The
acceptable mode of proof would be the death certificate issued by the
municipality. The plaintiff has not shown why the application for issue of a
death certificates of the three attesting witnesses is not made. Merely
stating that the witnesses are not alive and cannot be found is, therefore,
not sufficient. Mr. Shah would argue that the statement of the plaintiff that
the attesting witnesses have died has not been disputed by the defendant
as there is no crossexamination of the defendant on that score and hence
it must be accepted as an admitted statement. Admitted facts which are
not to be proved under Section 58 of the Evidence Act which runs thus
are:
58. Facts admitted need not be proved. No fact need to be
proved in any proceeding which the parties thereto or their agents
agree to admit at the hearing, or which, before the hearing, they
agree to admit by any writing under their hands, or which by any
rule of pleading in force at the time they are deemed to have
admitted by their pleadings:
Provided that the Court may, in its discretion, require the
facts admitted to be proved otherwise than by such admissions.
The facts not required to be proved would, therefore, be the facts
mentioned in the pleadings of the parties or in the documents of the parties
or specifically which were agreed to be admitted at or before the hearing in
writing. They may be facts which are specifically admitted in the oral
evidence of the parties. Merely because a fact has not been disputed by
crossexamination of a party would not make it an admitted fact such as
not requiring it to be proved under Section 58 of the Evidence Act.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
TESTAMENTARY SUIT NO. 46 OF 1993
IN
TESTAMENTARY PETITION NO. 2 OF 1993
Smt. Usha Shrikant Rege Vs. Smt. Gauri Gajanan Rege
CORAM : MRS. ROSHAN DALVI, J.
Date of pronouncing the Judgment: 15 SEPTEMBER, 2014
Citation;2014(6) MHLJ 781Bom,2016(1) ALLMR801
This petition is filed for Letters of Administration with the Will
of the deceased one Mangesh Pandurang Rege dated 1 st October, 1971
annexed thereto. There are two executors appointed in the will, both of
whom are stated to have expired prior to the filing of the petition. The
deceased is shown to have left behind his widow, four sons, one married
daughter and widows and daughters of two deceased sons.
2.
Six consent affidavits have been filed. Two caveats have been
filed. One caveatrix has withdrawn the caveat. The only challenge is by
the present caveatrix/defendant who is widow of the deceased son of the
deceased.
3.
The caveat claims that the will has been obtained by fraud,
coercion and an undue influence practiced by the original petitioner. It
was obtained without explaining the contents to the deceased at the time
of obtaining his thumb impression. It also takes exception to inordinate
delay of 19 years in filing the petition. It sets out the position of the family
properties and the relationship between the family members to claim that
the will is bogus, cooked up and forged.
4.
Based upon the aforesaid pleadings the following issues have
been framed which are answered as follows:
ISSUES
Whether the last will and testament dated 1 st No
October 1971 is the last will and testament of
deceased Mangesh Pandurang Rege.
(ii) Whether the defendant proves that the will Not required to
dated 1st October, 1971 was obtained by fraud, be answered.
coercion and undue influence.
(iii) Whether the defendant proves that the will Not required to
dated 1st October, 1971 is bogus, cooked and a be answered.
forged document.
(i)
5.
The original petitioner expired pending the petition. His
widow is the present petitioner (plaintiff). The caveatrix is the widow of
another deceased brother of the original petitioner. The plaintiff has
herself deposed and led evidence of a handwriting expert to prove the
signature of two of the attesting witnesses to the will. The defendant has
examined herself. The plaintiff has relied upon two powers of attorney
executed by the deceased as also by the original petitioner (original
plaintiff), her deceased husband, which bore the signatures of the two
attesting witnesses. These documents have been shown to the handwriting
expert along with original will to obtain the opinion of the handwriting
expert with regard to the aforesaid signatures. The plaintiff has also relied
examination of the defendant which shall be considered presently.
upon certain correspondence which has been shown in the cross
6.
The defendant has relied upon the marriage certificate of the
defendant, the birth certificate of the daughter of the defendant and the
death certificate of her deceased husband amongst other documents which
are neither relevant nor proved and need not be considered. The
defendant has relied upon inter alia the divorce petition of the plaintiff in
the crossexamination of the plaintiff and the judgment in the petition
ig
which documents are not denied. The plaintiff has relied upon two
agreements of purchase of two flats in her name in the crossexamination
of the defendant which are also not denied. The plaintiff has also relied
upon certain letters, one of which dated 27.04.1972 is relevant and shall
be considered. The aforesaid documents which constitute the material
evidence to be considered alongside the oral evidence of the parties in
determining the aforesaid issues.
ISSUE NO.1: Re : Execution of the will dated 01.10.1971 by
Mangesh Pandurang Rege.
7.
