Friday, 19 February 2016

How to prove death of attesting witnesses of will?

All the attesting witnesses are stated to have died.   Whether 

they have died would have to be proved by substantiating evidence.  The 
acceptable   mode   of   proof   would   be   the   death   certificate   issued   by   the 
municipality.  The plaintiff has not shown why the application for issue of a 
death   certificates   of   the   three   attesting   witnesses   is   not   made.     Merely 
stating that the witnesses are not alive and cannot be found is, therefore, 
not sufficient.  
Smt. Usha Shrikant Rege
Smt. Gauri Gajanan Rege
Dated : 15   SEPTEMBER, 2014
Citation;2014(6) MHLJ 781Bom,2016(1) ALLMR801

This petition is filed for Letters of Administration with the Will 
of   the   deceased   one   Mangesh   Pandurang   Rege   dated   1 st  October,   1971 
annexed thereto.   There are two executors appointed in the will, both of 
whom are stated to have expired prior to the filing of the petition.   The 
deceased is shown to have left behind his widow, four sons, one married 
daughter and widows and daughters of two deceased sons.
Six consent affidavits have been filed.  Two caveats have been 
filed.   One caveatrix has withdrawn the caveat.   The only challenge is by 
the present caveatrix/defendant who is widow of the deceased son of the 
The caveat claims that the will has been obtained by fraud, 
coercion and an undue influence practiced by the original petitioner.   It 
was obtained without explaining the contents to the deceased at the time 
of obtaining his thumb impression.   It also takes exception to inordinate 
delay of 19 years in filing the petition.  It sets out the position of the family 
properties and the relationship between the family members to claim that 
the will is bogus, cooked up and forged.
Based upon the aforesaid pleadings the following issues have 
been framed which are answered as follows:
Whether   the   last   will   and   testament   dated   1 st  No
       October 1971 is the last will and testament of 
               deceased Mangesh Pandurang Rege.
(ii) Whether   the   defendant   proves   that   the   will  Not required to 
              dated 1st  October, 1971 was obtained by fraud,  be answered.
                      coercion and undue influence.
(iii) Whether   the   defendant   proves   that   the   will  Not required to 
               dated 1st  October, 1971 is bogus, cooked and a  be answered.
                        forged document.
The   original   petitioner   expired   pending   the   petition.     His 
widow is the present petitioner (plaintiff).   The caveatrix is the widow of 
another   deceased   brother   of   the   original   petitioner.     The   plaintiff   has 
herself   deposed   and   led   evidence   of   a   handwriting   expert   to   prove   the 
signature of two of the attesting witnesses to the will.  The defendant has 
examined herself.   The plaintiff has relied upon two powers of attorney 
executed   by   the   deceased   as   also   by   the   original   petitioner   (original 
plaintiff),   her   deceased   husband,   which   bore   the   signatures   of   the   two 
attesting witnesses.  These documents have been shown to the handwriting 
expert along with original will to obtain the opinion of the handwriting 
expert with regard to the aforesaid signatures.  The plaintiff has also relied 
examination of the defendant which shall be considered presently.
upon   certain   correspondence   which   has   been   shown   in   the   cross­
The defendant has relied upon the marriage certificate of the 
defendant, the birth certificate of the daughter of the defendant and the 
death certificate of her deceased husband amongst other documents which 
are   neither   relevant   nor   proved   and   need   not   be   considered.     The 
defendant has relied upon inter alia the divorce petition of the plaintiff in 
the   cross­examination   of   the   plaintiff   and   the   judgment   in   the   petition 

which   documents   are   not   denied.     The   plaintiff   has   relied   upon   two 
agreements of purchase of two flats in her name in the cross­examination 
of the defendant which are also not denied.   The plaintiff has also relied 
upon certain letters, one of which dated 27.04.1972 is relevant and shall 
be   considered.     The   aforesaid   documents   which   constitute   the   material 
evidence   to   be   considered   alongside   the   oral   evidence   of   the   parties   in 
determining the aforesaid issues.
ISSUE NO.1:  Re : Execution of the will dated 01.10.1971 by 
Mangesh Pandurang Rege.
The will has been executed when the deceased was 76 years 
old and 2 1⁄2 years prior to his death.  The will is on typewritten foolscap 
accounting paper.  It shows three attesting witnesses to the execution of the 
will by the thumb impression of the deceased.  The three signatures have 
been put twice on the last page of the will.  The three attesting witnesses 
have put their initials on pages 1 & 3 also.  The will runs in 6 pages.  The 
will is shown to be prepared by an Advocate who is one of the attesting 
witnesses and a notary who has notarized the powers of attorney of the 
deceased and the original plaintiff.  One attesting witness is the doctor who 
has also examined the will and has accordingly signed and endorsed with 
It would be material to consider the position of the family of 
regard to the examination.  
the   deceased   as   also   the   facts   that   transpired   prior   to   and   after   the 
execution of the will until the filing of the petition about two decades after 
the death of the deceased.  This position is evidenced by various admitted 
facts which required to be enumerated at the inception.  The deceased had 
six sons; two of the sons are the deceased husbands of the plaintiff and 
defendant.   The facts relating to their  family are material  and relevant. 
The   original   plaintiff   is   one   Shrikant,   the   son   of   the   deceased   and   the 
deceased husband of the plaintiff.  The other son is Gajanan who was the 
husband of the defendant.   The plaintiff initially married the defendant's 
husband.   She had then been divorced.   She later married her husband's 
brother, the original plaintiff.  
The   admitted   facts   and   dates   which   are   material   may   be 
enumerated thus:
On 13.10.1960 the plaintiff married Gajanan.
