The next circumstance is no doctor was examined to show the mental ability to mark the fitness of the deceased. No specific provision was shown to hold that the doctor should have certified about the mental ability to execute the Will hence the argument is required to be rejected. It is required to be mentioned that Counsel for the defendants could not point out any material to show that the deceased did not possess necessary mental ability to mark the fitness. It is true that the deceased was suffering from paralysis and he was bedridden. That in my view, cannot be considered as something which would make the execution of the Will impossible. The evidence given by Jayant PW-2 and Kumud PW-1 as regards what transpired at the time of execution of the Will would clearly go to show that the deceased was in a proper frame of mind at the time of execution of the Will. It is also required to be noted that the deceased died in the year September, 1990 that is the deceased survived for a period of 2 years after the Will came to be executed. Hence, the stand of the defendants that the deceased did not possess proper frame of mind cannot be accepted.
27. It was argued that the deceased was not well and he was bedridden. Merely because the deceased ( 27 ) was bedridden, it cannot be said that he was not in sound state of mind. The evidence of Padmakar DW-1 goes to show that he is challenging the legality of Will. If the defendants wanted to contend that the deceased was not mentally sound to execute the Will, certainly it was open for the defendants to examine the doctor who was attending to the deceased. No such effort was made on behalf of the defendants.
Bombay High Court
Mrs. Kumud Subhash Jadahv vs B.N.Thimmajamma And Ors. on 25 March, 2009
Bench: R.Y. Ganoo
1. One Mr. Subhash Hiraji Jadhav and Mrs. Kumud Subhash Jadhav filed petition No.603 of 1990 for Letters of Administration with a Will annexed in regard to the Will purported to have been executed by Hiroo alias Hiraji Laxman Jadhav on 3rd December, 1988. After the filing of the petition, citations were served upon the heirs of said Hiroo alias Hiraji Laxman Jadhav ig (hereinafter referred to as the "said deceased"). In all four persons i.e. Padmakar, present defendant, Smt.Indira, Mrs.Sumitra and Mrs.Meghana filled caveat jointly. Present defendant No.1 Mr. Padmakar filed affidavit in support of the caveat for himself and on behalf of other caveators. It is in these circumstances, office while converting the testamentary petition in the suit showed the name of Padmakar H. Jadhav and others as the defendants. Hence, to the present suit Padmakar Hiraji Jadhav would be defendant No.1, Smt. Indira Jadhav (since deceased) would be defendant No.2, Smt. Sumitra (correct name Sunetra S. Surve) would be defendant No.3 and Mrs. Meghana Vasant Shinde would be defendant No.4.
( 3 )
2. In the affidavit in support of the caveat, with a view to oppose the grant of the petition following points were raised.
(i) The purported Will is not the Will as per the law. (ii) The deceased was not in sound state of mind. (iii) The deceased was controlled by Subhash Jadhav and present petitioner No.1 Mrs. Kumud. (iv) The Will was executed under force and coercion. (v) There was no reason to deprive Smt. Indira and unmarried daughter Shubhangi who is now known as Mrs.Sunetra. (vi) The Will is forged and fabricated.
3. It is required to be mentioned that during the pendency of this suit, Subhash Jadhav, original petitioner No.1 expired. He left behind him Mrs. Kumud and Akhilesh his son. Consequently, name of Akhilesh was brought on record as petitioner. Based on the text of the petition as well as affidavit in support of the caveat, following issues came to be framed on 19th December, 2007.
ISSUES FINDINGS
( 4 )
1. Whether the Will dated 3rd
December, 1988 is the last In the affirmative
Will and testament of Hiroo
alias Hiraji L. Jadhav and
the same is legally and
validly executed by him?
2. Do the defendants prove
that the subject Will is In the negative
forged and fabricated by the
plaintiffs ?
3. What order ? As per final Decree
. My answer to each of the issue is mentioned
as against the respective issues.
4. At trial on behalf of the plaintiffs, Smt. Kumud Attesting S.
Jadhav
witness
plaintiff
of the
No.1
said
gave
Will
evidence.
dated 3rd
December, 1988 by name Mr. Jayant C. Kamani gave
evidence as PW-2. No other witness was examined on
behalf of plaintiffs. On behalf of the defendants,
defendant No.1 Mr. Padmakar H. Jadhav son of the
deceased gave evidence as DW-1. Mrs. Sunetra S.
Surve daughter of the deceased gave evidence as DW-2. Mrs. Sunetra was unmarried in December, 1988 and her maiden name was Shubhangi and a reference to her is found in the text of the Will. No other witness was examined on behalf of the defendants.
5. Before I proceed to deal with the issues, it would be convenient to narrate certain persons who figure in the entire matter. Subhash H. Jadhav ( 5 ) original plaintiff No.1 and defendant No.1 Padmakar H. Jadhav are the sons of the deceased, out of which Subhash died during the pendency of the suit. Smt. Indira was wife of the deceased who died after the deceased during the pendency of the suit.