The will has been executed when the deceased was 76 years
old and 2 1⁄2 years prior to his death. The will is on typewritten foolscap
accounting paper. It shows three attesting witnesses to the execution of the
will by the thumb impression of the deceased. The three signatures have
been put twice on the last page of the will. The three attesting witnesses
have put their initials on pages 1 & 3 also. The will runs in 6 pages. The
will is shown to be prepared by an Advocate who is one of the attesting
witnesses and a notary who has notarized the powers of attorney of the
deceased and the original plaintiff. One attesting witness is the doctor who
has also examined the will and has accordingly signed and endorsed with
It would be material to consider the position of the family of
8.
regard to the examination.
the deceased as also the facts that transpired prior to and after the
execution of the will until the filing of the petition about two decades after
the death of the deceased. This position is evidenced by various admitted
facts which required to be enumerated at the inception. The deceased had
six sons; two of the sons are the deceased husbands of the plaintiff and
defendant. The facts relating to their family are material and relevant.
ig
The original plaintiff is one Shrikant, the son of the deceased and the
deceased husband of the plaintiff. The other son is Gajanan who was the
husband of the defendant. The plaintiff initially married the defendant's
husband. She had then been divorced. She later married her husband's
brother, the original plaintiff.
9.
The admitted facts and dates which are material may be
enumerated thus:
On 13.10.1960 the plaintiff married Gajanan.
(ii) She had two issues; Anuradha and Ashutosh by the said marriage.
(iii) The family lived in Datta Bhavan, Hindu Colony, Dadar, Mumbai.
(iv) From 196768 the relations between the plaintiff and Gajanan were
(i)
strained.
(v)
In September, 1967 and May, 1968 the plaintiff purchased two flats
(or 2 flats were purchased for her) being C7 and C8 in Piramal Nagar at
Goregaon.
(vi)
On 01.10.1971 the will for which the Letters of Administration is
claimed was executed.
(vii) On 01.10.1971 the deceased is also shown to have executed one
power of attorney (which fact is mentioned in the power of attorney relied
upon by the plaintiff. The first power of attorney was in favour of one of
mentioned in the will executed on the same day.)
the sons of the deceased, one Madhav. Madhav is also one of the executors
The power of attorney was prepared by Advocate R. K. Rao who is
also shown to have attested the will. It is shown to be notarized before the
notary who is also shown to have attested the will.
(viii) On 28.07.1973 the deceased executed another power of attorney
appointing one M. S. Rajadhyaksha who was the deceased's wife's sister's
son. The said power of attorney was prepared and signed by the same
Advocate Mr. R. K. Rao identifying the thumb impression of the deceased.
It was notarized also by the same Notary, Mr. J. T. Ferreira.
(ix) On 16.06.1974 the deceased expired.
(x) On 18.08.1974 Shrikant executed a power of attorney also in favour
of the said M. S. Rajadhyaksha, the deceased's wife's sister's son. That
power of attorney is also prepared and signed by the same Advocate Mr. R.
K. Rao identifying the signature of Shrikant. It is also notarized by the
same Notary, Mr. Ferreira.
On 10.01.1975 Usha filed the divorce petition in the Bombay City
(xi)
Civil Court against Gajanan on the ground of his conversion to Islam faith.
(xii) On 04.04.1975 the petition for divorce was decreed ex parte.
(xiii) On 06.05.1977 the plaintiff, Usha married Shrikant.
(xiv) On 01.09.1978 Madhav (one of the executors) expired.
(xv) On 17.03.1979 the defendant, Gauri married Gajanan as per Hindu
rights.
(xvi) On 24.12.1986 Anuradha, the biological daughter of Gajanan and
Usha was got married under Hindu rights by Gajanan and Gauri.
(xvii) On 20.04.1991 Gajanan (one of the executors) expired.
(xviii)On 16.10.1991 the above petition was affirmed.
(xix) On 05.01.1993 the above petition was filed/registered though all the
The execution of the above will would have to be considered
10.
objections were yet not removed.
taking into account the circumstances that transpired in the family of the
deceased before and after its execution and upon seeing the get up and
contents of the will as also the aforesaid powers of attorney.
It may be mentioned that two powers of attorney relied upon
11.
by the petitioner are admissible in evidence. The original power of
ig
attorney of Shrikant is produced and would carry the presumption that it
was executed and authenticated by Shrikant before the Notary Public as
required by law under Section 85 of the Indian Evidence Act, 1872. A
copy of the power of attorney of the deceased is produced along with
original certificate of the Notary certifying the copy to be true and correct
copy in words and figures of the power of attorney of the deceased given to
M. S. Rajadhyaksha. My attention has been drawn to Section 57 of the
Evidence Act which required the Court to take judicial notice of certain
facts. Under Subsection 6 of Section 57 the seals of Notary Public are a
part of the document of which judicial notice has to be taken. The original
seal of Mr. Ferreira as the Notary on the certification of the copy of the
power of attorney would require the Court to take judicial notice that such
a power of attorney was indeed executed, a copy of which is stated to be
true and correct by the Notary before whom it was executed. Once the seal
is accepted and the required judicial notice is taken by the Court, the copy
of the power of attorney itself would require a presumption to be drawn
under Section 85 of the Evidence Act. Consequently the copy of the power
of attorney must be taken to have been executed by the Notary Public and
authenticated as such. (See. The Performing Right Society, Ltd. Vs. The
Indian Morning Post Restaurant 1938 Vol. XLI The Bombay Law
Reporter 530 and Bank of India Vs. M/s. Allibhoy Mohammed & Ors.
AIR 2008 BOMBAY 81 relating to presumption of powers of attorney.)
12.