(ii) She had two issues; Anuradha and Ashutosh by the said marriage.
(iii) The family lived in Datta Bhavan, Hindu Colony, Dadar, Mumbai.
(iv) From 1967­68 the relations between the plaintiff and Gajanan were 
In September, 1967 and May, 1968 the plaintiff purchased two flats 
(or 2 flats were purchased for her) being C­7 and C­8 in Piramal Nagar at 
On 01.10.1971 the will  for which the Letters of Administration  is 
claimed was executed.
(vii) On   01.10.1971   the   deceased   is   also   shown   to   have   executed   one 
power of attorney (which fact is mentioned in the power of attorney relied 
upon by the plaintiff.  The first power of attorney was in favour of one of 
mentioned in the will executed on the same day.)
the sons of the deceased, one Madhav.  Madhav is also one of the executors 
The power of attorney was prepared by Advocate R. K. Rao who is 
also shown to have attested the will.  It is shown to be notarized before the 
notary who is also shown to have attested the will.
(viii) On   28.07.1973   the   deceased   executed   another   power   of   attorney 
appointing one M. S. Rajadhyaksha who was the deceased's wife's sister's 
son.   The said power of attorney was prepared and signed by the same 
Advocate Mr. R. K. Rao identifying the thumb impression of the deceased. 
It was notarized also by the same Notary, Mr. J. T. Ferreira.
(ix) On 16.06.1974 the deceased expired.
(x) On 18.08.1974 Shrikant executed a power of attorney also in favour 
of  the   said M. S.  Rajadhyaksha, the  deceased's wife's sister's  son.    That 
power of attorney is also prepared and signed by the same Advocate Mr. R. 
K. Rao identifying the signature of Shrikant.   It is also notarized by the 
same Notary, Mr. Ferreira.
On 10.01.1975 Usha filed the divorce petition in the Bombay City 
Civil Court against Gajanan on the ground of his conversion to Islam faith.
(xii) On 04.04.1975 the petition for divorce was decreed ex parte.
(xiii) On 06.05.1977 the plaintiff, Usha married Shrikant.
(xiv) On 01.09.1978 Madhav (one of the executors) expired.
(xv) On 17.03.1979 the defendant, Gauri married Gajanan as per Hindu 
(xvi) On  24.12.1986 Anuradha, the biological  daughter  of  Gajanan and 
Usha was got married under Hindu rights by Gajanan and Gauri.
(xvii) On 20.04.1991 Gajanan (one of the executors) expired.
(xviii)On 16.10.1991 the above petition was affirmed.
(xix) On 05.01.1993 the above petition was filed/registered though all the 
The execution of the above will would have to be considered 
objections were yet not removed.
taking into account the circumstances that transpired in the family of the 
deceased before and after its execution and upon seeing the get up and 
contents of the will as also the aforesaid powers of attorney.
It may be mentioned that two powers of attorney relied upon 
by   the   petitioner   are   admissible   in   evidence.     The   original   power   of 
attorney of Shrikant is produced and would carry the presumption that it 
was executed and authenticated by Shrikant before the Notary Public as 
required by law under  Section 85  of the Indian Evidence Act, 1872.   A 
copy   of   the   power   of   attorney   of   the   deceased   is   produced   along   with 
original certificate of the Notary certifying the copy to be true and correct 
copy in words and figures of the power of attorney of the deceased given to 
M. S. Rajadhyaksha.   My attention has been drawn to  Section 57  of the 
Evidence Act which required the  Court to take judicial notice  of certain 
facts.  Under Sub­section 6 of Section 57 the seals of Notary Public are a 
part of the document of which judicial notice has to be taken.  The original 
seal of Mr. Ferreira as the Notary on the certification of the copy of the 
power of attorney would require the Court to take judicial notice that such 
a power of attorney was indeed executed, a copy of which is stated to be 
true and correct by the Notary before whom it was executed.  Once the seal 
is accepted and the required judicial notice is taken by the Court, the copy 
of the power of attorney itself would require a presumption to be drawn 
under Section 85 of the Evidence Act.  Consequently the copy of the power 
of attorney must be taken to have been executed by the Notary Public and 
authenticated as such.  (See. The Performing Right Society, Ltd. Vs. The 
Indian   Morning   Post   Restaurant   1938   Vol.   XLI   The   Bombay   Law 
Reporter 530  and  Bank of India Vs. M/s. Allibhoy Mohammed & Ors. 
AIR 2008 BOMBAY 81 relating to presumption of powers of attorney.)
Consequently both the powers of attorney require to be read in 
evidence.    It  may  be   mentioned  that   the   powers  of   attorney  have   been 
essentially   produced   to   see   and   compare   the   signatures   of   two   of   the 
attesting witnesses, the Advocate Mr. R. K. Rao and the Notary Mr. J. T. 
Ferreira on the will as also those documents.
The plaintiff has led the evidence of a handwriting expert with 
regard   to   the   comparison   of   the   signatures.     The   opinion   of   the 
handwriting expert shows the reasons for accepting the two signatures of 
Mr. Rao and Mr. Ferreira on the aforesaid documents.   The handwriting 
expert is shown to be a post graduate diploma holder in forensic science. 
He   has   examined   the   document   upon   detailed   scientific   analysis   of   the 
signatures together with 12 photographs thereof.  He has deposed that he 
has  found  adequate   material   for  comparison.     He   has  deposed   that   the 
characteristics in the writing of the signatures being the slant, alignment, 
speed   of   writing,   shading,   line   quality,   relative   spacing   between   letters, 
proportional sizing of letters, relative heights of letters, pen­pressure, pen­
emphasis,   commencement   and   finals,   pen­movement,   pen­lift,   pen­
presentation,   etc.   revealed   similar   writing   characteristics   in   all   the 
signatures.  He has, therefore, concluded in para 7 of his evidence that the 
handwriting in the aforesaid signatures are of one and of the same person.