Mrs.Meghana is the married daughter of the deceased, Mrs. Sunetra (nee Kum.Shubhangi) is the daughter of the deceased. Mrs. Kumud, present plaintiff No.1 is the daughter-in-law of the deceased and Akhilesh plaintiff No.2 is the grand son of the deceased.
Advocate Mr.A.G.Shah who is referred to in the evidence is the advocate who is said to act as an attested witness and who is said to have prepared the Will at the instance of the deceased. Mr. Jayant Kamani an attesting witness has been family friend of deceased.
6. I have extensively heard learned Counsel Miss. Nichani on behalf of the plaintiffs and Mr. Murthy on behalf of the defendants. Since the dispute between the parties relates to the suit Will, it became necessary for the Court to appreciate the evidence and ascertain whether the plaintiffs have been able to prove the Will in accordance with the provisions of law and whether the plaintiffs have been able to show that the said Will dated 3rd December, 1988 is the last Will and testament duly ( 6 ) executed by the deceased. Considering the case law developed in the matter, it became necessary for the Court to consider certain circumstances, which in the submission of the Counsel for the defendants could be termed as suspicious circumstances as regards making of the Will and it became necessary for this Court to consider the evidence from that angle. At this juncture itself, it would be convenient to point out that learned Counsel Mr. Murthy relied upon the judgment in case of H.Venkatachala Iyengar Vs. B.N.Thimmajamma and Ors., AIR 1959, SC 443 (V46 C56) and drew my attention to paragraph Nos.18 to 21. As per paragraph ig 18 the Court is required to consider the record as regards execution of the Will. As per paragraph No.19 the Court is required to ascertain the mental and physical condition of the testator. Paragraph 20 lays down the law as regards the various suspicious circumstances and how to appreciate the evidence. Paragraph 21 deals with the point viz. propounder of the Will taking prominent part in the execution of the Will and related aspects. He also relied upon the judgment in the case Rani Purnima Debi and Anr. Vs. Kumar Khagendra Narayan Deb and Anr., AIR 1962, SC 567 (V 49 C 86) to bring to the notice of the Court the concept of the unnatural Will as discussed in paragraph No.5 and the role to be played by the Registering authority as discussed in ( 7 ) paragraph No.23. He also relied upon judgment in the case of Ram Piari Vs. Bhagwant and Ors. AIR 1990, SC 1742 which deals with a situation when disinheritance is amongst heirs of equal decree and no reason for exclusion is disclosed. He also relied upon judgment in case of Kalyan Singh Vs. Smt.Chhoti and Ors. AIR,1990, SC 396 which redeclares the law as regards appreciation of various circumstances which could be termed as suspicious circumstances. He also relied upon the judgment in the case of Kanakku Veettil K.P. Sankarankutty Menon Vs. Malathy Amma and Ors. AIR 1991, Kerla 123 which equally deals with various points discussed in earlier judgments. The learned Counsel Miss.
Nichani relied upon the judgment Smt.Malkani Vs. Jamadar and Ors.AIR 1987, SC 767 (Punjab & Hariyana) wherein the Supreme Court indicated that the testamentary capacity of the testatrix and the genuineness of the Will cannot be doubted only because the beneficiaries under the Will took active part in its execution.
7. I have perused the aforesaid judgments and I have appreciated the evidence in the light of the principles discussed in the said judgments. The three issues as above can be discussed together keeping in view the nature of the evidence placed ( 8 ) before the Court. Now, I proceed to appreciate the evidence from the stand point of deciding whether the plaintiffs have proved the due execution of the Will. Learned Counsel Miss. Nichani appearing on behalf of the plaintiffs pointed out to the Court that the Will came to be drafted by advocate Mr.A.G. Shah (hereinafter referred to as the "said advocate") and the said Will came to be executed at the residence of the deceased on 3rd December, 1988 in the presence of Mr. Subhash Jadhav, Mrs.Kumud S. Jadhav PW-1 and the said advocate and Mr.Jayant PW-2. It was pointed out that the evidence placed before the Court through Kumud PW-1 and Jayant PW-2 if perused carefully would go to show that these two witnesses have given cogent evidence as regards the execution of the Will in all respect i.e. signature of testator and signature of two attesting witnesses. She had also drawn my attention to the evidence of Padmakar H. Jadhav, DW-2 in cross-examination where Padmakar DW-1 has conceded that the Will was properly executed and he (Padmakar DW-1) was challenging the legality of the Will. The Counsel for defendants Mr. Murthy had opposed the submission made by learned Counsel Miss. Nichani and had tried to submit that the plaintiffs have failed to prove the Will in accordance with the provisions of law.
( 9 )
8. With the assistance of the Counsel of both the sides, I have perused the evidence. Since Subhash H. Jadhav expired before commencement of recording of evidence, Subhash has not been examined.