Consequently both the powers of attorney require to be read in
evidence. It may be mentioned that the powers of attorney have been
essentially produced to see and compare the signatures of two of the
attesting witnesses, the Advocate Mr. R. K. Rao and the Notary Mr. J. T.
Ferreira on the will as also those documents.
The plaintiff has led the evidence of a handwriting expert with
ig
13.
regard to the comparison of the signatures. The opinion of the
handwriting expert shows the reasons for accepting the two signatures of
Mr. Rao and Mr. Ferreira on the aforesaid documents. The handwriting
expert is shown to be a post graduate diploma holder in forensic science.
He has examined the document upon detailed scientific analysis of the
signatures together with 12 photographs thereof. He has deposed that he
has found adequate material for comparison. He has deposed that the
characteristics in the writing of the signatures being the slant, alignment,
speed of writing, shading, line quality, relative spacing between letters,
proportional sizing of letters, relative heights of letters, penpressure, pen
emphasis, commencement and finals, penmovement, penlift, pen
presentation, etc. revealed similar writing characteristics in all the
signatures. He has, therefore, concluded in para 7 of his evidence that the
handwriting in the aforesaid signatures are of one and of the same person.
14.
He has been extensively crossexamined. He has been asked
about the methodology of comparison. He has deposed that that is not the
same in all cases but that the signatures can be put together. His cross
examination shows that he decided upon the signatures by himself. This
can be done only if the signatures are so similar as to be rather identical.
His crossexamination shows that he could locate and hence collated the
required signatures on those documents. He has deposed about the
instruments that he used for his analysis. He has deposed that he
measured the various criteria mentioned above from the quality of the
stroke of writing. He has also deposed on the natural variations within
limit which naturally occur in all signatures. He has completed his
examination in one visit. He has disputed that there was any space
ig
between letters A and O in the signatures of Mr. R. K. Rao. He has stood
his ground with regard to his opinion with regard to other letters in the
15.
signatures. A reading of his evidence shows the signatures to be identical.
It would be for the Court to compare the signatures under
Section 73 of the Indian Evidence Act taking into account the analysis of
the expert (See. Ajay Kumar Parmar Vs. State of Rajasthan AIR 2013 SC
633). Looking at the three signatures of Mr. R. K. Rao and Mr. Ferreira
together, this Court can conclude that they are identical and of the same
person as shown in the opinion of the handwriting expert.
16.
The signatures of these witnesses are indeed on pages 5 as
well as 6 of the will below the left hand thumb impression shown to be of
the deceased in the execution clause as also next to the cancellation of the
designation of the notary on page 6 since the document was not notarized.
Of course, it must be borne in mind that if a document is forged more than
one forged signature would usually not appear on the document since the
forger would not be emphatic about its authenticity. The two signatures of
Mr. R. K. Rao as well as Mr. Ferreira, the Advocate and the Notary also
appear to be indeed similar on pages 5 & 6.
One Dr. P
. A. Dalvi has also signed as attesting witness at both
17.
the aforesaid places on pages 5 & 6. He has also made an endorsement
showing that though the deceased is totally blind, he is in a sound and
disposing state of mind, fully capable of understanding the contents of the
will.
18.
The very execution of the will by the deceased is not shown;
the plaintiff has only shown the 3 signatures of the attesting witnesses, two
of which were on earlier documents whether those signatures had been put
as the signatures of the attesting witnesses attesting the execution of the
will by the deceased is not shown. The plaintiff has not led any evidence of
what the deceased did with the instrument and now he executed his will
despite she having been with the deceased just prior to the execution and
19.
not at the time of the execution as shall be presently seen.
Even the evidence of attestation of the will is not led. Under
Section 68 of the Evidence Act the mode of proof of a document required
by law to be attested is set out. The relevant part of Section 68 runs thus :
68. Proof of execution of document required by law to
be attested. If a document is required by law to be attested, it shall
not be used as evidence until one attesting witness at least has been
called for the purpose of proving its execution, if there be an
attesting witness alive, and subject to the process of the Court and
capable of giving evidence.
No attesting witness has been called in this case to prove the
execution of the will. The death of one of the attesting witnesses is stated
but not shown. The plaintiff has claimed that Advocate R. K. Rao expired
in 1994. The plaintiff has also claimed that the other two witnesses have
expired though the plaintiff does not know the respective dates of their
death. It is the plaintiff's case that despite exercise in that behalf she has
not been able to obtain the dates of the death of all the three attesting
witnesses. The plaintiff has not produced the death certificates of any of
them. It is for the plaintiff to prove the death of the three attesting
witnesses as claimed by the plaintiff. That can be done by obtaining their
death certificates. The plaintiff knew the address of Advocate R. K. Rao
which is mentioned not only on the will but also on the docket of each of
the three documents. The plaintiff would also know the address of the
doctor which is mentioned in the attestation clause of the will. It is seen
that though there have been 3 witnesses one of whom is shown to be dead,
none is “called for the purpose of proving” the execution of the will of the
20.
deceased.
The plaintiff has sought to prove the attestation and
consequently the execution of the will under Section 69 of the Evidence Act
which sets out the procedure of proof where no attesting witness is found.
