who had requested him to accompany the plaintiff but

was employed with another Solicitor of the firm. When Dave challenged as to

his being employed with a partner different from the partner who had

requested him to accompany the plaintiff, the witness had clearly stated that

he had signed articles in the Bombay Incorporated Law society under his

Master. Mr. Desai, Advocate Solicitor and partner of the firm. The cross

examination then concluded. No further attempt has been made to assail the

veracity of his deposition that he had witnessed the execution of the Will by

the testator. No suggestions has been put to the witness that would help the

defendant in establishing that the attesting witness was not truthful. The

deposition in my view successfully withstood the test of cross examination.

The fact of execution and the legal requirement in my view stands fulfilled.

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78. The affidavit in support of the Caveat states that the deceased died

intestate and never made a Will and that the document being posed of as a

Will does not bear his father's signature. It has no direct allegation of any

forgery. It is therefore appropriate that we considered the averments in the

affidavit of evidence filed on behalf of the defendants. After the preliminary

depositions the defendant repeated that the document being posed a will is a

bogus and sham document and that the Will is fabricated. The signature of

the will is not of his father but that of the plaintiff. Yet, there has been no

evidence to substantiate the allegation that the will was signed by the plaintiff.

79. The other aspect to be considered is the likelihood of the defendant's

version being correct inasmuch as he has contended that the plaintiff had

exercised enormous control over the deceased kept records for him, wrote

letters for him and on his behalf and the deceased was so dependent upon the

plaintiff. There is no denial of the plaintiffs contentions that the defendant

was not in touch with the deceased. There is much evidence on record of the

fact that that the defendant was practically unavailable throughout life of the

deceased. He was a busy professional in his own right engaged in and

immersed in his job which kept him outside the city of residence of the

testator for large numbers of years. Although attempts have been made to

establish that the deceased had lived with the defendant for certain periods of

time in Chennai and in Hyderabad, there is absolutely no evidence of the

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deceased having spent such time. An attempt has already been made by the

defendant's son who was suggested that he has seen his grandfather signing

and that the signature on the Will is not of his grandfather. The said son has

also deposed that his father and grandfather were speaking apologetically in

Hyderabad and Madras about the ill treatment faced by his mother

(daughter-in-law of the deceased) at the hands of her in-laws. The witness

deposed that he had seen the notes which were produced by his father the

defendant and that those notes in his mother's handwriting. The mother of

the said witness viz. the wife of the defendant expired on or about 29 th July,

2011. The Testamentary Petition had been filed in 1995 and the suit for

partition being suit no.852 of 1995 was also filed in 1995. Having filed the

suit for administration of the estate and for accounts, the defendant claimed

one half of the estate of the deceased although it is his case that the Will was

never disclosed prior to filing of that suit. It is obvious that upon the

testamentary petition being filed and being converted to a suit, the defendant

had every opportunity to establish his case that is now sought to be made out

and as canvassed on behalf of the original defendant and by the present

defendant no.1(A). There is no explanation forthcoming as to why the

defendant's wife Aruna had not deposed in the matter and given evidence as

to the notes. Issues were framed on 6 th January, 2011 and the defendant's

wife passed away on 29th July, 2011. Surely from 1997 onwards, the

defendant was well aware of the impending of the trial. One would have

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expected that the defendant's wife would then depose rather than defendant's

son now attempting to prove the writings. The defendant no.1 had admitted

that he has been staying away from Bombay because of his job in Calcutta,

Chennai and Hyderabad. He deposed to the fact that the father deceased

testator had stayed with his family for long durations yet no particulars of

these alleged longer stays are forthcoming. No experiences have been

narrated of these alleged long stays and even the defendant's son evidence

states that he remembers the testator residing with the family at Hyderabad

in 1995, in 1988 at Madras for about a month and half and two months

respectively and his health started failing ill thereof just in 1988. One of the

remarkable aspects of the present dispute is the indifference of the defendant

to the testator. The evidence led by the defendant in support of his case does

not even allude to this that the defendant was seriously concerned about the

health of the deceased testator at any point of time. The testator did not have

indifferent health prior to 1988. The will is said to be executed on 21 st

March, 1989. There is no evidence of any serious deterioration in the

testator's health in the interregnum. Thus, the contentions on behalf of the

defendant that the testator was seriously ill, consulting neurophysicians was

not of sound and disposing mind and therefore incapable of executing a Will,

is difficult to accept.