According to plaintiffs, at the time of execution of the Will, Mrs. Kumud PW-1, said advocate and Jayant PW-2 were present. Plaintiffs have examined Mrs.Kumud and Jayant PW-2. I have gone through their evidence. Mrs. Kumud PW-1 states in her cross-examination that deceased had instructed Subhash to get advocate Mr. A.G.Shah for the purposes of drafting the Will. Evidence of Mrs.Kumud PW-1 clearly ig shows that the deceased knew Mr.A.G. Shah. It is required to be noted that the deceased was working as a Clerk in the Municipal Corporation and had retired. After having considered the Kumud PW-1's evidence, I am inclined to observe that Mr.A.G. Shah acted as an advocate for preparation of the Will. I am also inclined to accept the case of the plaintiffs that the said advocate and Jayant PW-2 were present in the house of the deceased on 3rd December, 1988 and the Will was executed on 3rd December, 1988 and that said advocate and Jayant PW-2 tendered their signatures as attesting witnesses. Jayant PW-2 in his evidence has stated that said advocate had shown the original Will to the deceased on 3rd December, 1988 and the deceased went through ( 10 ) it and thereafter tendered his signature and given to to Mr.A.G. Shah for his signature as an attesting witness and after Mr.A.G. Shah signed, it was given to Jayant PW-2 for his signature as an attesting witness and Jayant did tender his signature.
Mrs.Kumud PW-2 has also stated in her evidence as to how the Will was executed. It is required to be mentioned that all suggestions given to Mrs.Kumud as well as Jayant PW-2 so as to disprove the execution of the Will came to be denied. Apart from the aforesaid evidence, the Padmakar DW-1 in the cross-examination has given evidence as follows :-
"It is true that my father has executed this Will now shown to me. It is true that the Will has been attested by two attesting witnesses. I am challenging the legality of the Will".
9. After having gone through the aforesaid portion of the evidence of Padmakar DW-1, the stand of the defendants as regards the execution of the Will cannot stand. Mr. Padmakar DW-1 had admitted that deceased had executed the Will and it was duly attested by two attesting witnesses. Since no other witness came to be examined on behalf of the defendants to challenge the said execution of the Will. I hold that the plaintiffs have proved execution of the Will. According to learned Counsel for the defendants, the plaintiffs should have ( 11 ) examined advocate Mr.A.G. Shah to dispel all doubts regarding the execution of the Will. Learned Counsel Miss. Nichani has submitted that if the evidence of Jayant PW-2 and Mrs.Kumud PW-1 was led in such a fashion that these two witnesses have been able to prove the case of the plaintiffs, it was not necessary for the plaintiffs to examine the said Mr.A.G. Shah and no adverse inference should be drawn for non-examination of said Mr.A.G. Shah and it cannot be considered as a suspicious circumstance.
I have considered the rival submission. Evidence of Mrs. Kumud PW-1 clearly indicate that Mr.A.G. Shah had acted as an advocate in the matter of preparation of the Will. She has stated that her father-in-law had instructed Subhash to get Mr.A.G. Shah for the preparation of the Will. Her evidence also goes to indicate that Mr.A.G. Shah knew the deceased. In my view, there is no specific challenge to the fact that Mr.A.G. Shah and the deceased knew each other. In any case, reading the evidence as a whole the case put up by the plaintiffs that the deceased knew Mr.A.G. Shah cannot be doubted. Mr. A.G. Shah is a practicing advocate in Bombay. There is nothing to doubt the word of Kumud PW-1 whose evidence shows that Mr.A.G.Shah was involved in the preparation of Will. Jayant PW-2 who is a third party so far as the entire matter is concerned and he has made out the ( 12 ) presence of Mr.A.G. Shah in the house of the deceased on 3rd December, 2008. In my view, Jayant had no reason to give false evidence as regards the presence of Mr.A.G. Shah. It is well known that services of an advocate are availed of in the matter of preparation of Will and it is not necessary that in each and every case an advocate who prepared the Will is required to be examined. The plaintiffs after having gone through the evidence of Kumud PW-1 and Jayant PW-2 appear to have taken a decision of not examining the said Mr.A.G.Shah. Their decision was proper. In my view, non examination of said Mr.A.G.
Shah cannot be termed as suspicious circumstance. Similarly, no adverse inference is required to be drawn against the plaintiffs.
10. Considering the aforesaid discussion and in particular the evidence of Padmakar DW-1, discussed above, I am inclined to observe that the plaintiffs have proved the execution of the Will by the deceased and that plaintiffs have also proved that two attesting witnesses namely said Mr.A.G. Shah and Jayant PW-2 did their job as attesting witnesses. At this stage itself, it is required to be mentioned that a stand was taken by the defendants that Jayant PW-2 is an outsider to the entire family and his acting as an attesting witness is unnatural. So far ( 13 ) as this aspect is concerned, defendants could not bring on record any material to show that Jayant PW-2 was a got up witness. Mr. Jayant PW-2 is reported to be a friend of Subhash and he used to visit the house of the deceased and eventually Jayant PW-2 is a family friend. The two photographs of Exhibit D-4 and D-5 came to be produced. In these two photographs, Jayant is seen. These photographs pertain to birthday celebration of Subhash's son and in the cross-examination of Padmakar DW-1, Padmakar had to accept that Jayant was present at the time of birthday celebration in the two photographs of Exhibit D-4 igand D-5 and eventually he knows Jayant PW-2 and that Jayant PW-2 was family friend.
