facto preclude the grant of Probate. The Plaintiff must be given an
opportunity to dispel them.Kunvarjeet Singh Khandpur v Kirandeep Kaur and Ors., (2008) 8 SCC
463. This is only to satisfy the judicial
conscience that there is nothing untoward.Smt. Jaswant Kaur v Smt. Amit Kaur, (1977) 1 SCC 369. When more than one
such circumstance exists, the cumulative effect must be
considered.S.R Srinivasa Rao and Ors. v S. Padmavathamma (2010) 5 SCC 274.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY & INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 20 OF 2005
IN
TESTAMENTARY PETITION NO. 753 OF 2004
SHIRISH POPATLAL SHAH,
v
ARUN POPATLAL SHAH,
CORAM : G.S.Patel, J.
Dated : 8th July 2016
Citation: 2016(6) MHLJ 257
1. The Plaintiff seeks Letters of Administration with Will
Annexed to a Will dated 21st November 19921
that he says was the
last Will of his father, Popatlal Bhogilal Shah (“Popatlal”), who
died in Mumbai on 2nd January 1993. Popatlal had a daughter and
three sons with Lilavatibai Popatlal Shah (“Lilavati”). They are:
Vinodini Mody (“Vinodini”), the Plaintiff, the Defendant and
Sushil Shah (“Sushil”).
2. The Defendant filed a Caveat dated 14th February 20052
and
an Affidavit in Support dated 21st February 2005.3 The Petition was
then renumbered as Testamentary Suit No. 20 of 2005.
3. Before I go further, I should note that this is the second of
two testamentary contests between the same parties. Shirish Shah,
the present Plaintiff earlier filed Testamentary Petition No. 754 of
2004, for Probate to Will he said had been made by the parties’
mother, Lilavati. The present Defendant, Arun Shah, opposed the
Petition. He entered a Caveat and that Petition was renumbered as
Testamentary Suit No. 18 of 2005. The Will propounded divided
Lilavati’s estate, including her inheritance from her husband,
Popatlal, between Vinodini, the present Plaintiff, Sushil and Asim
(the Plaintiff’s son). Arun, the present Defendant, was excluded. I
decided that Suit, and held for the Defendant. For several reasons, I
held that the Will was not proved. I pronounced judgment in that
Suit on 28th March 2016. That judgment is under appeal. This is of
some importance to this case, for Mr. Narula for the Defendant
would have it that the present Will, too, was ‘conjured up’
, as he
puts it, at about the same time as Lilavati’s Will; and that the
Plaintiff’s intention was only one: to grab the entirety of the parties’
parents’ estates. I will address that argument shortly.
4. First, to the Will’s physical aspect. This Will is typed in
English, also a matter of some moment to one of Mr. Narula’s
submissions. It has four pages. Popatlal has initialled pages 1, 2 and
3. His signature is on page 4. The attesting witnesses to this Will are
one Suresh Mody (“Mody”), Popatlal’s son-in-law; and one Dr.
Arun Shah, (“Dr. Shah”), a practicing physician. Mody died on
26th March 2010. Dr. Shah is said to have worked in an honorary
capacity at the Bharatiya Arogya Nidhi Hospital at Juhu. This
hospital is run by a Trust that Popatlal established or headed, and of
which the Plaintiff is now the Chairman.4
5. I turn now to the contents of the Will. In this, Popatlal set
out his properties and assets in some detail. He made an absolute
bequest of all of these assets in favour of his wife, Lilavati. This
included his share in their HUF; the plot of land in Friends Cooperative
Housing Society at Juhu Scheme; and his tenancy rights in
14, Al-Sabah Court, 73 Marine Drive, Mumbai 400 020, where he
lived till his death. The exception was his PPF Account, which he
donated to Shah Public Charities, a trust that he settled. He
provided that should Lilavati predecease him, his properties and
4 In fact, even the Defendant is said to be a Trustee.
assets would be equally divided between all four children. Popatlal
appointed no executor under this Will.
