testamentary petition is converted into a suit, provisions of Code of Civil
Procedure 1908 and Indian Evidence Act 1872 would apply to civil proceedings.
The defendants thus could not consider the said affidavit of attesting witness filed
in the year 2005 as evidence. Learned counsel submits that in any event, the
affidavit of attesting witness was filed in Form-102 prescribed under Bombay High
Court (O.S.) Rules and thus the plaintiff could not have made any changes in the
said format prescribed by the Bombay High Court rules. It is submitted that in any
event, there was no material inconsistencies or incorrect statement made in the said
affidavit by Mr H. D. Pithawalla and by Ms Dolly Divecha and the same as per the
prescribed format of Form-102 and over and above the same. Mr.Shah learned
counsel for the defendants submitted that in any event even if such affidavit was
required to be filed in any format prescribed, the plaintiff could not have made any
false and incorrect statement in such affidavit. It is submitted that the said witness
was cross examined by the defendants on both the affidavits. The defendants are
thus entitled to point out the contradictions in both the affidavits with her cross
examination.
91. In my view, Mr shah learned counsel appearing for defendants is right in his
submission that even if an affidavit is required to be filed in particular format, even
if the facts of a particular case do not match with the format prescribed and
disclosure of such fact would lead to inconsistency with the format or would
amount to false statement, party is still not bound to follow such format as it
stands. In my view, a party cannot take shelter of such format and can make false
and incorrect statement so as to comply with the format prescribed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
TESTAMENTARY SUIT NO. 85 OF 2005
IN
TESTAMENTARY PETITION NO. 604 OF 2005
Jivaji Framroze Tarachand
V
Mr.Minoo S. Mistry
Judgment pronounced on : SEPTEMBER 25, 2014
Citation;2016(1) ALLMR730
By the testamentary petition bearing No.604 of 2005 filed by Mr.Jivaji
Framroze Tarachand and Khurshed Naval Wadia, they applied for probate of the
alleged last Will and Testament dated 27th December, 2004 of Mr. Jimmy Keki
Tarachand (hereinafter referred to as the said deceased). During the pendency of
the testamentary petition, Mr. Jivaji Framroze Tarachand expired. The original
caveator Mr. Minoo S. Mistry also expired. Legal heirs of the said original
caveator were brought on record in place of the original caveator. In view of the
caveat filed by the original caveator, the testamentary petition has been converted
into testamentary suit (85 of 2005). Some of the relevant facts for the purpose of
deciding this suit are as under :-
2. Mr. Jivaji F. Tarachand was paternal uncle of Mr. Jimmy Keki Tarachand.
Mr. Dinshaw S. Mistry and Mr. Minoo S.Mistry were maternal uncle of the said
deceased Mr. Jimmy Keki Tarachand. Mr. Khurshed N. Wadia was son of the
predeceased paternal uncle of the deceased Mr. Jimmy Keki Tarachand. Ms
Parveen D. Prudhomme was daughter of the predeceased paternal uncle of the said
Mr. Jimmy Keki Tarachand. The said Mr. Jimmy Keki Tarachand has alleged to
have executed a Will at Mumbai on 27th December, 2004 and died on 15th March,
2005 at Mumbai. On 21st July, 2005 Mr. Jivaji F. Tarachand and Mr. Khurshed
Naval Wadia claiming to be executors under the said Will filed the testamentary
petition inter alia praying for probate of the alleged Will dated 27th December,
2004.
3. In the testamentary petition it is alleged that the said deceased was ordinarily
residing at Boggulkunta, Hyderabad. Names of the legal heirs of the said deceased
are disclosed in paragraph 9 of the said petition. Alongwith the testamentary
petition, the original petitioners filed affidavit dated 21st July, 2005 of Mr. Homi
Cavasji Pithawalla who was claiming to be one of the attesting witness to the
alleged Will dated 27th December 2004 of the said deceased. Ms.Dolly S. Divecha
who was also claiming to be one of the attesting witness filed affidavit dated 21st
July 2005 alongwith the said petition.
4. Upon service of citation Mr. Minoo S. Mistry the maternal uncle of the said
deceased filed a caveat and affidavit in support on 25th November 2005. In the said
affidavit the caveator alleged that the alleged Will was forged as it did not bear the
signature of the deceased on each and every page. It is submitted in the affidavit
that the witnesses in the said Will had stated on oath that the date of making of the
Will in the last paragraph was put by the original petitioner No.1. The deceased
should have initialled against the date of making of the said Will. However, no
such initial of the deceased appear against the date of making of the said Will. It is
also contended that at the start of the said Will the residential address of the
deceased was that of Hyderabad whereas the witnesses in their oath revealed that
the said Will was made and signed by everybody including the deceased at
Mumbai. It is also alleged in the said affidavit that the said deceased was not
keeping well since six months prior to his death and his mental as well as physical
condition was far and satisfactory. It is alleged that the said deceased was forced to
make the said alleged Will when he was not in a proper and mental state of mind to
make a Will. The caveator alleged that the health of the said deceased kept on
deteriorating and the said deceased had developed terminal cardio-respority arrest,
morbid obesity and hyper tension and was required to be admitted in Raheja
Hospital, Mumbai where he expired on 15th March, 2005. The family of the
deceased refused post-mortem though recommended by the hospital.
5. In view of the demise of the original caveator, his legal heirs were brought
on record in place of the original caveator. The legal heirs of the original caveator
filed further affidavit in support of caveat on 15th June, 2011. In the said affidavit it
is contended that this court does not have territorial jurisdiction to try the
testamentary petition since the said deceased was a permanent resident of
Hyderabad and substantial properties of the said deceased are left behind at
Hyderabad. It is alleged that the said deceased had left a Will dated 31st August,
2000 and had appointed Ms. Kanaz J. Tarachand, defendant no.1(e) and
Mehernoze D. Mistry and Sanober N. Mistry as executors and trustees of the said
Will. It is alleged that under the said Will, the said deceased had directed the
trustees to take charge of all his assets and shall invest the same in the manner they
deem proper and fit and utilise the income earned thereon for the charitable
purposes mentioned therein to perpetuate in memory of his late father and mother.
In so far as his 1/4th share in the Flat No.001 on the ground floor in the building
known as Orient House situate at Parsi Colony, Dadar is concerned, it is directed
that in the event of the said deceased inherited his 1/4th share then his trustees shall
be entitled to deal with the same in the manner they deem fit and proper.
6. In the additional affidavit it is alleged that the maternal side of the family of
the said deceased has been totally overlooked inspite of the fact that the said
deceased lived his entire life next-door to his maternal aunt and spent his entire
childhood and grown up life in close companionship in the said maternal side of
his family. It is alleged that the alleged Will is highly unnatural, improbable and
same has been executed if at all, under suspicious circumstances surrounding it.
The alleged Will dated 27th December 2004 does not purport to bequeath any
person of the estate towards charity at all. There was no change in the surrounding
circumstances to justify the said change. It is alleged that the alleged Will was
created for the purpose of usurping the property of the said deceased. In the said
affidavit the defendants also alleged about the mental and physical capacity of the
said deceased to execute any such document and in the alternative pleaded undue
influence and coercion. It is alleged that the said Will was not signed in presence
of any medical practitioner and that the deceased was not in a sound mental state.
7. On 21st November 2008, Shri S. C. Dharmadhikari J., framed following
issues which are answered in the later part of the judgment :-
Issues
(1) Whether the plaintiff/petitioners prove that
the Will dated 27th December 2004 is valid ?
In the Negative
(2) Whether the defendant proves that the Will
of Jimmy K. Tarachand dated 27th December
2004 is forged ?
In the affirmative
(3) Whether the plaintiff proves that the earlier
Will of Jimmy K. Tarachand dated 31st August
2000 is revoked by the deceased ?
In the negative
(4) Whether the defendants prove that the
deceased was forced to make the said Will
dated 27th December, 2004 when he was not in
a proper state of mind to make a Will ?
In the affirmative
(5) What reliefs and order ? As per order
8. On 16th June 2011 this court took on record the affidavit in lieu of
examination-in-chief filed by Dolly S. Divecha affirmed on 4th March, 2011
claiming to be one of the attesting witness to the alleged Will. By an order dated
16th June, 2011 passed by Smt. Roshan Dalvi, J., the plaintiff was granted leave to
file affidavit of evidence to show the relationship between the said deceased and
the plaintiff or any matters relating to the Will. Liberty was given to the plaintiff
also to file the affidavit of any doctor to prove the medical records of the said
deceased. In so far as 38 documents relied upon by the said witness is concerned,
it is observed that most of the documents relate to the sale of the property by the
deceased in his lifetime and were not required to be proved in answering the issues
in the testamentary suit relating to the validity of the Will and were not relevant
and thus not marked. This court marked copy of the alleged Will of the deceased
dated 27th December 2004 as Exhibit-A for the sake of convenience. It was made
clear that the cross examination of the attesting witness shall be recorded first. The
plaintiff or any other plaintiffs shall be entitled to file any further affidavit or
examination in chief including the doctor. If such affidavit was filed, the parties
were granted liberty to place the suit on board for considering the admissibility of
further documents. This court appointed a court commissioner for recording
evidence in the suit.
9. The plaintiffs also examined Mr. Phiroz Amaria who filed his affidavit in
lieu of examination dated 11th April, 2012. The defendants examined Dr. Putla
Minoo Lentin as witness.
10. Learned counsel appearing for both the parties invited my attention to
various documents on record, interim orders passed by this court from time to time
and the pleadings and evidence in support of their respective case. During the
pendency of the proceedings, Mr Jivaji F. Tarachand, the original petitioner no.1
expired. The plaintiff filed consent affidavits of Gool Jivaji Tarachand and Kanaz
Jivaji Tarachand claiming to be heirs of the deceased named in the petition for
probate viz. Mr. Jivaji F. Tarachand giving their no objection for grant of the
probate of the alleged Will of the said deceased without any further notice or
reference to them in future and waived service of citation.
ISSUE NOS.1 TO 3.
11. Mr. Behramkamdin, learned counsel for the plaintiff referred to paragraph 3
of the affidavit in lieu of examination-in-chief of Ms. Dolly S. Divecha and
submits that in her deposition, the said witness who was one of the attesting
witness, has deposed about her visit to the residence of the said deceased, that she
was present and had signed the said Will as an attesting witness to the alleged Will.
The said witness has also deposed that the said deceased had signed the said Will
in her presence and in the presence of Mr. Homi C. Pithawalla and Mr. Jivaji F.
Tarachand who were also present at the same time. It is deposed that the said
deceased signed the said Will completely of his own free Will. She has further
deposed that after signing the said Will the said deceased thereafter added the date
'27-12-2004' below his signature. She has stated that insertion of date '27th
'
preceding the words 'day of December, 2004' in the last paragraph of the Will was
in the handwriting of Mr. Jivaji F. Tarachand and the correction in the spelling of
the words 'Bapaijis' and 'gifts' appearing on page 2 of the said last Will were also
made by the said Jivaji Tarachand in his handwriting and were made at the request
of the deceased and in his presence and in the presence of Homi Pithawalla and
herself prior to the deceased signing his Will. The witness deposed in the said
affidavit that she requested Mr. Jivaji Tarachand to write her name and her address
below her signature and date as she did not wish to make any mistake on the
original Will and at her request and with the consent of the said deceased and in
her presence and in the presence of Mr. Homi Pithawalla, Mr. Jivaji Tarachand
wrote her name and address below her signature and date. It is stated in the
affidavit that by inadvertence in her affidavit of attesting witness dated 21st July
2005 she had stated that the name and address had been written by her. The same
was inadvertently done and the same needs to be corrected.
12. Learned counsel for both the parties invited my attention to the cross
examination of the witness on this issue. In reply to question Nos. 99 to 101 when
witness was asked in what connection her advocate had asked her questions for
drafting her affidavit dated 21st July, 2005, the witness deposed that the advocate
had asked her questions about the Will and whether the said Will was executed in
her presence. The advocate had also asked whether the Will was signed in her
presence. She told the advocate that Jimmy had signed the Will first, then
Mr.Pithawalla signed and then the witness signed. She also put the date but the
address part was written by Mr. Jivaji because her handwriting was little crooked.
The witness admitted that based on those answers given by her, affidavit dated 21st
July, 2005 was drafted by her advocate.
13. Learned counsel also invited my attention to the answers given by the
witness in reply to question Nos.133 to 145 in the cross examination. In reply to
Question no.133 the witness when asked whether she had told her advocate at the
time of drafting the affidavit of 21st July 2005, that she had read the Will, the
witness answered in negative and deposed that the advocate did not ask her and
therefore she did not tell her. She answered that the Jimmy had asked her to sign
as a attesting witness as he was preparing a Will. He had told about such Will on
27th December 2004 or 2005 but she did not remember the year exactly. It is stated
that the said Jimmy did not tell her as to who had made the said Will for him but
had only asked her whether she would sign in the Will. The witness deposed that
she had not signed any Will as an attesting witness for anybody else prior to
Jimmy's Will. In reply to Question no.138 when asked as to who told her to write
her address below her signature and date in the Will, the witness answered that she
had told Jivaji to write the address because her handwriting was crooked. When
witness was asked as to why she thought that it was necessary to write the address
when all of them have to sign on the Will, the witness answered that because Mr.
Pithawalla had written his address, she also thought that she must put her address.
14. In reply to question No. 140 when the witness was asked as to how many
days prior to the attestation did Jimmy inform her that he had made a Will, the
witness answered that Jimmy kept saying that he was going to make a Will and that
whether she would sign the same as an attesting witness. When the witness asked
Mr. Jimmy as to why he wanted to make a Will, though he was young, he told her
that he was not keeping good health. In reply to Question No.141 the witness
answered that the Jimmy told her that he was having heart problems and the
doctors had told him to loose weight but he kept on eating and said that there was
no point in loosing weight. In reply to Question No.145 the witness answered that
the Will was executed on 27th December 2004. In rely to Question No. 161 the
witness deposed that she went to sign the Will in the morning between 10.30 a.m.
and 11 a.m. In reply to Question No.166, the witness answered that Mr Jimmy had
not given any fix time to her to attend for attestation of the Will.
15. In reply to question No. 167 the witness admitted that it was her case that
she was at Kanaz's house to attend the classes when Jimmy asked her to attest the
will. Jimmy had asked her earlier that she would have to sign the will. In reply to
question no. 169, witness answered that Mr. Pitahawalla had already come and was
sitting there in the house of Kanaz for signing the will. Witness admitted that Mr.
Pithawalla was sitting near Jimmy on the sofa in the same hall where the English
classes were being conducted by Kanaz. Witness deposed that the classes were
already over. Afterwards Mr. Pithawalla came, Jivaji and the witness was already
there. The witness was sitting there since the class was over when Mr. Pithawalla
came for signing the will. She waited since Jimmy had told her that she had to sign
the will. She must have waited for about half an hour to forty five minutes before
Mr. Pithawalla came to the house. Ms Kanaz had gone out with her students for
some work. The witness admitted that it was her case that Jivaji Tarachand and
Jimmy waited for about half an hour to forty five minutes before Mr. Pithawalla
arrived at the house.
16. In reply to question No. 178 to 194 the witness deposed that she saw the will
for the first time when she signed. When the witness was asked whether she has
read the will, at that time witness answered in negative. It is deposed that Mr.
Pithawalla had read the will and then he signed after which she signed the will. In
reply to question no. 191 she answered that first Jimmy signed the will, then Mr.
Pithawalla and then she signed the will. When witness was asked whether Jivaji
signed the Will, the witness deposed that she did not mark whether Jivaji had
signed the Will or not. He may have signed the will. Mr. Jivaji made some
corrections on the date “27”. He also made some corrections on the word
“Bapaiji”. Mr. Jivaji made the said corrections on the same day when Jimmy
signed the Will. When witness was asked as to why Jivaji made the corrections,
she answered that because Jimmy also could not write properly as he had some
problem with his hand. She however did not ask Jimmy what was the problem. In
reply to question no. 199, the witness when asked whether Jivaji made corrections
after the will was signed by Jimmy, she answered in negative and further deposed
that Jivaji read the Will first, made the corrections and then Jimmy signed the Will.
17. In reply to question no. 200, when witness was asked whether she or Mr.
Pithawalla had asked Jimmy whether what was written in the Will was as per his
desire, witness answered that Mr. Pithawalla had asked Jimmy and Jimmy said that
it was as per his desire. In reply to question no. 201 when asked whether Mr.
Pithawalla asked that question before or after Jivaji had made the corrections, the
witness answered that Mr. Pithawalla had asked Jimmy that before Jivaji had made
corrections.