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80. The defendant has also deposed to the testator's state of health as of

1988 in paragraph 8 evidence he contends that testator was suffering from

Parkinson's disease for a long time and that he had difficulty in signing. The

testator had told the defendants several times that the plaintiff used to put his

signature and for that reason that the plaintiff engaged a handwriting expert.

The defendant's inability to establish his case on the strength of his own

evidence and that of his late wife is evident from the attempts at enlisting

support of the other witnesses such as Talwar, and that of defendant's son.

The attempt of the defendant was to show that he was a dutiful son, having

cordial relationship with his father and that his father was heavily dependent

on the plaintiff even to the extent that she would sign for him. There is no

denial of the fact that the plaintiff lived with her deceased testator all her life

and was intensely devoted to the testator. In fact there is no attempt to deny

that the testator had depended upon the plaintiff to a great extent. The

correspondence exchanged between the parties also indicates that the

defendant was distant, did not keep in touch with his parents and the letters

Exhibit D1/3, D1/6, D1/7, D1/8, D1/9 and D1/11 clearly indicate that it was

the plaintiff who was keeping the defendant informed of developments.

81. The next witness is Sethi, PW-2, who was a managing committee

member and was later appointed treasurer of the society. Sethi was examined

by virtue of his involvement in the managing committee and it is understood

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on what basis his independence has been questioned so also the Prabhu was

the manager of the society if the plaintiff was desirous of examining office

bearers of the society her bias would have automatically be limited to persons

who are connected with the management of the society and at the material

time. Nothing has been shown to him to attribute lack of independence of

these witnesses.

82. Mr. Dilip Ahiwale was also a forensic examiner and once again

independence of the said examiner has been questioned but there is no

material on the basis of which the defendant can successfully urged that these

witnesses viz. attesting witness Dave, societies formal manager Prabhu,

Jatinder Sethi or Dilip Ahiwale were not independent. The contention that

their testimony could not be relied upon has no basis. As regards the

contention of the plaintiff that the plaintiff had omitted to step into the box

and depose in support the Will. One has to consider whether not leading

rebuttal evidence would help in concluding that the deceased did not validly

execute the will. The failure to lead rebuttal evidence cannot prevent the

petitioner from establishing that the last will and testament of the deceased

was validly executed and the decisions of the courts have held that is

whether a party would fail in the suit if no evidence was led on facts alleged

by that party. In the instant case the plaintiff has led evidence of a attesting

witness and to my mind the execution of the Will has been proved beyond all

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doubt. The contention that absence of the plaintiffs evidence must be held

against her in my view has no merit. Personal involvement of the plaintiff in

preparation of the will is one other aspect that has been urged as a suspicious

circumstances. In the facts of the present case if the plaintiff had not assisted

the testator in preparation of the will or execute the will who else could the

deceased have turned to. Admittedly the plaintiff lived with the deceased all

her life. The defendant was not available to render any assistance to the

plaintiff or the deceased. It is under these circumstances that the plaintiff

herself took the initiative to have the Will drafted through her solicitor and

arranged to have the Will executed. I have scrutinized the cross examination

of the witnesses supporting the plaintiffs case, the defendant's evidence and I

am unable to come to the conclusion that the will was not executed by the

testator but was signed by the plaintiff herself.

83. As observed earlier, the burden shifted to the defendant. The tests of

suspicious circumstances laid down in Guro (supra) are certainly not

applicable in the facts of the present case. It is a matter of record that the

attesting witness has seen the deceased sign the will in his presence. His cross

examination has not brought out anything to the contrary. There was a

second attesting witness Dr. Kriplani the fact that Dr. Kriplani present has

not been disputed. It is the case of the defendant that if the Dr. Kriplani who

ought to have examined since he was a professional and would have been

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aware of the state of health of the deceased and that if he had examined he

would not have been able to justify the execution of the will. Since according

to the defendants, Dr. Kriplani would have been aware of the state of mind

and body of the deceased and his obvious inability to execute a Will alluding

to the contention that the physical and mental faculties were not appropriate.

The Supreme court has occasion to consider cases where a beneficiary played

a prominent part in execution of the will and remained present at the time of

its execution and has held that presence in the house of testator would not

necessarily mean that he or she had taken prominent part in executing the

will. One of the reasons why the defendants contended that the Will has not

validly executed is because the will was not disclosed even after the suit as

filed by the defendant. It does seem a little odd that the will then not been so

disclosed. To my mind the delay in disclosing the will cannot be fatal to the

plaintiffs case.