11. In view of the aforesaid discussion, I hold that the plaintiffs have been able to prove the due execution of the Will.
12. Learned Counsel Mr. Murthy had tried to place before the Court some points as suspicious circumstances and wanted this Court to discard the Will in question.
13. The first circumstance placed before the Court is viz. the Will is unnatural. The learned ( 14 ) Counsel Mr. Murthy drew my attention to the original Will Exhibit D-1 and submitted that Smt.Indira wife of the deceased, Shubhangi now known as Sunetra and Mrs. Meghana being daughters of deceased have been excluded. According to Mr. Murthy, there was no reason for the deceased to exclude his wife as well as unmarried daughter Shubhangi. According to Mr. Murthy, Subhash and Kumud controlled the deceased and managed to get the Will executed in their favour. He pointed out that no bequest is made in favour of any relatives other than Subhash and Kumud or Akhilesh son of Subhash and Kumud, which goes to show that the Will is unnatural. He further pointed out that Kumud PW-1 admits that there were no disputes between Smt.
Indira and the deceased as husband and wife and if that be so there was no reason for the deceased to exclude Smt.Indira. Insofar as this aspect is concerned, I would like to reproduce the relevant portion of the Will by which the deceased has given explanation as to why he does not wish to give anything to Smt.Indira, Shubhangi and other daughter Mrs. Meghana. The relevant portion is as under:-
"1. I have in my family my wife Indira, eldest son Padmakar, Younger Son Subhash and two daughters i.e. Mangal (married) and Shubhangi. However my eldest Son with his family has separated and my wife and my daughter Shubhangi stay with him separate from me against my wishes. They have chosen not to look after me or take care of me even ( 15 ) though I am not keeping well. I therefore do not desire to bequeath anything to them under my this Will. I have given enough to my married daughter Mangal at the time of her marriage, I therefore do not desire to bequeath anything under this Will to her".
14. A reading of this paragraph would clearly go to show that the deceased has clarified as to why he did not wish to give any property to Smt.Indira, Subhangi and Mrs.Meghana. A reading of the above paragraph would clearly go to show that Smt.Indira i.e. wife of the deceased left the house alongwith Padmakar DW-1 and started staying alongwith Padmakar in so against wishes of the deceased.
far as Shubhangi is concerned.
Same is the position
The deceased
has laid emphasis on the fact that Smt.Indira as well as Shubhangi have not looked after or taken his care even though he was not keeping well. It is admitted by both the sides that deceased in the year 1981 had paralysis and naturally being a paralytic person, he required care and assistance. In so far as Mrs. Meghna who is referred to as Mangal in the Will is concerned, the deceased has clarified that he had given enough to her at the time of her marriage and that is why he was not willing to give anything to her. Paragraph 2 of the said Will also goes to indicate as to how the deceased wanted to bequeath his property to Subhash and his family. The relevant portion of the Will is as under:-
( 16 ) "2. My other Son Subhash and his family have looked very well after me and are taking proper care. I therefore desire to bequeath to him and his family my present and residue property at the time of my death as stated hereafter".
15. In my view, contents of paragraph 1 and 2 throw light on the mental frame of the deceased as to why he wanted to exclude Smt.Indira, Padmakar, Shubhangi and Mrs.Meghana and why he wanted to give property to Mrs.Kumud and Subhash. It is true that Mrs. Kumud PW-1 states in her evidence that relations between the Smt.Indira and deceased were good.
It is required to be mentioned that Mr.Kumud PW-1 has stated in her evidence that on 29th September, 1988 certain dispute as regards use of water took place between Smt. Indira and Subhash and that in the morning of 30th September, 1988, a quarrel took place between Subhash on one hand and Padmakar DW-1 and Mr.Vasant Shinde on the other. It is seen that a police complaint came to be filed by Shubhash. Padmakar DW-1 has not accepted this incident and he claims that this incident is false. Statement of the deceased came to be recorded by the Police on 30th September, 1988 and that statement is at Exhibit D-2. Said statement was read in evidence at the request of both the Counsel. The said statement clearly goes to show that in the morning of( 17 ) 30th September, 1988 exchange of words and a quarrel took place between Subhash and one Mr. Shinde, Padmakar DW-1 and Subhash was injured. The deceased has stated about such a quarrel and the deceased has also stated in his statement that because he was paralytic, he just kept himself aloof. The deceased has narrated about the said incident and has further stated that Subhash and Kumud went to the hospital.