18. In reply to question No. 202 when witness was asked whether she did not
find it strange that if Jimmy could put his signature on the Will, he could not make
two minor corrections or write the date “27” by himself, the witness answered that
she did not think of this. Two small corrections were made and then signed by
Jimmy. In reply to question No. 203, when witness was asked whether she now
thinks that if a person could sign his will, he could have himself written the date
“27” or made minor changes by his own hand, the witness answered that it may be,
may be not. They were minor corrections.
19. In reply to question No.204 when the witness was shown the Will and in
particular the execution clause and was asked to point out if Jimmy had written any
date on that page of the Will, the witness answered that the date written below
Jimmy's signature is the date written by Jimmy. In reply to question No. 205,
when witness was asked whether it was correct that on that date Jimmy was
capable of writing full date “27-12-2004” the witness answered in affirmative and
said it was correct.
20. In reply to question No. 206, when witness was asked whether she or Mr.
Pithawala suggested to Jimmy that he should at least put his initials against the
corrections made and the date “27” which were made by Jivaji, the witness
answered in negative and deposed that they did not think of it otherwise they
would have told him. In reply to question no. 208 and 209, the witness answered
that she had put the date below her signature because it was that day. She did not
know any reason as to why Mr. Pithawalla did not put the date. Witness answered
that since Jimmy had put the date she also put the date. In reply to question no.
216, when a suggestion was put to the witness that on 27th December, 2004, Jimmy
had a problem with his hand, the witness denied the said suggestion and deposed
that Jimmy had no problem with his hand and he had signed the will.
21. Mr. Behramkamdin invited my attention to the cross examination of the
witness Dr. Putla Minoo Lentin (DW-1) examined by the defendants. In reply to
question No. 9 the witness admitted that her relationship with the defendants were
very close and she was regularly in touch with the defendants. In reply to question
No.24, the witness answered that approximately 25 to 30 Wills of the said witness
must have attested. In reply to question No. 35 when the witness was asked as to
who asked the witness to make the said affidavit of evidence, the witness
answered that Dr. Sanobar had requested her about 2 to 3 months back. Her late
brother in law Mr. Minoo Mistry had first asked saying that there was some other
Will and that she would be required to give an affidavit. In reply to question No.
39 the witness answered, Dr. Sanobar had told her that another Will was made by
Jimmy in December, 2004 and that they were going to continue that matter which
was going on in Court. When witness was asked whether prior to Sanobar
requesting her to make her affidavit of evidence, whether she was aware of the
existence of the will dated 27th December, 2004, the witness answered in negative.
22. In reply to question No.43, witness answered that when Sanobar requested
her to file the affidavit, she had told her that another will was given by Jimmy in
December, 2004 and that was made and signed at Bombay attested by two
witnesses. In reply to question no. 69 when witness was asked as to how often she
would speak to the deceased, she answered that it was about once in 8 or 10 days,
he used to visit her place. In reply to question No.87, the witness answered that the
said deceased had not taken any prior appointment from her when he came to her
residence on 31st August, 2000. The said deceased requested her to attest his Will
and told her the contents of the Will though she did not ask him. He informed that
he had given everything to charity. The witness did not read the said will and had
no idea as to who drafted the said Will. In reply to question 105 the witness
answered that the will dated 31st August, 2000 was signed by Jimmy in her
presence. The witness denied the suggestion of the learned counsel that the
witness and Dr. Reddy signed the Will after which the deceased had signed the
Will.
23. Mr. Behramkamdin learned counsel after referring to various part of the
deposition of the witness examined by both the parties, submits that the plaintiff
has duly proved the proper execution and attestation of the Will. There was no
proper pleading in so far as allegations of undue influence and coercion made by
the defendants in the additional affidavit in support of caveat and such pleadings
are totally vague and without particulars.
24. Mr. Behramkamdin learned counsel submits that the onus is on the caveator
to prove that there was any undue influence on the deceased in execution of the
alleged Will or there was any coercion on the deceased in execution of the Will or
that any fraud was committed by the executors or beneficiaries in execution of the
said Will. Learned counsel placed reliance on the judgment of the Supreme Court
in the case of Shishirkumar Banerjee Vs. Subodhkumar Banerjee AIR 1964 SC
529 and in particular paragraph Nos. 4, 5 and 17 in support of this submission.
Learned counsel submits that the plaintiff has already discharged the onus on the
issue of execution, attestation of the will and that the testator was of and disposing
mind at he time of execution of the will. Reliance is placed on the judgment of
Supreme Court in case of Savithri Vs. Karthyani Amma (2007) 11 SCC 621 and in
particular paragraph 4, 5, 14, 15, 17, 18 and 22.
25. Learned counsel also placed reliance in judgment of Welachi Vs. Pakarren
(2009) 1 SCC 95 and in particular paragraph 19 and would submit that a party
alleging undue influence, fraud etc. must prove the same subject to just exceptions.
Learned counsel also placed reliance on order 6 rule 2 and order 6 rule 4 of the
Code of Civil Procedure, 1908 and would submit that material facts have to be
pleaded with particulars which are missing in the affidavit in support of caveat
filed by the defendants alleging undue influence, coercion and fraud. Mr.
Behramkamdin also placed reliance on the judgment of Supreme Court in case of
Surendra Pal Vs. Dr. Ms. Saraswati Arora (1974) 2 SCC 600 in support of the
submission that undue influence would be a matter of proof on the particular facts
of the case and no presumption can be drawn. Reliance is placed on paragraph 12
to 14 and 17 of the said judgment.
26. Mr. Shah learned counsel appearing for the defendants on the other hand
submits that the plaintiff has failed to prove the attestation and execution of the
Will. It is submitted that in any event only attestation and execution of the alleged
Will is not sufficient for obtaining a probate in respect of such alleged Will. The
propounder of the will has to prove that the testator had signed the Will of his own
free Will, he had understood the nature of disposition and at the relevant time
when the Will was made, he was of sound and disposing mind. It is submitted by
the learned counsel that both the attesting witnesses were interested witness in the
person who was deriving major part of the benefit in the estate of the said deceased
i.e. Ms. Kanaz. It is submitted that the first attesting witness was student of Kanaz
who was teaching her English. Second attesting witness was a friend of Kanaz.
Father of Kanaz Mr. Jivaji Tarachand had played prominent part in execution of the
alleged Will.
27. Learned counsel submits that the onus is on the propounder of the will to
dispel the suspicious circumstances and to prove that the bequest was natural. The
defendants have relied upon the first will of the said deceased to show that the
second will would not exist. The deceased was not in the proper frame of mind.
There was no bequest to the paternal side of the said deceased. In the first will, the
deceased had bequeathed entire property to the charity. It is submitted that there is
no dispute that the deceased was very ill when alleged will was made.
28. Mr. Shah, learned counsel placed reliance on rule 374 of the High Court
(Original Side) Rules which provides that affidavit of one of the attesting witness
has to be filed if available along with petition. It is submitted that the affidavit of
first attesting witness would show that the affidavit in support of the second
attesting witness in support of the petition is false. Learned counsel invited my
attention to the affidavit of Mr. Homi C. Pithawalla dated 21st July, 2005 filed
along with the petition. In the said affidavit it is stated that the insertion of the date
“27” preceding the words “day of December, 2004” in the last paragraph of the
Will was in the handwriting of one Mr. Jivaji Tarachand who was also present at
the time of execution of the original Will. It is further stated that the said Jivaji
Tarachand also corrected the spelling of “Bapaijis” and “gifts” appearing on page
2 of the said Will. The addition of the date and the spelling corrections were done
by the said Mr. Jivaji Tarachand at the request of the said deceased and in his
presence and in presence of Dolly S. Divecha prior to the execution of the said
Will by the said deceased and by the witnesses. It is submitted that Mr. Homi
Pithawala did not put the date below his signature on the alleged Will since he was
not present when the Will was executed. It is submitted that even this affidavit
would indicate the substantial role played by Mr. Jivaji Tarachand who was father
of the major beneficiary under the said alleged Will. It is submitted that during the
life time of the said Jivaji Tarachand after filing of this petition, he was not
examined as a witness.
29. Learned counsel invited my attention to paragraph 4 of the affidavit of Ms.
Dolly S. Divecha dated 21st July, 2005 and would submit that the said alleged
attesting witness in the said affidavit has alleged that the said deceased below his
signature had added the date 27th December 2004. It is deposed in the said
affidavit that the insertion of the date of “27” preceding the words “day of
December, 2004” in the last paragraph of the Will was in the handwriting of Mr.
Jivaji Tarachand who was also present at the time of execution of the original Will
who also corrected the spelling of “Bapaijis” and “gifts” appearing on page 2 of
the last will. Mr. Shah learned counsel invited my attention to paragraph 3 of the
affidavit in lieu of examination in chief dated 4th March, 2011 of Ms. Dolly S.
Divecha and submits that she has deposed in the affidavit that on 27th December,
2004 when she visited the residence of Tarachand's, the deceased was present and
informed her that he wanted to make last Will in which he wanted to provide for
his cousin Kanaz so that she would be protected. Other than that, the deceased did
not inform her any other details of his will.
30. Mr. Shah learned counsel invited my attention to part of paragraph 3 in
which it is deposed by the said Ms. Dolly Divecha that the signature “D.S.
Divecha” and the date 27-12-2004 appearing thereunder was in her handwriting.
However, she requested Mr. Jivaji Tarachand to write her name and address below
her signature and the date, as she did not wish to make any mistake on the
original Will. It is deposed that at her request and with the consent of Jimmy and
in the presence of Mr. Homi Pithawalla, Mr. Jivaji wrote her name and address
below her signature and date. It is alleged that by inadvertence in her affidavit of
attesting witness dated 21st July, 2005, she had stated that the name and address
had been written by her which was inadvertently done and the same needs to be
corrected.
31. Mr. Shah learned counsel submits that in the affidavit filed by Mr. Homi
Pithawalla he does not refer to the handwriting of Mr. Jivaji Tarachand about
name and addresses of Dolly Divecha on the Will by Jivaji Tarachand though he
was also claiming to be present at the same time. It is submitted that Mr. Homi
Pithawalla did not file any affidavit of evidence pointing out his mistake in the
affidavit dated 21st July, 2005 which was filed in support of the petition. Learned
counsel submits that though the said Mr. Homi Pithawalla was available for quite
some time after filing of this petition, the alleged executors examine him. The
plaintiff has thus kept out the best evidence and thus this court shall draw adverse
inference under section 114 of the Evidence Act, illustration (g). It is submitted
that based on such affidavits filed in this proceedings, the plaintiff has not proved
execution, attestation and testamentary capacity of the said deceased. Though
Jivaji Tarachand was alive for quite some time after filing of this petition, he was
not examined as a witness.
32. Mr. Shah learned counsel submits that in the said affidavit the witness has
not stated that she had read the Will. Learned counsel invited my attention to the
cross examination of this witness on this issue and in particular answer to question
Nos.125 to 131 in which she has deposed that she had read the Will. In reply to
question No.130 the witness read that 50% was to be given to Kanaz, 25% to
Khurshed and something was to be given to a third person. She also read that the
said deceased had sold the bungalow and a cupboard had to be given to Kanaz. In
reply to question No.131 when witness was asked whether she read what she had
stated in the earlier answer in the will or somebody else had told about it, witness
deposed that she has read that when she signed the Will.
33. In reply to question No.178, the witness deposed that she saw the Will for
the first time when she signed. In reply to question No. 180 when witness was
asked whether she read the Will at that time, when she had signed the Will, the
witness deposed in negative and said that Mr. Pithawalla had read the Will and then
he signed, after which she signed the Will. In reply to question No. 196 when
witness was asked why Jivaji made the correction, she answered that because
Jimmy also could not write properly as he had some problem with his hand. It is
submitted by the learned counsel that in the affidavit filed in the month of July,
2005 the witness did not mention about the alleged corrections made by Mr. Jivaji
Tarachand or that she had read the will and after six years of execution of the said
affidavit the witness has changed her story.
34. Mr. Shah learned counsel invited my attention to question Nos. 166 to 176
and would submit that witness has admitted that Jimmy had not given any fixed
time to her for attesting the Will. The witness has answered that she was at
Kanaz's house to attend the classes when Jimmy asked her to attest the Will. He
had told her earlier that she would have to sign the Will. In reply to question No.
169 the witness answered that Mr. Pithawalla had already come and was sitting
there. In reply to question no. 177, the witness however replied that it was her case
that she, Mr. Jivaji Tarachand and Jimmy waited for about half an hour to forty five
minutes before Mr. Pithawalla arrived at the house. Learned counsel submits that
the answers given by the witness Ms. Dolly Divecha referred to aforesaid are
inconsistent with the other answers given by the witness and also with the
allegation made in affidavit dated 21st July, 2005. It is submitted that even
deposition of this witness about presence and role of Mr. Pithawalla, is also totally
inconsistent and contradictory.
35. Mr Shah learned counsel for the defendants submits that Ms Dolly Divecha
did not know what transpired on the day of alleged execution of Will. It is
submitted that answer given to question No.130 is inconsistent with her answer to
question No.180. My attention is invited to answers of the said witness to
question No.292 to 295. The witness when asked whether she had asked Jimmy
what he was protecting Kanaz from, the witness answered that Jimmy thought that
he would not leave for very long as he had heart problems and therefore wanted to
make a Will. In that Will he wanted to give Kanaz 50%. This he had told her
earlier and then called her on 27th December 2004 to sign the Will. In reply to
question No.295 when witness was asked as to why she had stated that she was
informed on 27/12/2004 that Jimmy was making his Will, she answered that she
was told that the Will was already made, then on 27th December 2004, it was read
and then signed. Learned counsel submits that this part of the evidence is totally
inconsistent with her deposition in paragraph 3 of her affidavit in lieu of
examination-in-chief. It is submitted that the plaintiff has thus failed to prove the
execution and attestation of the alleged Will.
36. The learned counsel submits that Ms Dolly Divecha was not aware of
anything about the execution of Will and was an interested witness. She did not
know English. None of the affidavits filed by her were translated. There was no
endorsement made in any of the affidavits that she was explained the contents of
the said affidavits in Gujarati or Hindi. It is submitted that she claimed to be a
student of the main beneficiary Ms Kanaz of the said Will. It is submitted that the
witness has made several false and misleading statements in the affidavits as well
as oral evidence and therefore the said witness was not a reliable witness as not
telling the truth. It is submitted that there is serious doubt whether she had at all
given any instructions to the advocate of the plaintiff to draft her affidavits and
submits that the said witness had signed the affidavits at the behest of the
beneficiary under the alleged Will. In support of these submissions, learned
counsel invited my attention to various portions of the oral evidence recorded in
these proceedings.
37. In reply to question Nos.1 and 2 the witness deposed that she had studied up
to 8th standard in Gujarati medium at Bharatiya Vidyalay High School in
Ahemadabad Gujrat. She joined the classes of Kanaz to learn English in or about
year 2000. She had passed the 7th standard in or about 1957-58. In reply to
question No.12 the witness denied the suggestion of the learned counsel for the
defendants that up to 2002 she was not able to read or write or speak in the English
language. She answered that she could read, write and speak a little of the English
language. In reply to question No.14 the witness deposed that she had learnt to
write in English small words, spellings things like that. She learned enough
English to understand it.
38. When witness was asked whether she and her sisters ever exchanged letters
with each other, the witness answered in affirmative and added that the same was
in Gujarati because they also had a little knowledge of English. She was interested
in learning English because Kanaz was residing next to her home and she and her
husband came to know that Kanaz was taking classes of English In reply to
question No.29 the witness replied that in the year 2002 there was only one batch
consisting about 7 to 8 students. She went to attend the classes for about 3 to 4
years. In reply to question No.33 when witness was asked whether she learned
grammer, spellings, the witness answered that a little bit. She answered that she
learned to speak a little bit more in English. She however did not remember any of
the student from her batch. She did not know whether Kanaz issued any
certificate to any student at the end of any particular course.
39. In reply to question No.36 when witness was asked whether she wanted
certificate, the witness answered in negative and deposed that her English was still
very poor. She was not able to speak very fluently. When witness was asked
whether she was able to read English comfortably, she answered that she could
read and understand English but not the difficult words or spellings. She was to
look at the dictionary in that case. She was not comfortable with writing in
English as she was making mistakes when writing in English. When witness was
asked whether it would be correct to say that she could write her own address in
English, in reply to question No.46, the witness answered in affirmative and added
that she could but sometimes her handwriting becomes crooked then she would tell
somebody else to write for her when it pertains to the Court matters.
40. The learned counsel invited my attention to some of the answers given by
the said witness when was confronted with the legal words referred in her affidavit.
When witness was asked whether she could tell the meaning of the word
“acquainted”, she answered in negative and added that it may mean “equally”.
When witness was asked whether she knew the meaning of the word “subscribed”
the witness answered in negative and added that she might have read the word but
does not know the meaning. When witness was asked whether she knew the
meaning of the words “Testamentary paper”, the witness answered that it could be
something with the Court but it could be something about “test”. When witness
was asked whether she knew the meaning of the word “execution” the witness
answered in negative. When witness was asked whether she knew the meaning of
word “doppler echo cardiography” the witness answered that it was something to
do with echo cardiogram because she remembered that they had taken Jimmy to
the doctor.