Section 69 runs thus:
69. Proof where no attesting witness found. If no such
attesting witness can be found, or if the document purports to have
been executed in the United Kingdom, it must be proved that the
attestation of one attesting witness at least is in his handwriting,
and that the signature of the person executing the document is in
the handwriting of that person.
21.
The expression if “no such attesting witness can be found”
would have to be considered. Would it be for the plaintiff to merely state
that all 3 attesting witnesses cannot be found because, according to the
plaintiff, they have expired? The requirement of the proof of the document
requiring attestation is indeed serious. A will is one of such document.
The execution of the will is required to be by the deceased as per the 3
modes set out in Section 63 of the Indian Succession Act which runs thus:
(a) The testator shall sign or shall affix his mark to the Will, or it
shall be signed by some other person in his presence and by his
direction.
(b) The signature or mark of the testator, or the signature of the
person signing for him, shall be so placed that it shall appear that it
was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of
whom has seen the testator sign or affix his mark to the Will or has
seen some other person sign the Will, in the presence and by the
direction of the testator, or has received from the testator a personal
acknowledgment of his signature or mark, or of the signature of
such other person; and each of the witnesses shall sign the Will in
the presence of the testator, but it shall not be necessary that more
than one witness be present at the same time, and no particular
form of attestation shall be necessary.
Hence the will must be executed in the presence of the
22.
attesting witnesses under Section 63(c) of the Indian Succession Act,
1925. Hence to prove the due execution of the will any of the attesting
witnesses or any other witness who had seen the attesting witnesses sign in
the presence of the testator and who had seen the testator sign would be
required to be called in evidence.
23.
The plaintiff has only sought to prove the signatures shown in
the will to be the signatures in the handwriting of Advocate R. K. Rao as
also Mr. Ferreira, the Notary.
24.
This case is on all fours the facts of this case of Girja Datt
Singh Vs. Gangotri Datt Singh AIR 1955 SC 346 in which the Supreme
Court has considered Section 63 of the Indian Succession Act along with
Section 68 of the Indian Evidence Act relating to attestation of a will. It is
held,
In order to prove the due attestation of the will the propounder of
will has to prove that 'A' and 'B', the two witnesses saw the testator
sign the will and they themselves signed the same in the presence of
the testator.
It is further held that,
It cannot be presumed from the mere signatures of two persons
appearing at the foot of the endorsement of registration of a will that
they had appended their signatures to the document as attesting
witnesses or can be construed to have done so in their capacity as
attesting witnesses. Section 68, Evidence Act requires an attesting
witness to be called as a witness to prove the due execution and
attestation of the will. This provision should be complied with in
order that those two persons might be treated as attesting witnesses.
In that case the Court extensively marshalled the oral evidence
before it. The Court found that despite the case of due execution of the
will from a rough draft to fair draft and thereafter the execution and the
attestation followed by the presentation for registration of the will by the
deceased before the SubRegistrar along with execution of a wakf, the
attesting witnesses spoke the untruth and the due attestation by the
attesting witnesses signing as such in the presence of a testator to attest the
document which could only be a will not proved. The Court, therefore,
observed that Section 68 of the Evidence Act requires the attesting witness
to be called as a witness to prove the execution of the will as such and
mere signature of the attesting witness would not prove due attestation.
In this case the mere signatures of the two attesting witnesses
Advocate Mr. R. K. Rao and the notary Mr. Ferreira would not prove that
the deceased put his thumb impression on the document knowing it to be a
will and confirming it as such after he was read over and explained its
contents such that they signed in their capacity as attesting witnesses and
none else. In fact the proof of only the true signatures does not prove the
thumb impression of the deceased at all. Hence the execution of the will is
not proved. There is no question of such a document being attested as a
will.
This judgment has been followed by the Madras High Court in
25.
the case of Ramchandra Marthandam Vs. Linga Vijayan in para 28 of
which it has been held that the procedure under Section 63 of the Indian
Succession Act requiring the attestation before the testator is mandatory.
Consequently when there is no evidence that the attesting witnesses had
seen the testator sign the will which is the mandatory procedure, the
execution of the will cannot be taken to be proved in the absence of clear
evidence in that behalf.
All the attesting witnesses are stated to have died. Whether
26.
they have died would have to be proved by substantiating evidence. The
acceptable mode of proof would be the death certificate issued by the
municipality. The plaintiff has not shown why the application for issue of a
death certificates of the three attesting witnesses is not made. Merely
stating that the witnesses are not alive and cannot be found is, therefore,
not sufficient. Mr. Shah would argue that the statement of the plaintiff that
the attesting witnesses have died has not been disputed by the defendant
as there is no crossexamination of the defendant on that score and hence
it must be accepted as an admitted statement. Admitted facts which are
not to be proved under Section 58 of the Evidence Act which runs thus
are:
58. Facts admitted need not be proved. No fact need to be
proved in any proceeding which the parties thereto or their agents
agree to admit at the hearing, or which, before the hearing, they
agree to admit by any writing under their hands, or which by any
rule of pleading in force at the time they are deemed to have
admitted by their pleadings:
Provided that the Court may, in its discretion, require the
facts admitted to be proved otherwise than by such admissions.