6. In the Affidavit in Support of the Caveat, the Defendant
alleges that this Will is a forgery by the Plaintiff and his family
members. He says they did this with an ulterior motive and for
personal gain, and that the circumstances surrounding the execution
of the Will are suspicious and unnatural. He takes these grounds:
First, the Testator, though a polyglot, was intensely proud of his
Gujarati heritage and culture. He was a published Gujarati poet. He
had made prior wills in 19795
and 1985,6
and both were in Gujarati;
the final will is, inexplicably, in English. Second, the family met after
Popatlal’s death. The Plaintiff showed the entire family a document
in Gujarati, one the Defendant then believed was Popatlal’s last
Will. However, the Plaintiff never furnished the Defendant with a
copy of this Will, despite promising to do so. Third, the attesting
witnesses to the Will are ‘interested witnesses’
, because Dr. Shah is
a physician at the Bharatiya Arogya Nidhi, run by a trust of which
the Plaintiff is the President. Sushil and Asim, the Plaintiff’s son,
are also trustees. Mody is the Plaintiff’s brother-in-law (Vinodini’s
husband); his son works for Sushil. Fourth, the Plaintiff filed for
Probate more than 11 years after Popatlal died and there is no
apparent reason for so inordinate a delay.
7. The Plaintiff alleges that the Defendant promised to pay a
certain sum of money that he owed Lilavati, and that this discussion
5 Ex. D-8, pp. 305–308.
6 Ex. D-9, pp. 309–312.
took place in the family meeting after the Testator’s death. There
are other issues that the Plaintiff covers in his Evidence Affidavit
that are far removed from the issues before me.
8. Issues were first framed on 16th January 2009. Considering
the evidence on record and the points of contention between the
two parties, Mr. Panicker for the Plaintiff and Mr. Narula for the
Defendant agreed that the issues framed earlier needed to be recast
and substituted. I accepted the common submission, and framed
issues again on 9th June 2016. These are set out below with my
findings against each.
Sr. No. Issue Finding
1. Whether the Plaintiff proves that the
writing dated 21st November 1992
was duly and validly executed and
attested in accordance with law as
the last Will and Testament of the
deceased, Popatlal Bhogilal Shah?
Yes
2. Whether the Plaintiff proves that at
the time of the said alleged Will, the
deceased was of sound and
disposing state of mind, memory
and understanding?
Yes
3. Whether the Defendant proves that
the alleged Will is a forged and
fabricated document? No
4. Whether the Defendant proves that
the alleged Will is suspicious and
unnatural?
No
5. What relief and what orders? As per final
order
THE EVIDENCE ON RECORD
9. The Plaintiff examined himself (PW1), his brother Sushil
(PW2) and Dr. Shah, the attesting witness (PW3). The Defendant
led his own evidence as DW1, and also examined one Parag Khatri, a
handwriting expert (DW2).
10. As to the documents marked, I will turn to them when
discussing each issue.
RE: ISSUES NOS. 1 & 2
11. A Will is proved if it meets the requirements of Sections 59,
61 and 63 of the Indian Succession Act, 1925. Section 59 says that a
Will can be validly made by any adult of sound mind. The
testamentary or dispositive capacity must be proved to the
satisfaction of the Court. Section 61 requires that the Will not be
importunate; i.e., it must be made of the Testator’s volition, absent
fraud, coercion, undue influence or other factors that take away the
testator’s free agency. Section 63 has the requirements of a proper
execution of an unprivileged Will. There is no particular form, but
its execution must be attested by at least two witnesses at the
direction of the testator; each witness must attest the Will in the
presence of the testator, though both need not be present at the
same time. Proof of a Will means its proof in its solemn form. Such
proof can only be established by complying with all these
aforementioned requirements and adducing evidence to prove it. A
Plaintiff who fails to prove the Will in its solemn form cannot be
granted Probate or Letters of Administration with Will Annexed.7
This proof is not required for a mere reading of the document, but
to afford the Court a reasonable assurance that the document is
indeed what it purports to be.
12. In his Evidence Affidavit, the Plaintiff states that on 21st
November 1992, seven persons were present at Popatlal’s residence
at Marine Drive: the Plaintiff, Sushil, Vinodini, Popatlal himself,
the two attesting witnesses Mody and Dr. Shah and an Advocate
named R. F. Trivedi (“Trivedi”). Neither Vinodini nor Trivedi
were examined. The Plaintiff goes on to say that on that day, Trivedi
read out the will to the Testator,9 who confirmed it and thereafter
executed the Will in the presence of the others. Sushil, PW2,
corroborates this in his Evidence Affidavit.10 The Plaintiff identifies
the signatures of the two attesting witnesses, the Testator’s initials
at pages 1, 2 and 3, and the Testator’s signature at page 4 of the
Will.