41. Learned counsel submits that before the learned Court Commissioner when
her evidence was recorded, a Gujarati translator was kept present all throughout
and all the questions asked to the witness were translated to her in Gujarati from
English. It is submitted that since none of the affidavits filed by her were
translated to her in Gujarati and did not bear any such endorsement and the witness
not having been familiar with English at all, it is clear that she filed affidavits
without understanding the contents thereof and without knowing whether
instructions alleged to have been given by her to the advocate to draft affidavits
were carried out in the affidavits or not.
42. In reply to question to 52 when witness was asked who drafted affidavit in
support of the petition dated 21/07/2005, the witness answered that the same was
drafted by advocate Farzana on her instructions. She gave instructions in Gujarati
and signed the said affidavit on instruction of the said advocate in her office. In
reply to question No.59 when witness was asked when she went to give
instructions whether anybody else accompanied her, she answered that she did not
remember. Kanaz had shown her the office of the advocate. The witness and
Kanaz came to the office of the advocate by taxi. In reply to question No.76 the
witness deposed that she read the affidavit before signing it. She had read a little
of it and understood it. Whatever she had instructed the advocate, it was written.
She did not show the affidavit to anybody else before signing it. She had read it.
When witness was asked as to how she knew what was written in the affidavit,
whether it was as per her instructions, she answered that she read the affidavit
herself. When witness was asked when she had read the affidavit, whether it was
correct that she had understood it, the witness answered in affirmative and added
that whatever instructions she had given were mentioned in the affidavit.
43. In reply to question Nos.81 and 82 when the witness was asked whether the
witness knew the meaning of the word “deponent” the witness answered that it was
something to do with doctory and it was a medical term. When witness was asked
whether she knew the meaning of phrase “disposing mind” the witness answered
that it means that the mind was not proper or something like that, she did not know.
In reply to question No.84 when witness was asked whether she was sure whether
the affidavit dated 21st July 2005 contained exactly what she had instructed the
advocate to be drafted, the witness answered “it may be”. In reply to question
No.87 when witness was asked whether she met advocate Farzana prior to making
of the affidavit dated 21/07/2005, the witness answered that she did not remember.
44. In reply to question No.81A, whether it was correct she distinctly
remembers that she had signed her affidavit in the office of the advocate, the
witness answered in affirmative. When witness was asked how she knew that her
affidavit was required, witness replied that she did not know. When witness was
asked whether she knew what is a probate petition, she replied that she did not
know. In reply to question to 86A the witness replied that the mother of Kanaz
told her that the advocate had called and she was required to go to the advocate's
office and that is how Kanaz dropped her to the advocate's office.
45. In reply to question No.223 the witness answered that she had not seen
affidavit dated 21/07/2005 after executing the same and saw only in the
proceedings before the learned Commissioner. In reply to question No.224 when
witness was asked whether she knew whether Jivaji or Kanaz had seen her
affidavit dated 21/07/2005 or the copy thereof after she executed the same, the
witness answered that she did not know if Jivaji or Kanaz had seen her affidavit
but Jimmy had seen her affidavit. In reply to question No.226 when witness was
asked whether it was correct that when she signed affidavit dated 21/07/2005 she
was accompanied by Jivaji Tarachand, the witness answered in affirmative and
added that the said Mr Jivaji had come to Court.
46. In so far as affidavit dated 4th March 2011 is concerned, in reply to question
No.235 and 236, the said witness admitted that when she signed her affidavit of
examination-in-chief dated 4th March 2011, mother of Kanaz had accompanied her.
Advocate Farzana had asked the witness to sign the said affidavit. In reply to
question No.243, when witness was asked whether she asked Mrs Goolamai
mother of Kanaz to show her the second affidavit that she was required to sign, the
witness answered in negative and added that she was made to sign the said
affidavit. In reply to question No.244 the witness admitted that she saw the second
affidavit for the first time when she signed it on 4th March 2011. When witness
was asked as to whether she had made advocate Farzana between 21st July 2007
and 4th March 2011, the witness answered that for the affidavit she had made
advocate Farzana three times during that period. Advocate Farzana had called
Goolamai and then Goolamai and the witness went to meet advocate Farzana in
Court. The witness admitted that she knew Kanaz and Jivaji was leaving in the
same house with Kanaz and Goolamai. She met Jivaji also sometimes when she
went for her English classes.
47. In reply to question to 262 when witness was asked whether she had read her
affidavit dated 4th March 2011, before giving evidence, the witness replied that she
had read it but very cursorily. When witness was asked when she did read the said
affidavit before giving evidence, witness answered that she did not remember that
but if she knew that she had to give evidence, she would have read it properly.
Nobody informed her that she would be asked questions on her affidavit dated 4th
March 2011. In reply to question No.283, when witness was asked whether it was
correct that even before signing her affidavit dated 4th March 2011 she had not read
her affidavit dated 21st July 2005, the witness answered that she did not remember.
She did not know the meaning of the word 'inadvertently'.
48. In reply to question Nos.92 to 96 the witness when asked whether her
advocate had suggested that an Interpreter should be present, she answered that she
did not know anything about it. The witness agreed to the suggestion of the
learned counsel for the defendants that the witness did not make a request for an
Interpreter and added that she had only informed the advocate that her English was
not very good and that she understood Gujarati.
49. In reply to question Nos.97 to 104 the witness did not remember whether
advocate Farzana had shown her any document when she gave instructions to the
advocate. She was asked questions about the Will and whether the same was
signed in her presence. She also told the advocate that she had put the date but the
address part was written by Mr Jivaji because her handwriting was a little crooked.
The witness admitted that the said affidavit dated 21/07/2005 was drafted based on
the answers given by her in reply to question No.100. In reply to question No.103
the witness denied the suggestion put to her by the learned counsel for the
defendants that the witness had not read the affidavit dated 21/07/2005 before
signing it and answered that she had read the affidavit before signing it. In reply to
question No.104 when witness was asked whether she found any mistake in the
affidavit when she read it before signing it, the witness answered that she did not
find any mistake in the said affidavit before signing the same. In reply to
question No.346 the witness answered that she did not ask Goolamai to give her
copy of the affidavit dated 04/03/2011 and added that she had read the xerox copy
of the affidavit. Though the affidavit was not signed in Court, witness in reply to
question No.247 and 248 answered that the said affidavit was signed in Court.
50. In reply to question Nos.105 to 115, the witness answered that when she had
joined the class in 2002, Jimmy use to visit the place regularly and there she first
met him. Jimmy would stay at Kanaz's place and from there their friendship
developed. Jimmy used to come to her house sometime in or about 2003-04.
When witness was asked whether she and Jimmy were good friends, in reply to
question No.108 she replied that Jimmy was like her son. In reply to question
No.112 when witness was asked as to what was the occupation and profession of
Jimmy, the witness answered that she did not know about the occupation or
profession of Jimmy but he led a good life. He was fond of food and use to eat,
drink and be happy. In reply to question No.115 when witness was asked what
else she could tell about Jimmy, the witness answered that other than what she has
deposed, nothing much except that they used to talk whenever he was there.
51. Mr Shah learned counsel for the defendants placed reliance on the Judgment
of Supreme Court in case of H. Venkatchala Iyengar Vs. B. N. Thimmajamma
and Ors. AIR 1959 SC 443 and would submit that the defendants having proved
the existence of the earlier Will by which the said deceased has bequeathed his
entire property to charity and Ms Kanaz was one of the executrix to the said Will,
there was no change in circumstances between the execution of the first Will and
the alleged Will in question by which the said deceased would have given
substantial part of his properties to Kanaz, the defendants having alleged various
suspicious circumstances in the affidavits in support of caveat, the executors who
had propounded the alleged Will therefore had to prove the due and valid execution
of the Will and that there were no suspicious circumstances surrounding the
execution of the Will. Such propounder must remove such suspicion from the
mind of the Court by cogent and satisfactory evidence. It is submitted that Mr
Jivaji Tarachand had played prominent part in bringing about the execution of the
Will who was father of the main beneficiary under the alleged Will. Even wife of
Mr Jivaji had played important role in getting the affidavit of Ms Dolly Divecha. It
is submitted that the plaintiff has failed to dispel the suspicious circumstances and
thus suit is liable to be dismissed on that ground alone. Reliance is placed on
paragraphs 8 to 24, 27, 28 and 38 of the said Judgment.
52. Mr Shah learned counsel placed reliance on the Judgment of the Supreme
Court in case of Janaki Narayan Bhoir Vs. Narayan Namdeo Kadam 2003 (2)
SCC 1991 and would submit that under section 68 of the Evidence Act if one of
the attesting witness examined does not satisfy the requirements of attestation of
the Will and falls short of attestation of Will, propounder ought to have examined
second attesting witness to supplement his evidence to make it complete in all
respect failing which it would amount to deficiency in meeting the mandatory
requirements of section 68 of the Evidence Act. Learned counsel submits that
since Ms Dolly Divecha who was alleged to be one of the attesting witness had
failed to prove the execution and attestation of the alleged Will, the plaintiff ought
to have examined the second attesting witness in compliance with mandatory
requirements under section 68. Reliance is placed on paragraphs 8 to 11 of the said
judgment.
53. Mr. Shah learned counsel placed reliance on judgment of this court in case of
Zarina R.Irani vs. Shapur Jawanmardi 2005 (1) Mah.L.J. 293 and would submit
that the propounder of the Will has not only to prove the execution of the Will but
also that the Will is not surrounded by any suspicious circumstances.
54. Mr Shah learned counsel also placed reliance on the Judgment of this Court
in case of Romeo A. D'Souza Vs. Edgar Havlo D'souza (R.D.Dhanuka, J.) dated
20/12/2013 in testamentary suit 41/06 in support of the submission that the issue of
execution of the Will and testament has to be considered by considering the entire
material on record and also the suspicious circumstances surrounding the making
of the Will. Reliance is placed on paragraph 46 of the said judgment on this
issue.
55. Mr. Shah learned counsel for the defendants submitted that plaintiff has not
led any evidence to show that Mr. Pithawalla also committed any alleged error or
that Mr. Pithawalla who was unwell and died. Plaintiffs also did not lead any
evidence as to whether Mr. Jivaji Tarachand was unwell or died of cancer and thus
could not be examined. Ms. Kanaz did not enter the witness box to say that Mr.
Pithawalla and Mr. Jivaji were unwell and died and therefore, could not lead
evidence. It is submitted that the learned counsel for the plaintiff cannot be
allowed to urge that Ms. Dolly Divecha examined by the plaintiff was confused
since the plaintiff never applied for re-examination of the said witness on any
alleged confusion. He submitted that in the affidavit annexed to the testamentary
suit handwriting of Mr. Jivaji on the will was alleged which was obviously not as
per prescribed form No. 102. The plaintiff had mentioned much more in the said
affidavit what was prescribed in form no. 102. It is submitted that such form
prescribed under the rules is only a guide and even if there is factual incorrect
information, same cannot be written in the form.
56. Mr. Shah learned counsel submits that Ms. Dolly Divecha who was
examined as one of the attesting witness admittedly saw the second affidavit of
examination in chief for the first time when she signed the said affidavit. The
affidavit was drafted by learned advocate and was admittedly not translated.
Assistance of interpreter of this court was admittedly not availed of when the
affidavit was affirmed. Admittedly presence of the interpreter was required by the
said witness to translate every question before the learned court commissioner at
the time of recording oral evidence. The witness in his examination in chief or in
cross examination, did not depose that her affidavits in lieu of examination in chief
were translated to her by the learned advocate. It is submitted that the statement of
Mr. Pithawalla in the affidavit in support of the petition contained various untrue
allegations which cannot be ignored. He had deposed facts about somebody else.
57. Learned counsel submits that there was major discrepancy in the case of the
witness examined by the plaintiff. The witness Ms. Dolly Divecha described four
versions on what happened on the date of execution of the alleged Will. The
second witness examined by the plaintiff was admittedly not present on the date of
alleged execution of the Will. Mr. Shah learned counsel distinguished the judgment
of supreme court reported in Madhukar Shende (supra) on the ground that the said
judgment did not pertain to the testamentary proceedings. The suit was for
declaration of title and possession of immovable property. The defendants in the
said suit had denied the will and had claimed adverse possession.
58. Mr. Shah learned counsel distinguished the judgment of the Supreme Court
in case of Maheshkumar (supra) on the ground that the Supreme court was
considering a suit for declaration of title, possession and recovery of rent. Reliance
is placed on paragraph 39, 40,45 and 46 of the said judgment and would submit
that evidence was corroborated even in cross examination in that matter. Mr.
Shah learned counsel submits that there is no substance in the submission of
learned counsel for plaintiff that affidavit filed in support of the petition or along
with petition cannot be considered by this court as evidence. It is submitted that
Ms. Dolly Divecha was examined on both the affidavits and the defendants were
entitled to point out the inconsistency and falsehood in the said affidavit of the year
2005. Mr. Shah learned counsel distinguished the judgment of the Supreme Court
in the case of Ayaaub Khan Noorkhan Pathan Vs. State of Maharashtra 2013 (3)
BCR 113. Reliance is placed on paragraph 11 of the said judgment.
59. It is submitted that requirement of section 63 of the Evidence Act are not
satisfied. The evidence led by the plaintiff itself is unreliable, full of selfcontradictions
and inconsistencies. There were no initials of deceased on the
corrections made on the alleged Will.
60. Mr. BehramKamdin learned counsel for the plaintiff in rejoinder submits that
court has to read the evidence as a whole and not in piecemeal. Discrepancy in the
evidence has to be construed in right context unless court comes to the conclusion
that whole case has to be disbelieved. The court can not discard evidence on the
basis of surmises and conjectures. Mr. BehramKamdin placed reliance on the
treatise of Woodroff and Amir Ali on Law of Evidence, 18th Edition on this issue
and would submit that it is duty of the court to cull out the nuggets of truth from
the evidence unless there is reason to believe that the inconsistencies or falsehood
is glaring to destroy the confidence in the witness. Learned counsel submits that
the witness Ms. Dolly Divecha in view of the confusion may have given certain
answers which may be inconsistent but merely on the basis of answers given to
few of such questions entire evidence cannot be discarded by the court. It is
submitted that under section 165 of the Evidence Act, this court may ask questions
to the witnesses even at this stage to find out the truth.
61. On the issue of the will being unnatural the learned counsel submits that
such issue has been raised by the caveators only in the additional affidavit in
support of caveat much after completion of the pleadings. Merely because in the
second will there is no bequest of charity, same cannot be considered as unnatural
will. It is submitted that under the second will the entire property does not go to
Kanaz. Only 50% share in the property is bequeathed in her favour and the
remaining 50% is bequeathed in favour of other two parties. The deceased wanted
to protect Kanaz. The deceased had ¼ th share received by him by Will of his
aunt which share was bequeathed in favour of Kanaz. Kanaz had already 1/4th
share in the said property at Dadar. It is submitted that the deceased in the second
will had not said that Will of the year 2000 (first Will) was revoked. Mr.
Behramkamdin placed reliance on the judgment of the Supreme Court in case of
Rajeshkumar Vs. Vinodkumar (2012) 4 SCC 387 and in particulars paragraphs
46 to 49 on the issue of natural will raised by the defendants.
62. On the issue as to whether affidavit filed in the year 2005 can be considered
as evidence at all, it is submitted that the affidavit of attesting witness is filed as
per Form 102 under rule 374 (c) of the High Court (OS) Rules and such affidavit is
filed along with probate petition. Once testamentary petition is converted into a
suit, Code of Civil Procedure, 1908 applies. Affidavit in lieu of examination in
chief filed under order 18 rule 4 only can be considered as evidence. Reliance is
placed on section 3 of the Evidence Act and it is submitted that the statement made
by the witness only would amount to evidence within the meaning of evidence
under the said provisions and thus the said affidavit filed in the year 2005 cannot
be treated as affidavit of evidence. It is submitted that in any event, the errors
shown by the defendant in the affidavit are minor and inconsequential.
63. On the issue whether Ms. Dolly Divecha was an interested witness or not,
learned counsel placed reliance on the judgment of the Supreme Court in case of
Aaayub Khan Pathan (supra) and more particularly paragraph 31 to 33 and 36. He
submitted that Mr. Pithawalla was not alive and could not clarify or correct the
mistake made in the affidavit of the year 2005. When the said Ms. Dolly Divecha
came to know about the mistake in the affidavit of 2005, about the address, she
corrected the said mistake in her affidavit of evidence which can be considered by
this court. Such error in any event was a genuine error. He submitted that
inaccuracy in the affidavit of Mr. Pithawalla was in any event not material.