The facts not required to be proved would, therefore, be the facts
mentioned in the pleadings of the parties or in the documents of the parties
or specifically which were agreed to be admitted at or before the hearing in
writing. They may be facts which are specifically admitted in the oral
evidence of the parties. Merely because a fact has not been disputed by
crossexamination of a party would not make it an admitted fact such as
not requiring it to be proved under Section 58 of the Evidence Act. There
The evidence of the plaintiff herself shows in her re
27.
need be no crossexamination of unproved facts.
examination that she went along with deceased, her fatherinlaw, in a taxi
to the office of Advocate R. K. Rao where the deceased was to execute the
will because she was called by the deceased to accompany him there. She
went to the office and went to the University because she had some work
at the University. She did not witness the execution of the will. She was
only informed by the deceased that the will was read out to “them” and
one Ferreira. On that basis she deposed that the will was witnessed by Dr.
Dalvi and Mr. R. K. Rao. She has not deposed about the execution of the
deceased or about attestation of Advocate Rao, Dr. Dalvi or Mr. Ferreira.
Though such evidence cannot legitimately be a part of the reexamination,
and must be the direct oral evidence of the plaintiff in her affidavit of
examinationinchief itself, even accepting such evidence it can be seen that
there is none who has witnessed the execution of the will.
28.
The plaintiff would have to prove the signatures of at least the
attesting witnesses if all are not alive and cannot be called to give
evidence. How the plaintiff has proved the signatures and what would be
the purport of the mere proof that they are the signatures of those persons
would require to be considered.
29.
All the aforesaid documents including the will of the deceased
are executed within the span of time between October, 1971 and July,
1974. The original documents produced before the Court prima facie show
the powers of attorney (the contents of which shall be presently
considered) to be on older paper than the will which is executed 3 years
prior to the last power of attorney. In fact, the docket of the power of
attorney dated July, 1974 is more torn and tattered than the pages of the
will. This is true of even the other pages 5 to 12 of the power of attorney
dated 18th July, 1974. Only the first 2 pages which are on non adhesive
ig
stamp paper are not torn because the texture of those papers is more rough
and thick. The marriage certificate dated 06.01.1978 of the original
plaintiff Shrikant with the present plaintiff Usha performed well after the
execution of the will dated 01.10.1971 is also seen to be wholly tattered
and torn and stuck together with various celluloid tapes. Expert evidence
with regard to the age of the paper of the will seen alongside the age of the
papers of the powers of attorney would have been not only desirable but
rather imperative in this case when none of the attesting witnesses has
been examined. This important evidence has not been produced before the
Court.
30.
Advocate R. K. Rao seems to be a family friend of the parties.
The plaintiff has relied upon certain letters shown to the defendant in her
crossexamination. One such letter dated 27.04.1972 which sets out a
particular incident shows reference to Advocate R. K. Rao at at least ten
places with regard to legal implications of the incident and instructions
given to the Advocate. The docket of the documents also bear out that
Advocate R. K. Rao has drafted each of the documents. The petition for
letters of administration has come to be filed after the death of both
executors but whilst Advocate R. K. Rao was alive as shown in the
::: Downloaded on - 19/12/2014 21:06:18 :::
(16) TS 46/93
plaintiff's own deposition, the petition having been affirmed in 1991 and
registered in 1993 and Advocate R. K. Rao having been stated to have
expired in 1994. The Testamentary Petition is required to be in Form No.
105 under Rule 375 of the Bombay High Court (Original Side) Rules with
such variation of the circumstances of each case may require. The petition
is required to be accompanied inter alia by an affidavit of one of the
attesting witnesses, if available. The expression “if available” would mean
if the attesting witness is alive, if the attesting witness is in the same city or
country and can sign the affidavit. Advocate R. K. Rao was available on the
ig
date the petition was affirmed. It is not the plaintiff's case that he was not
in India. His address shows his office near the Court premises. Advocate
R. K. Rao was, therefore, available to sign the affidavit which was required
to be accompanying the Testamentary Petition. The Testamentary Petition
shows a draft affidavit of Advocate R. K. Rao annexed thereto and forming
a part of the petition. The affidavit is however not signed by Advocate R.
K. Rao in Form No.102 as mentioned in Rule 375 of the High Court
(Original Side) Rules. In fact, the petition was stated to be kept under
objection over an unduly long time. One of the objections would be the
lack of signature on the affidavit of the attesting witness which had to
accompany the petition. The affidavit has remained at that. The petition
has been registered 15 months after it was affirmed and whilst Advocate R.
K. Rao was alive. The argument of Mr. Jamdar that Advocate R. K. Rao
must be taken to have refused to sign the affidavit stands to reason. The
Advocate who had drafted various documents being the two powers of
attorney of the father and the son and friend of the household, his name
having been mentioned in a personal letter in respect of a particular
incident requiring legal advice would be expected to sign the affidavit
accompanying a petition for grant of letters of administration of a will
which he had attested albeit 17 years prior thereto.
Mr. Shah relied upon Rule 384 of the High Court (Original
31.
