Court has to be careful in admitting in evidence a mere statement pushed into record when it was not required.

The Plaintiff has sought to rely upon the affidavit of one Doctor who is stated to be her family doctor. The affidavit is filed in the previous Misc. Petition between the parties. That affidavit is not mandatorily required to be filed. The affidavit of the Doctor does not show any documents relied upon by the Doctor. The Doctor has since expired. The fact that he was a family Doctor has not been substantiated by any documentary evidence. The Doctor has not been cross examined.

47.Mr. Shah on behalf of the Plaintiff sought to rely upon his affidavit as the affidavit of a witness on behalf of the Plaintiff. He relied upon certain judgments with regard to the reliance upon affidavits as evidence. Such an affidavit can be allowed provided there are sufficient reasons. The entire evidence cannot be tendered by way of an affidavit. The Court may require particular fact or facts to be proved by affidavit. That will also have to be for special reason (See B.N. Munibasappa Vs. Gurusiddaraja Desikendra Swamigal AIR 1959 MYSORE 139 (V 46 C 55). If the cross examination is impossible, after 17 TS.78.94-TP.156.94.sxw

the deposition by way of examination-in-chief is made such deposition can be treated as the evidence on record depending upon the facts of the case. The Court has to carefully see whether a completed cross examination would seriously shake his testimony (See Mt. Horil Kuer Vs. Rajab Ali AIR 1936 Patna 34). When the opposite party does not controvert, it can be read in evidence (See Kanhaiyalal S. Dadlani Vs. Meghraj Ramkaranji AIR 1954 Nagpur 260 (Vol. 41, C.N. 91). When the witness dies before the cross examination, his evidence does not become inadmissible (See Ahmad Ali Vs. Joti Prasad AIR 1944 Allahabad 188).

48.In this case no evidence is led. Mere dispensing with cross examination does not arise. The witness' statement cannot be treated as a Dying Declaration. The affidavit is filed in a previous proceeding. The Doctor has not endorsed the Will itself. The Defendant's case is diametrically different from the case contained in this affidavit and the Defendant has examined another Doctor in that behalf. The Doctor has not endorsed the Will itself. The Court has to be careful in admitting the evidence a mere statement pushed into the record when it was not required.

49.Under the circumstances of this case the affidavit of the Doctor filed in the Petition and which is not his affidavit of examination-in-chief cannot be used as his evidence under Order 19 of the C.P.C.

Bombay High Court

Dr. Feroze Homi Duggan vs Jean Duggan on 3 August, 2011

Bench: R. S. Dalvi

1. The Plaintiff is a grandson of the deceased, Lady Jena Jamshedji Duggan. He has applied for Letters of Administration (L.A) with the Will of the deceased annexed thereto dated 4th April 1993 as the Executors mentioned under the Will have renounced their Executorship. The Defendant is the wife of the predeceased son of the deceased. The constituted attorney of the Plaintiff who is his mother initially applied for L.A. She has since expired. The Plaintiff himself has sued thereafter. Initially the Defendant was not shown as the heir of the deceased. L.A were granted. L.A have been revoked upon the 2 TS.78.94-TP.156.94.sxw

Petition of the Defendant in that behalf. Thereafter the Defendant has filed her Caveat.

2. It is the case of the Defendant in her affidavit in support of the Caveat that the Will has not been validly executed and that there are strong suspicious circumstances casting doubt upon the genuineness of the Will. She has also contended that the deceased was not in a sound state of mind and was hospitalized soon after the execution of the Will. She has further contended that the Will was executed by fraud or undue influence or importunity and is not natural.

3. Based upon the aforesaid pleadings issues came to be framed in this Suit by Justice Abhay S. Oka on 8th August 2007 as follows and which are answered as follows:

ISSUES FINDINGS

1. Whether the writing dated 4th April 1993 is

the validly executed Will of deceased Lady

Jena Duggan. Yes

2. Whether the deceased Lady Jena Duggan was

in sound and disposing state of mind at the

time of execution of the said writing dated

4th April 1994. Yes

3. Whether the Defendant proves that at the

relevant time the testator of the Will was not

in sound and disposing state of mind. No

4. Whether the writing dated 4th April 1993 has

been obtained by fraud and undue influence

as alleged in para 7 of affidavit in support of

caveat. No

5. What relief ? As per final order. 3 TS.78.94-TP.156.94.sxw

6. What Order ? As per final order.

4. The Plaintiff has sought to prove the Will of the deceased through the affidavit of examination-in-chief of one of the attesting witnesses who is an Advocate of this Court. The other attesting witness has admittedly expired. The Plaintiff has not led evidence himself. He has not led evidence of any other witness. Counsel on behalf the Plaintiff sought to rely upon an affidavit of a Doctor who is a General Practitioner and who was stated to be the family Doctor of the deceased, which was filed on 30th November 1994, in Misc. Petition No.16/1994 for revocation of the Letters of Administration granted earlier. The Doctor has since expired. His death certificate has been produced.

5. The Defendant has led evidence of herself, a friend of the deceased and another Doctor. The Defendant has essentially contended that the deceased was not in a sound state of mind and was unduly influenced by the Plaintiff in executing her Will which largely benefits the Plaintiff; in fact he is almost a sole beneficiary of her estate. The friend of the deceased has been examined to show the mental state of the deceased during the period prior to the execution of the Will and thereafter. The Doctor who has been examined was known to the deceased more as a friend than as her Doctor. He is examined also to show her state of health. He has visited her twice, examined her once and refrained from treating her after his initial prescription.

6. The Plaintiff has relied upon the Will itself, a duplicate copy of the Will endorsed by a Special Executive Magistrate (SEM), the death certificate of the deceased as also her family Doctor and copies of certain correspondence and certain legal proceedings between the deceased 4 TS.78.94-TP.156.94.sxw

and the Defendant in the Civil Courts.

7. The Defendant has also relied upon certain correspondence between the parties and their Advocates, the proceedings in the Civil Suits, the death certificate of another Doctor one Dr. Mujumdar and the records of Breach Candy hospital for medical treatment given to the deceased under a specified registration number.

8. It may be mentioned that the Plaintiff has essentially sought to prove his case of the execution of the Will by the sole evidence of an attesting witness to the Will. Though in a given case such evidence is sufficient to prove the Will of the deceased, it will have to be seen whether in this case it would suffice if there are certain suspicious circumstances as claimed by the Defendant which the Plaintiff must explain by leading evidence. Essentially such evidence would precede the evidence of the attesting witness under the provisions of Order 18 Rule 3-A of the C.P.C. In any event, the Plaintiff, upon showing reasons, may seek to lead evidence to explain certain suspicious circumstances or otherwise after the evidence of the attesting witness is over. Since the evidence of the Plaintiff would be entirely different from the evidence of the attesting witness the Plaintiff may be allowed to lead such evidence even if the evidence of the attesting witness is complete as it would not be a case of filling up the gaps or lacuna, but explaining the suspicious circumstances. In this case the Plaintiff has refrained from leading evidence. The Defendant has contended that there are several suspicious circumstances which the Plaintiff must explain. Counsel on behalf of the Defendant specifically took out an application to direct the Plaintiff to lead evidence so that she can cross examine him. He further 5 TS.78.94-TP.156.94.sxw

applied for calling the Plaintiff as the witness of the Defendant upon certain affidavits filed in other related proceedings after the death of the deceased. That application came to be disallowed. After the parties were heard at length the Court examined the evidence and once again sought to give liberty to the Plaintiff to lead evidence, if he chose to remove the suspicious circumstances as were shown by the Defendant in the related proceedings. Counsel on behalf of the Plaintiff specifically stated that the Plaintiff need not lead any oral evidence.

9. Of course, the Plaintiff must prove due execution of the Will. The Defendant has to show the specific unsoundness of mind such as to disqualify the deceased from executing the Will. The Defendant must further show the specific undue influence tantamounting to such coercion on the part of the Plaintiff as would vitiate the Will of the deceased.

10.It is within these parameters that the oral and documentary evidence of the parties would have to be considered.

11.Issue Nos.1 & 2

: Lady Duggan, a Dowager, lived in her own property

which was a bungalow. She had two sons. Both the sons predeceased her. The Plaintiff is the son of one of her sons, Homi through his first wife Aban, who was the original Plaintiff, who initially sued as Constituted Attorney of the present Plaintiff. The said Homi had divorced Aban and married another wife Eileen who left behind a daughter Ferina, the Plaintiff's step sister. The other son of the deceased, one Nusli also predeceased the deceased. He left behind the Defendant as his widow. The Defendant has no issues. 6 TS.78.94-TP.156.94.sxw

12. The Defendant lived in a part of the property of the Plaintiff which is a bungalow in her capacity as the wife of the son of the deceased who lived therein during his life time. The Defendant's matrimonial home is in that part of the premises. She has lived there since her marriage. After the death of her husband Nusli her possession in the property was apprehended to be disturbed. She sued the Defendant for protection of her possession and for restraining the deceased from dispossessing her without adopting due legal process.

13.The deceased sued her in a trespass action. That was the due legal process which she had adopted. The two suits have been heard together. It has resulted in a decree for possession. An appeal has been filed therefrom which is pending.

14.Both the suits were filed in 1983 in the Bombay City Civil Court. The judgment in the aforesaid suits has been delivered on 28th February 1990. An appeal therefrom has been filed in 1990. The deceased and the Defendant have been, therefore, litigating since 1983 until after the Will has been executed.

15.The deceased had no relatives other than the Plaintiff and his step sister to bequeath her estate. Of course, she could have considered certain charitable institutions; she was attached to and worked for one such institution being the National Institution for the Blind.

16.The deceased was 96 years old at the time of the execution of the Will. 7 TS.78.94-TP.156.94.sxw

The deceased was a Social Worker. She had, aside from the aforesaid immovable property where she lived in a bungalow, certain antique furniture and a large amount of movable properties in the form of shares of limited companies.

17.The Plaintiff has been residing in London, U.K since more than a decade prior to the execution of the Will. It is the case of the Defendant that he was permanently settled in London for 35 years prior thereto; It is the case of the Plaintiff that he was settled there for about 14 to 15 years. The Plaintiff had never been to India or visited the deceased during the aforesaid period of time. The Plaintiff came to India only a month prior to the execution of the Will and lived with the deceased for about a fortnight in February/March 1993. He is stated to have left India for the U.K on 3rd March 1993.

18.The deceased executed her Will on 4th April 1993, a month thereafter. The deceased was not hospitalized at or before that time. The deceased was hospitalized between 19th April 1993 to 15th May 1993. She returned home from the hospital. The deceased expired on 2nd September 1993.