The deceased in the earlier part of the statement has stated that relations between Padmakar DW-1 and Mrs.Indira on one hand did not go well with Subhash and his wife Kumud and he does not take part in that.
It is
admitted by both sides that the deceased was
residing in the house namely flat No.B-15, Swapna
Saphyalya CHS Ltd., J.B. Temkar Road, Prabhadevi,
Mumbai-25. Evidence of Mrs.Kumud PW-1 as well as
Padmakar DW-1 goes to show that all was not well
between Subhash and Padmakar DW-1. Evidence on
record also go to show that Padmakar and his family
members, Smt.Indira and Shubhangi left the house on
30th September, 1988. Even Padmakar DW-1 has stated that he alongwith his family members, Smt.Indira and Shubhangi left the house and got accommodated himself finally in the quarters provided to him. From the evidence on record, it is clear that Smt.Indira and Shubhangi left deceased without any justification.
( 18 )
16. It is to be noted that if relations between the deceased and the said Smt.Indira were good naturally, the deceased expected that Smt.Indira should stay with him. So far as Subhangi is concerned, she has given evidence as DW-2 in the name of Mrs.Sunetra S.Surve and she has admitted that her relations with Subhash and Mrs.Kumud were cordial. If that is so, she had no reason to leave the house where the deceased was living. The deceased was not very happy with Smt.Indira and Shubhangi leaving his place and hence the deceased did not give any property to Smt.Indira and Shubhangi. In so far as Mrs.Meghna is concerned, deceased is very much clear that he had made enough arrangement for her at the time of her marriage and, therefore, he was not inclined to give anything to her. There is no reason to challenge the statement of the deceased made in the Will that he had provided enough money to Mrs.Meghna at the time of her marriage. It is pertinent to note that when such statement is appeared in the Will, that should have been contested by Mrs. Meghna. Mrs. Meghna has not given any evidence to contest the statement made by the deceased in the Will viz. enough provisions were made by him during the marriage ceremony of Mrs. Meghna. The record clearly goes to show that the deceased was conscious of the fact that there is ( 19 ) dispute between Mrs.Indira and Kumud. The statement recorded clearly indicates that on 30th September, 1988, some dispute took place between Subhash and Padmakar DW-1 and that lead to such a situation that Padmakar thought of leaving the house and staying somewhere else. The statement made by the deceased that quarrels used to take place everyday goes to show that the deceased was not happy with the quarrel between Padmakar DW-1 and Subhash.
17. Considering the text of the Will and the
evidence of Padmakar DW-1 as well as Mrs.Kumud PW-1,
it is
clear that the deceased was not in favour of
the Padmakar DW-1. It is seen that the deceased was convinced that Subhash and Mrs. Kumud are taking his care and attending to him. In fact, after Smt.Indira and Padmakar DW-1 left the house in September, 2008, the deceased was looked after by Subhash and Kumud and mother of Kumud who is said to be residing little away from the residence of the deceased. In my view, the deceased was impressed by the fact that the Subhash and Kumud are taking his care and, therefore, property was bequeathed to them. In my view, the frame of mind of the deceased was in consonance with the terms which are set out in the Will and there is no reason to treat exclusion of Smt.Indira and others as suspicious circumstance.
( 20 )
18. There is a provision in the Will whereby if son is born to Subhash and Kumud in addition to Akhilesh, 1/3rd share coming to Akhilesh be divided equally amongst them. Some arguments were advanced by the Counsel for the defendants to show that the said part of the bequest is not in consonance with the provisions of law. However, no specific provision of law was quoted by Counsel for the defendants. In my view, the said bequest was in the nature of an explanation if one more son was to be born to Subhash. Record shows that Subhash had only one son Akhilesh as such the bequest to Akhilesh will operate. In any case, as no specific provision was shown to treat that bequest as void, the said argument is rejected.
19. Another suspicious circumstance in the submission of the Counsel for the defendants was non examination of Mr.A.G.Shah, advocate. I have already discussed the effect of non examination Mr.A.G.Shah. However, it will be proper to discuss some of the aspects with reference to the evidence which are on record whereby plaintiffs wanted to show that Mr.A.G.Shah acted as attesting witness. Learned Counsel Mr.Murthy has drawn my attention to the following portion of cross-examination of Kumud ( 21 ) PW-1:-
"I do not know whether my father-in-law had met Mr.A.G.Shah advocate any time prior to the date of the Will".
20. Counsel for the defendants had contended that this would go to show that Kumud PW-1 could not confirm as to whether Mr.A.G.Shah had met the deceased. In my view, this evidence cannot be read in isolation as Kumud PW-1 has stated that the deceased had asked Subhash to get Mr.A.G.Shah as attesting witness. This would clearly go to show that the deceased had communication with Mr.A.G.Shah and he was called as attesting witness. In so far as this aspect is concerned, I have already held that Padmakar DW-1 has conceded that the said Will is that of the deceased and was attested by two witnesses. The fact that Mr.A.G.Shah participated in the matter of preparation of Will is clear on the basis of what is stated by Jayant PW-2 and the relevant portion is as follows :-
"Advocate Mr.A.G.Shah handed over one paper to late Hiraji, which he read. After reading, the said paper; late Hiraji told Mr.Arvind G.Shah, advocate that the Will has been properly drafted by him. After reading and confirming the correctness of the Will, late Hiraji signed on his will in my presence and, thereafter, he requested Advocate A.G.Shah to sign on his Will as an attesting ( 22 ) witness".