He has been extensively cross­examined.   He has been asked 
about the methodology of comparison.  He has deposed that that is not the 
same in all cases but that the signatures can be put together.   His cross­
examination shows that he decided upon the signatures by himself.   This 
can be done only if the signatures are so similar as to be rather identical. 
His cross­examination shows that he could locate and hence collated the 
required   signatures   on   those   documents.     He   has   deposed   about   the 
instruments   that   he   used   for   his   analysis.     He   has   deposed   that   he 
measured   the   various   criteria   mentioned   above   from   the   quality   of   the 
stroke of writing.   He has also deposed on the natural variations within 
limit   which   naturally   occur   in   all   signatures.     He   has   completed   his 
examination   in   one   visit.     He   has   disputed   that   there   was   any   space 
between letters A and O in the signatures of Mr. R. K. Rao.  He has stood 
his ground with regard to his opinion with regard to other letters in the 
signatures.  A reading of his evidence shows the signatures to be identical.
It   would   be   for   the   Court   to   compare   the   signatures   under 
Section 73 of the Indian Evidence Act taking into account the analysis of 
the expert (See. Ajay Kumar Parmar Vs. State of Rajasthan AIR 2013 SC 
633).    Looking at the three signatures of Mr. R. K. Rao and Mr. Ferreira 
together, this Court can conclude that they are identical and of the same 
person as shown in the opinion of the handwriting expert.
The   signatures of   these   witnesses are  indeed  on  pages 5  as 
well as 6 of the will below the left hand thumb impression shown to be of 
the deceased in the execution clause as also next to the cancellation of the 
designation of the notary on page 6 since the document was not notarized. 
Of course, it must be borne in mind that if a document is forged more than 
one forged signature would usually not appear on the document since the 
forger would not be emphatic about its authenticity.  The two signatures of 
Mr. R. K. Rao as well as Mr. Ferreira, the Advocate and the Notary also 
appear to be indeed similar on pages 5 & 6.
One Dr. P
. A. Dalvi has also signed as attesting witness at both 
the aforesaid places on pages 5 & 6.   He has also made an endorsement 
showing that though the deceased is totally blind, he is in a sound and 
disposing state of mind, fully capable of understanding the contents of the 
The very execution of the will by the deceased is not shown; 
the plaintiff has only shown the 3 signatures of the attesting witnesses, two 
of which were on earlier documents whether those signatures had been put 
as the signatures of the attesting witnesses attesting the execution of the 
will by the deceased is not shown.  The plaintiff has not led any evidence of 
what the deceased did with the instrument and now he executed his will 
despite she having been with the deceased just prior to the execution and 
not at the time of the execution as shall be presently seen.
Even the evidence of attestation of the will is not led.  Under 
Section 68 of the Evidence Act the mode of proof of a document required 
by law to be attested is set out.  The relevant part of Section 68 runs thus :
68. Proof of execution of document required by law to  
be attested.­ If a document is required by law to be attested, it shall  
not be used as evidence until one attesting witness at least has been  
called  for   the   purpose   of   proving   its   execution,   if   there   be   an  
attesting witness alive, and subject to the process of the Court and  
capable of giving evidence.
No   attesting   witness   has   been   called   in   this   case   to   prove   the 
execution of the will.  The death of one of the attesting witnesses is stated 
but not shown.  The plaintiff has claimed that Advocate R. K. Rao expired 
in 1994.  The plaintiff has also claimed that the other two witnesses have 
expired though the plaintiff does not know the respective dates of their 
death.  It is the plaintiff's case that despite exercise in that behalf she has 
not been able to obtain the dates of the death of all the three attesting 
witnesses.   The plaintiff has not produced the death certificates of any of 
them.     It   is   for   the   plaintiff   to   prove   the   death   of   the   three   attesting 
witnesses as claimed by the plaintiff.  That can be done by obtaining their 
death certificates.   The plaintiff knew the address of Advocate R. K. Rao 
which is mentioned not only on the will but also on the docket of each of 
the three documents.   The plaintiff would also know the address of the 
doctor which is mentioned in the attestation clause of the will.  It is seen 
that though there have been 3 witnesses one of whom is shown to be dead, 
none is “called for the purpose of proving” the execution of the will of the 
The   plaintiff   has   sought   to   prove   the   attestation   and 
consequently the execution of the will under Section 69 of the Evidence Act 
which sets out the procedure of proof where no attesting witness is found. 
Section 69 runs thus:
69. Proof   where   no   attesting   witness   found.­   If   no   such  
attesting witness can be found, or if the document purports to have  
been executed in the United Kingdom, it must be proved that the  
attestation of one attesting witness at least is  in his handwriting, 
and  that the  signature of the person executing the document is in  
the handwriting of that person.
The   expression   if   “no   such   attesting   witness   can   be   found” 
would have to be considered.  Would it be for the plaintiff to merely state 
that all 3 attesting witnesses cannot be found because, according to the 
plaintiff, they have expired?  The requirement of the proof of the document 
requiring attestation is indeed serious.   A will is one of such document. 
The execution of the will is required to be by the deceased as per the 3 
modes set out in Section 63 of the Indian Succession Act which runs thus:
(a) The testator shall sign or shall affix his mark to the Will, or it  
shall  be  signed  by  some other  person in his presence and by  his  
(b) The signature or mark of the testator, or the signature of the  
person signing for him, shall be so placed that it shall appear that it  
was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of  
whom has seen the testator sign or affix his mark to the Will or has  
seen some other person sign the Will, in the presence and by the  
direction of the testator, or has received from the testator a personal  
acknowledgment of his signature or mark, or of the signature of  
such other person; and each of the witnesses shall  sign the Will in  
the presence of the testator, but it shall not be necessary that more  
than one witness be present at the same time, and no particular  
form of attestation shall be necessary.