19.The Plaintiff has relied upon the duplicate copy of the Will also. That copy of the Will has been endorsed by the SEM. The SEM is one Jamshed Aga (J. Aga) who is shown by both the parties to be confidante of the deceased.

20.The Plaintiff or his mother were not in India when the Will was executed. The Will has been kept by the deceased. There is no 8 TS.78.94-TP.156.94.sxw

evidence to show how the Plaintiff's mother or the Plaintiff came into custody of the original Will to apply for L.A. The Plaintiff's mother is stated to have come to India between December 1993 to April 1994. The Plaintiff is stated to have come to India between March 1994 to April 1994. The three named Executors in the Will renounced their Executorship. There has been a letter written by one of the Executors to the Plaintiff which has not been produced in evidence though relied upon in the affidavit of documents of the Plaintiff. There has been other correspondence also by the Plaintiff or his Advocate with the Advocates on behalf of the Defendant which is admitted correspondence. The Executors have renounced their Executorship on 23rd February 1994. The Petition came to be filed initially by the Plaintiff's mother as his constituted attorney in March 1994. L.A came to be issued on 30th May 1994. The Plaintiff's mother is stated to have left India for London on 31st May 1994.

21.The Defendant first sought to challenge the L.A by the notice issued by her then attorneys M/s. Hooseni Doctor & Company under their letter dated 10th June 1994, in which she alleged only that the L.A were obtained fraudulently by suppression of the fact that she was an heir of the deceased under a Will not genuinely executed. She has not alleged that the deceased was not in a sound state of mind or that the Plaintiff exercised undue influence upon her to execute the Will. These contentions have been taken up in the affidavit in support of the Caveat, perhaps justifiably, after the Defendant was seen to be an heir and the L.A granted by the Court on 30th May 1994 came to be revoked and her Caveat came to be accepted.

9 TS.78.94-TP.156.94.sxw

22.It may be material to see how the Plaintiff obtained the custody of the original and duplicate Will of the deceased, how and why the Plaintiff came incidentally only a month prior to the execution of the Will by the deceased to India after a lapse of at least 1½ decades when he had not met the deceased and why the Plaintiff or his mother came soon after the death of the deceased or whether they had come on occasions in between also.

23.It may be mentioned that the aforesaid correspondence by and between the then attorneys of the Plaintiff and the Defendant show the case of the Plaintiff at the time of the filing of the initial Petition and how the Defendant was not shown as an heir of the deceased being the widow of the predeceased son of the deceased.

24.The Defendant has relied upon and got produced in her cross examination a copy of a letter written by the Plaintiff to his then attorneys giving specified instructions as also setting out the circumstances relating to the execution of the Will and the grant of L.A as also what transpired between the Plaintiff and the Executors mentioned under the Will. The letter assumes significance in view of the fact that the Defendant has been cross examined upon that letter. The letter reflects the role of the Plaintiff and the Executors after the death of the deceased and prior to the contest in this Petition. That letter, of course, has not been relied upon by either of the parties in their affidavit of documents, but has surfaced in the cross examination. It is a part of the record of this Court in a Contempt Petition between the parties.

10 TS.78.94-TP.156.94.sxw

25.Further though the Plaintiff has not sought to examine any Doctor of the deceased though she was admittedly hospitalized and given her very advanced age would be expected to have Doctors who treated her, the Plaintiff has relied upon an affidavit of a Doctor filed in the earlier Misc. Petition. The Plaintiff has sought to rely upon the evidence of that Doctor, since deceased.

26.The Will of the deceased has been executed on 4th April 1993. The deceased lived alone at that time in her bungalow. The Will has been signed by the deceased which has been attested by two attesting witnesses. Both the attesting witnesses are reputed Advocates of this Court. The attesting witness who has been examined served as an Advocate Assistant to a Senior Solicitor whom the deceased met on several occasions. The other attesting witness has been one of the most renowned Senior Counsel of this Court. He has since expired. Counsel on behalf of the Defendant has fairly stated that his attestation is beyond reproach.

27.The deceased appointed three Executors under the Will. One was her confidante Jamshed. Aga who has put his endorsement as an SEM on the duplicate copy of the Will. One of the Executors is an attorney of this Court. After making four minor bequests to her nephew, cook, aaya and driver, she has bequeathed ½ of the residue of her entire estate consisting of movable and immovable properties to the Plaintiff absolutely. She has directed her Executors to hold the other ½ of the estate for her granddaughter Ferina who would obtain it when she attains the age of 55 years absolutely on the condition that she did not marry a certain person named in the Will. If she did so marry, her entire 11 TS.78.94-TP.156.94.sxw

estate would belong to the Plaintiff. She is stated to have since married the said person and has never claimed her share. The Executors are to distribute her estate and their decision would be binding upon the Plaintiff as well as said Ferina.

28.The Will is typewritten. It bears the docket of M/s Kanga & Company, Advocates and Solicitors. The docket shows a handwritten date of the Will.

29.The original Will shows the signatures of the deceased and the two attesting witnesses described above. It bears the date in a completely different handwriting. The date of the execution of the Will is not challenged as being specifically executed on any other date by either party.

30.The attesting witness has filed her affidavit in support of her Petition as well as the affidavit of evidence. The affidavit in support of the Petition of the attesting witness dated 7th March 1994 shows inter alia that there were only three persons present at the time of the execution of the Will. These are the mandatory persons required for attestation of a Will, attested in the presence of the deceased as well as one another. The affidavit is stated to have been made under Rule 375 of the High Court (Original Side) Rules and as per Form 102 thereto. The affidavit further shows that at the time the deceased executed the Will "there were additions made in ink on lines 23 and 24 of page 2 adding "fourth" and "April" ".

This specific averment is not as per the specific mandate of Form 102. 12 TS.78.94-TP.156.94.sxw

The mandate under the rules is complied. The affidavit is made as per Form 102. The specific averment with regard to the additions is also made in paragraph 5 of the affidavit.

31.The further averment in the affidavit is relating to the sound and disposing mind and memory and understanding of the deceased at the time of the execution of the Will.

32.The affidavit of examination-in-chief of the attesting witness to the Will shows that she is a practicing Advocate and Notary in Mumbai. Between 1960 to 1969 she served as Advocate Assistant in the firm of M/s. Mulla & Mulla & Craigie Blunt & Caroe, Advocates and Solicitors with Mr. N.K. Petigara and Mr. S.R. Vakil who were then partners in that firm. Since 1969 she served as an Advocate Assistant to Mr. S.R. Vakil. He had his office in Bombay House, Fort, Mumbai where the office of the other attesting witness was also located.

33.She knew the deceased. The deceased used to visit her Senior as well as the other attesting witness in their office in connection with certain of her charitable works. She got to know her better after April 1969.

34.She has shown how she and the other attesting witness came to attest the Will at the residence of the deceased on 4th April 1993 in her bungalow. The two attesting witnesses were likely candidates to be so.

35.They met the deceased. J. Aga, who was known to the other attesting witness, also was present at the meeting. The deceased produced the typewritten document and informed them that that was her Will. The 13 TS.78.94-TP.156.94.sxw

deceased signed the Will. She requested them to attest the Will. She and the other attesting witnesses signed at the foot of the writing when J. Aga was also present. This was at the request of the deceased. All three of them, the deceased and the two attesting witnesses were present at the same time on 4th April 1993 at her residence. She identified all the signatures.

36.She further deposed that at the time the deceased executed the Will the words "fourth" and "April" had been added in ink by J. Aga in his handwriting in the execution clause.

37.She further deposed that from the behaviour and talk of the deceased it was clear to her that the deceased was in a sound state of mind, memory and understanding and executed her Will voluntarily.

38.She further deposed that after executing the Will the deceased retained the original Will with herself. Prior to the death of the deceased she was not acquainted with the Plaintiff or his mother. She confirmed that none other than the deceased, the other attesting witness and J. Aga were present at the time of execution. She confirmed whatever was stated in her affidavit in support of her Petition.

39.Mr. J. Aga has since expired. The duplicate Will shows the rubber stamp of J. Aga with his signature in black ink. The original Will shows the words "fourth" and "April" in black ink. A comparison between the handwriting contained in the full signature of J. Aga and the handwriting in the date show that it is of one person. His presence at the time of execution affirmed by the attesting witness has not been 14 TS.78.94-TP.156.94.sxw

contested. His presence in the initial affidavit of the attesting witness in support of the Petition dated 7th March 1994 is of course not shown as it is not mandatorily required to be shown under the rules of this Court. The fact that J. Aga was a man of her confidence has been deposed by the Defendant herself in paragraph 13 in her examination- in-chief as also in her cross examination. The Defendant has averred that the said J. Aga was in total charge and control of the papers of the deceased including her Bank papers. She has, of course, alleged a conspiracy of the Plaintiff and the said J. Aga to sell the property of the deceased to her exclusion.

40.The cross examination of the attesting witness shows that she had met the deceased 3 or 4 times in the office of Mr. S.R. Vakil as well as the other attesting witnesses about a couple of years before the date of the execution of the Will. She was not aware of the hospitalization of the deceased in 1993.

41.Relating to the actual execution and attestation of the Will she has deposed that she reached the residence of the deceased at about 11.30 a.m and she was there for half an hour. She went with the other attesting witness. She met the deceased in one side room where she sat on her chair and not on bed or wheel chair. She did not know that the deceased was 96 years old, but knew that she was quite old. J. Aga received them and took them in the room where the deceased was sitting. They expressed some pleasantries. The deceased then told them that she had called them to attest the Will. She did not know the purpose why she was called. The deceased produced the Will. She signed in their presence and thereafter they attested. 15 TS.78.94-TP.156.94.sxw

42.She deposed that she had not taken part in its preparation. The Will was not read by the deceased or by the attesting witnesses at that time. No discussion took place at that time about the date on the Will. No discussion took place with J. Aga before the execution of the Will. She clarified that there was no reference to J. Aga in her affidavit in support of the Petition because that was in accordance with the prescribed format.

43.She further deposed that the date on the docket was not put by J. Aga. She refuted the case that on that day the deceased was in a bad health and not in a position to recognize anybody or that it was not executed in her presence or that the deceased had not executed in her presence.

44.It may be at once mentioned that no case that the deceased was unduly influenced by the Plaintiff was put to her. Of course she is only a witness and a witness has no case. Only a party to a proceeding has a case. No case need to be put to any witness. A certain case has been put to her which she refuted. The case of undue influence, if any, can be put only to the Plaintiff. The Plaintiff has not examined himself. No such case can, therefore, be put.