Side) Rules for proof of signatures of the deceased and the attesting
witnesses which runs thus:
R.384. In absence of attesting witness, other evidence to be
produced. If it is not possible to file an affidavit of any of the
attesting witnesses, an affidavit of some other person, if any, who
may have been present at the execution of the will shall be filed,
but if no affidavit of any such person can be filed, evidence on
affidavit shall be produced of that fact and of the handwritings of
the deceased and attesting witnesses, and also of any circumstances
which may raise a presumption in favour of due execution.
The rule indeed requires either an affidavit of the attesting witness
or an affidavit of any other person present at the time of the execution of
the will or evidence on affidavit of the fact of the handwriting of the
32.
deceased and the attesting witnesses.
The plaintiff would contend that the last of the requirements
of Rule 384 has been satisfied by the plaintiff showing the two signatures
of two of the three attesting witnesses other than on the will which are
indeed similar to those signatures on the will.
Even that proof does not show the handwriting of the deceased and
has no reference to the thumb impression of the deceased on the will.
Indeed there is no other thumb impression of the deceased in any other
document. The copy of the power of attorney of the deceased certified by
the Notary to be the true copy does not show the thumb impression of the
deceased. Consequently the part of the rule relating to the evidence on
affidavit of the handwriting of the deceased is not at all satisfied.
The evidence would only show and suggest that signatures of two
attesting witnesses out of 3 attesting witnesses are similar to their earlier
signatures.
Other circumstances which would raise a presumption in favour or
due execution of the will cannot be seen in view of the aforesaid
documentary evidence. Rule 384, however flexible is, therefore, not
complied. Mr. Shah would argue that no consequences of non production
of any of the aspects under Rule 384 is laid down and hence non
production of all those aspects is not fatal to the petition. Even if this
argument is accepted, the plaintiff at least must otherwise prove the due
33.
execution of the will.
Mr. Shah relied upon the judgments in the cases of Owners
ig
and Parties interested in M. V “Valipero” Vs. Fernandeo Lopez
.
MANU/SC/0395/1989 and Smt. Rani Kusum Vs. Smt. Kanchan Devi
MANU/SC/0489/2005 in support of his argument that Rule 375 and 384
are directory. The judgment relates to the fatality of the defects of a
deposition which was not signed and the written statement which was not
filed within the time stipulated under Order 8 Rule 1 of the CPC holding it
to be directory. The judgment would have no relevance to the requirement
of the affidavit of the attesting witnesses or any other witnesses or the
proof of the handwriting/signatures of the deceased and the attesting
witnesses to the will.
34.
In view of the aforesaid documents the relationship of the
parties at around the time of the will also becomes important to consider.
The plaintiff initially married Gajanan. The plaintiff herself sued for
divorce. Gajanan did not contest the divorce petition. The plaintiff
obtained an ex parte decree of divorce. The plaintiff has admitted that she
was separated from Gajanan in about 196768. The plaintiff purchased
two flats (or they were purchased for the plaintiff) and was residing in
Goregaon since 196768. In view of her strained relationship with her
husband the purchase of two flats by the plaintiff within a period of about
a year cannot be explained. Though the defendant's evidence would show
that the plaintiff had a relationship with the original plaintiff to the
exclusion of her husband so that the original plaintiff lived in the flat
adjoining the plaintiff's flat, an aspect which has been denied by the
plaintiff, the fact remains that the plaintiff did not live in the joint family
house at Dadar during the subsistence of her marriage. The plaintiff
indeed married the original plaintiff Shrikant in 1977, couple of years after
obtaining the decree of divorce. The second marriage coupled with the
plaintiff's purchase of two flats away from the joint family house would
require judicial notice to be taken of the fact of her relationship with the
original plaintiff which drove her to file a divorce petition.
35.
The plaintiff is seen to have moved out of the family house
during the lifetime of the deceased and prior to the date of execution of the
will. The plaintiff's later marriage would require a similar judicial notice to
be taken of the relationship between the parties. The relationship was
within the family and must be taken to have been known by the deceased.
The deceased had many children. Gajanan lived with the deceased in the
family house during his lifetime. Shrikant, the original plaintiff was
usually away on high seas. Mr. Jamdar very justifiably argued that under
those circumstances there would have been no reason for the deceased to
bequeath the entire property the main part of which consists of two
tenanted buildings in Hindu Colony, Dadar, Mumbai to the plaintiff to the
exclusion of all other heirs. In fact, the deceased had executed a power of
attorney in favour of another son Madhav on the same day as the
purported execution of the will. The deceased later executed a power of
attorney giving wide and almost complete powers to his wife's sister's son
Rajadhyaksha. The original plaintiff was not in contention at all.
The original will as well as both the powers of attorney carry
36.
the docket of Mr. R. K. Rao along with his designation and address. The
powers of attorney are typewritten on legal size ledger paper. The will is
typewritten on a foolscap paper. The typewriting in all the three
documents appears to be from the same typewriter and in a similar
fashion. However the formating of the paragraphs is different in the will
and in the two powers of attorney; whereas the formating in the will shows
the paragraph number in the margin outside the contents of the will which
ig
is not the format followed in legal documents, the formatting in the powers
of attorney show the paragraph numbers within the paragraphs itself as is
37.
usually done in all legal documents (much as in this judgment itself).