Hence   the   will   must   be   executed   in   the   presence   of   the 
attesting   witnesses   under  Section   63(c)  of   the   Indian   Succession   Act, 
1925.   Hence to prove the due execution of the will any of the attesting 
witnesses or any other witness who had seen the attesting witnesses sign in 
the presence of the testator and who had seen the testator sign would be 
required to be called in evidence.  
The plaintiff has only sought to prove the signatures shown in 
the will to be the signatures in the handwriting of Advocate R. K. Rao as 
also Mr. Ferreira, the Notary.
This case is on all fours the  facts of this case of  Girja Datt 
Singh Vs. Gangotri Datt Singh AIR 1955 SC 346 in which the Supreme 
Court has considered  Section 63  of the Indian Succession Act along with 
Section 68 of the Indian Evidence Act relating to attestation of a will.  It is 
In order to prove the due attestation of the will the propounder of  
will has to prove that 'A' and 'B', the two witnesses saw the testator  
sign the will and they themselves signed the same in the presence of  
the testator.
It is further held that,
It   cannot   be   presumed   from   the  mere   signatures  of   two   persons  
appearing at the foot of the endorsement of registration of a will that  
they   had   appended   their   signatures   to   the   document   as   attesting  
witnesses or can be construed to have done so in their capacity as  
attesting witnesses.   Section 68, Evidence Act requires an attesting  
witness   to   be   called   as   a   witness   to   prove   the   due   execution   and  
attestation of the will.   This provision should be complied with in  
order that those two persons might be treated as attesting witnesses.
In   that   case   the   Court   extensively   marshalled   the   oral   evidence 
before it.   The Court found that despite the case of due execution of the 
will from a rough draft to fair draft and thereafter the execution and the 
attestation followed by the presentation for registration of the will by the 
deceased   before   the   Sub­Registrar   along   with   execution   of   a   wakf,   the 
attesting   witnesses   spoke   the   untruth   and   the   due   attestation   by   the 
attesting witnesses signing as such in the presence of a testator to attest the 
document which could only be a will not proved.   The Court, therefore, 
observed that Section 68 of the Evidence Act requires the attesting witness 
to be called as a witness to prove the execution of the will as such and 
mere signature of the attesting witness would not prove due attestation.
In   this   case   the   mere   signatures   of   the   two   attesting   witnesses 
Advocate Mr. R. K. Rao and the notary Mr. Ferreira would not prove that 
the deceased put his thumb impression on the document knowing it to be a 
will and confirming it as such after he was read over and explained its 
contents such that they signed in their capacity as attesting witnesses and 
none else.  In fact the proof of only the true signatures does not prove the 
thumb impression of the deceased at all.  Hence the execution of the will is 
not proved.   There is no question of such a document being attested as a 
This judgment has been followed by the Madras High Court in 
the case of  Ramchandra Marthandam Vs. Linga Vijayan  in para 28 of 
which it has been held that the procedure under Section 63 of the Indian 
Succession Act requiring the attestation before the testator is mandatory. 
Consequently when there is no evidence that the attesting witnesses had 
seen   the   testator   sign   the   will   which   is   the   mandatory   procedure,   the 
execution of the will cannot be taken to be proved in the absence of clear  
evidence in that behalf.
All the attesting witnesses are stated to have died.   Whether 
they have died would have to be proved by substantiating evidence.  The 
acceptable   mode   of   proof   would   be   the   death   certificate   issued   by   the 
municipality.  The plaintiff has not shown why the application for issue of a 
death   certificates   of   the   three   attesting   witnesses   is   not   made.     Merely 
stating that the witnesses are not alive and cannot be found is, therefore, 
not sufficient.  Mr. Shah would argue that the statement of the plaintiff that 
the attesting witnesses have died has not been disputed by the defendant 
as there is no cross­examination of the defendant on that score and hence 
it must be accepted as an admitted statement.   Admitted facts which are 
not to be proved under  Section 58  of the Evidence Act which runs thus 
58. Facts  admitted   need   not   be   proved.­   No  fact   need   to  be  
proved in any proceeding which the parties thereto or their agents  
agree to admit  at the hearing, or which, before the hearing,  they  
agree to admit by any writing under their hands, or which by any  
rule   of   pleading   in   force   at   the   time   they   are   deemed   to   have  
admitted by their pleadings:
Provided   that   the   Court   may,   in   its   discretion,   require   the  
facts admitted to be proved otherwise than by such admissions.
The facts not required to be proved would, therefore, be the facts 
mentioned in the pleadings of the parties or in the documents of the parties 
or specifically which were agreed to be admitted at or before the hearing in 
writing.     They   may   be   facts   which   are   specifically   admitted   in   the   oral 
evidence of the parties.   Merely because a fact has not been disputed by 
cross­examination of a party would not make it an admitted fact such as 
not requiring it to be proved under Section 58 of the Evidence Act.  There 
The   evidence   of   the   plaintiff   herself   shows   in   her   re­
need be no cross­examination of unproved facts.
examination that she went along with deceased, her father­in­law, in a taxi 
to the office of Advocate R. K. Rao where the deceased was to execute the 
will because she was called by the deceased to accompany him there.  She 
went to the office and went to the University because she had some work 
at the University.  She did not witness the execution of the will.  She was 
only informed by the deceased that the will was read out to “them” and 
one Ferreira.  On that basis she deposed that the will was witnessed by Dr. 