45.It may be mentioned that the affidavit of the attesting witness shows due and valid execution of the Will of the deceased. There is nothing which has been left out with regard to the actual execution or attestation. The procedure of execution fully complies with Section 63 of the Indian Succession Act. Both the attesting witnesses were qualified Lawyers. They would know the caution which is required to 16 TS.78.94-TP.156.94.sxw

be exercised for execution of Wills. The deceased did not appear to be as old as she was and the witness did not know the age of the deceased then. The need for endorsing the Will by a Doctor was not felt by both the attesting witnesses who were Lawyers. The attesting witness did not handle the legal matters of the deceased. She did not know the purpose why she was called. She had met the deceased on several occasions in the office of her senior. She had not talked about the execution of the Will prior to the date of execution. The fact however remains that the deceased was admittedly 96 years old then. Her Will has not been endorsed by a Doctor as a matter of prudence.

46.The Plaintiff has sought to rely upon the affidavit of one Doctor who is stated to be her family doctor. The affidavit is filed in the previous Misc. Petition between the parties. That affidavit is not mandatorily required to be filed. The affidavit of the Doctor does not show any documents relied upon by the Doctor. The Doctor has since expired. The fact that he was a family Doctor has not been substantiated by any documentary evidence. The Doctor has not been cross examined.

47.Mr. Shah on behalf of the Plaintiff sought to rely upon his affidavit as the affidavit of a witness on behalf of the Plaintiff. He relied upon certain judgments with regard to the reliance upon affidavits as evidence. Such an affidavit can be allowed provided there are sufficient reasons. The entire evidence cannot be tendered by way of an affidavit. The Court may require particular fact or facts to be proved by affidavit. That will also have to be for special reason (See B.N. Munibasappa Vs. Gurusiddaraja Desikendra Swamigal AIR 1959 MYSORE 139 (V 46 C 55). If the cross examination is impossible, after 17 TS.78.94-TP.156.94.sxw

the deposition by way of examination-in-chief is made such deposition can be treated as the evidence on record depending upon the facts of the case. The Court has to carefully see whether a completed cross examination would seriously shake his testimony (See Mt. Horil Kuer Vs. Rajab Ali AIR 1936 Patna 34). When the opposite party does not controvert, it can be read in evidence (See Kanhaiyalal S. Dadlani Vs. Meghraj Ramkaranji AIR 1954 Nagpur 260 (Vol. 41, C.N. 91). When the witness dies before the cross examination, his evidence does not become inadmissible (See Ahmad Ali Vs. Joti Prasad AIR 1944 Allahabad 188).

48.In this case no evidence is led. Mere dispensing with cross examination does not arise. The witness' statement cannot be treated as a Dying Declaration. The affidavit is filed in a previous proceeding. The Doctor has not endorsed the Will itself. The Defendant's case is diametrically different from the case contained in this affidavit and the Defendant has examined another Doctor in that behalf. The Doctor has not endorsed the Will itself. The Court has to be careful in admitting the evidence a mere statement pushed into the record when it was not required.

49.Under the circumstances of this case the affidavit of the Doctor filed in the Petition and which is not his affidavit of examination-in-chief cannot be used as his evidence under Order 19 of the C.P.C.

50.However upon the evidence of the attesting witness the due execution of the Will is proved. Hence Issue Nos. 1 and 2 are answered in the affirmative.

18 TS.78.94-TP.156.94.sxw

51.Issue No.3 Having seen that the Will of the deceased was validly :

executed by her at her residence by signing the Will in presence of two independent attesting witnesses who are professionals and one of whom did not even estimate her correct age, it would be for the Defendant to show how the deceased could be taken to be of such unsound mind as not to understand her act in executing her Will.

52.The Defendant has in her very first letter addressed by her then Attorney on 10th June 1994 relied upon by the Defendant herself and marked Exhibit-1, not mentioned about the unsoundness of mind of the deceased.

53.In her initial affidavit in support of her Caveat dated 12th September 1994 the Defendant has, for the first time, stated about the hospitalization of the deceased and her being in a delirious condition and slipping into coma. The Defendant has given particulars of her hospitalization contained in her registration number and the code number of the patient.

54.The Defendant was a qualified Nurse. She was employed as a Nurse in the same hospital where the deceased was hospitalized - Breach Candy Hospital, Bombay. The Defendant was initially the Nurse of the son of the deceased whom she was later married to. Her evidence shows that she served initially as an employee and then as a private Nurse in the same hospital. The Defendant would know the procedure of the hospital in case of hospitalization of patients.

19 TS.78.94-TP.156.94.sxw

55.The Defendant has specifically stated in her affidavit in support of her Caveat that the deceased was registered under No.1935/93 whose Code No. 2341. She has relied upon the papers and proceedings of the hospital in her affidavit of documents at item No.10. The same description of the registration number and the code number is given therein. The affidavit in support of the Caveat has been filed in 1994. The Defendant must be taken to have been seen those records to mention the precise registration and code numbers. The papers were available in the hospital. The Defendant has relied upon those papers. She must be taken to have obtained those papers from the hospital to be able to rely upon them as a specific document in her affidavit of documents which came to be filed in January 2008. She has been cross examined on this scene. The Defendant has however not got produced these documents from the hospital on the premise that they were old records then not available. If that was so, the Defendant could have produced the copies which she obtained earlier which enabled her to give registration and code numbers of the patient. This she has not done. The inference that if these documents were produced, it would not have shown such unsoundness of mind as would incapacitate the deceased from executing her Will must be drawn.

56.It must be remembered that the deceased executed her Will on 4 th April 1993. She was hospitalized on 19th April 1993. Her mental state of mind could have been entirely different on these two days. It must also be appreciated that whatever be her condition during her hospitalization, she was discharged on 15th May 1993. She, therefore, recovered from such condition. She was sent home. She thereafter lived until 2nd September 1993, when she expired. The hospitalization 20 TS.78.94-TP.156.94.sxw

was, therefore, not such illness from which she never recovered. Even if she was feeble or otherwise debilitated that would be an incident of her very advanced age. That may have been only physical. It is for the Defendant to show that her illness was mental. Even if that is shown, it should be co-related to an earlier period when the deceased made the Will, and in the facts of this case even prior thereto when the deceased is stated to have met her grandson, the Plaintiff herein, after a number of years after which she made her Will.

57.The unsoundness, if at all, of her mind is required to be seen from other intrinsic evidence. The deceased is shown to have written a letter to her grandson, the Plaintiff after his visit to Mumbai and after he left for London. The letter is written on 10th March 1993. It is an inland letter. It is shown to the Defendant in her cross examination. The defendant has fairly admitted that it is in the handwriting of the deceased. The letter has accordingly being marked Exhibit-P-4 in evidence. It is an inland letter bearing the stamp of the postal authority.

58.The letter shows that she was happy to welcome her grandson at her bungalow. It mentions about certain biscuits which he liked. It makes a specific mention about how he will enjoy it on "4th April", the date on which she came to execute the Will. It mentions to him about a certain Flag Day show on the previous Sunday which she attended along with His Highness the Governor and certain representatives of the Association for the Blind for whom she worked. It makes a mention about a representative of that Association, who would visit her grandson whilst in London. After writing about certain other family members and friends she writes:

21 TS.78.94-TP.156.94.sxw

"My eyes are giving me trouble so I can't write more. I will be sending you more Khara Biscuits later".

She tells her grandson that she would be waiting for his phone call. She tells him not to waste pounds on phone, but that she would phone him.

59.This letter, written less than a month prior to the execution of the Will, shows the most satisfactory soundness of mind of the deceased.

60.Upon the case of the Defendant that the deceased was not in a fit state of mind and could not have executed the Will, she has led her own evidence as also the evidence of a friend of the deceased and one Doctor who is stated to have seen the deceased twice, but who was not her family Doctor.

61.In paragraph 14 of her affidavit of examination-in-chief she has deposed that the deceased was keeping indifferent health and had lost her memory. She was under the treatment of Doctors. She has named one Dr. Mujumdar who has not been examined. She has deposed that the deceased could not recognize her when she visited her. She has not mentioned the period when she visited. She deposed that she could not recognize her relatives and friends on many occasions, she became unconscious, could not walk properly, had to use a wheel chair, was fed with food-pipe etc. None of these statements is corroborated except the evidence that she could not recognize her friend who has been examined as D.W.2 on behalf of the Defendant.

62.In paragraph 17 of her affidavit of examination-in-chief she has 22 TS.78.94-TP.156.94.sxw

deposed about the hospitalization, but mentioned that the records have been destroyed. She has not put in any effort to produce copies which she had and which were shown in her affidavit of documents to prove them by secondary evidence.

63.It is an admitted position that the Defendant is the daughter-in-law of the deceased. She lived in one part of the bungalow of the deceased which she had previously occupied with her husband. There were litigations between the deceased and the Defendant from 1983 until 1990 in the Bombay City Civil Court and thereafter in Appeal. She had not cared for the deceased as a nurse. In paragraph 20 of her affidavit of examination-in-chief she has deposed that subsequent to her marriage her relations with the deceased had soured, but after her husband's death they had improved. She used to visit the deceased during her illness. She also looked after the deceased. She has also deposed that she was prevented from having access to the deceased during that period in paragraph 13 of her examination-in-chief. It cannot be seen then how she "looked after the deceased".

64.In paragraph 30 of her examination-in-chief she has deposed that the deceased had a day and night nurse. She has deposed that her talks with the nurse showed that the deceased was not able to walk, stand, eat, understand or remember anything and needed constant help to perform her daily routine works. The nurse has not been examined.

65.She has deposed that she saw the deceased pass by and later the passing of the deceased ceased.

23 TS.78.94-TP.156.94.sxw

66.She claimed to have visited the deceased in the hospital but only at night in the hospital. The relations of the deceased had never seen her visiting the deceased in the hospital. Only the private nurses were aware. She did not find any need to go to visit the deceased during day time. But some time she visited in the afternoon. She, therefore, could not have "taken care of the deceased" and therefore, would not know her physical or mental condition personally.