21. It is required to be mentioned that Jayant PW-2 stood to the test of the cross-examination of learned counsel for the defendants. In fact, the aforesaid quoted portion clearly shows that the Will, which came to be engrossed as original Will was handed over by Mr.A.G.Shah advocate to the deceased and the deceased after reading the same and confirming the fact that the Will was properly prepared by Mr.A.G.Shah tendered his signature. It is required to be mentioned that the Will is in English language and the deceased was working as a Clerk in the B.M.C. and there is no reason to hold that the deceased could not read English.
22. It was faintly argued by learned advocate Mr. Murthy that Kumud PW-1 knew Mr.Shah as her office was close to the office of Mr.Shah and Mr.Shah had helped Kumud PW-1 and Subhash. Evidence of Kumud PW-1 shows that her office was at Dalal street and Mr.Shah's office is at Examiner Press Building. There is no cross examination to suggest that Mr.Shah favoured Kumud. Reading the evidence of Kumud PW-1 and Jayant PW-2 it is clear that advocate Mr.A.G.Shah participated in the process of preparation of Will and signed as attesting witness. Therefore, merely ( 23 ) because the plaintiffs have not examined Mr.A.G.Shah as a witness in the matter cannot be termed as suspicious circumstance.
23. Mr.Murthy Learned advocate had raised another circumstance namely the role of sub-Registrar in the process of registration of Will. The said Will has undergone the process of registration and the sub-Registrar at Bombay has participated in the job of registration. On the question of fetching the sub-Registrar to the place of the deceased, Kumud PW-1 states that while returning from her office, she had taken sub-Registrar to her house. Jayant PW-2 in the examination-in-chief has stated that after the Will was executed, he and Mr.A.G.Shah were requested by late Hiroo alias Hiraji Jadhav to wait for sometime and Subhash was asked to get the sub-Registrar. He further stated that sub-Registrar of Assurance examined the subject Will and found to be corrected. He further states that the sub-Registrar registered the subject Will and he also states that at the time of registration again signatures that is to say signature of Mr.A.G.Shah and his signature were obtained on the reverse page No.5 of the Will. He has also identified the signature of Mr.A.G.Shah as also his signature which was obtained by the sub-Registrar at the time of ( 24 ) registration of the document. The fact that the sub-Registrar's services were secured and the registration of Will cannot be disputed by the defendants. The endorsement on the Will goes to show that the job of registration was performed on 3rd December, 1988 between 5.00 p.m. to 6.00 p.m. at the residence of the deceased. Now the question is whether any specific importance is to be give to the word of Kumud PW-1 who says that she brought the sub-Registrar from his office while returning from her office. Nodoubt, insofar as this aspect is concerned, there is little controversy. Jayant PW-2 states that as he reached the house of the deceased, he came across the deceased advocate Mr.A.G.Shah, Subhash and Kumud. He further states that after the will was executed, Subhash was asked to fetch the sub-Registrar. Considering the word of Kumud PW-1 as well as Jayant PW-2, which is discussed above, it is clear that Kumud was present when Will came to be executed. In my view, evidence of Kumud PW-1 that she brought sub-Registrar appears to be an evidence given out of confusion and in my view no much importance can be given. Fact remains that the Will was registered.
24. Learned Counsel Mr. Murthy appearing on behalf of defendants had drawn my attention to the ( 25 ) judgment in case of "Rani Purnima Debi and anr. Vs. Kumar Khagendra Narayan Deb and anr. AIR 1962 SC 567 (V 49 C86) and in particular paragraph 23. He submitted that a duty was cast upon the sub-Registrar to ascertain that the Will has been executed by the deceased in a proper manner. Reading of paragraph 23 would go to show that if the sub-Registrar did not comply with requirement quoted therein then the fact that the Will was registered would not be of much valuse.
25. Learned Counsel Mr.Murthy had submitted that
if one
peruses the endorsement as regards
registration, it is clear that the sub-Registrar did
not comply with requirements contained in paragraph
23 of the aforesaid judgment. Even if for a moment
is accepted that the sub-Registrar did not perform
his job as was expected to be done in paragraph 23 of the aforesaid judgment, once it is observed that the Will is properly executed that is to say it is executed by the deceased and duly attested by the attesting witnesses that itself is sufficient and there is no reason to discard the Will merely because the sub-Registrar has not performed his job properly. To that extent, I am not inclined to accept the argument advanced by learned Counsel Mr.Murthy.