Dalvi and Mr. R. K. Rao.  She has not deposed about the execution of the 
deceased or about attestation of Advocate Rao, Dr. Dalvi or Mr. Ferreira. 
Though such evidence cannot legitimately be a part of the re­examination, 
and   must   be   the   direct   oral   evidence   of   the  plaintiff  in   her   affidavit  of 
examination­in­chief itself, even accepting such evidence it can be seen that 
there is none who has witnessed the execution of the will.
The plaintiff would have to prove the signatures of at least the 
attesting   witnesses   if   all   are   not   alive   and   cannot   be   called   to   give 
evidence.  How the plaintiff has proved the signatures and what would be 
the purport of the mere proof that they are the signatures of those persons 
would require to be considered.
All the aforesaid documents including the will of the deceased 
are   executed   within   the   span   of   time   between   October,   1971   and   July, 
1974.  The original documents produced before the Court prima facie show 
the   powers   of   attorney   (the   contents   of   which   shall   be   presently 
considered) to be on older paper than the will which is executed 3 years 
prior to the last power of attorney.   In fact, the docket of the power of 
attorney dated July, 1974 is more torn and tattered than the pages of the 
will.  This is true of even the other pages 5 to 12 of the power of attorney 
dated 18th  July, 1974.   Only the first 2 pages which are on non adhesive 
stamp paper are not torn because the texture of those papers is more rough 
and   thick.     The   marriage   certificate   dated   06.01.1978   of   the   original 
plaintiff Shrikant with the present plaintiff Usha performed well after the 
execution of the will dated 01.10.1971 is also seen to be wholly tattered 
and torn and stuck together with various celluloid tapes.  Expert evidence 
with regard to the age of the paper of the will seen alongside the age of the 
papers of the powers of attorney would have been not only desirable but 
rather  imperative  in  this  case   when  none  of  the   attesting  witnesses has 
been examined.  This important evidence has not been produced before the 
Advocate R. K. Rao seems to be a family friend of the parties. 
The plaintiff has relied upon certain letters shown to the defendant in her 
cross­examination.     One   such   letter   dated   27.04.1972   which   sets   out   a 
particular incident shows reference to Advocate R. K. Rao at at least ten 
places  with  regard to legal  implications of the  incident and instructions 
given to the Advocate.   The docket of the documents also bear out that 
Advocate R. K. Rao has drafted each of the documents.   The petition for 
letters   of   administration   has   come   to   be   filed   after   the   death   of   both 
executors   but   whilst   Advocate   R.   K.   Rao   was   alive   as   shown   in   the 

plaintiff's own deposition, the petition having been affirmed in 1991 and 
registered   in   1993   and   Advocate   R.   K.   Rao   having   been   stated   to   have 
expired in 1994.  The Testamentary Petition is required to be in Form No. 
105 under Rule 375 of the Bombay High Court (Original Side) Rules with 
such variation of the circumstances of each case may require.  The petition 
is   required   to   be   accompanied   inter   alia   by   an   affidavit   of   one   of   the 
attesting witnesses, if available.  The expression “if available” would mean 
if the attesting witness is alive, if the attesting witness is in the same city or 
country and can sign the affidavit.  Advocate R. K. Rao was available on the 
date the petition was affirmed.  It is not the plaintiff's case that he was not 
in India.  His address shows his office near the Court premises.  Advocate 
R. K. Rao was, therefore, available to sign the affidavit which was required 
to be accompanying the Testamentary Petition.  The Testamentary Petition 
shows a draft affidavit of Advocate R. K. Rao annexed thereto and forming 
a part of the petition.  The affidavit is however not signed by Advocate R. 
K.   Rao   in   Form   No.102   as   mentioned   in   Rule   375   of   the   High   Court 
(Original Side) Rules.   In fact, the petition was stated to be kept under 
objection over an unduly long time.   One of the objections would be the 
lack  of  signature   on   the  affidavit   of   the   attesting   witness  which  had  to 
accompany the petition.  The affidavit has remained at that.  The petition 
has been registered 15 months after it was affirmed and whilst Advocate R. 
K. Rao was alive.   The argument of Mr. Jamdar that Advocate R. K. Rao 
must be taken to have refused to sign the affidavit stands to reason.  The 
Advocate   who   had   drafted   various   documents   being   the   two   powers   of 
attorney of the father and the son and friend of the household, his name 
having   been   mentioned   in   a   personal   letter   in   respect   of   a   particular 
incident   requiring   legal   advice   would   be   expected   to   sign   the   affidavit 
accompanying   a   petition   for   grant   of   letters   of   administration   of   a   will 
which he had attested albeit 17 years prior thereto.
Mr.  Shah   relied   upon   Rule   384   of   the  High  Court   (Original 
Side)   Rules   for   proof   of   signatures   of   the   deceased   and   the   attesting 
witnesses which runs thus:
R.384.   In absence of attesting witness, other evidence to be  
produced.­  If it is not possible to file an affidavit of any of the  
attesting witnesses, an affidavit of some other person, if any, who  
may  have been present at the execution of the will  shall be filed,  
but  if  no  affidavit  of  any   such  person  can  be filed,  evidence   on  
affidavit shall be produced of that fact and of the handwritings of  
the deceased and attesting witnesses, and also of any circumstances  
which may raise a presumption in favour of due execution.
The rule indeed requires either an affidavit of the attesting witness 
or an affidavit of any other person present at the time of the execution of 
the   will   or   evidence   on   affidavit   of   the   fact   of   the   handwriting   of   the 
deceased and the attesting witnesses.