67.Relating to the hospital records she has deposed that she had seen the discharge card of the deceased at home when a nurse was present. She has deposed that the hospital record would not be shown to her even if she asked the nurse. In that case the precise description of the registration number and the code number cannot be taken as having been remembered from the memory from the discharge card of the deceased whilst there was no litigation in respect of the health of the deceased. She has been extensively cross examined on the knowledge of the hospital records which, given her position initially as a staff Nurse and later a private Nurse in Breach Candy Hospital for 2 years and 3 years respectively, as deposed by her in her cross examination, cannot be accepted. Further she has refuted that she remembered the registration and code numbers from the memory. Yet she did not have copies of the hospital records or the discharge card. She did not remember the period of hospitalization mentioned in the discharge card. She had not got it. She did not make its copy. Yet she got the registration and code number from the record office of the Breach Candy Hospital which she asked somebody to do for her. A further probing cross examination revealed that that was some one called Leela who was married and settled abroad. She also accepted that private 24 TS.78.94-TP.156.94.sxw

nurses of the deceased gave her information of her illness orally, but not of the treatment. She agreed that she had no opportunity to see those records and she made no efforts to get them. She deposed that she had not seen either the originals or copies of the records. She could not explain how she could put those records in her affidavit of documents as item No.10. She stated that that was a mistake. But the mistake has not been explained.

68.It is seen that despite having the precise registration and code number, no effort was made by her to get the records produced or to show the copies, if she had. Upon she throwing up her hands, the entire case, the onus of which lies upon her to prove, remains at that. Her evidence that she took care of the deceased is countered by her own evidence that she was not allowed access to the deceased as also the fact that there were other nurses not only in the hospital, but at her residence to take care of the deceased. In fact later in her cross examination she has admitted that even when she was not prevented she herself did not go near the deceased and that she was only prevented when the Plaintiff was there. The Plaintiff was there only during February-March 1993 and she agreed that in April 1993 the Plaintiff was not in India. Hence prior to and after the hospitalization of the deceased there was none to prevent her access, but she had not visited the deceased and hence could not personally know her condition.

69.D.W.2 is a friend of the deceased got examined by the Defendant. Her affidavit of evidence shows that she knew the deceased and her residence. She used to meet her at social occasions and in the club. She had met and visited the deceased a few times. After February 1993 for 25 TS.78.94-TP.156.94.sxw

quite some time she had not met the deceased. On inquiry she heard about her ill-health. She had thereafter visited her at her residence to inquire about her health. She found that she was not keeping good health and "to some extent" suffered from loss of memory and understanding. She deposed that the physical and mental faculties of the deceased looked very poor and the deceased could not recognize her. Her description of the deceased is a description of a normal person in her 90s.

70.It is not known and shown how the Defendant called her as a witness. She was not a friend of the Defendant. She had only seen and met her at the house of her friend. She saw and met the Defendant on a couple of occasions when she met the deceased. In fact the lady had visited the deceased only on a couple of occasions. Hence she could have met the Defendant at best only twice.

71.The cross examination of the lady shows that she knew the deceased since 1980s. She had invited her 5 or 6 times to her house. Her first visit to the Deceased's bungalow could have been in 1990-1991. She would meet her after months. She never met any family members, but used to see some servants during her visits to the house of the deceased. This would show that she had not met the Defendant also. She had not seen the deceased after February 1993 for at least one month. She visited her in March 1993. She visited her only twice. She came to know of her health from one Mrs. Modi. She was informed of her hospitalization. She had not visited her in the hospital. She had met and known the Defendant since 1991. This was though she had not seen any family members during her visit to the Deceased's 26 TS.78.94-TP.156.94.sxw

bungalow. She had seen the Defendant in the garden and "that is how I met her". She did not remember whether the Defendant was present when she met the deceased after February 1993.

72.Relating to the description of the health of the deceased she has deposed in her cross examination that the deceased was very frail and "did not look in very good health" and "she was a little bit disoriented". She had not recognized her. She volunteered that she repeated her name several times to the deceased, but did not know whether the deceased recognized her.

73.She had not attended the funeral or the condolence visit of the deceased. She had not met the Defendant in the house of the deceased, but in the garden.

74.This evidence leaves the case of the Defendant where it was. It shows the condition of a lady of more advanced age. It does not show or prove any particular debility of the mind which is the only aspect which comes up for consideration in this case. Since she had not known the Defendant and had only seen her in the garden twice which is how "she met her", it is not known how she was even called by the Defendant as her witness. She was a mere acquaintance of the deceased who was not close to the Deceased and who did not even know about her death or had done anything at that time to have been in a position to depose of her personal knowledge about the mental condition of the deceased.

75.The Defendant has examined a Doctor as D.W.3. He was not her family Doctor. He is not the Doctor who treated the deceased in the hospital 27 TS.78.94-TP.156.94.sxw

or thereafter. He is not the Doctor who certified the death of the deceased. He is a medical Doctor who is stated to have known the deceased socially. He resided in Pune. He came to Bombay for Races. He knew the deceased who also attended the races. He had only twice examined the Deceased as a Doctor. He is stated to have been called by J. Aga, the confidante of the Deceased. He is said to have prescribed certain medication and called for certain investigating tests. The said J. Aga is shown to have ignored his prescription or directions.

76.In his affidavit of examination-in-chief he has deposed that he filed the affidavit at the request of Defendant. He is a Consultant Physician and Cardiologist. In 1993 his house and clinic were close to the residence of the deceased. He owned horses and was an elected member of the Committee of Royal Western India Turf Club. The deceased met him in clubs, at the races and other social functions. He knew J. Aga, who also met him at the races. He was told by the deceased that J. Aga was a man of her confidence and looked after her affairs. J. Aga had told him that the deceased required a proper checkup by him.

77.He had visited the deceased on two occasions, both on Sundays. The first occasion was prior to March 1993.

78.In paragraph 16 of his evidence he has deposed that he suggested treatment and investigations to avoid a transient Ischemic Attack (TIA). He has described that as a pre-stroke condition which would result in coma. On his second visit he was informed by J. Aga that the personal physician of the deceased did not think it necessary to do the investigations which he had suggested.

28 TS.78.94-TP.156.94.sxw

79.In paragraph 18 and 19 of his evidence he has deposed that he was asked to attest a document of the deceased which was a Will, but he refused because in his opinion the deceased was incapable of understanding any matter and act on her own free will because the investigation and treatment instructed by him were not carried out.

80.In paragraph 20 of his evidence he has deposed that the persons such as the deceased would look normal to an ordinary person or a family member and her condition was difficult to diagnose. Because of his medical experience and his clinical examination he came to know the condition of the deceased since prior to January 1993 and that was the loss of memory and in capacity of understanding of the deceased.

81.In paragraph 24 of his affidavit of examination-in-chief he deposed that he had not seen the Defendant present in the bungalow when he visited the deceased twice. He has only noticed a servant and a nurse.

82.In paragraph 25 of his affidavit of examination-in-chief he deposed that the Defendant also used to visit the racecourse on many occasions, a fact absent in the Defendant's evidence. He further deposed in the same paragraph 25 that he had no other contact with the Defendant except that he saw her during his visits to the family of the deceased in the other part of the bungalow.

83.In paragraph 26 of his evidence he deposed that in December 2008/January 2009 the Defendant approached him and requested him to give evidence. He agreed as he had attended and examined the 29 TS.78.94-TP.156.94.sxw

deceased.

84.He had no record of his visits as the deceased was not his regular patient. He had no record of the fees paid to him. He went through the records and proceedings in the above suit and refreshed his memory and agreed to give evidence.

85.His cross examination shows that he saw 25 to 30 patients a day and would be examining 500 times his patients each month. The Defendant had called him on his mobile to request him to make the affidavit when he was in Pune. She had never called him before that day. He had never met the Defendant before that. She had obtained the mobile number from the Turf Club. He had met her at the Turf Club House at Pune. She had confirmed from him whether he had visited the deceased.

86.Relating to the witness visiting the deceased he has deposed that only he and Mr. J. Aga were present. He was cross examined as to how the Defendant came to know that he had made the visits to the deceased. His cross examination shows that the Defendant was "standing on the right side of the bungalow" when he had come in. He further deposed that when he met the Defendant in Pune he tried to recollect and "the face looked familiar". He did not know how the Defendant knew his name. He has been cross examined on how he saw the Defendant and how the Defendant could have seen and known him then. He answered that there were 2 gates to the bungalow, he saw her on the right side of the bungalow which had nothing to do with the deceased's room. The Defendant was standing there. He saw her outside the bungalow, but 30 TS.78.94-TP.156.94.sxw

inside the porch. He did not know the name of the Defendant then.

87.He has been cross examined on whether he had seen or met the Defendant before his visits to the bungalow of the deceased. He had deposed that he never met the Defendant before January/February 2009. He has also deposed that he used to see her at the races. He answered that both the statements were correct. But he explained that when he met her in Pune in January/February 2009 he did not know that the person he was meeting was the Defendant.

88.The Defendant had brought some papers with her, but he could not recollect what those papers were. He went through the papers in this suit. He had glanced at the evidence of the Defendant and others. He met her thereafter. He made his affidavit on the basis of those records. It was vetted by her Advocates also.

89.He was asked when he was requested by J. Aga to visit the lawnside, the bungalow of the deceased, prior to March 1993. He deposed that that was in January 1993 which was the second Sunday and to the best of his recollection was 10th January 1993. He deposed that he recollected that date correctly because there were morning races on that date and that was a special race because it was a graded race. This he recollected though such races were held in the other years and that was because only in 1993 that race was held in the morning. When he was specifically asked how he remembered that that race was in the morning only in 1993 he deposed that that was because the horses which raced in that year and the winner in the race were very vivid in his mind.

31 TS.78.94-TP.156.94.sxw

90.He has been extensively cross examined about the health of the deceased. He was asked whether the deceased suffered from TIA. He deposed that she was likely to get TIA. No reports were shown to him. Clinical examination was done by him. He checked her blood vessels, blood pressure, cardiac condition, neurological condition etc. He checked a neurological condition with the vibrator, hammer, pins, needle, cotton wool etc. He checked her cardiac condition with a cardiogram machine which he carried with him. He felt no need to mention about these aspects in his affidavit of examination-in-chief. This was on his first visit. On his second visit nothing happened because no investigation was carried out and no tests as advised by him were done. His second visit was on the last Sunday of the month the month of February 1993. He did not inquire before his second visit whether the investigations were carried out and treatment was given, even though his second visit would have been futile if it was not done. The request to make a second visit was made a week before the second visit. On that day also there were races as were on 10th January 1993, but those were ordinary races and not graded ones.

91.He has further deposed in his cross examination that the request to make the first visit on 10th January 1993 was made by J. Aga by making a telephone call at his residence. No time was fixed for the visit. But he visited in the afternoon when J. Aga was already at the bungalow. He went to the bungalow straight from the racecourse.