64. Mr.Behramkamdin, learned counsel for the plaintiffs submits that the said
deceased by executing the Will dated 27th December 2004 has already revoked all
earlier Wills including Will dated 31st August 2000. The witnesses examined by
the plaintiff have proved this fact. Mr.Shah learned counsel appearing for the
defendants however submits that the defendants have proved the existence and
contents of the Will dated 31st August 2000 whereas the plaintiff has failed to
prove the alleged Will dated 27th December 2004. It is submitted that the Issue
No.3 therefore shall be answered in negative.
REASONS AND CONCLUSION
65. In the case of Shashikumar Banerjee and Ors. Vs. Subodh Kumar
Banerjee (supra), Supreme Court has held that the onus of proving the will is
on the propounder and in the absence of suspicious circumstances surrounding
the execution of the will, proof of testamentary capacity and signature of the
testator as required by the law is sufficient to discharge the onus. However, if
there are suspicious circumstances, the onus is on the propounder to explain them
to the satisfaction of the Court before the Court accepts the will as genuine. It
is held that even where there are no such pleas of undue influence, fraud and
coercion, the propounder has to satisfy conscience of the Court. The suspicious
circumstances may be as to the genuineness of the signature of the testator, the
conditions of the testator's mind in the will being unnatural, improbable or
unfair in the light of relevant circumstances or there might be other indications
to show that testator's mind was not free. If the propounder succeeds in
removing the suspicious circumstances the Court would grant probate, even if
the will might be unnatural and might be cut off wholly or in part to near
relations.
66. In case of Savithri and Ors. Vs. Karthyayani Amma & Ors. (supra),
Supreme Court has held that the Court has to see as to whether the testator
possessed mental capacity to understand the contents of the will and whether
the same was free and/or voluntary. It is held that the if propounder proves that
the will was signed by the testator and he, at the relevant time, was in sound
disposing state of mind and understood the nature and effect of disposition, the
onus stands discharged. It is held that the will like any other document is to be
proved in terms of provisions of Succession Act and Evidence Act. The onus of
proving the will is on the propounder. The execution of the will and the
testamentary capacity of the testator must be established. If there exists
suspicious circumstances, the onus would be on the propounder to explain them
to the satisfaction of the Court. It can be accepted as genuine. It is held that
deprivation of a due share to the natural heirs itself is not a factor which would
lead to the conclusion that there exists suspicious circumstances. It is held that
the conscience of the Court must be satisfied that the will in question was not
only executed and attested in the manner required under the Succession Act but
it is found that the said will was the product of the free volition of the executant
who had voluntarily executed the same after knowing and understanding the
contents of the will. Wherever there are suspicious circumstances, the
obligation is cast on the propounder of the will to dispel the suspicious
circumstance.
67. Supreme Court in the case of Bellachi (dead) by Lrs. Vs. Pakeeran,
reported in (2009) 12 Supreme Court Cases 95 has held that a party alleging
the undue influence, fraud, etc. must prove subject of course to just
exceptions.
68. Supreme Court in case of Surendra Pal and Ors. Vs. Dr. (Mrs.)
Saraswati Arora and Anr., reported in (1974) 2 Supreme Court Cases 600
has held that there are possibilities of fraud and fabrication, particularly in cases
of old and feeble persons, that the Courts have to be very circumspect in
dealing with them and scrutinize the surrounding circumstances very carefully.
69. Supreme Court in the case of H. Venkatachala Iyengar Vs. B.N.
Thimmajamma (supra) has held that if there are presence of suspicious
circumstances, it would naturally tend to make the initial onus very heavy and
unless it is satisfactorily discharged, the Courts would be reluctant to treat the
document as the last will of the testator. It is held that the propounder himself
takes a prominent part in the execution of the will which confer on them
substantial benefits and has received substantial benefit under it, that itself is
treated as a suspicious circumstance attending the execution of the will and the
propounder is required to remove the said suspicious circumstances by clear and
satisfactory evidence.
Paragraphs 20 and 21, 22 and 39 of the said judgment in the case of H.
Venkatachala Iyengar read thus.
“20. There may, however, be cases in which the execution of
the will may be surrounded by suspicious circumstances. The alleged
signature of the testator may be very shaky and doubtful and evidence
in support of the propounder's case that the signature in question is
the signature of the testator may not remove the doubt created by the
appearance of the signature; the condition of the testator's mind may
appear to be very feeble and debilitated; and evidence adduced may
not succeed in removing the legitimate doubt as to the mental capacity
of the testator; the dispositions made in the will may appear to be
unnatural, improbable or unfair in the light of relevant circumstances;
or, the will may otherwise indicate that the said dispositions may not
be the result of the testator's free will and mind. In such cases the
court would naturally expect that all legitimate suspicions should be
completely removed before the document is accepted as the last will of
the testator. The presence of such suspicious circumstances naturally
tends to make the initial onus very heavy; and, unless it is
satisfactorily discharged, courts would be reluctant to treat the
document as the last will of the testator. It is true that, if a caveat is
filed alleging the exercise of undue influence, fraud or coercion in
respect of the execution of the will propounded, such pleas may have
to be proved by the caveators; but, even without such pleas
circumstances may raise a doubt as to whether the testator was acting
of his own free will in executing the will, and in such circumstances, it
would be a part of the initial onus to remove any such legitimate
doubts in the matter.
21. Apart from the suspicious circumstances to which we have just
referred, in some cases the wills propounded disclose another
infirmity. Propounders themselves take a prominent part in the
execution of the wills which confer on them substantial benefits. If it is
shown that the propounder has taken a prominent part in the
execution of the will and has received substantial benefit under it, that
itself is generally treated as a suspicious circumstance attending the
execution of the will and the propounder is required to remove the
said suspicion by clear and satisfactory evidence. It is in connection
with wills that present such suspicious circumstances that decisions of
English courts often mention the test of the satisfaction of judicial
conscience. It may be that the reference to judicial conscience in this
connection is a heritage from similar observations made by
ecclesiastical courts in England when they exercised jurisdiction with
reference to wills; but any objection to the use of the word
'conscience' in this context would, in our opinion, be purely technical
and academic, if not pedantic. The test merely emphasizes that, in
determining the question as to whether an instrument produced before
the court is the last will of the testator, the court is deciding a solemn
question and it must be fully satisfied that it had been validly executed
by the testator who is no longer alive.
22. It is obvious that for deciding material questions of fact which
arise in applications for probate or in actions on wills, no hard and
fast or inflexible rules can be laid down for the appreciation of the
evidence. It may, however, be stated generally that a propounder of
the will has to prove the due and valid execution of the will and that if
there are any suspicious circumstances surrounding the execution of
the will the propounder must remove the said suspicions from the
mind of the court by cogent and satisfactory evidence. It is hardly
necessary to add that the result of the application of these two general
and broad principles would always depend upon the facts and
circumstances of each case and on the nature and quality of the
evidence adduced by the parties. It is quite true that, as observed by
Lord Du Parcq in Harmes v. Hinkson , "where a will is charged with
suspicion, the rules enjoin a reasonable scepticism, not an obdurate
persistence in disbelief. They do not demand from the judge, even in
circumstances of grave suspicion, a resolute and impenetrable
incredulity. He is never required to close his mind to the truth". It
would sound platitudinous to say so, but it is nevertheless true that in
discovering truth even in such cases the judicial mind must always be
open though vigilant, cautious and circumspect.
39. In this connection we would like to add that the learned trial
judge appears to have misdirected himself in law inasmuch as he
thought that the proof of the signature of the testatrix on the will
raised a presumption that the will had been executed by her. In
support of this view the learned judge has referred to the decision of
the Calcutta High Court in Surendra Nath Chatterji v. Jahnavi Charn
Mukerji . In this case no doubt the Calcutta High Court has held that
on the proof of the signature of the deceased or his acknowledgment
that he has signed the will he will be presumed to have known the
provisions of the instrument he has signed; but Mr. Justice B. B.
Ghose, in his judgment, has also added that the said presumption is
liable to be rebutted by proof of suspicious circumstances and that
undoubtedly is the true legal position. What circumstances would be
regarded as suspicious cannot be precisely defined or exhaustively
enumerated. That inevitably would be a question of fact in each case.
Unfortunately the learned trial judge did not properly asses the effect
of suspicious circumstances in the present case to which we have
already referred and that has introduced a serious infirmity in his
final conclusion. Incidentally we may also refer to the fact that the
appellant obtained a power of attorney from the testatrix on the same
day; and that has given rise to the argument that the appellant was
keen on taking possession and management of the properties under
his control even before the death of the testatrix. There is also another
circumstance which may be mentioned and that is that the SubRegistrar,
in whose presence the document was registered on the same
day, has not been examined though he was alive at the date of the
trial. On these facts then we are inclined to hold that the High Court
was justified in reversing the finding of the trial court on the question
of the due and valid execution of the will.”
70. Supreme Court in case the of Janki Narayan Bhoir Vs. Narayan
Namdeo Kadam, reported in (2003) 2 Supreme Court Cases 91 has held that
though Section 63 of the Succession Act requires that a will has to be attested
at least by two witnesses, Section 68 of the Succession Act provides that a
document which is lawfully attested shall not be used as evidence until one
attesting witness at least has been called for the purpose of proving its
execution, if the witness is alive and subject to the process of the Court and is
capable of giving evidence. It is held that the one attesting witness examined,
in his evidence has to satisfy the attestation of a will by him and the other
attesting witness in order to prove there are due execution of the will. If the
attesting witness examined besides his attestation does not, in his evidence,
satisfy the requirements of attestation of the will by the other witness, Section
71 cannot be read so as to absolve a party of his obligation under Section 68
of the Evidence Act read with Section 63 of the Indian Evidence Act. It is held
that if one witness fails to prove the execution of the will, the other witness is
to be called for to supplement his evidence.
It is held by the Supreme Court that the best possible evidence should be
placed before the Court for consideration which is one of the parameters of the
Indian Evidence Act.
Para 8 to 11 of the said judgment of the Supreme Court read thus.
“8. To say will has been duly executed the requirement mentioned
in Clauses (a), (b) and (c) of Section 63 of the Succession Act are to
be complied with i.e., (a) the testator has to sign or affix his mark to
the will, or it has got to be signed by some other person in his
presence and by his direction; (b) that the signature or mark of the
testator, or the signature of the person signing at his direction, has to
appear at a place form which it could appear that by that mark or
signature the document is intended to have effect as a will; (c) the
most important point with which we are presently concerned in this
appeal, is that the will has to be attested by two or more witnesses and
each of these witnesses must have seen the testator sign or affix his
mark to the Will, or must have seen some other person sign the Will in
the presence and by the direction of the testator, or must have received
from the testator a personal acknowledgement of signature or mark,
or of the signature of such other person, and each of the witnesses has
to sign the Will in the presence of the testator.
9. It is thus clear that one of the requirements of due execution of
will is its attestation by two or more witnesses which is mandatory.
10. Section 68 of the Evidence Act speaks of as to now a document
required by law to be attested can be proved. According to the said
Section, a document required by law to be attested 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 an
evidence. It flows from this Section that if there be an attesting witness
alive capable of giving evidence and subject to the process of the
Court, has to be necessarily examined before the document required
by law to be attested can be used in an evidence. On a combined
reading of Section 63 of the Succession Act with Section 68 of the
Evidence Act, it appears that a person propounding the will has got to
prove that the will was duly and validly executed. That cannot be done
by simply proving that the signature on the will was that of the
testator but must also prove that attestations were also made properly
as required by Clause (c) of Section 63 of the Succession Act. It is true
that Section 68 of Evidence Act not say that both or all the attesting
witnesses must be examined. But at least one attesting witness has to
be called for proving due execution of the Will as envisaged in Section
63. although Section 63 of the Succession Act requires that a will has
to be attested at least by two witnesses, Section 68 of the Evidence Act
provides that a document, which is required by law to be attested,
shall not be used as evidence until one attesting witness at least has
been examined for the purpose of proving its due execution if such
witness is alive and capable of giving evidence and subject to the
process of the Court. In a way, Section 68 gives a concession to those
who want to prove and establish a will in a Court of law by examining
at least one attesting witness even though will has to be attested at
least by two witnesses mandatorily under Section 63 of the Succession
Act. But what is significant and to be noted is that that one attesting
witness examined should be in a position to prove the execution of a
will. to put in other words, if one attesting witness can prove execution
of the will in terms of Clause (c) of Section 63, viz., attestation by two
attesting witnesses in the manner contemplated therein, the
examination of other attesting witness can be dispensed with. The one
attesting witness examined, in his evidence has to satisfy the attention
of a will by him and the other attesting witness in order to prove there
was due execution of the will. If the attesting witness examined
besides his attestation does not, in his evidence, satisfy the
requirements of attention of the will by other witness also it falls short
of attestation of will at least by two witnesses for the simple reason
that the execution of the will does not merely mean the signing of it by
the testator but it means fulfilling and proof of all the formalities
required under Section 63 of the Succession Act. Where one attesting
witness examined to prove the will under Section 68 of the Evidence
Act fails to prove the due execution of the will then the other available
attesting witness has to be called to supplement his evidence to make
it complete in all respects. Where one attesting witness is examined
and he fails to prove the attestation of the will by the other witness
there will be deficiency in meeting the mandatory requirements of
Section 68 of the Evidence Act.
11. Section 71 of the Evidence Act is in the nature of a safeguard to
the mandatory provisions of Section 68, Evidence Act, to meet a
situation where it is not possible to prove the execution of the will by
calling attesting witnesses, though alive. This section provides that if
an attesting witness denies or does not recollect the execution of the
will, its execution may be proved by other evidence. Aid of Section 71
can be taken only when the attesting witnesses, who have been called,
deny or fail to recollect the execution of the document to prove it by
other evidence. Section 71 has no application to a case where one
attesting witness, who alone had been summoned, has failed to prove
the execution of the will and other attesting witnesses though are
available to prove the execution of the same, for the reasons best
known, have not been summoned before the court. It is clear from the
language of Section 71 that if an attesting witness denies or does not
recollect execution of the document, its execution may be proved by
other evidence. However, in a case where an attesting witness
examined fails to prove the due execution of will as required under
Clause (c) of Section 63 of the Succession Act, it cannot be said that
the Will is proved as per Section 68 of the Evidence Act. It cannot be
said that if one attesting witness denies or does not recollect the
execution of the document, the execution of will can be proved by
other evidence dispensing with the evidence of other attesting
witnesses though available to be examined to prove the execution of
the will. Yet, another reason as to why other available attesting
witnesses should be called when the one attesting witnesses examined
fails to prove due execution of the will is to avert the claim of drawing
adverse inference under Section 114 illustration (g) of Evidence Act.
Placing the best possible evidence, in the given circumstances, before
the Court for consideration, is one of the cardinal principles of Indian
Evidence Act. Section 71 is permissive and an enabling Section
permitting a party to lead other evidence in certain circumstances.
But Section 68 is not merely on enabling Section. It lays down the
necessary requirements, which the Court has to observe before
holding that a document is proved. Section 71 is meant to lend
assistance and come to the rescue of a party who had done his best,
but driven to a state of helplessness and impossibility cannot be let
down without any other means of proving due execution by "other
evidence" as well. At the same time Section 71 cannot be read so as to
absolve a party of his obligation under Section 68 read with Section
63 of the Act and liberally allow him, at his will or choice to make
available or not a necessary witness otherwise available and
amenable to the jurisdiction of the court concerned and confer a
premium upon his omission or lapse, to enable him to give a go bye to
the mandate of law relating to proof of execution of a will.
12. Turning to the facts of the case on hand, it is evident that only
one attesting witness Prabhakar Sinkar, examined in the case, did not
prove the execution of the will inasmuch as he did not prove the
attestation of the will by the other attesting witness Wagle who though
available was not examined. The scribe examined in the case was not
an attesting witness, which is clear from the evidence on record and
as rightly conceded so by learned counsel for the respondent before
us. Hence, it is unnecessary to go into the question whether the scribe
in this case could or could not be an attesting witness. The evidence of
Sinkar, the only attesting witness, does not satisfy the mandatory
requirements of Section 68 of the Evidence Act. We are not in a
position to accept the contention urged on behalf of the respondent
that the evidence of other witness namely, that of the respondent and
the scribe could be considered under Section 71 of the Evidence Act.
Section 71 has no application when the one attesting witness, who
alone has been summoned, has failed to prove the execution of the will
and other attesting witness though available has not been examined.
When the document is not proved as mandatory required under
Section 68 of the Evidence Act, the provision of Section 71 of the
Evidence Act, which is permissive, and enabling in certain
circumstances as discussed above does not help the respondent. In
Vishnu Ramkrishna and Ors.v. Nathu Vithal and Ors.