( 26 )
26. The next circumstance is no doctor was examined to show the mental ability to mark the fitness of the deceased. No specific provision was shown to hold that the doctor should have certified about the mental ability to execute the Will hence the argument is required to be rejected. It is required to be mentioned that Counsel for the defendants could not point out any material to show that the deceased did not possess necessary mental ability to mark the fitness. It is true that the deceased was suffering from paralysis and he was bedridden. That in my view, cannot be considered as something which would make the execution of the Will impossible. The evidence given by Jayant PW-2 and Kumud PW-1 as regards what transpired at the time of execution of the Will would clearly go to show that the deceased was in a proper frame of mind at the time of execution of the Will. It is also required to be noted that the deceased died in the year September, 1990 that is the deceased survived for a period of 2 years after the Will came to be executed. Hence, the stand of the defendants that the deceased did not possess proper frame of mind cannot be accepted.
27. It was argued that the deceased was not well and he was bedridden. Merely because the deceased ( 27 ) was bedridden, it cannot be said that he was not in sound state of mind. The evidence of Padmakar DW-1 goes to show that he is challenging the legality of Will. If the defendants wanted to contend that the deceased was not mentally sound to execute the Will, certainly it was open for the defendants to examine the doctor who was attending to the deceased. No such effort was made on behalf of the defendants.
Hence, the point raised cannot be accepted.
28. Another circumstance placed for consideration relates to changing the nomination before the execution of Will. Evidence on record goes to show that initially the nomination in regard to the membership of the Society in which the suit flat was situated was in favour of Mrs. Indira and before execution of the Will, the nomination came to be changed in favour of Subhash and Kumud. Counsel for the defendants submitted that the nomination is changed little before the execution of the Will. The learned Counsel Miss. Nichani submitted that the fact that the deceased changed nomination in favour of Subhash and Kumud and subsequently executed the Will in favour of Subhash and Kumud clearly shows that the deceased intended to see that the property should go to Subhash and Kumud and there are no legal impediments in the matter. Submission of ( 28 ) Miss.Nichani is required to be accepted. The fact that the nomination was changed before execution of Will shows that the deceased had specific plan to give the flat to Subhash and Kumud. In view of above, the submission of learned advocate Mr. Murthy is rejected.
29. One more circumstance which were termed by the Counsel for the defendants as suspicious circumstance viz. Subhash and Kumud kept the deceased under their control and that is how the deceased executed the Will in favour of Subhash and Kumud.
Padmakar DW-1 has admitted in the cross-examination that he was not present at the time of execution of the Will. He also states that he had made a statement on the basis of background visualized by him and he had no personal knowledge. These answers given by Padmakar DW-1 in the cross-examination would clearly go to show that evidence of Padmakar DW-1 in examination-in-chief as regards keeping the deceased under control by Subhash and Kumud was in the nature of surmises and no specific evidence is placed before the Court by Padmakar DW-1 in that behalf. The deceased was staying at his flat and Subhash and Kumud were also staying in the same flat. In my view, that by itself is not sufficient to come to the conclusion that ( 29 ) Subhash and Kumud controlled the mind of the deceased. In fact, paragraph Nos.1 and 2 of the Will, which I have quoted earlier clearly shows that the deceased had a specific frame of mind so far as Smt. Indira, Padmakar DW-1, Shubhangi and Mrs. Meghna are concerned. The evidence of Kumud PW-1 as well Padmakar DW-1 is clearly shows that Subhash and Kumud played a vital role in taking care of the deceased. That by itself in my view, would not mean that Subhash and Kumud controlled the mind of the deceased.
30. One more point was pressed by Counsel for the defendants as regards a complaint filed by Mrs. Indira to the Police which complaint is at Exhibit D-3. The said complaint is in the form of a letter addressed to the Commissioner of Police. In the said complaint, certain allegations have been levelled. It is pertinent to note that the said complaint is dated 28th October, 1988. This complaint is filed by Mrs.Indira after she had left the house of the deceased. In a question Padmakar DW-1 has specifically stated in the cross-examination as follows :-
"My mother and myself did not approach the Court to obtain order either to seek custody of my father or to transfer him to my house".
( 30 )
31. Padmakar DW-1 in his evidence says as follows:-
"My mother was not allowed to stay in the house by Subhash. She was beaten and, ultimately, she was required to stay with my sister. My mother left house in the year 1988 and my father expired in the year 1990".