92.Relating to the second visit he deposed in his cross examination that the request was made by J. Aga on Friday before the last Sunday of 32 TS.78.94-TP.156.94.sxw

February 1993 on telephone at his consulting room. He reached the bungalow at 8.30 or 9 p.m after the races. He carried the medical equipments including the Cardiogram himself in his car.

93.After the graphic descriptions of the request made by J. Aga and the visits made by the witness he was cross examined on his recollections. He did not remember who was the favourite to win the Ruia Cup in 1993 but he remembered the name of the horse. He did not remember any other event of National importance which took place on 10th January 1993. Judicial notice, which is required to be taken of the event of the Mumbai Riots in 1993 when hundreds of persons were killed, was not known and recollected by the witness who attended the races in Bombay after coming from Pune and attended to the deceased in the afternoon. This lack of recollection betrays the witness completely. That was the day on which no races, graded or ungraded, could have taken place in the serene and peaceful manner as to leave only the mark of the races upon his memory. On that day none could have travelled from Pune to Mumbai without being engulfed by the mayhem and destruction everywhere in Bombay and not far from the racecourse. It would have been impossible for him to travel from the racecourse to the residence of the deceased without trampling upon the aftermath of the riots that took place in the days preceding that Sunday and which continued on that Sunday and thereafter. The Plaintiffs have sought to produce the Newspapers cuttings showing the events at that time. However reference to those documents is hardly necessary in view of the clear memory of all of that event on that day and of which judicial notice has to be taken.

33 TS.78.94-TP.156.94.sxw

94.His further evidence is that he was with the deceased for 1½ hours, if not more. The nurse and the Aaya were with the J. Aga at that time, but none else. He deposed that he had referred a complete haemogram, liver function and renal function test, routine urine test, ultra sound examination of both carotid arteries and the brain scan. He had recorded his observations on a piece of paper which he handed over to J. Aga along with the cardiogram strip. However he only clinically examined the patient. The treatment that he prescribed was aspirin tablets and tablets for regulating her blood pressure. He also suggested her diet. The investigations would have assisted him in his clinical diagnosis of TIA which may go into a shock as TIA was a progressive condition.

95.The evidence of the Doctor D.W.3 is so vividly floral as to be wholly incredible. To show that he was a natural witness of truth he has embroidered his evidence with specifics from memory which has betrayed him completely. His evidence tries to explain not only his relationship or acquaintance with the deceased, but tries to extend it to the Defendant who has herself not deposed about her reach in the social circle of the deceased. It is not known how he came to be contacted by the Defendant as a likely witness. The Defendant has not deposed about the fact that she ever saw any Doctor of the kind visiting the deceased or how she saw the Doctor and recognized him as such as she was not even in the bungalow of the deceased. She was nowhere present when he is supposed to have clinically examined the deceased - only Mr. J. Aga and nurse and Aaya were supposed to be present. She was in a corner of the property, the corner which was not the bungalow of the deceased. She was well outside the bungalow and inside the 34 TS.78.94-TP.156.94.sxw

porch. It is not understood how 15 years later a woman who may have been standing outside the bungalow in a porch on the right hand side could have been noticed or remembered even if she was a stunning beauty. Even if the Doctor remembered the Defendant which should greatly compliment the Defendant, the Defendant could not have recognized the Doctor. There were others coming to meet the deceased such as D.W.2. The Doctor would not be recognizable outside as one such Doctor in the driveway of her bungalow as would have been recognized in a place like a hospital. He was not known to the Defendant. Admittedly, there were other Doctors who were treating the deceased. The witness never treated the deceased and never issued her death certificate and it is inconceivable that how the Defendant could have placed him as one from the races which she has not deposed about. If the Defendant had not met the Doctor at the races she would not have known his profession or qualification. She would have known him as a race-goer unless she specifically knew who he was which is not the case of the Doctor himself. She did not even know his name hence the entire evidence about how she contacted him smacks off untruthfulness. A reading of the cross examination shows how the Doctor was encircled in a web created by himself and how he, obviously with a smart repartee sought to get out of each situation. His entire evidence on his role as a Medical Practitioner has come to naught for want of any corroborative evidence as also the admitted nonacceptance of his directions. The condition that he has deposed about is also not shown to have attacked the deceased; it was a precondition stage which the Doctor supposedly diagnosed from the past history and his current clinical examination about what would happen in the future. There is nothing to show even from the evidence of the Defendant that his 35 TS.78.94-TP.156.94.sxw

prognosis came true because it is not any one's case that the deceased suffered from a stroke at any point of time. The brief hospitalization was followed by a further extension of a life which would not have been the case had she been striken by a stroke. A climax of the Doctor's untruthfulness was exposed in his choice of a whole false date for the reason for coming to Mumbai - on the date of the Mumbai Riots. It would have been a shame for the Doctor to have attended the races without the slightest affectation were the races played on that day. It must be remembered that his visits were at about the time the Plaintiff had visited the deceased. That was the time when the deceased had written her letter dated 10th March 1993. The statement that his clinical examination could not be evident from the looks of the patient also betrays his diagnosis. The deceased would have looked normal to other persons, but looked abnormal to him. Yet her condition did not claim the deceased. Though he remembered what transpired 15 years before, he did not recollect whether the Defendant had brought along with her some papers which was at a meeting a few months before his cross examination. His admission of going through the papers in this suit which the defendant had brought to him to refresh his memory and his evidence that he recollected the deceased from the papers in this suit which itself commenced after the death of the deceased would show how, he could have been misguided and the state in which he deposed. The papers in this suit or even previous litigations have nothing to do with the Doctor or the health of the deceased. That evidence of the Doctor is wholly unreliable and must be completely rejected. At least the evidence of the other witnesses of the Defendant would show some truth in the usual condition of a person of the age of the deceased though it may fail to show the case made out by the 36 TS.78.94-TP.156.94.sxw

Defendant with regard to the unsoundness of her mind such as to disable her from executing the Will.

96.In the case of Mt. Gomtibai Vs. Kanchhedilal AIR (36) 1949 Privy Council 272 in a similar case the evidence of a similar Doctor was disregarded. In that case the Doctor was not the family doctor of the deceased. He visited the deceased 3 years before his death. He was not seen to have treated the deceased though he deposed that he had prescribed for him. In this case the evidence of D.W.3, the Doctor is much the same.

97.Drawing on the case of Judah Vs. Isolyne Shrojbashini Bose AIR 1945 P.C. 174 it was accepted that the fact that the Testator was unwell when he executed the will was a long way from saying that he had no testamentary capacity. The Testator does not have to be found in perfect state of health to have his will declared valid. It is sufficient to prove that he was able to outline the manner in which his estate was to be disposed of.

In that case the sodium level of the Testator was below normal. 3 months after the execution of the Will the Testator had been hospitalized for some time. The Testator was 82 years of age. He was operated for an enlarged prostate, suffered from diabetes, anemesia and needed blood transfusion. He was a case of hyponatremia causing brain swelling and leading to lethargy, confusion, stupors or coma.

It was observed that post discharge from the hospital there was no evidence that his mental state was bad. The execution prior to his hospitalization was held not to show that Testator suffered from any 37 TS.78.94-TP.156.94.sxw

mental infirmity.

98.In the case of Desh Raj Gupta Vs. State 2010 (119) D.R.J. 138 DB the question of the soundness of mind of the deceased came up for consideration. In that case in which also undue influence was alleged, it was observed in paragraph 32 thus:

"As the wills are too frequently made by the sick and dying, the degree of understanding and memory which the law requires is such as may be reasonably expected from persons in that condition. Therefore, it is wrong to suppose that those qualities of mind should be possessed by the testator in the highest degree, position or to the same extent as before the illness in order to enable him to validly make his will".

99.The Defendant has consequently not proved that the deceased was not a sound and disposing state of mind at the time of the execution of the Will. Issue No.3 is, therefore, answered in the Negative.

100.Issue No.4

: The Defendant claims that the Will has been obtained by fraud and undue influence practiced by the Plaintiff.

101.The Plaintiff was the grandson of the deceased. He was admittedly residing away from the deceased in London, U.K for many years. It is the claim of the Defendant that it was for about 35 years. It is an admitted position by the Plaintiff that it was for more than a decade. This is shown in a letter of the Plaintiff himself, which shall be considered presently. We are not concerned with the actual length of the stay of the Plaintiff abroad. That alone does not matter. The case made out by the Defendant is that he had no relations with the deceased and cared little for her so that she could never have 38 TS.78.94-TP.156.94.sxw

bequeathed any part of her property to the Plaintiff.

102.The deceased had 2 sons, both of them had predeceased her. She had one grandson and one granddaughter through one of the sons. She had no grand children through the other. She, therefore, had as her heirs and legal representatives only the Plaintiff and his step sister on the one hand and the Defendant who was the wife of the predeceased son on the other.

103.There was no cordiality in the relations between the deceased and the Defendant. It is of common knowledge that even in the best of the relationships as would be expected of a mother-in-law and a daughter- in-law, it is rarely that the mother-in-law would put her daughter-in-law on par with her grandchildren. In the relationship between the deceased and the Defendant there was much to be desired.

104.There was a litigation between the two. The Defendant herself sued the deceased initially in 1983. It related to the main property of the deceased, the possession of which the Defendant, perhaps justifiably, claimed to protect. It extended to a further litigation by the deceased against the Defendant in 1983 itself. The litigation was contested and resulted into a judgment in 1990 from which an appeal came to be preferred, which is pending. At least until 1990 the relations were actively uncordial. The Defendant has tried to suggest that cordiality sprang into the relations after the death of her husband. Her own suit filed after the death of her husband shows that it was not so. She claims to have been taking care of her. She was a nurse by profession, but she has 39 TS.78.94-TP.156.94.sxw

not nursed the deceased. Of course she was not required to; she was the daughter-in-law of the deceased. Even though when the deceased was served by other nurses and aayas the Defendant admittedly was not around. She had seen the deceased pass and repass. She at best met the deceased in the afternoon and at night in the hospital when the relatives were not around. This evidence itself would show and suggest that the deceased had not wholly accepted her as her daughter-in-law. The Defendant was not even a contender to be a beneficiary of her estate. The Defendant was not even seen in the main bungalow by both her own witnesses. She was nowhere around the deceased when both of them visited the deceased. She was in the garden or in the porch on the right side of the bungalow where she was spotted. Though she claims that her relations had improved with her mother-in- law after her husband's death, the litigations show otherwise. In fact after her husband's death in 1983 she sued the deceased and the deceased later sued her obtaining in an restraint order followed by a decree which came to be challenged. Her own evidence shows that after her husband's demise when his brother and his family (the Plaintiff's father and his family) visited the deceased "she changed overnight". Hence whatever may have been the cordial relations prior to the death of her son they soured after his death.