The plaintiff would contend that the last of the requirements 
of Rule 384 has been satisfied by the plaintiff showing the two signatures 
of two of the three attesting witnesses other than on the will which are 
indeed similar to those signatures on the will.  
Even that proof does not show the handwriting of the deceased and 
has   no   reference   to   the   thumb   impression   of   the   deceased   on   the   will. 
Indeed there is no other thumb impression of the deceased in any other 
document.  The copy of the power of attorney of the deceased certified by 
the Notary to be the true copy does not show the thumb impression of the 
deceased.   Consequently the part of the rule relating to the evidence on 
affidavit of the handwriting of the deceased is not at all satisfied.
The evidence would only show and suggest that signatures of two 
attesting witnesses out of 3 attesting witnesses are similar to their earlier 
Other circumstances which would raise a presumption in favour or 
due   execution   of   the   will   cannot   be   seen   in   view   of   the   aforesaid 
documentary   evidence.    Rule   384,   however   flexible   is,   therefore,   not 
complied.  Mr. Shah would argue that no consequences of non production 
of   any   of   the   aspects   under  Rule   384  is   laid   down   and   hence   non 
production of all those  aspects is not fatal to the petition.   Even if this 
argument is accepted, the plaintiff at least must otherwise prove the due 
execution of the will.
Mr. Shah relied upon the judgments in the cases of  Owners 
and   Parties   interested   in   M.   V   “Valipero”   Vs.   Fernandeo   Lopez 
MANU/SC/0395/1989  and  Smt.   Rani   Kusum   Vs.   Smt.   Kanchan   Devi 
MANU/SC/0489/2005 in support of his argument that Rule 375 and 384 
are   directory.     The   judgment   relates   to   the   fatality   of   the   defects   of   a 
deposition which was not signed and the written statement which was not 
filed within the time stipulated under Order 8 Rule 1 of the CPC holding it 
to be directory.  The judgment would have no relevance to the requirement 
of  the affidavit of  the  attesting  witnesses or  any  other  witnesses or  the 
proof   of   the   handwriting/signatures   of   the   deceased   and   the   attesting 
witnesses to the will.
In   view   of   the   aforesaid   documents   the   relationship   of   the 
parties at around the time of the will also becomes important to consider. 
The   plaintiff   initially   married   Gajanan.     The   plaintiff   herself   sued   for 
divorce.     Gajanan   did   not   contest   the   divorce   petition.     The   plaintiff 
obtained an ex parte decree of divorce.  The plaintiff has admitted that she 
was separated from Gajanan in about 1967­68.   The plaintiff purchased 
two flats (or they were purchased for the plaintiff) and was residing in 
Goregaon  since  1967­68.     In   view   of   her   strained   relationship   with   her 
husband the purchase of two flats by the plaintiff within a period of about 
a year cannot be explained.  Though the defendant's evidence would show 
that   the   plaintiff   had   a   relationship   with   the   original   plaintiff   to   the 
exclusion   of   her   husband   so   that   the   original   plaintiff   lived   in   the   flat 
adjoining   the   plaintiff's   flat,   an   aspect   which   has   been   denied   by   the 
plaintiff, the fact remains that the plaintiff did not live in the joint family 
house   at   Dadar   during   the   subsistence   of   her   marriage.     The   plaintiff 
indeed married the original plaintiff Shrikant in 1977, couple of years after 
obtaining the decree of divorce.   The second marriage coupled with the 
plaintiff's purchase of two flats away from the joint family house would 
require judicial notice to be taken of the fact of her relationship with the 
original plaintiff which drove her to file a divorce petition.
The plaintiff is seen to have moved out of the family house 
during the lifetime of the deceased and prior to the date of execution of the 
will.  The plaintiff's later marriage would require a similar judicial notice to 
be  taken  of  the   relationship  between   the  parties.     The   relationship  was 
within the family and must be taken to have been known by the deceased. 
The deceased had many children.  Gajanan lived with the deceased in the 
family   house   during   his   lifetime.     Shrikant,   the   original   plaintiff   was 
usually away on high seas.  Mr. Jamdar very justifiably argued that under 
those circumstances there would have been no reason for the deceased to 
bequeath   the   entire   property   the   main   part   of   which   consists   of   two 
tenanted buildings in Hindu Colony, Dadar, Mumbai to the plaintiff to the 
exclusion of all other heirs.  In fact, the deceased had executed a power of 
attorney   in   favour   of   another   son   Madhav   on   the   same   day   as   the 
purported execution of the will.   The deceased later executed a power of 
attorney giving wide and almost complete powers to his wife's sister's son 
Rajadhyaksha.  The original plaintiff was not in contention at all.
The original will as well as both the powers of attorney carry 
the docket of Mr. R. K. Rao along with his designation and address.   The 
powers of attorney are typewritten on legal size ledger paper.  The will is 
typewritten   on   a   foolscap   paper.     The   typewriting   in   all   the   three 
documents   appears   to   be   from   the   same   typewriter   and   in   a   similar 
fashion.  However the formating of the paragraphs is different in the will 
and in the two powers of attorney; whereas the formating in the will shows 
the paragraph number in the margin outside the contents of the will which 
is not the format followed in legal documents, the formatting in the powers 
of attorney show the paragraph numbers within the paragraphs itself as is 
usually done in all legal documents (much as in this judgment itself).
The   appointment   of   the   two   executors   being   Gajanan   and 
Madhav in the will are in consonance with the appointment the power of 
attorney executed by the deceased on the same day as the will, Madhav 
being appointed the executor under the will as also his constituted attorney 
under   the   power   of   attorney   both   dated   1 st  October,   1971.     The 
appointment of the same constituted attorney by the deceased (father) and 
Shrikant (son) in their respective powers of attorney dated 28 th July, 1973 
and 18th  July, 1974 under the document prepared by the same Advocate 
would show the genuineness of the execution of the powers of attorney. 