MANU/MH/0100/1948 : AIR1949 Bom266 , Chagla, C.J., speaking
for the Division Bench in similar circumstances has stated that
although Section 63 of the Succession Act requires that will has to be
attested by two witnesses, Section 68 of the Evidence Act permits the
execution of the will to be proved by only one attesting witness being
called. Where the attesting witness, who is called to prove the
execution, is not in a position to prove the attestation of the will by the
second witness, the evidence of the witness called falls short to the
mandatory requirements of Section 68. Section 71 of the Evidence Act
can only be requisitioned when the attesting witnesses who have been
called failed to prove the execution of the will by reason of either
denying their own signatures or denying the signature of the testator
or having no recollection as to the execution of the document. This
Section has no application when one attesting witness has failed to
prove the execution of the will and other attesting witnesses were
available who cold prove the execution if they were called.”
71. Supreme Court in the case of Zarina R. Irani & Ors. Vs. Shapur
Jawanardi and Ors. reported in 2005 (1) Mh. L.J. 293 has held that the
Court has to consider the evidence led by the propounder of the will so as to
satisfy the conscience of the Court that the will was executed by the Testator.
72. In the light of the aforesaid principles of law laid down by the Supreme
Court on the issue of requirement of proof in case of a will, shifting of onus in
case of suspicious circumstances, I shall now discuss on the evidence led by
both parties and highlighted aforesaid on the issue whether execution and
attestation of the will is proved, whether the testator was in sound and disposing
state of mind at the time of execution of the will, whether there is suspicious
circumstance in execution of will of the deceased testator and if so, whether the
propounder of the Will has dispelled such suspicious circumstances.
73. Two persons are claiming to be executors of the alleged Will. One is Mr.
Jivaji F. Tarachand, paternal uncle of the deceased, and the second is Mr.
Khurshed Naval Wadia, cousin of the said deceased. The testamentary petition
was filed by both these persons in the year 2005. The deceased had alleged to
have executed the will on 27th December, 2004. The said deceased expired on
15th March, 2005. According to the said alleged will, there were two attesting
witnesses 1) Mr. Homi Cavasji Pithawala and 2) Ms. Dolly Soli Divecha. Both
the alleged attesting witnesses filed two separate affidavits both dated 21st July,
2005 which affidavits were annexed to the petition. The statement made in
both the affidavits are exactly identical. Mr.Homi C. Pithawala however was
not examined as a witness. None of the alleged executors of the alleged will
were examined as witness. Mr. Jivaji F. Tarachand expired sometime in the year
2011. The proceedings were thereafter proceeded by Mr. Khurshed Wadia.
Plaintiff did not enter the witness box. The plaintiff examined two witnesses. 1)
Ms. Dolly S. Divecha and 2) Mr. Phiroz Amaria.
74. In the cross examination of Ms Dolly Divecha she admitted that she had
passed 7th standard in or about 1957-58. She claimed to have learnt to write in
English small words. Letters exchanged between her and her sisters were also in
Gujarati. She admitted that she had learnt grammer spelling little bit. She did not
remember any of the students from her bench who had attended English classes of
Kanaz. She also did not know whether Kanaz has issued any certificate to any
students at the end of any particular course. She did not want certificate of the
alleged course from Kanaz because her English was still very poor. Witness
admitted that she could read and understand English but not the difficult words and
spellings and was not comfortable in writing in English. In reply to question
No.46 the witness admitted that she could write her address in English. When the
witness was asked the meaning of various words used by her in her affidavit such
as 'acquainted', 'testamentary paper', 'disposing mind', 'deponent', etc. , the witness
could not give correct meaning of such words.
75. It is not in dispute that none of the affidavits filed by the said witness Dolly
Divecha were interpreted and/or translated to her in Gujarati. There was no
endorsement made by the advocate on any of the affidavits that the contents of the
said affidavits were explained to her in Gujarati. It was also not the case of the
witness that she was explained the contents of those two affidavits before
affirmation, by the advocate who had drafted such affidavits. It is also not in
dispute that before the learned Court Commissioner, a translator was arranged by
the plaintiff for translating each and every question asked to the witness from
English to Gujarati. The witness admitted that such translator was present.
Witness also admitted that she had given instructions in Gujarati and signed the
affidavits on instructions of her advocate at her office.
76. In her cross examination, the said witness deposed that the affidavit dated
21/07/2005 was drafted by her advocate on her instructions given in Gujarati. She
did not remember who accompanied her when she went to give instructions to the
learned advocate for drafting the affidavit. Kanaz had shown her office of the
advocate. When witness was asked whether she had read the said affidavit dated
21/07/2005, she answered that she had read a little of it and understood the
contents of the said affidavit and added that whatever instructions she had given
were mentioned in the affidavit. In reply to question No.84 when she was asked
whether she was sure whether the affidavit dated 21/07/2005 contained exactly
what she had instructed the learned advocate to draft the affidavit dated
21/07/2005, the witness answered “ It may be”. When witness was asked whether
she had met the learned advocate prior to making of the affidavit dated 21/07/2005,
she answered that she did not remember. When witness was asked as to how she
knew that her affidavit was required, she replied that she did not remember. She
did not know what the probate petition was. Kanaz had brought her to advocate's
office. The witness did not see the affidavit dated 21/07/2005 after executing the
same and saw only in the proceedings before the learned Commissioner. In reply
to question No.224 witness answered that she did not know if Jivaji or Kanaz had
seen her affidavit dated 21/07/2005 but deposed that the deceased had seen her
affidavit. It is not in dispute that the said affidavit dated 21/07/05 was filed after
the death of the said deceased testator. The said deceased therefore could not have
seen that affidavit as deposed by the said witness.
77. The cross examination of the said witness also indicates that she had
admitted that mother of Kanaz had accompanied her when she signed her affidavit
of examination-in-chief dated 04/03/2011. The learned advocate for the plaintiff
had asked the said witness to sign the said affidavit. The witness admitted that
she did not ask Mrs Goolamai, mother of Kanaz to show her the affidavit dated
4/03/2011 and admitted that she was made to sign the said affidavit. The witness
also admitted that she saw the second affidavit for the first time when she signed it
on 04/03/2011. When witness was asked whether she had read her affidavit dated
04/03/2011 before giving evidence, she replied that she had read it but very
cursorily. Nobody informed her that she would be asked questions on her affidavit
and if she knew that she had to give evidence, she would have read it properly.
When witness was asked whether she read the affidavit dated 21/07/2005 before
she signed the affidavit dated 04/03/2011, she answered that she did not
remember. She did not know the meaning of the word 'inadvertently'. Witness
also admitted that she had told her advocate that her English was not very good and
that she understood Gujarati.
78. Witness admitted that she did not remember whether her advocate had
shown her any documents when she gave instructions to the advocate. She had
told the advocate that she had put the date but the address part was written by Mr
Jivaji Tarachand because her handwriting was a little crooked. When witness was
asked whether she found any mistake in the affidavit dated 21/07/2005 when she
read it before signing it, the witness answered that she did not find any mistake in
the said affidavit before signing the same. The witness could not answer as to
what was the occupation and profession of the said deceased but deposed that he
was fond of food and use to eat, drink and be happy. Other than what she deposed,
she could not give any other information about the deceased. The witness
deposed that said deceased was like her son.
79. A perusal of the affidavit of the witness Dolly Divecha dated 21/07/2005
indicates that the same is identical to the contents of the affidavit of Mr H.D.
Pithawalla. In reply to question No.133, this witness answered that she did not
inform her advocate at the time of drafting affidavit dated 21/07/05 that she had
read the Will. The learned advocate did not ask her and therefore she did not tell
her. The deceased had asked her to sign as an attesting witness as he was
preparing a Will. He had told her about such Will on 27/12/2004 or 2005 but she
did not remember the year exactly. She has deposed that the said deceased did not
tell her as to who had made Will for him but only asked her to sign in the Will.
The witness deposed that the said deceased kept on saying that he was going to
make a Will and that the witness would sign the same as an attesting witness.
80. When the witness asked the said deceased as to why he wanted to make a
Will though he was young, the said deceased replied that he was not keeping good
health and was having heart problem. The doctor had told him to loose weight but
he kept on eating and said that there was no point in loosing weight. The said
deceased had not given any fixed time to her to attend for attestation of the Will.
In reply to question No.169 the witness answered that Mr Pithawalla had already
come and was sitting in the house of Kanaz for signing the Will. She must have
waited for about an half an house or 45 minutes before Mr Pithawalla came to the
house. The answers referred to aforesaid in my view, clearly show total
inconsistency and contradiction in her cross examination with the deposition made
in examination-in-chief.
81. In reply to question 178 to 194, the witness deposed that she had not read the
Will but Mr Pithawalla had read the Will however, in reply to question No.125 to
131 the witness deposed that she had read the Will. The witness in her affidavit
did not state that she had read the Will. In reply to question No.130 the witness
answered that she had read the will stating that 50% of the property was to be
given to Kanaz 25 % to Khurshed and something was given to a third person.
When witness was asked whether she deposed in reply to question No.131 about
the contents of Will, whether it was of her personal knowledge or whether
somebody told her about it, the witness deposed that she had read it when she
signed it. In reply to question 178 the witness deposed that she saw the Will for
the first time when she signed it. In reply to question No.180 the witness deposed
that she did not read the Will when she had signed the Will. A perusal of the
aforesaid deposition clearly indicates that the witness has made various
contradictory answers on the issue of execution and attestation of Will which
would indicate that such a witness cannot be a reliable witness. In my view the
evidence led by this witness does not inspire confidence.
82. In so far as issue of execution and attestation of the Will is concerned, in the
cross examination of Ms Dolly Divecha, it is deposed by her that Mr Jivaji had
made some correction on the date “27” and also made correction on the word
“Bapaiji” and “gifts”. The witness deposed that such corrections were made by
Mr Jivaji Tarachand because Jimmy could not write properly as he had some
problem with his hand. The witness however did not ask him what was the
problem. The witness admitted that Mr Jivaji read the Will first, made the
corrections and then Jimmy signed the Will. In reply to question No.201 when
witness was asked whether Mr H. D. Pithawalla had asked Jimmy whether the Will
was as per his desire, the witness answered that Mr Pithawalla had asked Jimmy
that question before Jimmy had made corrections. The witness did not find it
strange that if Jimmy could put his sign on the Will, why he could not made two
minor corrections or write the date “27” by himself. In reply to question No.203
when witness was asked whether she now feels if a person could sign his Will he
could have inserted the date “27” or make minor changes by his own hand, the
witness answered “ It may be, may be not”.
83. In reply to question No.204, when the witness was shown the Will and in
particular the execution clause and was asked to point out if Jimmy had written any
date on that page of the Will, the witness answered that the date written below
Jimmy's signature was the date written by Jimmy himself. It is pertinent to note
that in reply to question No.205 when witness was asked whether it was correct
that on that date, Jimmy was capable of writing full date “27/12/2004”, the witness
answered in affirmative and said that it was correct. The witness admitted that she
did not make such suggestion to Jimmy that he should at least put his signature
against the corrections made by Jimmy and stated that they did not see and think of
it otherwise they would have told Jimmy to put his initials. She answered that she
did not know as to why Mr Pithawalla put the date. In reply to question No.216
when the suggestion was put to the witness that on 27/12/2004 Jimmy had a
problem with his hand, the witness denied the said suggestion and deposed that he
had no problem with his hand and he had signed the Will. A perusal of paragraph 4
of the affidavit of Ms Dolly Divecha dated 21/07/2005 clearly indicates that the
said witness in the said affidavit had alleged that the said deceased below his
signature had added the date “27/12/2004”. It is deposed in the said affidavit that
the insertion of the date “27” preceding the words “day of December 2004” in the
last paragraph of the Will was in the handwriting of Mr Jivaji Tarachand who was
also present at the time of execution of the Will who had also corrected the spelling
of “Bapaiji” and “gifts”.
84. In paragraph 3 of the affidavit dated 4th March 2011 of Ms Dolly Divecha,
she deposed that the signature “D.S.Divecha” and the date “27/12/2004” appeared
thereon was in her handwriting. However, she had requested Mr Jivaji Tarachand
to write her name and address below her signature and the date as she did not wish
to make any mistake on the original Will. In the affidavit of 4th March 2011, the
witness alleged for the first time that by her inadvertence, in her affidavit of
attesting witness dated 21st July 2005, she had stated that the name and address had
been written by her and the same needs to be corrected. A perusal of the affidavit
filed by Mr H. D. Pithawalla however, does not indicate that he had referred to the
handwriting of Mr Jivaji Tarachand about name and address of Ms Dolly Divecha
on the Will by Jivaji Tarachand though he was also claiming to be present at the
same time. Mr H. D. Pithawalla however did not file any affidavit of evidence
pointing out his mistake in her affidavit dated 21st July 2005. The contents of the
affidavit of Mr H. D. Pithawalla and the affidavit of Ms Dolly Divecha were
identical. It is not in dispute that Mr H. D. Pithawalla was available for quite some
time after filing of the petition, however was not examined as witness.
85. A perusal of cross examination of Ms Dolly Divecha clearly indicates that
her evidence is full of contradictions and inconsistencies on execution and
attestation of the Will with that what she has deposed in her examination-in-chief
dated 4th March 2011 and in her affidavit of attesting witness dated 21/07/2005. It
is also admitted by the said witness that as far as subsequent affidavit filed by her
in the year 2011 is concerned, she had not read that affidavit carefully and she was
made to sign that affidavit. It is thus clear that the said affidavit dated 4th March
2011 filed by the said Ms Dolly Divecha was not based on her own instructions.
She did not know anything of the contents of the said affidavit. It is admitted by
her that she was not aware that she was to answer any questions on that affidavit
which she had signed. In my view, the said Ms Dolly Divecha who was one of the
alleged attesting witness to the alleged Will, thus could not prove the execution and
attestation of the alleged Will.
86. In my view, the Judgment of Supreme Court in case of Janaki Narayan
Bhoir Vs. Narayan Namdeo Kadam (supra) would thus clearly apply to the facts
of this case. In my view, since one of the alleged witness could not satisfy the
requirement of attestation of Will, the plaintiff ought to have examined the second
attesting witness for supplementing her evidence. The plaintiff is not absolved of
his obligation under Section 63 of the Indian Succession Act read with Section 68
of Indian Evidence Act. It is held by Supreme Court that if one witness fails to
prove the execution of the Will, the other witness is to be called for to supplement
his evidence. It is held by the Supreme Court that when one attesting witness is
examined and he fails to prove the attestation of the Will by examining the other
witness, there will be defiance in mandatory requirement under Section 68 of the
Indian Succession Act.
87. A perusal of the cross examination of Ms Dolly Divecha indicates that on
one hand it is deposed by her that the said deceased could write full date and on the
other hand it is deposed that various corrections were made by Mr Jivaji Tarachand
who was father of the main beneficiary under the alleged Will. There are several
inconsistencies as pointed out aforesaid on the execution and attestation of the Will
which are in my view, not minor inconsistencies but go to the root of the matter.
Cross examination of Ms Dolly Divecha also clearly indicates that on one hand,
she has made an attempt to correct her alleged mistake in the affidavit of the year
2005 which she had claimed to have made inadvertently and on the other hand,
she admitted that she had read that affidavit and did not find any mistake in the
said affidavit. It is thus clear that the said witness was not aware of anything what
she had signed. She was not even aware of the mistakes in the earlier affidavit and
whether the same was sought to be corrected by her second affidavit. The cross
examination is thus inconsistent with the deposition made in examination-in-chief
which is very material in my view and cannot be ignored. Conscience of the
court has to be satisfied that the testator had executed the Will which in my view is
not satisfied at all.
88. In my view, since the said witness Ms Dolly Divecha was not familiar with
even basic English as stated in her evidence and in view of the admitted fact that
none of the affidavit filed by her was translated to her or interpreted by an officer
of this Court or by her own advocate and the witness having answered in the cross
examination that she was not familiar with several words used in the affidavit, it is
clear that the said witness has not given any instructions to draft any of these
affidavits and had filed such affidavits only to oblige the plaintiff and Ms Kanaz.
In my view, these affidavits thus cannot be relied upon for the purpose of proving
the execution and attestation of the alleged Will by the plaintiff. On the contrary,
the entire evidence led by Ms Dolly Divecha examined by the plaintiff would
supports the case of the defendants.
89. Mr Behramkamdin, learned counsel appearing for the plaintiff placed
reliance on the Judgment of Supreme Court in case of Ayaaubhan Noorkhan
Pathan Vs. State of Maharashtra 2013 (3) BCR 113 in support of his submission
that the affidavit of attesting witness filed by said Ms Dolly Divecha was not
within the meaning of Section 3 of the Indian Evidence Act 1872. Reliance is
placed on paragraphs 31 and 32 of the said Judgment which read thus :
31. Affidavit - whether evidence within the meaning of Section 3 of the Evidence Act, 1872:
It is a settled legal proposition that an affidavit is not evidence within the meaning of Section
3 of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Evidence Act').