105.It is in this scenario that the undue influence or fraud practiced by the only beneficiary of the deceased who was none other than her grandson has to be viewed.

106.Under Section 61 of the Indian Succession Act the case of such undue influence or challenge has to be proved by the party who alleges it. A 40 TS.78.94-TP.156.94.sxw

situation closest to the illustration VII of Section 61 would apply in this case. The relevant part of Section 61 runs thus:

"61. Will obtained by fraud, coercion or importunity - A Will or any part of a Will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void.

(vii) A, being in such a state of health as to be capable of exercising his own judgment and volition, B uses urgent intercession and persuasion with him to induce him to make a Will of a certain purport. A, in consequence of the intercession and persuasion, but in the free exercise of his judgment and volition makes his Will in the manner recommended by B. The Will is not rendered invalid by the intercession and persuasion of B."

107.The only way in which the Defendant has sought to show an undue influence practiced by the Plaintiff is by the letter of the Plaintiff written to an Attorney of this Court who later refused to represent the Plaintiff. That letter came to be relied upon by another Attorney of this Court in his affidavit made in a Contempt Petition which is being separately prosecuted. The Attorney has shown the contemptuous attitude of the Plaintiff inter alia by annexing the Plaintiff's letter addressed to another Attorney in his affidavit. A copy of the affidavit of the Attorney came to be served upon the Defendant in the Contempt proceedings. Consequently, a copy of the letter of the Plaintiff annexed thereto was made known to the Defendant. The Defendant relied upon the copy served upon her. Because it was a copy produced by the Defendant from another proceedings, the Counsel on behalf of the Plaintiff contends that it cannot be relied upon by the Defendant and as it would be inadmissible as a document of the Defendant in this Suit. 41 TS.78.94-TP.156.94.sxw

108.The Plaintiff has chosen not to examine himself.

109.The Defendant took out proceedings to examine the Plaintiff or to cross examine him after he examined himself even after he examined the other witness who attested the Will. The application was vehemently opposed on behalf of the Plaintiff. Of course, it is for the Plaintiff to decide whether or not to examine himself. He must bear the consequences of his decision. In this case the Plaintiff chose to examine only the attesting witness. The attesting witness proved the execution of the attestation of the Will of the deceased. The Plaintiff has to further remove the suspicious circumstances, some of which have been enumerated above. The grossest suspicious circumstance would be the Plaintiff not examining himself to be cross examined about the letter which is stated to have been written to an Attorney of this Court which has been produced on record by another Attorney of this Court. Even after the arguments were heard and the Court considered the entire evidence, the Court gave an opportunity to the Plaintiff to examine himself, if he wished. The Plaintiff has refused to examine himself.

110. The Defendant has been cross examined upon how she relied upon and produced the letter. The Defendant has explained the circumstances in which she learnt about the letter and how she has produced it. The fact of the letter as well as the Defendant's knowledge about it has been amply shown. The letter, therefore, becomes admissible in evidence, much as the letter dated 10th March 1993 of the deceased addressed to the Plaintiff which became admissible upon the Defendant identifying her handwriting thereon. The letter of the Plaintiff addressed to the Attorney of this Court which is undated but 42 TS.78.94-TP.156.94.sxw

stated to have been dated 13th September 1993 and annexed to the affidavit of the Attorney of this Court is required to be marked as an exhibit upon it being admissible in evidence pursuant to the Defendant being questioned thereon. The Defendant produced the letter dated 13th September 1993 in evidence when it was marked P(X-1). The Defendant explained the custody of the letter upon questions being put to her in her cross-examination. She explained how the handwritten date on the letter came to be made. She came to be asked how she came to know that the letter was annexed to the affidavit of the Attorney. She accepted that it was received by her Lawyer. She also accepted that the letter annexed to the affidavit did not bear any date, but the date was handwritten. It was not handwritten by her. She did not know in whose handwriting it was. The Defendant has been cross examined upon the letter and has given honest answers about its custody. The letter is required to be read in evidence as per the mandate of the Full Bench of this Court considering the admissibility of documents in the case of Hemendra Rasiklal Ghia Vs. Subodh Mody 2008(6) Mh. L.J. 886. In paragraph 75 of the judgment at page 909 it is held that Once the document is used in cross-examination, then the document gets proved and can be read in evidence.

111.The said letter has been relied upon by the Defendant for more than one reason. All but one are extraneous to her case of undue influence and fraud practiced upon the deceased. To the extent required in this suit, the letter would show only certain aspects: The Plaintiff did come to Mumbai for 14 years after he left in 1979. The deceased had "disinherited" him because of his marriage. The deceased had warmer feelings for the Plaintiff in February/March 1993 when she expressed 43 TS.78.94-TP.156.94.sxw

her pride in him. The Plaintiff "asked for" his ancestors' academic and other related papers. He also "asked for sufficient land to stay at lawnside in a bungalow like lawnside". He emphasised that he wanted a particular kind of bungalow which was of his ancestors in Hyderabad. The deceased "agreed to both eagerly" saying that that was precisely what she herself had wished. The letter also shows that though the Plaintiff visited her at her invitation it was during the worst of his health - he had to be driven in an ambulance from the Airport to the residence of the deceased. The letter further shows that the deceased liked the idea of the Plaintiff "of a bungalow". The Plaintiff kept phone contact with the deceased. The deceased had told him that she had left for him "all he had asked for and much more". The Plaintiff was grateful. The Deceased also told the Plaintiff about the fact that she has left everything to the Plaintiff because his sister Ferina had defied her and married the man of her choice. The Plaintiff had told her that "apart from the two requests" it was her money and her wish would prevail. The letter further shows certain differences in what the deceased was expected to have made in the Will and what ultimately came to be her last Will and Testament for the appointment of the Executors as well as the choice of the attesting witnesses and the role of her confidante J. Aga.

112.It is upon this letter that the case of the Defendant of undue influence would be required to be tested. It is for this reason that the Plaintiff was required to be examined. The Plaintiff has rejected the opportunity given by the Court to explain his letter, if that was required.

113.It may be mentioned that the Court would be interested in the whole 44 TS.78.94-TP.156.94.sxw

truth and references made in a letter brought out in the cross examination of the Defendant would enjoin the Court to consider it. Of course, the Defendant, perhaps upon misreading the slant of the letter for the purpose of the suit, contended that there was a conspiracy between the Plaintiff and J. Aga to deal with the estate. Whatever the Plaintiff may have done with J. Aga or the differences they may have after the death of the deceased and consequent upon his rights under the will have little bearing upon the execution of the will itself. A good part of the cross examination which deals with the conspiracy aspect would be of secondary importance. Whether or not the deceased was unduly influenced by the Plaintiff when he visited her after many years in the state of health that he was requesting her for what he would expect from her estate is to be seen analysed and appreciated for whether he unduly influenced her or fraudulently caused the will to be executed.

114.The case of fraud is pitched too high for the Defendant to reach. No particulars of the fraud are given. The onus which would lie upon a party alleging fraud. It is far from being discharged.

115.The case of undue influence has been pressed. It would have to be seen whether admittedly what the Plaintiff did, by requesting and even prevailing over the deceased to leave for him in her estate, would tantamount to undue influence.

116.Halsbury's Laws of England Fourth Edition, Vol. 17, para 911 at page 479 shows what constitutes undue influence thus: "To constitute undue influence there must be coercion: pressure of whatever character, whether acting on the fears or the hopes, if so 45 TS.78.94-TP.156.94.sxw

exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made.

A person may exercise an unbounded influence over another, which may be a very bad influence, without its being undue influence in the legal sense of the word. Undue influence may be found against a person who had died before the execution of the will on the ground that the deceased was under that person's complete control until his death, and thereby rendered incapable of making a fresh will free from such undue influence."

The judgments that are referred to in the above passage shall be considered presently.

117.Williams on Wills Ninth Edition, Volume 1, Chapter V , part III

.

III. UNDUE INFLUENCE AND FRAUD

"Undue influence means coercion to make a will in particular terms. The principle has thus been stated by Sir. J.P . Wilde in Hall v. Hall. 'Persuation is not unlawful, but pressure of whatever character if so exerted as to overpower the volition without convincing the judgment of the testator, will constitute undue influence, though no force is either used or threatened'.

The proof of motive and opportunity for the exercise of such influence is required but the existence of such coupled with the fact that the person who has such motive and opportunity has benefited by the will to the exclusion of others is not sufficient proof of undue influence. There must be positive proof of coercion overpowering the volition of the testator."

The aforesaid case is cited by the learned Author shall be considered presently.

118.The English cases reflecting this common law doctrine of the ambit of undue influence which can be practiced upon a testator start at least from the last half of the 19th Century which have been consistently 46 TS.78.94-TP.156.94.sxw

discussed and followed in English as well as Indian cases until the last year.

119.These cases are required to be chronologically considered to understand how this aspect has been accepted by the Courts specially in the case of the close relatives of the deceased who would otherwise bare the affection of the deceased or who, having spent a good period of their lives with the deceased, could request the deceased in various forms of how his/her property may be bequeathed leading the deceased to follow his or her own course of action for making the ultimate bequest without being controlled by them. Upon these series of cases being seen by the Court enunciating the doctrine of unfair inference upon a testator, both Counsel were shown the cases and their comments elicitated.

120.In the case of Boyse Vs. Rossborough [1856] 6 HLC 2 @ 49 it is held:

"In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis. Undue influence, in order to render a will void, must be an inference which can justifiably be described by a person looking at the matter judicially to have caused the execution of a paper pretending to express a testator's mind, but which really does not express his mind, but something else which he did not really mean.

and then in an almost poetic flourish Lord Cranworth analysed: As to the presence of capacity to make a will: "On the first head the difficulty to be grappled which arises from the circumstances that the question is almost always one of degree. There is no difficulty with the case of a raving mad man or drivelling idiot in saying that he is a person incapable of disposing of property; but between such 47 TS.78.94-TP.156.94.sxw

an extreme case and that of a man of perfectly sound and vigorous understanding there is every shade of intellect, every degree of mental capacity. There is no possibility of mistaking midnight for noon but at what precise moment twilight becomes darkness is hard to determine."