7 Arvind and Ors. v Indirabai and Ors., (2008) 5 Mh.L.J. 185.
8 B. Venkatamuni v C.J. Ayodhya Ram Singh & Ors., (2006) 13 SCC 449.
9 Plaintiff’s Evidence Affidavit, para 3, p. 36.
10 Sushil’s Evidence Affidavit, para 6, p. 77.
13. Mr. Narula’s submission is that both attesting witnesses are
‘interested’ witnesses; neither should be believed. Dr. Shah, one of
the two attesting witnesses, is an honorary physician at the
Bharatiya Arogya Nidhi Hospital, in Juhu. The Plaintiff is the
President of the Bharatiya Arogya Nidhi Trust. Sushil and Asim are
also trustees. The Defendant alleges that Dr. Shah is only
‘complying with the Plaintiff’s wishes because his job depends on
it’.11 As to Mody, the Defendant alleges that Mody is Vinodini’s
husband, i.e., the Testator’s son-in-law, and that Mody’s son works
for Sushil. He also claims that Mody was suffering from an
advanced stage of Alzheimer’s disease, and he was unable to
remember his own identity, let alone go about his daily routine.
14. Mody filed no Evidence Affidavit; he passed away on 26th
March 2010. He did, however, file an Affidavit in Support of the
Petition,12 and in this he says that he knew Popatlal well; that on 21st
November 1992, he and Dr Shah were both present at Popatlal’s
residence; that he saw Popatlal sign the Will; and that, at Popatlal’s
request, he and Dr. Shah then signed it as witnesses and wrote their
names below their signatures. Mody identifies the signatures on the
Will.
15. Dr. Shah too filed an Affidavit supporting the Petition,
corroborating Mody’s statements.13 He also filed an Evidence
Affidavit.14 In his Evidence Affidavit, Dr. Shah says that around mid-
11 Defendant’s Evidence Affidavit, para 23, p. 142.
12 Mody’s Affidavit in Support of Petition, p. 24.
13 Dr. Shah’s Affidavit in Support of Petition para 2, p. 22.
14 Paperbook, pp. 110–112.
November 1992, Popatlal requested him to witness the execution of
the Will and accordingly, he was present at Popatlal’s Marine Drive
residence on 21st November 1992 (a Saturday; this cannot be
disputed) and that he reached there at about 10:30 am. Mr. Narula
argues that it is in itself ‘suspicious’ that the Testator would have
thought it necessary to call Dr. Shah all the way from Juhu, where
Bharatiya Arogya Nidhi Hospital is located, to his Marine Drive
residence merely for attesting his Will, especially when Popatlal had
his own family doctor closer by near Gamdevi. I am unable to
appreciate this submission. The evidence shows that in 1992, Dr.
Shah used to go to Bhatia Hospital in the morning. On Saturdays, he
would go to Bhatia Hospital and then go on to the Bharatiya Arogya
Nidhi Hospital He says that on the day in question, he went to
Popatlal’s residence directly after his visit to Bhatia Hospital.15
Bhatia Hospital is at Tardeo, not far from Al-Sabah Court on
Marine Drive. Mr. Narula’s submission actually finds its honour,
albeit in an unexpected way, in Dr. Shah’s cross-examination. When
asked why he charged no fees to visit Popatlal — very likely an illadvised
question in cross-examination — Dr. Shah supplied a
perfectly cogent reason: he said he was the Honorary Medical
Director at the Bharatiya Arogya Nidhi Hospital at the time, and it
was his ‘honour’ to attest Popatlal’s Will, for Popatlal was then the
Chairman of that hospital.16 What we have, therefore, is direct
evidence from Dr. Shah supplying a reason in response to what is
the purest conjecture on Mr. Narula’s part.
15 Qn. 33, p. 120.
16 Qn. 34, p. 121.
16. Faced with this, Mr. Narula argues that because Popatlal, as
the Chairman of the Bharatiya Arogya Nidhi Hospital,
‘gave’ Dr.
Shah the post of Honorary Medical Director, Dr. Shah was
somehow beholden to Popatlal. Even if that is so, it makes no
difference; merely because an attesting witness is obliged to a
testator it does not follow that the attestation or execution are either
bad or even suspect. In any case, it is one thing to say that Dr. Shah
was beholden to Popatlal; that is irrelevant. It is quite another to say
that Dr. Shah was beholden to the Plaintiff. Of this there is no
evidence, and in any case, it does not stand to reason for, at the time
in question, it was Popatlal who was at the helm of the Bharatiya
Arogya Nidhi Hospital, not the Plaintiff. Mr. Panicker counters this
by citing two questions from Dr. Shah’s cross-examination:
Q-37. Can I take it that since the deceased was a
trustee and his son the Plaintiff was the trustee
of the Hospital at which you practice, you never
questioned either of them and blindly obeyed
instructions without questioning them?