32. This evidence given by Padmakar DW-1 is not born out by any material whatsoever. In fact, the mother in the complaint, which is marked as Exh.D-3 in the first paragraph itself stated that Subhash is likely to drive her out of the house. This is a false statement because by this time that is 28th October, 1988 she had left the house of the deceased on her own. I have already observed as to how Smt.Indira left the house of the deceased on 30th September, 1988 after a quarrel took place between Subhash on one hand and Padmakar. Even reading the text of the complaint at Exhibit D-3 as a whole, it is clear that the said complaint was filed just to harass Subhash and Kumud. Smt.Indira has left the house on 30th September, 1988 on her own. Defendants could not point out that deceased or Subhash drove Smt.Indira out of the house. It is also required to be noted that this complaint has been filed 20 days after Smt.Indira left the house of the deceased and no further action was taken by her. After this complaint, Smt.Indira has not taken any steps to ( 31 ) establish her right to reside in the house of the deceased. There is no evidence placed before the Court to show that Smt.Indira called upon Subhash or the deceased through advocate and addressed suitable communication to Subhash or the deceased placing her intention to re-enter the house. In my view, all this would clearly go to show that Smt.Indira was residing away from the deceased on her own and had no mind to go back to the house of the deceased.
33. The next point which is required to be discussed is whether Kumud PW-1 played a specific role in making of the Will. This is required to be discussed in the wake of the various cases which are referred to above because Kumud is a propounder of the Will. It would be necessary to consider what role was played by Kumud in making of the Will. From the record, it is clear that Kumud had not played any substantive role in making the Will. Kumud happened to reside in the company of the deceased. That by itself is not sufficient to say that Kumud played a vital role in making of the Will. It is true that Kumud gave evidence to show that she was present at the time when Will was executed. This presence of Mrs. Kumud at the house of the deceased cannot be termed as unnatural because Mrs.Kumud was staying with the deceased after her marriage with Subhash.
( 32 ) To that extent, it would be difficult to say that Kumud had played vital role which would dominate the Will of the deceased. So far as the Subhash is concerned, Subhash was son of the deceased and Subhash also was residing with the deceased much prior to execution of the Will. Padmakar DW-1 was also residing with the deceased. However, he left the house on 30th September, 1988. Evidence of Kumud PW-1 shows that Subhash was asked by deceased to get advocate Mr.A.G.Shah. Mr.A.G. Shah had participated in the job of preparation of the Will and execution thereof. If Subhash has made efforts to get advocate Mr.A.G.
Shah, that by itself cannot be considered as a major role played by Subhash. As the deceased was bedridden, he must have sought the help of his son who was staying with him. Subhash was also present when the will was executed. In my view, presence of Subhash will have to be treated as natural. In view of the above, role played by Kumud and Subhash as discussed above, cannot be considered as objectionable and that also cannot be considered as suspicious circumstance.
34. For the reasons mentioned aforesaid, I am inclined to observe that the plaintiffs have been able to show that Will dated 3rd December, 1988 was duly executed by the deceased Mr.Hiroo alias Hiraji ( 33 ) Jadhav and that the said Will was last Will and testament. This is so because no other Will is produced before the Court by either party So far as the question of forgery of the said Will is concerned, I have with reasons held that the Will was duly executed by the deceased and that the same was not fabricated or forged. No evidence was placed in support of the said allegation.
Issue Nos.1 and 2:-
. For the reasons mentioned aforesaid I hold that issue No.1 is required to be answered in the affirmative igand is accordingly answered in the affirmative and Issue No.2 is required to be answered in the negative and is accordingly answered in the negative.
Issue No.3 . Keeping in view the answers to Issue Nos.1 and 2 in the affirmative and in the negative respectively, plaintiffs suit will have to be decreed. The caveat filed by Padmakar DW-1, Smt.Indira, Mrs.Meghna and Mrs.Sunetra will have to be dismissed and the Testamentary petition will have to be granted and appropriate directions will have to be given to Prothonotary and Senior Master to issue letters of administration as prayed for.
( 34 )
35. In the fact and circumstances of the case, the defendants are not required to be saddled with the costs of the proceedings. For the reasons mentioned aforesaid, I pass following decree.
ORDER
(i) Caveat filed by Padmakar DW-1, Smt.Indira (since deceased), Mrs. Meghna Vasant Shinde and Smt. Sumitra (correct name Sunetra) Surve are dismissed.
(ii) It is hereby declared that Will dated 3rd December, 1988 executed by Hiroo alias Hiraji Laxman Jadhav is the last Will and testament and petition for letters of administration as prayed for in respect of Will dated 3rd December, 1989 is required to be granted and accordingly petition No.603 of 1990 is made absolute and is granted.
(iii) Office to issue letters of
administration as prayed for. In the facts
and circumstances of the case, there shall be no order as to costs in the suit.
( 35 )
36. After the aforesaid judgment was delivered learned Counsel Mr. Ashutosh Singh appearing for the defendants submitted that the defendants would like to go through the text of the judgment and do the needful. He, therefore, submitted that the operation of the judgment and decree passed above be stayed for 8 weeks. Plaintiff No.1 Mrs. Kumud who is present in person at the time of dictation of the aforesaid judgment. She opposed the submission.
37. The request put up by Counsel for the defendants is required to be granted. In view of the above, the operation of judgment and decree is stayed till 15th June, 2009. The original Will which was produced before the Court in the Course of hearing is ordered to be returned to the department.
(R.Y.GANOO, J)
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