121.In the case of Lovett Vs. Lovett, Clerk [1857] Eng.R 28; (1857) 1 F & F 581; (1857) 175 ER 861 it is held:

"Undue influence, to defeat, a will, made by a person otherwise of testamentary capacity, must not be such as arises from the influence of gratitude, affection or esteem, but it must be the control of another over that of the testator, whose faculties have been so impaired as to submit to that control, so that he has ceased to be a free agent, and has quite succumbed to the power of that controlling will."

122.In the case of Hall Vs. Hall [1868 LR 1 P & D 481, which has been consistently followed, it is held:

"Even a reprehensible placing of pressure on a testator will not always be undue influence so as to avoid the will: "To make a good will a man must be a free agent. But all influences are not unlawful. Persuasion, appeals to the affection or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like - these are all legitimate, and may be fairly pressed on a testator. On the other hand, pressure of whatever character, whether acting or the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping distress of mind or social discomfort, these, if carried to a degree in which the freeplay of the testator's judgment, discretion or wishes is overborne will constitute undue influence, though no force is either used or threatened. and thus Sir Wilde concludes:

In a word a testator may be led but not driven and his will must be the off-spring of his own volition and not the record of someone else's" .

48 TS.78.94-TP.156.94.sxw

123.In the case of Bainbrigge Vs. Browne (1881) 18 ChD 188 it is again held:

"Though there was no direct evidence of undue pressure by the father, there were circumstances 'from which the court will infer pressure and undue influence'. None of the children were entirely emancipated from their father's control, and none conversant with business. These circumstances cast the burden of proof upon the father who had made no attempt to discharge that burden, and did not appear. The children's claim succeeded."

This case considered undue influence upon children and was not the case of a will.

Hence the reliance upon the position of a dominating party to a contract which would be at the time of the execution of the contract itself, as enunciated in Halsbury's Laws of India Vol-II page 276 relating to contracts relied upon by Counsel on behalf of the Defendant, would be distinct from the kind and type of undue influence required for unduly influencing a testator to make a bequest he did not wish.

124.In the case of Wingrove Vs. Wingrove [1885] 11 PD 81 cited again in Martha Maria Potter Vs. Samuel Edward Potter it has been held:

"To establish the presence of undue influence it is not enough to establish that a person has the power to overbear the will of the testator. It must be shown that the will was a result of the exercise of that power: "To be undue influence in the eyes of the law there must be - to sum it up in a word - coercion. It must not be a case in which a person has been induced by means such as I have suggested to you to come to a conclusion that he or she make a will in a particular person's favour, because if the testator has only been persuaded or induced by considerations which you may condemn, really and truly to intend to give his property to another, though you may disapprove of the act, yet it is strictly legitimate in the sense of its being legal. It is only when the will of the person who becomes a testator is coerced in to doing that which he or she does not desire to do that it is undue influence. 49 TS.78.94-TP.156.94.sxw

and then Sir Hannen illustrates the myriad cases thus: The coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble, that a very little pressure will be sufficient to bring about the desired result, and it may even be that the mere talking to him at that stage of illness and pressing something upon him may so fatigue the brain, that the sick person may be induced, for quiteness' sake, to do anything. This would equally be coercion, though not actual violence. These illustrations will sufficiently bring home to your minds that even very immoral considerations either on the part of the testator, or of someone else offering them, do not amount to undue influence unless the testator is in such condition, that if he could speak his wishes to the last, he would say 'this is not my wish, but I must do it'. There remains another general observation that I must make and it is this, that it is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It is necessary to prove that in the particular case that power was exercised, and that it was by means of the exercise of that power, that the will such as it is, has been produced."

It is only when the Will of a person who becomes a testator is coerced into doing that which he does not desire to do that it is undue influence.

Sir J. Hannen excluded from the category of undue influence, by way of example, the cases of a young men who succumbs to the fascination of a woman sufficiently to make a Will in her favour, and leave his relations nothing; and of a man who leaves his property to a man who has encouraged him in evil courses.

125.In the case of Allcard Vs. Skinner (1887) 36 Ch D 145 CA where a wife has entered into a gratuitous transaction with her husband, the burden was held to be on the husband as donee to support the gift if it is so large as not to be reasonably accounted for on the ground of the relationship:

Per Cotton LJ : "the court interferes, not on the ground that any wrongful act has in fact been committed by the donee, but on the ground of public policy, and to prevent the relations which exist between the parties and the influence arising therefrom being abused. Per Bowen LJ The gifts should be set aside "unless it is shewn that the 50 TS.78.94-TP.156.94.sxw

donor, at the time of making the gift, was allowed full and free opportunity for counsel and advice outside - the means of considering his or her worldly position and exercising an independent will about it." and "This is not a limitation placed on the action of the donor; it is a fetter placed upon the conscience of the recipient of the gift, and one which arises out of public policy and fair play."

Per Lindley LJ "As no Court has ever attempted to define fraud, so no Court has ever attempted to define undue influence, which includes one of its many varieties." "There are the cases in which there has been some unfair and improper conduct, some coercion from outside, some over-reaching, some form of cheating, and generally, though not always, some personal advantage obtained by a donee placed in some close and confidential relation to the donor."

"In this class of cases it has been considered necessary to show 'that the donor had independent advice, and was removed from the influence of the donee when the gift to him was made".

"The [the courts of Equity] have not shrunk from setting aside gifts made to persons in a position to exercise undue influence over the donors, although there has been no proof of the actual exercise of such influence; and the courts have done this on the avowed ground of the necessity of going this length in order to protect persons from the exercise of such influence under circumstances which render proof of it impossible. The courts have required proof of its non-exercise, and failing that proof, have set aside gifts otherwise unimpeachable." The mere existence of the influence is not enough: 'But if the gift is so large as not to be reasonably accounted for on the ground of friendship, relationship, charity, or other ordinary motives on which ordinary men act, the burden is upon the donee to support the gift."

This is not the case of a will, but the analogy applied to gifted inter vivos.

126.Hence in the case of Potter (supra)(2003) N.I. Fam. 2 it was held: "It is necessary in this case for the Plaintiff to prove that Samuel Potter overbore the deceased so as to induce him to make the will in February 1996 when he would not otherwise have done so. It is not enough to prove merely that Samuel Potter with or without his wife may have made appeals to the testator's affection and to have sought to persuade him to reward him by making generous provision for him in his will. The distinction between legitimate persuasion of this nature and illegitimate coercion - or undue 51 TS.78.94-TP.156.94.sxw

influence - is illustrated by Sir. J.P Wilde in

Hall Vs. Hall (1868) 1

P & D 481.

The wholesale overbearing of a testator's will by coercion is an inherently more improbable event than, for example, the bringing to bear on the testator of legitimate persuasion of the type referred to in the Hall case, and I bear that in mind in assessing whether, on the evidence, the plaintiff has discharged the burden of proving coercion.

The Court further noted how this analogy was considered by Lord Mac Nauhten in the case of Baudains Vs. Richardson (1906) AC 169 that : "It is not sufficient to establish that a person has the power unduly to overbear the will of the testator. It must be shown that in the particular case the power was exercised, and that it was by means of the exercise of that power that the will was obtained."

In the facts of that case, the Court observed:

"The evidence has satisfied me that the deceased was perfectly able to conduct his own affairs and was capable of resisting any undue influence if it had been brought to bear upon him.

I repeat that in this case I have found no evidence of weak mental capacity or a weak state of health at the time this will was made. The deceased had the benefit of independent advice from Mr. Mc.Roberts, solicitor".

and hence upheld the Will.

127.The aforesaid cases of the English Courts have been oft cited and repeated in by the Privy Council and in Indian Courts relating to the enunciation of what constitutes the otherwise undefinable term - "Undue Influence".

128.In the case of Craig Vs. Lamoureux AIR 1919 P. C. 132 it was again held that:

"In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are 52 TS.78.94-TP.156.94.sxw

consistent with the hypothesis of its having been obtained by undue influence. It must be shown that they are inconsistent with a contrary hypothesis".

That was the case where the husband of the deceased framed the will of the wife at her instance whilst she was almost on her death bed. The husband derived the benefits under the will to the exclusion of the wife's sister. The husband and wife had entered into an agreement during her life time about what would happen to the survivor of them. The wife checked about arrangement of her affairs with her husband. She confirmed that they had at once agreed when she was in health that her property would go to the survivor. The husband then framed the wife's will. The wife was asleep after an injection of morphine. The Will was read to her. She suggested an addition. She was too feeble to sign. She put her mark on the Will in the form of a cross. The Will was executed with due solemnities. It was observed that though the persons framing the Will obtained a bounty it did not matter. Once the Will was duly executed the burden was on the other party who alleged undue influence to prove that. For proof of such undue influence the principle laid down in the case of Boyse (supra) had to be followed, which was recited in that judgment.

129.In the later Privy Council Case of Mt. Gomtibai Vs. Kanchhedilal AIR (36) 1949 P.C 272 the question of undue influence practiced by the father of the Testator as against the wife of the Testator was considered. The parties lived in a joint family. The Testator made provisions for the maintenance and residence of his wife. The Testator was adopted by the brother of his father. He has no issues. He left a bulk of his property to his father and his father's relatives. The wife was not told 53 TS.78.94-TP.156.94.sxw

anything about the Will.

In paragraph 16 of the judgment the onus which lay upon the father of the Testator was seen to be discharged. Once that was done the burden shifted on the wife to discharge the onus of the undue influence that she alleged. It was observed that the Testator was a free agent possessed of sufficient mental capacity to grasp the full significance of the document to which he was putting his signature. He was not incompetent to understand the contents of the will he was executing. It was observed that the evidence showed that the father and brother had free access to the Testator during the time the Will was made. Evidence also showed that the Testator "looked" at his father when he executed his Will and that both the father and the son later "looked at each other". It was held that that did not matter since these aspects do not show that the testator did not possess mental powers to grasp what he did. Even if he behaved submissively in front of his father which was not "an uncommon phenomenon in India", in that case the dominant father and the brother of the Testator with his children lived with the Testator. The father may have played a considerable influence over the Testator. He even wanted to make provision for his brothers. Yet it was not shown that that was not agreeable to the Testator and therefore, it did not amount to undue influence such as to make him to execute the Will which he did not want to execute.