Ans. When a sound minded person who is living
makes a will and he requests me to be there to
sign the will, there are no questions to be asked
if you know the person personally. I had no
obligation to sign the Will. It was out of mutual
respect with each other that I signed the Will.
Q-38. Can I take it that since the deceased was a
trustee and his son the Plaintiff was the trustee
of the Hospital at which you practice, you never
questioned either of them and blindly obeyed
instructions without questioning them?
Ans. Since the deceased was the Chairman of the
Hospital and I was the Honorary Medical Director
of the Hospital at that time, if I had to sign a Will
of a sound person, there was no pressure on me
and I thought it was an honour that he called a
person from outside his family to sign the Will.
(Emphasis added)
17. I imagine these two answers (I do not know why the two
questions were repeated verbatim) provide a complete answer to Mr.
Narula’s argument. First, it is abundantly clear from Dr. Shah’s
Affidavits and cross-examination that he could not be called an
‘interested witness’ merely because he had a subsisting professional
relationship with the Testator. Alternatively, assuming he was an
‘interested witness’
, he would still be able to witness the execution
of the Will and attest to the animus testandi. Dr. Shah had no interest
in the Will itself.
18. Mr. Narula also argues that Mody had Alzheimer’s disease
and was neither able to remember his own identity nor capable of
understanding his actions; therefore, his attestation is invalid. I
cannot accept this either, simply because there is no proof at all of
any such incapacity on that day. To the contrary, the Defendant
admits in his cross-examination that he has no personal knowledge
of any such condition at all, but it is only what he was told. 17
19. In his Evidence Affidavit, the Plaintiff claims that Popatlal
dictated the Will in the presence of Lilavati, Sushil, Vinodini, and
17 Defendant’s cross-examination, Qns. 278, 280, p. 204.
himself. The Will was scribed by Trivedi, a lawyer.18 It was dictated
at the Al-Sabah Court residence in early November 1992, after
which Trivedi had it typed in English in his own office. The typed
Will was ready on 21st November 1992. On that day, Trivedi read it
out to Popatlal. Both attesting witnesses, the Plaintiff, Sushil and
Vinodini were present at the time. Before signing the Will, Trivedi
explained parts of it to the Testator in Gujarati. The Plaintiff says
that he called Trivedi because Popatlal asked him to call an
Advocate. However, in his cross-examination, he says that it was
Popatlal who gave him Trivedi’s phone number and only then did he
call Trivedi.19 He does not know Trivedi’s whereabouts or have his
contact information. From his answers to Questions 97 to 106 in his
cross-examination, it is clear that the Plaintiff did not personally
know Trivedi, nor did he have any professional acquaintance with
him.20 He had never even seen Trivedi. Some sort of answer is
provided by Sushil, PW2, who says that while he, too, had no
personal knowledge as to how Popatlal knew Trivedi, his mother
told him that Trivedi was a friend of one of Popatlal’s morning walk
acquaintances.21 This provides much grist to Mr. Narula’s mill: he
says it is inconceivable that a man from a traditional Gujarati
background would ever ask a stranger such as Trivedi, with whom
there is no evidence of any previous contact, to get involved in any
fashion in an intensely personal document such as a Will.
18 Plaintiff’s Evidence Affidavit, para 3, p. 36.
19 Plaintiff’s cross-examination, Qn. 98, p. 68.
20 Qns. 97-106, p. 68.
21 Sushil’s cross-examination, Qns. 75-81, p. 102.
20. Had this remained here, there may have been something to
it. After all, Trivedi’s evidence was never led, and it is inexplicable
how Trivedi should make what Mr. Narula acerbically describes as
‘this guest appearance’ on this of all days, unknown and unheard of
before and never to be heard of again.
21. Unfortunately for Mr. Narula, it is not that easy to catch the
redoubtable Mr. Panicker out of his crease. As to Trivedi not being
examined, Mr. Panicker says there was no possibility of it since
Trivedi died on 6th October 1994 and was well out of the reach of
even a judicial summons. He produces a written confirmation dated
15th June 2016 from Jayen Trivedi (R. F. Trivedi’s son) to confirm
this. As to the question of a confirmation of Trivedi’s presence, Mr.
Panicker points out that in answer to Question 41 in his crossexamination,
Dr. Shah says:22
Q-41. Can you please tell me why you have not put the
date besides your signature when you allegedly
signed as a witness?