Affidavits are therefore, not included within the purview of the definition of "evidence" as has
been given in Section 3 of the Evidence Act, and the same can be used as "evidence" only if,
for sufficient reasons, the Court passes an order under Order XIX of the Code of Civil
Procedure, 1908 (hereinafter referred to as the 'Code of Civil Procedure'). Thus, the filing of
an affidavit of one's own statement, in one's own favour, cannot be regarded as sufficient
evidence for any Court or Tribunal, on the basis of which it can come to a conclusion as
regards a particular fact-situation. (Vide: Sudha Devi v. M.P. Narayanan and Ors.
MANU/SC/0459/1988 : AIR 1988 SC 1381; and Range Forest Officer v. S.T. Hadimani
MANU/SC/0115/2002 : AIR 2002 SC 1147).
32. While examining a case under the provisions of the Industrial Disputes Act, 1947, this
Court, in M/s Bareilly Electricity Supply Co. Ltd. v. The Workmen and Ors.
MANU/SC/0501/1971 : AIR 1972 SC 330, considered the application of Order XIX, Rules 1
and 2 Code of Civil Procedure, and observed as under:
But the application of principles of natural justice does not imply that what is not evidence,
can be acted upon. On the other hand, what it means is that no material can be relied upon
to establish a contested fact which are not spoken to by the persons who are competent to
speak about them and are subject to cross-examination by the party against whom they are
sought to be used. When a document is produced in a Court or a Tribunal, the question that
naturally arises is: is it a genuine document, what are its contents and are the statements
contained therein true...... If a letter or other document is produced to establish some fact
which is relevant to the inquiry, the writer must be produced or his affidavit in respect thereof
be filed and opportunity afforded to the opposite party who challenges this fact. This is both
in accordance with the principles of natural justice as also according to the procedure under
Order 19 of the Code and the Evidence Act, both of which incorporate the general principles.
90. Relying upon the aforesaid Judgment, learned counsel submits that once the
testamentary petition is converted into a suit, provisions of Code of Civil
Procedure 1908 and Indian Evidence Act 1872 would apply to civil proceedings.
The defendants thus could not consider the said affidavit of attesting witness filed
in the year 2005 as evidence. Learned counsel submits that in any event, the
affidavit of attesting witness was filed in Form-102 prescribed under Bombay High
Court (O.S.) Rules and thus the plaintiff could not have made any changes in the
said format prescribed by the Bombay High Court rules. It is submitted that in any
event, there was no material inconsistencies or incorrect statement made in the said
affidavit by Mr H. D. Pithawalla and by Ms Dolly Divecha and the same as per the
prescribed format of Form-102 and over and above the same. Mr.Shah learned
counsel for the defendants submitted that in any event even if such affidavit was
required to be filed in any format prescribed, the plaintiff could not have made any
false and incorrect statement in such affidavit. It is submitted that the said witness
was cross examined by the defendants on both the affidavits. The defendants are
thus entitled to point out the contradictions in both the affidavits with her cross
examination.
91. In my view, Mr shah learned counsel appearing for defendants is right in his
submission that even if an affidavit is required to be filed in particular format, even
if the facts of a particular case do not match with the format prescribed and
disclosure of such fact would lead to inconsistency with the format or would
amount to false statement, party is still not bound to follow such format as it
stands. In my view, a party cannot take shelter of such format and can make false
and incorrect statement so as to comply with the format prescribed.
92. In my view, the affidavits of Ms Dolly Divecha who was examined to prove
the execution and attestation of the Will by the plaintiff also cannot be considered
to prove the issue of execution and attestation of alleged Will also for the reason
that the said Ms Dolly Divecha who claimed to be a student of Ms Kanaz and was
learning English from her and was neighbour and was examined at the instance of
plaintiff or obviously at the instance of Kanaz who was the main beneficiary under
the said Will and was interested witness. Though she claimed to have attended
tuition classes of Kanaz for quite some time, she did not obtain any certificate.
Though in her deposition, she had stated that the said deceased was like her son,
she could not bring any material facts on record about the said deceased on record.
In my view, the said Ms Dolly Divecha was an interested witness and was
examined with a view to oblige the said Ms Kanaz who was teaching her English
for quite some time.
93. In my view, since the plaintiff did not examine Mr H. D. Pithawalla who
could have pointed out the mistake if any in his own affidavit as well as affidavit of
Ms Dolly Divecha and ought to have been examined as the second attesting
witness in view of the fact that Ms.Dolly Divecha could not satisfy the extent of
proof required for execution and attestation of the Will under Section 63 of the
Indian Succession Act and Section 68 of Indian Evidence Act, the plaintiff having
withheld the best evidence from this Court, adverse inference is required to be
drawn against the plaintiff under illustration (g) of Section 114 of the Indian
Evidence Act 1872 in this case which is drawn accordingly.
94. A perusal of the record indicates that Mr.Jivaji Tarachand who was father of
Kanaz, the main beneficiary under the alleged Will had played prominent role in
execution of the alleged Will. Even according to the affidavits of attesting
witnesses filed by the plaintiff and also the oral evidence led by the witnesses of
the plaintiff clearly indicates that the said Mr.Jivaji Tarachand had made some
corrections also in the Will and had put the date though the said Mr.Jivaji
Tarachand himself was not attesting witness to the Will. In reply to Question No.
199 when Ms. Dolly Divecha was asked whether Jivaji made corrections after the
Will was signed by Jimmy, she answered in negative and further deposed that
Jivaji read the Will first, made the corrections and then Jimmy signed the Will.
Mr.Pithawalla had asked the said deceased whether the Will was as per his desire.
Such question was asked by Mr.Pithawalla before Jivaji had made corrections. The
corrections made by Mr.Jivaji was not initialled by the said deceased or by the
attesting witnesses. Even after filing of the testamentary petition by the two
alleged executors, perusal of record would clearly indicate that for examining the
witnesses by the plaintiff, Mr.Jivaji Tarachand, his wife and Kanaz Tarachand had
played prominent role. Ms.Kanaz Tarachand had also visited the office of the
advocate alongwith Ms.Dolly Divecha at the time of drafting affidavit. Neither
Jivaji Tarachand nor Kanaz Tarachand were examined as witnesses who could be
the best witnesses to disclose the truth before the court. In my view in these
circumstances adverse inference can be drawn against the plaintiff under
illustration (g) of Section 114 of Indian Evidence Act, 1872 on this ground also.
95. The next question which arises for consideration of this court is whether
alleged Will dated 27th December 2004 is forged and whether the earlier Will dated
31st August, 2000 was revoked by the said deceased. On the issue that the
deceased had already left Will dated 31st August 2000 which was not revoked by
the said deceased, the defendants examined Dr.Putala Lentin who was one of the
attesting witness to the said Will. She had been also treating the family of the said
deceased including his grandparents, parents and his uncle Jivaji Tarachand's
family on their annual visits to Hyderabad from Delhi for common ailments. In her
examination in chief she has deposed that the said deceased had executed the said
Will dated 31st August 2000 and that the said Will had been prepared by the said
deceased as per his wishes and instructions. The said witness thereafter signed the
said Will as an attesting witness after the said deceased had subscribed his
signature. In her cross examination the deposition made by the said witness was
not shaken. Witness has deposed that Dr.Sanober had requested her about two to
three months back whether she would file an affidavit. In the said Will, Kanaz was
appointed as one of the executrix. In the affidavit in support of caveat the said Will
was propounded by the defendants.
96. Based on the pleadings and affidavits in support of caveat, this court framed
issues. Though the defendants have propounded the said Will, plaintiff did not
choose to lead any evidence to prove that the said Will was revoked by the said
deceased. The plaintiff ought to have examined Ms.Kanaz to prove that there was
no such Will executed or that the said Will was revoked by the said deceased. In
my view there is substance in the submission of Mr.Shah, learned counsel for the
defendants that there was no change in circumstances for the said deceased to
change his mind who had bequeathed his entire property to charity under the said
Will dated 31st August 2000 by leaving nothing for the charity and giving his entire
property to Kanaz and two others by the alleged second Will. The evidence
recorded clearly indicates that the family of Jivaji Tarachand including Kanaz had
played prominent role in execution of alleged Will of the said deceased for their
own benefits. The said deceased was always under control of Mr.Jivaji Tarachand
and his family.
97. This court in case of Zarina R.Irani (supra) had held that propounder of the
Will has not only to prove the execution of the Will but also that the Will is not
surrounded by any suspicious circumstances. The court has to consider the entire
material on record and to ascertain whether there were any suspicious
circumstances surrounding the making of the Will. This court has taken this view
also in case of Romeo A. D'Souza Vs. Edgar Havlo D'souza (supra).
98. A perusal of the evidence clearly indicates that the said deceased was not
keeping good health and had expired within less than three months of the execution
of the alleged Will. The witness Ms.Dolly Divecha examined by the plaintiff in
her evidence has clearly admitted that the deceased himself had told her that he
was suffering from heart problem and many other diseases. It is admitted by the
said witness that the said deceased used to come to Mumbai for medical treatment
and was advised repeatedly by the doctor to change his eating habits and to reduce
his weight but the said deceased used to ignore such advise and would continue his
old habits and did not reduce his weight. The said deceased was admittedly obese.
The witness examined by the defendants also have deposed that the said deceased
was not keeping good health and was undergoing treatment. The defendants had
already raised this issue in detail in both the affidavits in support of caveat. The
defendants had also propounded a Will by which the deceased had bequeathed his
entire property to charity.
99. In view of all these suspicious circumstances pleaded by the defendants in
their two affidavits, in my view the onus was on he plaintiff to dispel such
suspicious circumstances. Since the plaintiff has failed to dispel such suspicious
circumstances, it is clear that the plaintiffs failed to prove the execution and
attestation of the alleged Will. On overall consideration of evidence thus it is
obvious that the earlier Will dated 31st August 2000 was not revoked by the said
deceased and that the alleged Will dated 27th December 2004 is forged. Issue no.1
is accordingly answered in negative. Issue no.2 is answered in affirmative. Issue
no.3 is answered in negative.
100. In so far as submission of Mr.BehramKamdin learned counsel that the
alleged Will dated 27th December 2004 was not unnatural is concerned, it is not in
dispute that substantial part of the property of the deceased is bequeathed in favour
of Kanaz who was not given any share in the Will dated 31st August 2000. Even if
the said deceased wanted to change his mind and to revoke his Will dated 31st
August 2000, he would not have deprived the defendants that is from the maternal
side. The plaintiff could not prove that the relations of the said deceased with the
maternal side were not cordial. It would thus clearly indicate that the alleged Will
of the said deceased giving entire property to Kanaz and two brothers would be an
unnatural Will. In my view the Will dated 31st August 2000 has not been revoked
by the said deceased.
SUBMISSIONS OF THE LEARNED COUNSEL ON ISSUE NO.4
(4) Whether the defendants prove that the deceased was forced to
make the said Will dated 27th December, 2004 when he was not in a
proper state of mind to make a Will ?
101. Mr.Behramkamdin, learned counsel for the plaintiff on this issue placed
reliance on the affidavit of Mr.Homi C.Pithawalla and of Dolly Soli Divecha both
dated 21st July 2005 filed alongwith the testamentary petition. In paragraph 5 of
the said affidavit it is stated that at the time the said deceased has subscribed his
name and signature to the said Will, he was of sound and disposing mind memory
and understanding to the best of the belief of the deponent of the said two
affidavits. It is stated that the said Will was made and published by the said
deceased of his free will and pleasure.
102. Learned counsel invited my attention to the affidavit in support of the caveat
dated 25th November 2005 filed by Mr.Minoo S.Mistry alleging that the deceased
was not keeping well since six months prior to his death and his mental as well as
physical condition was far from satisfactory. On 19th December 2004 the said
deceased had left from Hyderabad for Mumbai for getting medical treatment and
was at Mumbai from 20th December 2004 till 10th January 2005. It is alleged that
when Dr.Farookh had called up the deceased during that period, he was not able to
speak to him and handed over the phone receiver to Kanaz. It is stated that the
Kanaz told Dr.Farookh that the deceased used to sleep all the time and also used to
weep frequently without any cause. It is stated that during the said period the
alleged Will was made. It is further alleged that the said deceased was forced to
make the said alleged Will dated 27th December 2004 when he was not in a proper
mental state of mind to make a will.
103. In the said affidavit it is alleged that till 9th March 2005 the health of the
deceased kept on deteriorating and hence he had to be sent for medical treatment to
Mumbai by flight immediately. On 14th March 2005 the deceased developed
terminal cardio respority arrest, morbid obesity and hyper tension and was required
to be admitted in Raheja Hospital where he expired on 15th March 2005 at around
6.45 a.m. The said Mr.Minoo S.Mistry however expired during the pendency of the
testamentary petition. His legal heirs were brought on record.
104. On 15th June 2011 the legal heirs of the said Mr.Minoo Mistry, the present
defendants filed further affidavit in support of caveat. In paragraph 8 of the said
affidavit it is alleged that the said deceased was unwell at Hyderabad and had
phoned up his maternal cousin Mr.Mehernoze Mistry that he was leaving for
Mumbai on 19th December 2004 for medical treatment. It is alleged that
Dr.Farookh, maternal cousin of the deceased was also in Hyderabad on 24th
December 2004 and was surprised when called the said deceased to find that the
voice of the deceased was quiet incoherent and he could not understand what the
deceased was speaking and therefore he handed over the telephone to
Mr.Mehernoze Mistry. Alongwith the said additional affidavit in support of caveat,
the defendants annexed copy of the affidavit dated 14th April 2006 of Dr.Farookh
and affidavit of Mr.Mehernoze Mistry dated 31st January 2008 respectively.
It is alleged in the said additional affidavit that the said deceased did not
have either the mental or physical capacity to execute any document much less a
Will in the month of December 2004. It is alleged that even if the signature on the
alleged Will was that of the deceased, the same had been executed under in undue
influence and coercion. It is alleged that the amount of influence that original
plaintiff no.1 had exercised over and upon the testator was evident from the fact
that the bank account of Bank of India, Sultan Bazzar Branch, Hyderabad was
opened in the month of February 2005 in the joint names of the original plaintiff
no.1 and the said deceased. It is alleged that the deceased was not in a sound
mental state and at the relevant time when the alleged Will was executed, the
deceased lacked testamentary capacity.
105. The plaintiff examined Ms.Dolly S.Divecha and Mr.Phiroz Amaria. In her
affidavit in lieu of examination in chief dated 4th March 2011 Ms.Dolly Divecha
deposed that the said deceased was a jovial and fun loving person and was of
sound and disposing mind memory and understanding at all times including at the
time of execution of the Will and had published the same of his free will and
pleasure. It is deposed that every time over the years that the deceased came to
Mumbai and stayed with the Tarachand's, the said deceased would go for a general
medical check up. The Tarachand's took the deceased to Dr.D.F.Daruwalla for his
general checking. Dr.Daruwalla had requested the deceased to undergo several
tests including 2D and colour and doppler echo test cardiography.
106. It is deposed that the said deceased insisted that the said witness Ms.Dolly
Divecha should accompany him when that test was to be done. She has deposed
that on 4th January 2005 she went alongwith the said deceased to Smt.S.R.Mehta,
K.P.Cardiac Institute at King Circle when Dr.D.F.Daruwalla conducted the 2D and
colour doppler echo test cardiography. Dr.Daruwalla thereafter called the witness
separately and informed her that the condition of the deceased's heart was not good
and he should be forced to loose weight as he was extremely obese. It is deposed
by her that she communicated the information that Dr.Daruwalla had given her that
the deceased should loose weight to the Tarachand's. In paragraph 5 of the
affidavit it is deposed by the said witness that on her several visits to the house of
Tarachand's she noticed that Mr.Tarachand had placed the deceased on a strict diet
and would cook a special food for him. The deceased was however a fun loving
person and extremely fond of food and would go outside to Cafe Coffee Day and
other places to eat between meals. She used to accompany the deceased to Cafe
Coffee Day at his request.
107. In para 6 of the affidavit it is deposed that the said deceased was in good
health and spirits when he flew back to Hyderabad in the month of January 2005.
The witness alongwith Kanaz had accompanied the deceased to the airport to leave
him for his flight to Hyderabad. In paragraph 7 of the affidavit the said witness
deposed that in the month of March 2005 when the deceased returned to Mumbai,
he appeared to have put on more weight instead of loosing weight as advised by
the doctor. His feet were badly swollen and he was unable to wear his socks and
shoes without assistance. It is deposed that the said deceased informed the witness
during his visit in March that the Tarachand were concerned about his health and
had taken him to Dr.Borashar who advised that he be hospitalised but he refused as
he did not wished to be hospitalised. The said deceased even refused to listen to
the advise of the witness. Tarachands kept a ward-boy to take care of him. When
the deceased expired, the witness was at Pune and was informed by her husband
that the deceased had been taken to hospital as it had become impossible to take
care of him at home in view of his deteriorating health.