The appointment of the two executors being Gajanan and
Madhav in the will are in consonance with the appointment the power of
attorney executed by the deceased on the same day as the will, Madhav
being appointed the executor under the will as also his constituted attorney
under the power of attorney both dated 1 st October, 1971. The
appointment of the same constituted attorney by the deceased (father) and
Shrikant (son) in their respective powers of attorney dated 28 th July, 1973
and 18th July, 1974 under the document prepared by the same Advocate
would show the genuineness of the execution of the powers of attorney.
That constituted attorney is not found in the will. However the plaintiff
has relied upon two signatures of the Advocate and of the Notary in the
power of attorney of Shrikant himself as also in the copy of the power of
attorney of his father. Though the Notary has signed as an attesting
witness, the will is neither notarized nor registered. Consequently it does
not bear the notarial seal and stamp. Mr. Shah on behalf of the plaintiff
would argue that the only purpose of producing the powers of attorney is
to see the previous signatures of the Advocate and the Notary.
38.
The contents of the will also show the fact of the disposing
state of mind of the deceased in para 1 of the will. The deceased has
bequeathed a life interest in the residential premises as also all movables to
his wife. Aside from such bequest, the remainder of the property including
the purchase of a wreck of a ship, the immovable properties as also other
movables are bequeathed to Shrikant absolutely but only upon the
condition that he assumes the burden and liability of the deceased in the
mortgages executed by the deceased and the amounts payable thereunder
ig
as his debts and liability. Consequently the wife has been given the right of
residence and user of the residential flat and the movables therein and
estate of the deceased.
The will is executed as far back as on 01.10.1971. The
39.
Shrikant has been made the residuary legatee of the entire of the other
deceased died 2 1⁄2 years thereafter. Madhav, one of the executors expired
on 01.09.1978. Gajanan, the other executor expired on 20.04.1991. The
will was not sought to be probated during the lifetime of the two executors
though the executors were alive for the period of 4 years and 17 years
respectively even after the death of the deceased.
40.
The plaintiff has not explained the possession and custody of
the will.
41.
The plaintiff has sought to explain the delay in applying for
probating the will. It is contended that the original plaintiff Shrikant had
job in merchant navy and was usually away from home on high seas. It is
also contended by the plaintiff that he used to collect the rent from the
tenants of the immovable properties of the deceased which were two
tenanted buildings in Hindu Colony, Dadar, Mumbai which was allowed
and never objected by any of his siblings. The plaintiff would contend that
the allowance of the collection of rents would show the lack of interest of
his siblings in claiming any rights in the property so that the original
plaintiff did not deem it necessary to apply for probate. The plaintiff, in
fact, claims to have applied for probate only when he desired to transfer
the immovable properties in his own name. The above chronology shows
that that was 17 years after the death of the deceased but within 6 months
ig
of the death of Gajanan, his brother. It may be mentioned that from the
power of attorney of the deceased dated 28 th July, 1973 it would be made
clear that the deceased had not appointed the plaintiff either under the
earlier power of attorney executed on the date of the will dated 1 st October,
1971 or on the later power of attorney dated 28th July, 1973. Consequently
the work of collection of rents would be done not by the original plaintiff
but by his brother Madhav initially from 1971 and by his mother's sister's
son Rajadhyaksha from 1973. Seen from powers of attorney the non
objection of his siblings to the plaintiff collecting rents cannot be made out.
42.
In fact, Mr. Jamdar on behalf of the defendant drew the
Court's attention to the contents of the power of attorney dated 28 th July,
1973 of the deceased in para 9 of which the wide powers to contract with
any person for leasing the property and letting into possession is also given
to the constituted attorney of the deceased aside from the collection of
rents. Similarly under Clause 10 of the power of attorney the power to sell
and convey the entire property of the deceased is also given not to the
original plaintiff, Shrikant, but initially to his brother, Madhav and later to
Rajadhyaksha. Mr. Jamdar would justifiably contend that the powers of
attorney would run counter to the will of the deceased prepared on the
same day as the power of attorney in favour of Madhav, the other son of
the deceased, as also the power of attorney in favour of Rajadhyaksha.
The original plaintiff would become the owner of the property
43.
only upon obtaining probate. Before even a petition for grant of probate is
made, the original plaintiff has, within a month of the death of the
deceased sought to execute the power of attorney dated 18 th July, 1974
also in favour of Rajadhyaksha, who was the constituted attorney of the
deceased. The authority of the original plaintiff as the principal cannot be
understood. The grant of the authority upon Rajddhyaksha, therefore,
follows as a matter of course. The initial power of attorney of the deceased
dated 28th July, 1973 would terminate upon his death. Within a year, on
16.06.1974, Rajadhyaksha had to be appointed by the person who has
been bequeathed the properties of the deceased under the will or by all his
heirs on intestacy. Mr. Shah would claim that the contents of the powers of
attorney do not matter; even the authority of the original plaintiff does not
matter. The power of attorney has been produced only to compare and
verify the two signatures of the two attesting witnesses. Nevertheless, once
a document is produced before the Court, it would require to be considered
for all purposes.
44.
The entire exercise has been undertaken because the original
plaintiff has failed to obtain the affidavit of any of the attesting witnesses
in support of the petition.
45.