84. The contention that Prabhu/Sethi were not really the production

witnesses is of no avail has not been seriously pressed into service and in any

case the said witnesses were permitted to be cross examined and their

deposition has been taken into consideration by both sides. I am of the view

that the objection that these persons were introduced as production witnesses

when they were not in fact the production witnesses is of no consequence.

The defendants contention that the documents said to be the handwriting of

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Aruna must be read in evidence by virtue of Section 32 of the Evidence Act

has no merit either. The defendant was aware that the will had been

propounded at least in 1997, Aruna expired only in 2011 it was therefore

open to the defendant to lead evidence of Aruna herself who could have

deposed to these writings which are said to be in her handwriting. Even the

defendant could have deposed. However, the attempt to prove these

documents is made by introducing the deposition of Vijaysudha Talwar. As I

have observed already elsewhere in this judgment Talwar appears to be

tutored and her deposition does not inspire confidence. Section 32 of the

Evidence Act deals the statements by persons who cannot be called as

witnesses. Statements, written or verbal, of relevant facts which are made by a

person who is dead may be relevant facts under sub-section (6) of Section 32

which provides that if these statements are made in relation to existence of

any relationship between persons deceased and is made in any will or deed

relating to the affairs of the family to which any such deceased person

belonged and if such a statement was made before the question in dispute

was raised. In the present case, the writings (Article Y-3) are said to be in the

handwriting of Aruna but could have been established by the Aruna herself

or the defendant. Not having done so I am not convinced by the submission

that the writings deal with relevant facts. In any event, the writings have not

been proved. There is nothing to indicate that this was in the handwriting of

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except for a statement on behalf of defendant that these writings were made

sometime in the year 1983. One wonders why Aruna would make these

notes in 1983 and not produce it earlier. The attempt to prove these writings

through the deposition of Vijaysudha Talwar is futile and I am of the view

that even assuming these writings were to be proved, the contents of these

writings do not allude to any facts that are relevant. These writings (Article

Y-3) do not in any manner seek to contribute or assist the Court in arriving

at a conclusion as to whether or not the Will is validly executed. Besides the

evidence sought to be led on the basis of these writings are far-fetched and

cannot come to the assistance of the defendant. The defendant in my view

has not been able to establish that the will was signed by the plaintiff and that

it is not executed by the testator.

85. As far as the sound and disposing state of mind is concerned, it is a

matter of record that the defendant himself have admitted that the testator

was ill after 1988. There is nothing to indicate that there was a marked

deterioration in the health of the testator to the extent that no will could have

been validly executed or that he was not in a sound and disposing and sound

state of mind. Reliance sought to be placed on the omission to examine Dr.

Kriplani is of no consequence. The fact that Dr. Kriplani was present on 21 st

March, 1989 has not been disputed. Mr. Sanglikar's argument that Dr.

Kriplani was not examined and/or did not agree to depose since he was aware

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that the will was not validity executed itself presupposes that the will was

executed. The question is when the will was executed, whether the testator

was of sound and disposing mind. To this extent, it was for the defendant to

establish that the deceased was not of sound and disposing mind. It was open

to the defendant to lead evidence of the Doctors who had treated the deceased

from time to time. It is not in dispute that the deceased was hospitalized on a

few occasions and had also consulted a neurophysician. The defendant has

made no attempt to establish that the consultation with the neurophysician

was occasioned due to the deceased not being fully possessed of his mental

faculties to such an extent that he was incapable of executing a will and to

that extent the argument that the deceased was not in a position to execute

the will cannot be accepted. Merely because Dr Kriplani did not give

evidence will not justify in drawing inference that the deceased was incapable

of executing the will.

86. In conclusion this Courts conscience is satisfied to enable me to hold

that the Will is valid. I am of the view that the defendant has failed to

establish that the will was not validly executed and the plaintiffs have

established that the will was validly executed by the deceased testator. In that

view of the matter, the suit must succeed and I therefore pass the following

order;

(i) Caveat is dismissed.

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(ii) The probate of the last will and testament of Tarapada Chatterjee shall be

granted.

(iii) No orders as to costs.

87. At this stage, Mr. Sanglikar on behalf of the defendants seek stay of

operation of this order since he intends to file an appeal. In that view of the

matter, registry shall not issue the grant for eight weeks.

(A.K. MENON, J.)

wadhwa

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