That constituted attorney is not found in the will.   However the plaintiff 
has relied upon two signatures of the Advocate and of the Notary in the 
power of attorney of Shrikant himself as also in the copy of the power of 
attorney   of   his   father.     Though   the   Notary   has   signed   as   an   attesting 
witness, the will is neither notarized nor registered.  Consequently it does 
not bear the notarial seal and stamp.   Mr. Shah on behalf of the plaintiff 
would argue that the only purpose of producing the powers of attorney is 
to see the previous signatures of the Advocate and the Notary.
The contents of the will also show the fact of the disposing 
state of  mind of the  deceased in  para 1 of  the will.   The  deceased has 
bequeathed a life interest in the residential premises as also all movables to 
his wife.  Aside from such bequest, the remainder of the property including 
the purchase of a wreck of a ship, the immovable properties as also other 
movables   are   bequeathed   to   Shrikant   absolutely   but   only   upon   the 
condition that he assumes the burden and liability of the deceased in the 
mortgages executed by the deceased and the amounts payable thereunder 
as his debts and liability.  Consequently the wife has been given the right of 
residence  and user  of  the   residential  flat  and the  movables therein  and 
estate of the deceased.
The   will   is   executed   as   far   back   as   on   01.10.1971.     The 
Shrikant has been made the residuary legatee of the entire of the other 
deceased died 2 1⁄2 years thereafter.  Madhav, one of the executors expired 
on 01.09.1978.  Gajanan, the other executor expired on 20.04.1991.  The 
will was not sought to be probated during the lifetime of the two executors  
though the  executors were alive for the  period of 4 years and 17 years 
respectively even after the death of the deceased.
The plaintiff has not explained the possession and custody of 
the will.  
The plaintiff has sought to explain the delay in applying for 
probating the will.  It is contended that the original plaintiff Shrikant had 
job in merchant navy and was usually away from home on high seas.  It is 
also contended by the plaintiff that he used to collect the rent from the 
tenants   of   the   immovable   properties   of   the   deceased   which   were   two 
tenanted buildings in  Hindu Colony, Dadar, Mumbai which was allowed 
and never objected by any of his siblings.  The plaintiff would contend that 
the allowance of the collection of rents would show the lack of interest of 
his   siblings   in   claiming   any   rights   in   the   property   so   that   the   original 
plaintiff did not deem it necessary to apply for probate.   The plaintiff, in 
fact, claims to have applied for probate only when he desired to transfer 
the immovable properties in his own name.  The above chronology shows 
that that was 17 years after the death of the deceased but within 6 months 
of the death of Gajanan, his brother.   It may be mentioned that from the 
power of attorney of the deceased dated 28 th July, 1973 it would be made 
clear that the deceased had not appointed the plaintiff either under the 
earlier power of attorney executed on the date of the will dated 1 st October, 
1971 or on the later power of attorney dated 28th July, 1973.  Consequently 
the work of collection of rents would be done not by the original plaintiff 
but by his brother Madhav initially from 1971 and by his mother's sister's 
son   Rajadhyaksha   from   1973.     Seen   from   powers   of   attorney   the   non 
objection of his siblings to the plaintiff collecting rents cannot be made out.
In   fact,   Mr.   Jamdar   on   behalf   of   the   defendant   drew   the 
Court's attention to the contents of the power of attorney dated 28 th  July, 
1973 of the deceased in para 9 of which the wide powers to contract with 
any person for leasing the property and letting into possession is also given 
to  the  constituted  attorney of  the  deceased  aside  from   the  collection  of 
rents.  Similarly under Clause 10 of the power of attorney the power to sell 
and convey the  entire property of the deceased is also given not to the 
original plaintiff, Shrikant, but initially to his brother, Madhav and later to 
Rajadhyaksha.   Mr. Jamdar would justifiably contend that the powers of 
attorney would run counter to the will of the deceased prepared on the 
same day as the power of attorney in favour of Madhav, the other son of 
the deceased, as also the power of attorney in favour of Rajadhyaksha.
The original plaintiff would become the owner of the property 
only upon obtaining probate.  Before even a petition for grant of probate is 
made,   the   original   plaintiff   has,   within   a   month   of   the   death   of   the 
deceased sought to execute the power of attorney dated 18 th  July, 1974 
also in favour of Rajadhyaksha, who was the constituted attorney of the 
deceased.  The authority of the original plaintiff as the principal cannot be 
understood.     The   grant   of   the   authority   upon   Rajddhyaksha,   therefore, 
follows as a matter of course.  The initial power of attorney of the deceased 
dated 28th  July, 1973 would terminate upon his death.   Within a year, on 
16.06.1974,   Rajadhyaksha   had   to   be   appointed   by   the   person   who   has 
been bequeathed the properties of the deceased under the will or by all his 
heirs on intestacy.  Mr. Shah would claim that the contents of the powers of 
attorney do not matter; even the authority of the original plaintiff does not 
matter.   The power of attorney has been produced only to compare and 
verify the two signatures of the two attesting witnesses.  Nevertheless, once 
a document is produced before the Court, it would require to be considered 
for all purposes.
The entire exercise has been undertaken because the original 
plaintiff has failed to obtain the affidavit of any of the attesting witnesses 
in support of the petition.  
Mr. Shah would contend that the husband of the defendant, 
Gajanan   as   also   the   other   brothers   never   objected   to   the   plaintiff's 
collecting rents and thereafter to the plaintiff applying for the Letters of 
Administration with the will of the deceased annexed thereto.  