108. In cross examination of the said witness in reply to when witness was asked
what did she mean by her statement that the said deceased led a good life, she
answered that the said deceased was very fond of food and used to eat, drink and
be happy. In reply to Question No.124 when witness was asked how often the said
deceased came to Kanaz's house in a year, she answered that it was once or twice a
year and each visit would be about one to two months. When witness was asked as
to why the said deceased could not write properly, in reply to Question No. 197,
the witness deposed that the said deceased had some problem with his hand. In
reply to Question No. 296, the witness deposed that she would take care of health
of the said deceased and told him to loose his weight that would make him feel
better. She also took the deceased to Dr.Daruwalla, heart specialist.
109. The witness deposed that though she told Jimmy not to eat sandwiches,
burger and huge ice cream, he told her that let him eat all that and not to tell
anybody at home. When witness was asked whether she knew about the
specialization of Dr.Borashar, she answered that she did not know. She never met
Dr.Borashar. In reply to Question No.304 the witness when asked whether Jimmy
was suffering from sever diabetic, she answered that she did not know but she
knew that he had a heart problem. She came to know about the heart problem for
the first time when she had gone alongwith the deceased to Dr.Daruwalla. She did
not ask the deceased prior to December 2004 whether he was taking medicines for
his illness. No-one else had gone to Dr.Daruwalla except the said witness and the
deceased. It is deposed that Dr.Daruwalla advised that the said deceased needed to
loose weight and to reduce his food intake. Dr.Daruwalla mentioned that the said
deceased had a heart problem and he would tell his family. Dr.Daruwalla told her
that he would give a prescription and tell Jimmy's family. She did not know
whether Dr.Daruwalla gave prescription at that time. In reply to Question No. 313
when witness was asked whether it was correct that on 27th December 204 Jimmy
had been examined by any doctor prior to executing the Will, the witness answered
that she did not know but on that day the deceased got her to sign the Will so she
thought he should be ok. In reply to Question No. 316 the witness denied the
suggestion of the counsel of the defendants that in or around 27th December 2004
the said deceased was under heavy medication for his heart condition and deposed
that his health was good till he went to Hyderabad.
110. Mr. Behramkamdin learned counsel for the plaintiff invited my attention to
the affidavit in lieu of examination in chief dated 11 April, 2012 filed by Mr.
Phiroz Amaria examined by the plaintiff. In paragraph 2 of the said affidavit, it is
deposed that he had been a friend of Tarachand family since 1992-1993 and used to
regularly visit their residence at Dadar. The witness first met the deceased there.
The deceased was very friendly and fun loving person. It is deposed that he used to
meet the said deceased not only at the residence of Tarachand’s but also used to go
out to hotels along with other friends. In or around 1993 he made a trip to Udwada
with the said deceased, Kanaz Tarachand and common friends. He deposed that in
the month of December, 2004 he last met the said deceased when he had visited
Mumbai and was living with Tarachand’s. The deceased and the witness would talk
about the funny incidents at the office, jokes and would discuss about several
topics including current issues and astrology. The witness advised him to first loose
weight and then get married. In the month of March, 2005, the deceased called him
and asked him to meet him at the residence of Tarachand’s however, since the
witness was busy with work he could not meet the said deceased. In paragraph 6 of
the affidavit, it is deposed by the witness that through out the period he knew the
deceased, he always found him to be of sound mind. The deceased was an
extremely obese person, however used to do most of his things on his own
including going to the bank etc which he would some time inform him when the
witness used to visit him.
111. In cross examination of this witness he deposed that he was working as an
internal auditor with Writer Corporation. He met Kanaz at one of the parties and
got acquainted with her and through her he came to know her family. He came to
know about these proceedings for probate few months ago through Kanaz. It is
deposed that when he happened to talk to Kanaz on phone she did mention that she
needed his help. It is deposed that Kanaz told him about the proceedings and asked
if he could give an affidavit since he knew the deceased very well.
112. In reply to question no. 18 and 19 the witness denied that Kanaz drafted his
affidavit in lieu of examination in chief and brought it to him for his signature. He
deposed that Kanaz called him at her lawyer’s office and told her lawyer about
what the witness knew and then affidavit was drafted which affidavit was approved
by him. When witness was asked whether he inquired as to why the said affidavit
of the witness was necessary, he answered in affirmative and added that he was
briefed on what was expected of him i.e. with an idea to help Kanaz since he knew
the deceased. When witness was asked whether he knew the deceased better than
Kanaz, he answered in negative and added that not so much. When the witness was
asked whether he asked Kanaz as to why she would need the affidavit from the
witness, he replied that she told him that Jimmy’s will had been contested for the
reason that the opposite party was saying that Jimmy was of unsound mind but
since the witness knew that it was not correct, he decided to help Kanaz by giving
the evidence. He did not ask to peruse any of the documents filed in this
proceedings to verify whether the ground of Jimmy’s unsoundness of mind was
taken. He added that he trusted Kanaz. The witness did not ask Kanaz whether she
had given evidence as to the soundness or unsoundness of Jimmy’s mind. When
witness was asked as to how many occasions the witness did meet Jimmy, he
answered that it would be one or two occasions if he could make it.
113. When witness was asked whether he would agree that Kanaz would be in a
better position to give evidence about Jimmy’s mind than the witness, he answered
he would not say that but may be yes. He also knew him. In reply to question No.
29 when he was asked whether his interaction with Jimmy was confined to going
to restaurants and social functions, the witness admitted the said suggestion. When
witness was asked whether he knew of the medical problems that Jimmy had, he
answered that not to a great extent but he was very obese. He had called the
witness in March, 2005 and told him that he was sick but witness could not meet
him. He did not know to what extent he was sick. When witness was asked as to
what was his ailment, the witness deposed that he did not know. The deceased told
him that he was not feeling well but did not mention anything in particular.
Witness deposed that when he asked Jimmy what he was suffering from, the
deceased casually told him that he was not feeling well. The witness came to know
of the Jimmy’s hospitalization only after his death.
114. In reply to question no. 39, when witness was asked that except for his brief
conversation on phone with Jimmy, in the month of March, 2005, he did not know
of Jimmy’s condition, witness answered in the affirmative and added that he had
the least idea about his condition. He was a fun loving person and would not say
something about his health. In reply to question no. 44 when witness was asked
whether he would agree that he was not qualified to give any opinion on the
soundness or otherwise of Jimmy’s mental condition, he answered that to some
extent he agreed because he was not a qualified doctor but from the interaction he
had with Jimmy even in March, 2005, when he spoke to him he was joking with
him and therefore, he could say that the said deceased was of a sound mind
because he was talking rationally. He did not make any inquiry with Kanaz
regarding the soundness or otherwise of Jimmy’s mental condition as there was no
point in inquiring with her because he knew it from the conversation Jimmy had
with him. The witness did not ask Kanaz that Jimmy was on medication for his
obesity. When witness was asked whether he was aware that certain medication
may affect the mental state of a person, the witness answered that to his knowledge
that would depend upon what doses the person was taking. It was a very general
thing. The witness admitted that to some extent certain medications taken in certain
doses may affect the mental faculties of a person. He did not inquire before filing
his affidavit with regard to the mental condition of Jimmy since Jimmy was sound
and fine and very rational till the last conversation he had with him. Witness
admitted that he did not make any such inquiry because according to him he did
not find anything unusual with him.
115. In reply to question no. 58 when a suggestion was put to the said witness that
he had given the dates of his interaction in December, 2004 and March, 2005 at the
request and suggestion of Kanaz because certain incidents relevant and necessary
for proving the case occurred during those periods, the witness accepted the said
suggestion and added that when he discussed about the affidavit to be prepared, he
very well remembered that in March, 2005, Jimmy came and called him and prior
to that a few months ago i.e. December, 2004 Jimmy visited Mumbai and he could
very well remember. Witness admitted that he came to know that Jimmy had made
a will in 2004 from Kanaz at the time when he was making this affidavit. In reply
to question no. 62 when suggestion was put to the witness that he was a mere
casual acquaintance of Jimmy, the witness accepted the suggestion of the counsel
for the defendants, however, added that the interaction even within few hours that
they met, witness always found Jimmy very rational and of a sound mind. The
witness deposed that he was giving evidence because he would like to stand for the
truth that he knew.
116. Defendants examined Dr. Putla Minoo Lentin of Hyderabad as the only
witness who filed her affidavit in lieu of examination in chief dated 6th December,
2012. The said witness is a doctor practicing as a physician internal medicine at
Hyderabad. The said witness is younger sister of Gool and Gool Jivaji Tarachand’s
brother’s sister in law. She deposed that she knew the deceased since birth and had
been treating his family including his grand parents, parents and his uncle Jivaji
Tarachand’s family on their annual visits to Hyderabad for healing of common
ailments. The witness was also treating the deceased for common ailments. In the
said affidavit the witness deposed that during her interaction with deceased at the
professional as well as personal level, she found the deceased to be happy go
lucky, witty, friendly and an extremely helpful person. The deceased visited the
said witness a couple of times when the witness was posted in Warangal as a
professor of medicine and physician from May, 1969 to July, 1975. The said
witness was attesting witness to the first will dated 31st August, 2000 and had told
him that the entire bequest was for charitable purpose in the memory of his parents.
117. In her cross examination the witness admitted that her residence was five
minutes away from the residence of defendant 1A and her relations with
defendants were very close. She used to be in regularly in touch with defendants.
Dr. Sanober requested her to make the affidavit of evidence. First her brother in
law Minoo Mistry had asked to make an affidavit. In reply to question no. 14, the
witness admitted that prior to Sanober requesting her to make her affidavit of
evidence she was not aware of the existence of the will dated 27th December,
2004 of the deceased.
118. In reply to question no. 82, the witness answered that the deceased had an
allergic diathesis and he was allergic to ant bites, pollens and mostly it was a
respiratory manifestation. He was also having mild hypertension for which the
witness was giving him treatment prior to 1994. The witness deposed that in the
year 1994, deceased had an attack of unstable angiana for which he was
hospitalized at an institution and investigated thoroughly. In 1994, the witness
suffered from unstable angiana for which the witness referred to him to an
institution so that he could be investigated. In reply to question no. 88, the witness
deposed that Jimmy had requested her to attest his will on 31st August, 2000 and
he told him the contents of the said will though the witness did not ask him. In
reply to question no. 105, when witness was asked whether Jimmy had signed the
said will and then brought to the residence of the witness, the witness denied the
said suggestion and added that it was signed in her presence.
119. Mr Behramkamdin learned counsel for the plaintiff submits that though five
defendants have filed caveats none of the caveators entered the witness box though
additional affidavit in lieu of examination-in-chief was filed after demise of the
original caveator. There is no deposition about the illness or sickness of the said
deceased by any of the caveators or on the issue of alleged undue influence and/or
coercion on the deceased in execution of the alleged Will. No evidence has been
led on the issues raised by the defendants in affidavit in support of caveats. The
deposition on the earlier Will made by examining Dr Putla M. Lentin is not
relevant. Separate probate petition was not filed by the defendants who
propounded the said Will. It is submitted that on the issue of the alleged unsound
mind of the deceased neither there was any sufficient pleadings nor evidence. It is
submitted that the onus was on the caveator to prove that there was undue
influence, fraud or coercion in execution of Will. In support of this submission the
learned counsel placed reliance on the Judgment of Supreme Court in case of
Shashikumar Banerjee Vs. Subodhkumar Banerjee AIR 1964 SCC 529 and in
particular paragraphs 4,5 and 17. In support of the same submission the learned
counsel placed reliance on the Judgment of Supreme Court in case of Bellachi Vs.
Pakeeram (2009) 12 SCC 95 and in particular paragraph 19 thereof. Learned
counsel also placed reliance Order 6 Rule 4 of the Code of Civil Procedure 1908
and would submit that material facts have to be pleaded with particulars. Reliance
is placed on the judgment of Supreme Court in case of Surendra Pal Vs. Dr (Ms)
Sarasvati Arora (1974) 2 SCC 600 and in particular paragraph 12, 15 and 17.
120. Learned counsel for the plaintiff then submits that the initial onus is on the
person alleging that the deceased was not of the sound mind at the time of
execution of the alleged Will. Reliance is placed on the Judgment of Supreme
Court in case of Madhukar Shende Vs. Tarabai Aba Shedge (2002) 2 SCC 85 and
in particular paragraphs 6, 8 to 10 and 15. It is submitted by the learned counsel
that the plaintiff had led initial evidence on the issue of soundness of mind of the
deceased and burden is already discharged by the plaintiff. The defendants were
required to lead evidence in support of such allegations which they have failed. It
is submitted that though the caveators were residing close to the address of the
deceased none of the caveators have examined themselves on this issue.
121. Learned counsel submits that along with affidavit of evidence of Mr Jivaji
Tarachand, the said Mr Jivaji Tarachand had filed 38 documents on 14/01/2008
My attention is invited to the order passed by this Court on 16/06/2011 and it is
submitted that this Court had only marked Will for the sake of convenience and did
not mark the other documents. It is submitted that the observation made by this
Court that the plaintiff was entitled to file affidavit of any doctor to prove the
medical records is wrong. It is submitted that Mr Jivaji Tarachand expired in the
year 2010 and since the another plaintiff had taken efforts to rely upon the
documents and such documents were produced by the witness, no adverse
inference can be drawn by this Court. In support of this submission learned
counsel placed reliance on the Judgment of Mysore High Court in case of Kalappa
Dyanappa Vs. Venkatesh alias Ramchandra Ganesh Padaki AIR 1962 Mysore
260 and in particular paragraph 7 thereof.
122. Mr Behramkamdin learned counsel submits that every ailment is not
sufficient to discard the Will on the ground of soundness of mind of the testator
unless it is proved that such ailment had affected the soundness of mind of the
testator on the date of the execution of Will. It is submitted that though two
affidavits in support of caveats were filed, there was no allegation that the said
deceased was suffering from any ailment which had affected the soundness of his
mind. On the contrary, evidence led by the plaintiff of two witnesses proved that
the ailment if any suffered by the said deceased was not such that it would have
affected the soundness of his mind at the time of execution of the Will. Learned
counsel placed reliance on the Judgment of this Court in case of Pushpa Jain Vs.
Rakesh Jain (2007) 2 Bombay Cases Reporter 92 in support of the submission
that obesity and heart ailment, if any, would not have affected the mind of the
deceased at the time of execution of the Will.
123. Mr. Shah learned counsel for the defendants on the other hand submits that it
is not in dispute that the said deceased was suffering from various diseases. The
plaintiff alleged that Mr Jivaji Tarachand or Kanaz Tarachand who had alleged to
have taken the said deceased for various medical tests or for hospitalization ought
to have entered the witness box and produced medical records. Learned counsel
placed reliance on the order passed by this Court on 16/06/2011 and submitted that
though this Court had granted an opportunity to examine a doctor to prove the
medical records on the issue of health and alleged unsoundness of mind and though
the documents were not marked in exhibit by this Court, plaintiff did not examine
any doctor including Dr Daruwalla who had alleged to have given medical
treatment to the said deceased. Even Mr Jivaji Tarachand or Kanaz Tarachand
were not examined as a witness. It is submitted that plaintiff had all the medical
records and could have produced and proved the documents. Since the plaintiffs
have suppressed and/or withheld the best evidence, an adverse inference shall be
drawn by this Court under Section 114 Illustration (g) of the Evidence Act.
124. It is submitted by the learned counsel that in so far as the witness Mr Feroz
Amaria examined by the plaintiff on the issue of sound mind is concerned, he was
not a competent witness. He was not a doctor. The said deceased was suffering
from various diseases and died within a period of three months of execution of a
Will. Mr Shah placed reliance on the Judgment of this Court (R. D. Dhanuka, J) in
T.S. Suit No.41 of 2006 in case of Romeo A. D'souza Vs. Edgar H. D'souza in
support of the submission that a party carrying best evidence and not producing the
same and would have produced, the same would be against such party and adverse
inference has to be drawn against such party. Reliance is placed on paragraphs 55
to 63 of the said Judgment.
125. Mr Shah learned counsel distinguished the Judgment relied upon by Mr
Behramkamdin and also the passage from the treatise on law of evidence by
Woodroff and Amir Ali and would submit that the said passage relates to criminal
matters and not a testamentary matter. The extent of proof required in case of a
criminal case is different from what is required in a testamentary matter. It is
submitted that mere production of alleged documents on soundness of mind issue
without examining the witness, is of no relevance. Heavy onus was on the plaintiff
to prove that the testator was of sound mind on the date of execution of a Will. It
is submitted that even on availability of evidence on record, onus is not discharged
by the plaintiff. Ms Dolly Divecha was not a competent witness on this issue. Mr
Shah distinguished the Judgment of this Court in case of Pushpa Jain (supra) on
the ground that in that matter both the attesting witnesses were examined. Mr Shah
distinguished the Judgment of Mysore High Court on the ground that medical
evidence was though available was not produced and proved by the plaintiff.