130.In the case of Naresh Charan Das Gupta Vs. Paresh Charan Das Gupta AIR 1955 SC 363 the case of the affection of a Testator towards one of his two sons who always lived with him whilst the other who had left him were considered upon an allegation of undue influence 54 TS.78.94-TP.156.94.sxw

practiced by the former upon the Testator. The Will recited how the younger son behaved badly with him, married a girl of another cast due to which the Testator disinherited him. Of course after the marriage there was some cordial relations between the father and the son. Yet the father bequeathed his properties to the other son alone. It was observed that there was nothing to suggest that he wanted the younger son to inherit his estate merely because he remained on cordial terms with him. It was observed that the disinheritance of one son "by itself" cannot lead to any inference of undue influence on the part of the Testator. It was shown that the elder son had objected the younger son to live with him and the Testator on the ground that there would be social trouble regarding his daughter's marriage and the Testator had continued to live with the son to whom he bequeathed his estate entirely. The Court was "unable to see any undue influence in this". Following Hall Vs. Hall (Supra), the illustration VII of Section 61 was considered. The free exercise of the judgment of the Testator despite the elder son of the deceased using intercession and persuasion upon the Testator, the Will was held not to have been rendered invalid. As the Testator was in full possession of his mental faculties and the son had taken no part in the preparation, execution or registration of the holograph Will.

131.In the case of Arnold Dominic Rodricks Vs. Ms. Sunder Vinayak Navalkar AIR 1956 Bombay 404 DB referred to by Counsel on behalf of the Plaintiff, Chief Justice Chagla, as he then was, held that undue influence ought to be proved by the person who alleged it. The Court ought to consider the state of her health at the time of the execution of the Will and cannot presume that she was liable to be influenced by the 55 TS.78.94-TP.156.94.sxw

beneficiary daughter to who lived with her. In that case the mother lived with the daughter whom she bequeathed her estate after she having had quarrels with her son whom she disinherited. The reference in the Will that her son made her life a misery at her age and shattered her health shows exercise of her free mind. The health that was shattered was not mentally, but physically, the Doctor having deposed about her condition. Undue influence was ruled out.

132.As against this case in the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma AIR 1959 SC 443(V 46 C 56) Mysore the onus probendi was considered. The Testator who was old, feeble and debilitated was shown to have executed a long Will which was dictated to the scribe by the beneficiary himself. He took a prominent part in its execution. He had to remove the suspicious circumstance that it was not what the deceased had herself willed by cogent and satisfactory evidence. The deceased was almost in her death bed at Mandya. The beneficiary got a draft prepared at Mysore. He went to Mandya by train and the Will was written later in the day. The beneficiary himself had a draft in his hand from which he dictated to the scribe. This was not in the presence of the deceased. After the Will was written the scribe took it in the adjoining room to the deceased. The Will was read out to her and signed by her in 5 places. She also executed a power of attorney in favour of the same beneficiary. The will had elaborate arguments upon her entitlement to make the Will and the obstacles and obstructions, if they were to be caused by others. It also mentioned about certain hypothecation bonds and other properties. The scribe deposed that the deceased wanted to execute a Will and said that she would agree to what the beneficiary would get written. Under those 56 TS.78.94-TP.156.94.sxw

circumstances when the beneficiary himself took an undue interest and an important part in the execution of the Will itself, the Will was said to have been fraught with suspicious circumstances as to be rendered invalid. Those circumstances could be seen to be wholly distinguishable from the persuasion, request, desire, or even influence exercised by the ultimate beneficiary to a testator or deceased well before the execution of the Will leaving the Testator or deceased free to reflect upon it or either to execute or to change his or her mind in the ultimate execution in which the persuader would not play a part.

133.A similar analogy is followed in the case of Lakshmi Amma Vs. Talengale Narayana Bhatta A 1970 SC 1367 relied upon by Counsel of the Defendant.

134.In the case Ajit Chandra Majumdar Vs. Akhil Chandra Majumdar AIR 1960 Calcutta 551(V 47 C 150) also upon considering the case of Hall Vs.Hall as also the Supreme Court Case of Naresh Charan Das (Supra) it was observed in paragraph 32 thus:

"32. It is elementary that law does not regard or characterise every influence which is brought to bear upon the testator as undue. It is open to a person to plead his case before the testator and to persuade him to make a disposition in his favour, and if the testator retains his mental capacity, and there is no element of fraud or coercion, the Will cannot be attacked on the ground of undue influence. Not all importunities are undue influence."

In that case it was observed that the Testator had plenty of time and years to inform the other sons including the Caveator of the undue influence practiced upon him since he lived in the same house with them but the Testator did not do so. The Will remained with the 57 TS.78.94-TP.156.94.sxw

Testator from 1939 to 1941 when it was handed over to the Propounder of the Will. It was observed that the retention of the Will for 2 years after its execution also showed that there was no undue influence practiced upon him. Similarly non-revocation of the will showed absence of undue influence. In that case the Will was executed at Puri far away from the presence of propounder and hence it was held that there was no kind of undue influence which could have been practiced by the propounder and therefore, the burden of proving undue influence was not discharged. Relying upon the case of Gomtibai (supra) which had similar facts, it was agreed that the place, time and manner of execution and the subsequent facts of the Testator outliving the Will, in that case by 16 years, and making additions in the draft regarding later events and happenings were so compelling as to conclude that it could not have been obtained by exercise of the power of the propounder even after he had the power of influence. Discussing the case of H. Venkatachala (supra) as also Naresh Charan Das (supra), which are two different scenarioes, the exercise of undue influence was ruled out.

135.The analogy of this case has been followed in the case of Kartar Kaur Vs. Milkho & Ors. (1996) 11 SCC 626 and Pantakota Satyanarayana Vs. Pentakota Seetharatnam (2005) 8 SCC 67 relied upon by the Counsel for the Plaintiff.

136.In the case of Kamala Menon Cochran Vs. K.P Ramachandra .

Menon 2009 Manupatra Tamilnadu 2102 decided on 18.08.2009, to which my attention has been drawn by Counsel on behalf of the Plaintiff, it has been held that the conscience of the Court is to be 58 TS.78.94-TP.156.94.sxw

satisfied. The evidence of four independent witnesses were considered in case of a registered Will which was like another Will of the deceased. The deceased lived with the Plaintiff, who propounded the Will, under his care and custody. The allegation was that the Plaintiff had tremendous influence on his mother, the deceased whilst the Caveatrix resided away from her mother. It was held that there was no undue influence in the absence of any clinching evidence to show that the Plaintiff exercised coercion or undue influence by threatening the mother or otherwise. It was observed that there was no iota of evidence to reach an inference that the Plaintiff had exerted undue influence and coercion on the deceased and the evasive evidence of the Caveatrix was not supported or corroborated by any other evidence.

137.In the latest case of Desh Raj Gupta Vs. State 2010 (119) D.R.J. 138 DB once again the Privy Council case of Gomtibai (Supra) as also the Supreme Court cases of Naresh Charan Das (supra) referring to Hall Vs. Hall (supra) came to be followed. Making an analogy again with the case of H. Venkatachala (supra) it was held that Will of the Testator cannot be stated to have been prepared not at the instance of the Testator when the Testator had already prepared the draft Will ruling out the case of undue influence.

138.In this case the Plaintiff undoubtedly persuaded the deceased to give him at least a part of her estate. The schedule annexed to the Petition shows one immovable property which was the bungalow of the deceased which was rather desired by the Plaintiff. A large part of the estate of the deceased contains shares in limited companies with which the Plaintiff had nothing to do. The Plaintiff was more interested in the 59 TS.78.94-TP.156.94.sxw

awards and the citations of his ancestors. The Plaintiff did meet the deceased after long years in the twilight of her life and obviously when the Plaintiff must have felt that he should not further delay visiting her. The visit is not entirely selfless. The Plaintiff came in the most delicate condition when he had to be lifted in an ambulance from Airport to her residence. The Plaintiff lived with her for a few days. He did win over her affection which was earlier breached and lost. The deceased however had no one else closer to her heart from amongst her descedents. The Defendant was hardly a contender. The step sister of the Plaintiff went much the same way as the Plaintiff and had not returned to the deceased. The deceased had a sizable estate. Of course, she could have given all to any charity, but it is not for this Court to either propose, conjecture, or preach the best mode of disposal of her estate. In perhaps a week moment the Plaintiff put his pen to paper not in instructing his advocate about any action that he desired to take, but in setting out the history. The Plaintiff also showed how the Will was actually altered by the deceased in appointment of her Executors and the choice of her attesting witnesses. The Plaintiff also showed the contact that he kept with the deceased, perhaps knowing that it would be for a short period. Yet it is clear that the Plaintiff left the deceased before she made her Will. He is stated to have left India on 3 rd March 1993. The deceased wrote him a letter on 10th March 1993. The deceased knew the Solicitor whose assistant attested her Will. She also knew that Senior Counsel who attested her Will. She had the benefit of the best legal acumen to draft her Will. Her Will has been drafted by the Attorneys' Firm of M/s. Kanga & Company whose docket it bears. The Plaintiff has, as aforesaid, not explained how the Will was got by him from Kanga & Company. However Kanga & Company were her 60 TS.78.94-TP.156.94.sxw

Attorneys in the litigation the deceased had with the Defendant also. They were, therefore, her Attorneys by her own choice. The Plaintiff has had no role to play in the actual drafting or the execution of the Will. The letter dated 10th March 1993 written by the deceased to the Plaintiff shows that the Plaintiff was far away in London since a month prior to the actual execution of the Will. The deceased had a long time to ponder over the Plaintiff's persuasion even if she had a better choice of a beneficiary. The attesting witnesses to her Will, who are beyond reproach and one of whom has stood the test of cross examination, shows the exercise by the deceased in the disposal of her property after her demise as she had wished. The condition of the deceased is also, as considered above, fit to analyse the disposal of her estate by her at the age that she was, not known to at least one of her attesting witnesses. The persuasion by the Plaintiff, at least as penned by himself in the aforesaid letter to his then Attorney is not verbatim reproduced in the Will. Of course, the Plaintiff has been a bigger beneficiary. The influence exercised by the Plaintiff has not been undue; it has not been such as to deprive the deceased of her own Will. It has been only such as would have propelled the Testarix into thinking and even rethinking her testament. The deceased did what she ultimately thought fit.

139.The Defendant has, therefore, failed to prove that undue influence was practiced upon the deceased by the Plaintiff. Hence issue No.4 is answered in the negative.

140. Issue Nos.5 & 6: The suit is decreed.

141.The Prothonotary and Senior Master of this Court shall issue probate 61 TS.78.94-TP.156.94.sxw

of the Will of the deceased Lady Jena Duggan dated 4th April 1993.

142.Drawn up decree is dispensed with.

(SMT. ROSHAN DALVI, J.)

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