The collection of rents by the plaintiff is not shown.   The deceased 
has not executed a power of attorney in favour of the plaintiff.  Even if the 
plaintiff did collect some rents it is stated to be for the maintenance of the 
mother of the parties, (which was not objected to by any of her children) 
who resided in one of the flats of the two buildings of the family until 1981 
and after which the defendant's daughter Apurva used to stay in that flat 
during her vacation along with other relations and all expenses during her 
stay were borne by the original plaintiff. (This has been a part of the record 
under an affidavit of the defendant dated 7 th June, 1994 filed in Notice of 
Motion No. 277 of 1994 in the above suit).  The consent letters of the other 
siblings   are   given   about   two   decades   after   the   date   of   the   purported 
execution of the will.   It is an admitted fact that the three of the siblings 
live abroad.   The  other  siblings live  in  Mumbai as also other  cities like 
Nagpur.  Each of them is well settled in life.  The consent letters would only 
show that all do not want to dispute the will and seek his/her share at that 
distance of time as contended by Mr. Jamdar.   In any case the fact that 
some   of   the   heirs   consent   to   the   grant   of   probate   or   Letters   of 
Administration   with   the   will   annexed   do   not   require   the   Court   not   to 
evaluate the lack of consent of the heir not consenting.
It   appears   that   the   siblings   indeed   had   no   major   disputes 
amongst one another.   None of them claimed a separate share.   However 
all   of   them   as   coparceners   of   HUF   would   be   entitled   to   share   in   the 
undivided property as such coparcener.   Mr. Jamdar would point to the 
Court the fact that the plaintiff appeared to be in no hurry to obtain the 
probate of the will of his father within a reasonable time after the death of 
the father  but  was keen  on  obtaining the  grant  of  the  Court within  six 
months of the death of his brother Gajanan whose wife he had married.
It is sought to be contended by the plaintiff that the case of the 
defendant cannot be accepted because she married Gajanan in 1979 well 
after the aforesaid evidence transpired and hence would not know any of 
these personally.   Indeed that would be so.   However the evidence of the 
defendant shows that Gajanan made a clean breast of the life of his former 
wife at the time he proposed to the defendant.  That would be the fact as 
was heard by the defendant personally from Gajanan.  Consequently under 
Section 60  of the Evidence Act, to which my attention is drawn by Mr. 
Jamdar, her oral evidence to the extent of the fact of the family relationship 
which she heard from Gajanan would be her direct oral evidence.   The 
relevant part of Section 60 runs thus:
60. Proof of facts by oral evidence.­ Oral evidence must, in all  
cases whatever, be direct; that is to say­
If   it   refers   to   a   fact   which   could   be  seen,   it   must   be   the  
evidence of a witness who says he saw it;
If   it  refers  to   a  fact  which   could  be  heard,   it  must   be  the  
evidence of a witness who says he heard it;
However the evidence of the defendant is hardly material in view of 
the aforesaid admitted chronology of events and dates and the documents 
relied upon by the plaintiff herself being the two powers of attorney, her 
marriage certificate, the letter dated 27.04.1972 and the two agreements of 
purchase of flats by the plaintiff.
Mr. Jamdar would also contend that there has been no letter 
sent to any of the executors during the lifetime of Gajanan calling upon 
them to administer the estate of the deceased.  This is despite the fact that 
the constituted attorney of the deceased as also the plaintiff was the same 
person Rajadhyaksha, who was one of the executors and Gajanan himself 
was the other executor.
It   must   be   borne   in   mind   that   a   will,   specially   one   which 
grants the entire of the estate of the deceased to one of the seven children 
of the deceased would be required to be probated within a reasonable time 
of the death of the deceased as it would exclude all the heirs other than the 
sole beneficiary from the estate.   Of course, a petition can be filed even 
after gross delay is explained and there are no other circumstances to lend 
suspicion   to   the   execution   of   the   will   (See.  Vasudeo   Daulatram 
Sadarangani Vs. Sajni Prem Lalwani 1982 (vol.85) The Bombay Law 
Reporter   113)   followed   in  Wilma   Levert   Canua   Vs.   Allan   Sebastian 
D'Souza in Appeal NO. 643 of 2012 dated 1st July, 2013 of this Court.
In view of the aforesaid reasons there are number of suspicious 
circumstances seen by the Court by which due execution of the will of the 
deceased dated 01.10.1971 as his last will and testament is not proved. 
Hence Issue No.1 is answered in the negative.
ISSUE NO.2 & 3: Re: Fraud, coercion, undue influence and forgery 
The   forgery   of   the   will   cannot   be   ruled   out   in   view   of   the 
observations with regard to the texture of the paper of the will as also in 
view of the relationship of the parties as members of a family.  However the 
fraud, coercion or undue influence is not required to be proved since the 
due execution of the will itself is not proved.   Hence these issues do not 
require to be answered and are hence not answered.
The   last   will   and   testament   stated   to   be   of   the   deceased 
Mangesh   Pandurang   Rege   is   not   proved.     The   grant   of   Letters   of 
Administration   with   the   will   annexed   is   refused.     The   petition   is 
accordingly dismissed.
Drawn up decree is dispensed with.
54. In view of the fact that the texture of the paper of the will is 
seen alongside the other documents of the same decade being the aforesaid 
two powers of attorney and the marriage certificate of the plaintiff, these 
documents   shall   be   kept   in   a   sealed   cover   in   the   custody   of   the 
Prothonotary and Senior Master of this Court until the final disposal of all 
appeals from this judgment.
The order dated 24.08.1994 shall continue for two weeks.

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