REASONS AND CONCLUSION ON ISSUE NO.4.
126. The plaintiff examined Mr.Homi C.Pithawalla and Ms.Dolly S.Divecha as
witnesses. The defendants examined Dr.Putla Lentin. In the affidavits filed by the
defendants and Mr.Minoo Mistry, it was alleged that the health of the said deceased
was deteriorated and was sent for medical treatment from Hyderabad to Mumbai.
The deceased had developed terminal cardio-respority arrest, morbid obesity and
hyper tension and was required to be admitted into the Raheja Hospital. In both
the affidavits various instances of such various disease were pleaded.
127. Even in the evidence led by both the witnesses of the plaintiff, it is
categorically admitted that the said deceased was suffering from various diseases
and was not following the doctor's advice. He was obesed, suffering from heart
ailments and many other diseases. The initial onus in my view was on the plaintiff
to prove that the said deceased was of sound and disposing mind at the time of
execution of the Will. It is claimed by the plaintiff that the family of Jivaji
Tarachand including Kanaz Tarachand used to help the said deceased for medical
treatment from time to time. The said deceased was also taken to Smt.S.R.Mehta,
C.P.Cardiac Institute at King Circle when Dr.D.F.Daruwala conducted the 2D and
colour and doppler echo test cardiography. Ms.Dolly Divecha in her evidence
deposed that the said doctor Mr.Daruwalla had called her separately and informed
that the condition of the heart of the said deceased was not good and he should be
forced to loose weight as he was extremely obese. The deceased was however a
fun loving person and extremely fond of food, would go outside to Cafe Coffee
Day and other places to eat between meals. The said witness also used to
accompany him many times at his request. The said deceased refused to listen to
the advice of the witness. The witness deposed that though she had told the said
deceased not to eat sandwiches, burger and huge ice cream, he told her that let him
do all that and not to tell anybody at home. The witness did not ask any time prior
to December 2004 whether he was taking any medicines for his illness. No-one
had gone to Dr.Daruwalla except the said witness and the deceased. It is deposed
that Dr.Daruwalla told her that he would give a prescription and tell Jimy's family
but she did not know whether Dr.Daruwalla gave any prescription at that time.
128. In so far as evidence of Mr.Firoze Amaria examined by the plaintiff is
concerned, the said witness was working as an internal auditor with Writer
corporation. He was acquainted with Ms.Kanaz. Kanaz has told him about the
proceedings and asked if he could give an affidavit since he knew the deceased
very well. The said witness admitted that he was briefed on what was expected on
Will i.e. with an idea to help Kanaz since he knew the said deceased Jimmy. He
deposed that he did not know the said deceased so much what Kanaz knew him.
The witness did not ask to peruse any documents filed in the proceedings to verify
whether the ground of unsoundness of mind of Jimmy was taken by the
defendants.
129. Supreme Court in case of Madhukar D.Shende vs.Tarabai Aba Shadage
(2002) 2 SCC 85 has held that the onus is on the propounded of the will to
establish the competence of the testator to make the Will at the time when it was
executed. It is held that the onus has to be discharged by the propounder by
adducing prima facie evidence proving the competence of the testator and
execution of the Will in the manner contemplated by the law. The contestant
opposing the Will may bring material on record meeting such prima facie case in
which event the onus would shift back on the propounder to satisfy the court
affirmatively that the testator did know well the contents of the Will and in sound
disposing capacity executed the same.
130. In my view Mr.Shah learned counsel appearing for the defendants is right in
his submissions that the initial onus was on the plaintiff who had propounded the
alleged Will to prove that the testator was competent to make the Will at the time
when it was executed and was of sound and disposing mind at the time of
execution of such Will. The family of Jivaji Tarachand who claimed to have taken
the said deceased for various treatments ought to have been examined by the
plaintiff to bring the truth on record about the condition of the health and about the
sound disposing mind of the deceased. Though this court had granted an
opportunity to the plaintiff to examine the doctor to produce the medical records,
plaintiff did not bother to examine any witness to prove medical records including
Dr.Daruwalla who had alleged to have treated the said deceased and had found that
he was suffering from number of diseases. Though the plaintiff relied upon some
of the medical records alleged to be of the said deceased, did not prove the
existence and contents thereof inspite of an opportunity granted by this court. In
my view the plaintiff had has thus not discharged the initial onus itself on the issue
of testamentary capacity and soundness of mind of the deceased at the time of
execution of Will.
131. Mr.BehramKamdin learned counsel for the plaintiff placed reliance on the
judgment of Mysore High Court in case of Kalappa Dyannappa vs. Venkatesh
Alias Ramchandra Ganesh Padaki AIR 1962 Mysore 260 and would submit that
since the plaintiff had produced the medical evidence however the same was not
exhibited by the court, no adverse inference can be drawn by this court. Para 7 of
the said judgment is relied upon which reads thus :-
7. After the close of the evidence as well as the arguments
in the suit, the plaintiff appears to have produced a document
said to be a deed of partition to support his case that all the
properties in suit were joint family properties. The trial Court,
however, declined to receive the document in evidence
because the same was produced at a very late stage in the
proceedings. At the same time, it rejected the argument on
behalf of the contesting defendants that an adverse inference
should be drawn against the plaintiff for the non-production of
any document in support of his case. Though this point has
been reiterated in the grounds of appeal, the learned counsel
for the appellants did not press it with any seriousness. We
think, the learned counsel is right in not pressing this
contention because the plaintiff having made an attempt to
produce this important document cannot be said to have
suppressed it so as to support an adverse inference against him.
Further, it is not obligatory on the Court to draw any such
inference on the Court to draw any such inference if there is
other evidence on the basis of which it could come to a
decision on the question at issue.
132. A perusal of the said judgment clearly indicates that in the said judgment it is
held that it is not obligatory on the court to draw any inference if there is other
evidence on the basis of which it could come to a decision on the question at issue.
In my view this court had at the initial stage itself when the first witness of the
plaintiff had tendered documents had granted liberty to the plaintiff to examine a
witness including doctor to prove the medical records, plaintiff neither examined
any members of Mr.Jivaji Tarachand family nor examined any doctor to prove the
existence and contents of the medical record.
133. In my view merely by filing of the documents which are disputed by the
defendants without proving the existence and contents thereof by leading oral
evidence, such documents cannot be construed or read in evidence. The Mysore
High Court was considering a case where the plaintiff had produced a document at
very late stage in the proceedings and was thus rejected by the trial court. In my
view since there is no other evidence on the basis of which this court can come to
the conclusion that the said deceased had testamentary capacity and was of sound
and disposing mind at the time of execution of the Will, adverse inference under
illustration (g) of Section 114 of the Indian Evidence Act has to be drawn against
the plaintiff.
134. I am not inclined to accept the submission of the learned counsel for the
plaintiff that the order passed by this court on 16th June, 2011 granting leave to file
affidavit to prove medical records was a wrong order. The plaintiff did not give
any explanation as to why any member of the Tarachand family was not examined
on this issue or as to why Dr.Daruwalla or any other doctor who had treated the
said deceased was not examined. I am not inclined to accept the submission of
Mr.BehramKamdin learned counsel that there were no allegations in any of the
affidavit in support of the caveat that the said deceased was suffering from any
ailment which had affected the soundness of his mind. In so far as judgment of
this court in case of Pushpa Jain vs.Rakesh Jain (supra) relied upon by
Mr.BehramKandin is concerned, a perusal of said judgment indicates that the
propounder of the Will had examined a doctor who had deposed that she had
examined the deceased testator and had found that she was physically fit and of
sound mind, memory and understanding. The said doctor was a family doctor of
the said deceased for a long period of time. In the facts of that case, after
considering the oral evidence of he doctor this court held that there were no
suspicious circumstances. The said judgment is clearly distinguishable with the
facts of this case.
135. This court in case of Romeo A.D'Souza vs. Edgar Havlock D'souza decided
on 20th December, 2013 in Testamentary Suit No.41 of 2006 has considered a
situation where there was no dispute by the plaintiff that the deceased was not
keeping good health. The witness examined by the plaintiff herself had deposed
that the said deceased was suffering from various diseases. In the said judgment it
is held that since the plaintiff ought to have produced the medical records and
could have examined the witnesses to demonstrate that the decease was not
suffering from paralytic stroke and elphantitis prior to the date of execution of the
Will and had withheld such evidence for consideration of this court which if would
have been produced, it would have been unfavourable to the plaintiff and thus
adverse inference against the plaintiff for not producing the medical records has
been drawn by this court under illustration (g) of Section 114 of Indian Evidence
Act, 1972. Paragraphs 55 to 59 and 63 of the said judgment read thus :-
55. It is not in dispute that the relations between the
plaintiff and the deceased were cordial. The defendant was
staying at Canada and hardly visited the said deceased. It is
not the case of the plaintiff that relations of the said deceased
with the daughter were not cordial. It is not in dispute that
the said deceased was suffering from paralytic stroke and
elphantitis. It was the case of the plaintiff that the said
deceased suffered from such diseases after execution of Will
and not earlier. No doubt, defendant could not depose much
on this issue about the sickness of the said deceased as he was
not in India for almost entire period. The question then
arises is that whether plaintiff has proved the due execution
of the Will and that the said deceased was keeping good
health and was of sound and disposing state of mind at the
time of execution of Will. Admittedly the said deceased was
81 years old when the Will was alleged to have been
executed. Plaintiff has not disputed that the said deceased
was not keeping good health. It was the case of the plaintiff
in the evidence before this Court that the plaintiff used to
carry the said deceased for medical treatment. Most of the
medical bills were incurred by the plaintiff himself. Plaintiff
has also admitted that he had access of all the files of the said
deceased before and after her death. Plaintiff however, could
not prove the medical records though he claimed to have
access of all medical records of the said deceased. It was one
of the relevant fact which in my view which ought to have
been proved by the plaintiff that the said deceased was
suffering from paralytic stroke and elphantitis after execution
of the alleged Will. The plaintiff was the best person to place
these facts on record before the Court by leading appropriate
evidence.
56. Some of the cash vouchers/bills produced by the
plaintiff could not be proved by the plaintiff and were
accordingly not marked in evidence. It was the case of the
plaintiff that the bank account was jointly in the name of the
wife of the plaintiff and the said deceased. In cross
examination of the plaintiff, he has admitted that when the
said deceased was suffering from paralytic stroke, she was not
operating the bank account. When plaintiff was asked, since
when the said deceased was not operating the bank account,
plaintiff did not give any clear reply and avoided the question.
In my view, if according to plaintiff, the account was jointly
operated by the said deceased with the wife of the plaintiff,
plaintiff ought to have examined his wife and/or staff of the
concerned bank to prove the last date of operation of the bank
account by the said deceased. It is urged by the defendant
that the said deceased was not in a position to affix her
signature. In these circumstances, in my view, the plaintiff
failed to bring the best evidence on record and failed to prove
that the said deceased got paralytic stroke and elphantitis
after execution of alleged Will and was operating the bank
account by affixing her signature.
57. Under Section 114(g) of the Evidence Act 1872, it is
provided that the Court may presume the existence of any fact
which it thinks likely to have happened, regard being had to
the common course of natural events, human conduct and
public and private business, in their relation to the facts of the
particular case for that evidence which could be and is not
produced would, if produced, be unfavourable to the person
withholds it. In my view, since the plaintiff who ought to
have produced the medical records and could have examined
the bank officer or wife of the plaintiff to demonstrate that
the deceased was not suffering from paralytic stroke and
elphantitis prior to the date of execution of the Will, has
deliberately not produced and has withheld such evidence for
consideration of this Court which if would have been
produced, it would have been unfavourable to the plaintiff. I
am therefore drawing adverse inference against the plaintiff
for not producing the medical records, bills and not
examining the wife of the plaintiff and the bank officer that
the said deceased was suffering from paralytic stroke and
elphantitis prior to execution of Will and could not have
executed the alleged Will. I am of the view that the said
deceased was not keeping good health and was not of sound
and disposing mind. I am not inclined to accept the
submission of learned senior counsel Mr Shah that after so
many years, it was not necessary to examine the officer of the
bank to prove that the account was duly operated by the said
deceased before the date of execution of Will.
58. In my view, the plaintiff has played active role in
getting the Will of the said deceased drafted. Plaintiff was a
major beneficiary under such alleged Will. I am not inclined
to accept the submission of Mr Shah learned senior counsel
that though plaintiff had visited the office of the advocate,
plaintiff was not aware of the contents of the Will. Plaintiff
and his family members were admittedly staying with the said
deceased. Plaintiff did not contact the advocate who alleged
to have drafted the alleged Will. Plaintiff did not bother to
furnish copy of the alleged Will to the defendant. The said
deceased died on 10th January 1987 whereas testamentary
petition has been filed only in the year 1991. Plaintiff has not
explained the gross delay in filing testamentary petition.
Defendant who was also one of the sons of the said deceased
and Mrs Sylvia, daughter of the deceased could not have been
disinherited in the Will of the deceased in ordinary course.
59. Dr R'Dcosta was not a family doctor and was a
Veterinary doctor . His alleged signature on the Will itself is
not proved. In ordinary course, no party would have taken
the signature of an outsider and that also a Veterinary doctor
and whose whereabouts are not known. Admittedly other
alleged attesting witness was brotherinlaw of the plaintiff.
Such brotherinlaw was though staying permanently at Pune,
his address is shown that of Bombay in the alleged Will. The
oral evidence of the plaintiff and said witness does not inspire
confidence considering the conduct of the plaintiff and even
otherwise.
63. Issue Nos.1 and 2 are accordingly answered in negative.
It is proved that the Will & Testament of the said deceased is a
forged document and is fabricated. Issue No.3 is accordingly
answered in affirmative. In so far as Issue Nos.4 and 5 are
concerned, though the initial onus was on the defendant to
prove that the said deceased was suffering from paralytic
stroke for five years prior to her death, in my view, since the
plaintiff and his family members were staying with the said
deceased and their relations with the said deceased were
cordial and the plaintiff had alleged to have taken the said
deceased to the hospital for medical treatment, plaintiff ought
to have produced the medical records and ought to have
examined the wife of the plaintiff and bank officer to prove
the said material fact. Plaintiff having withheld the relevant
evidence from this Court though plaintiff had an opportunity
to produce the said evidence, this Court has drawn adverse
inference against the plaintiff for withholding such evidence
under Section 114(g) of the Evidence Act and the issues are
answered accordingly. Defendant has proved that the last
Will & Testament dated 26th May 1986 was not valid and Issue
No.6 is accordingly answered in affirmative.
136. In my view the said judgment would apply to the facts of this case. In so far
as passage from treatise on law of evidence by 'Woodroff and Amir Ali' relied upon
by the plaintiff is concerned, a perusal of the said passage indicates that the same
has discussed about criminal matters and not a testamentary matter. In my view
the said passage does not assist the plaintiff in any manner whatsoever. In my view
neither Ms.Dolly Divecha nor Mr.Phiroz Amaria were competent witness in so far
as issue no.4 is concerned. The evidence of those two witnesses led by the plaintiff
therefore does not prove the case of the plaintiff that the said deceased was having
testamentary capacity to execute the Will and was of sound and disposing mind at
the time of execution of the alleged Will. In case of Savithri and others (supra)
Supreme Court has held that the propounder of the Will has not only to prove the
fact that the Will was signed by the testator but also has to prove that at the
relevant time the testator was in sound disposing state of mind and understood the
nature and effect of dispossession and only then it could be said that the onus stood
discharged by the propounder of the Will. The said judgment applies to the facts of
this case.
137. In so far as submission of Mr.BehramKamdin that the defendants having
alleged that the said deceased was not of sound and disposing mind at the time of
execution of the alleged Will and since not having led any oral evidence in support
of such plea, defendants have thus not discharged the onus cast on them is
concerned, in my view since the initial onus was on the plaintiff to prove that the
said deceased had testamentary capacity and was of sound and disposing mind at
the time of execution of Will which onus the plaintiff failed to discharge, the onus
was not shifted to the defendants to prove otherwise. On consideration of the
overall evidence led by both parties I am of the view that the defendants have
proved that the deceased was forced to make the alleged Will dated 27th December
2004 when he was not in a proper state of mind to make a Will. Issue no.4 is
accordingly answered in affirmative. There is no merit in the submission of
Mr.Shah learned counsel for the defendants that this court has territorial
jurisdiction. Some of the properties of the deceased are situated at Mumbai.
138. In the result, the testamentary suit No.85 of 2005 is dismissed. There shall
be no order as to costs.
[R.D. DHANUKA, J.]
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