Mr. Shah would contend that the husband of the defendant,
Gajanan as also the other brothers never objected to the plaintiff's
collecting rents and thereafter to the plaintiff applying for the Letters of
Administration with the will of the deceased annexed thereto.
The collection of rents by the plaintiff is not shown. The deceased
has not executed a power of attorney in favour of the plaintiff. Even if the
plaintiff did collect some rents it is stated to be for the maintenance of the
mother of the parties, (which was not objected to by any of her children)
who resided in one of the flats of the two buildings of the family until 1981
and after which the defendant's daughter Apurva used to stay in that flat
during her vacation along with other relations and all expenses during her
stay were borne by the original plaintiff. (This has been a part of the record
under an affidavit of the defendant dated 7 th June, 1994 filed in Notice of
Motion No. 277 of 1994 in the above suit). The consent letters of the other
siblings are given about two decades after the date of the purported
execution of the will. It is an admitted fact that the three of the siblings
live abroad. The other siblings live in Mumbai as also other cities like
Nagpur. Each of them is well settled in life. The consent letters would only
show that all do not want to dispute the will and seek his/her share at that
distance of time as contended by Mr. Jamdar. In any case the fact that
some of the heirs consent to the grant of probate or Letters of
Administration with the will annexed do not require the Court not to
evaluate the lack of consent of the heir not consenting.
46.
It appears that the siblings indeed had no major disputes
amongst one another. None of them claimed a separate share. However
all of them as coparceners of HUF would be entitled to share in the
undivided property as such coparcener. Mr. Jamdar would point to the
Court the fact that the plaintiff appeared to be in no hurry to obtain the
probate of the will of his father within a reasonable time after the death of
the father but was keen on obtaining the grant of the Court within six
months of the death of his brother Gajanan whose wife he had married.
47.
It is sought to be contended by the plaintiff that the case of the
defendant cannot be accepted because she married Gajanan in 1979 well
after the aforesaid evidence transpired and hence would not know any of
these personally. Indeed that would be so. However the evidence of the
defendant shows that Gajanan made a clean breast of the life of his former
wife at the time he proposed to the defendant. That would be the fact as
was heard by the defendant personally from Gajanan. Consequently under
Section 60 of the Evidence Act, to which my attention is drawn by Mr.
Jamdar, her oral evidence to the extent of the fact of the family relationship
which she heard from Gajanan would be her direct oral evidence. The
relevant part of Section 60 runs thus:
60. Proof of facts by oral evidence. Oral evidence must, in all
cases whatever, be direct; that is to say
If it refers to a fact which could be seen, it must be the
evidence of a witness who says he saw it;
If it refers to a fact which could be heard, it must be the
evidence of a witness who says he heard it;
........
However the evidence of the defendant is hardly material in view of
the aforesaid admitted chronology of events and dates and the documents
relied upon by the plaintiff herself being the two powers of attorney, her
marriage certificate, the letter dated 27.04.1972 and the two agreements of
purchase of flats by the plaintiff.
48.
Mr. Jamdar would also contend that there has been no letter
sent to any of the executors during the lifetime of Gajanan calling upon
them to administer the estate of the deceased. This is despite the fact that
the constituted attorney of the deceased as also the plaintiff was the same
person Rajadhyaksha, who was one of the executors and Gajanan himself
was the other executor.
It must be borne in mind that a will, specially one which
49.
grants the entire of the estate of the deceased to one of the seven children
of the deceased would be required to be probated within a reasonable time
of the death of the deceased as it would exclude all the heirs other than the
sole beneficiary from the estate. Of course, a petition can be filed even
after gross delay is explained and there are no other circumstances to lend
suspicion to the execution of the will (See. Vasudeo Daulatram
Sadarangani Vs. Sajni Prem Lalwani 1982 (vol.85) The Bombay Law
ig
Reporter 113) followed in Wilma Levert Canua Vs. Allan Sebastian
50.
D'Souza in Appeal NO. 643 of 2012 dated 1st July, 2013 of this Court.
In view of the aforesaid reasons there are number of suspicious
circumstances seen by the Court by which due execution of the will of the
deceased dated 01.10.1971 as his last will and testament is not proved.
Hence Issue No.1 is answered in the negative.
ISSUE NO.2 & 3: Re: Fraud, coercion, undue influence and forgery
The forgery of the will cannot be ruled out in view of the
51.
observations with regard to the texture of the paper of the will as also in
view of the relationship of the parties as members of a family. However the
fraud, coercion or undue influence is not required to be proved since the
due execution of the will itself is not proved. Hence these issues do not
require to be answered and are hence not answered.
52.
ORDER
The last will and testament stated to be of the deceased
Mangesh Pandurang Rege is not proved. The grant of Letters of
Administration with the will annexed is refused. The petition is
accordingly dismissed.
Drawn up decree is dispensed with.
54. In view of the fact that the texture of the paper of the will is
53.
seen alongside the other documents of the same decade being the aforesaid
two powers of attorney and the marriage certificate of the plaintiff, these
documents shall be kept in a sealed cover in the custody of the
Prothonotary and Senior Master of this Court until the final disposal of all
appeals from this judgment.
The order dated 24.08.1994 shall continue for two weeks.
(ROSHAN DALVI J.)
No comments:
Post a Comment