Ans. I was not asked to put the date by Mr. Trivedi,
who was the lawyer and was present at that
time.
22. That, Mr. Panicker says, and I think he is probably right, is
enough to put paid to this limb of the argument. Coming now to Mr.
Narula’s argument that Popatlal had a ‘traditional’ background, Mr.
Panicker says he is at a loss to understand what, if anything, this is
supposed to mean. Frankly, so am I. There is no evidence of any
22 Dr. Shah’s cross-examination, Qn. 41, p. 122.
such ‘conventionality’ and the fact that a person can read and write
in a language other than English, or is passionate about poetry (or,
from that matter, music, literature or drama) in the vernacular is
hardly evidence of being ‘conventional’. I have not allowed Mr.
Panicker to place material about Lilavati’s or Vinodini’s education
and so on simply because it is no part of the evidentiary record,
though Mr. Panicker did attempt to include it in his written note of
arguments. Mr. Narula says the ‘balance of probabilities’ must
weigh against this story, simply on account of Trivedi’s presence.
Must it? The others confirm his presence and their testimony is
unshaken in cross. One does not and cannot expect complete
conformity with our latter-day imaginings in such matters; after all,
we are looking back and trying to envision ourselves in that fabled
armchair occupied by a testator. What should we expect to see? Just
this, I expect: a man of evident intelligence, prudent and cautious in
his affairs — evidenced from his having made two Wills much
earlier —certainly proud of his heritage, but with an active social
conscience as well. I am not required to be a perpetual sceptic; what
is demanded of me is vigilance and circumspection. Is the presence
of Trivedi by itself so very outrageous? Must one always demand
complete consistency in all matters and at all times? We do not here
seek absolute perfection in the making of Wills (no more, I may
venture, than anyone does in the writing of judgments). The task
before a person proving a Will is to show due execution and
testamentary capacity. I do not see how either are defeated by
Trivedi’s presence. It is true that it is for the propounder of a Will to
remove all suspicious circumstances, but these circumstances must
either appear from the document itself or must be shown to exist by
cogent evidence. Again, Trivedi’s presence is not such a suspicious
circumstance as would alarm a judicial conscience; and that, after
all, is the final test in such matters.23 In Leela Rajagopal & Ors. v
Kamala Menon Cocharan & Ors.,
24 the Supreme Court said that an
overall view is to be adopted; emphasis cannot be placed on a single
feature or circumstance in the execution of a Will.
23. As to testamentary capacity, it is nobody’s case that Popatlal
was not of a sound and disposing state of mind at the time when he
made this Will. In his Evidence Affidavit, the Plaintiff asserts that
the Testator was in good health and proper state of mind and
understood the contents of the Will.25 This account is confirmed by
Sushil in his Evidence Affidavit. He says that till the time of his
death, the Testator was healthy and alert and had also attended
office till the last week of December 1992. He further goes on to say
that Popatlal used to write his own books of accounts and handle
matters relating to the Shah Public Charities.26 In his Affidavit filed
with the Petition, Mody affirms that at the time of signing the Will,
the Testator was of a sound and disposing mind, memory and
understanding and had made the said Will out of his free will and
pleasure.27 Dr. Shah also says so.28 He reaffirms this in his Evidence
Affidavit.29 It is clear that in addition to both the witnesses, the
23 Surendra Pal v Dr. Saraswati Arora, (1974) 2 SCC 600; Madhukar D.
Shende v Tarabai Aba Shedage, (2002) 2 SCC 85.
24 AIR 2015 SC 107.
25 Plaintiff’s Evidence Affidavit, para 4, p. 36.
26 Sushil’s Evidence Affidavit, para 6, p. 77.
27 Mody’s Evidence Affidavit, para. 5, p. 25.
28 Dr. Shah’s Evidence Affidavit, para. 5, p. 22.
29 Para. 5, p. 111.
Plaintiff and Sushil depose that the Testator was possessed of a
sufficient dispositive capacity and that he signed it freely.
24. I am unable to agree with Mr. Narula that the Will is
shrouded in suspicious circumstances, or that it has not been duly
proved. Issues Nos. 1 and 2 are answered in the affirmative.
RE: ISSUE NO. 3:
25. The Defendant’s contentions as to forgery and fabrication
must be carefully parsed. The first limb of the argument is that it is
written in English, even though the previous Wills were in Gujarati.
The second is attempted proof the signature on the last page being
forged. This is sought to be established by relying on the evidence of
DW2, Dr. Parag Khatri, a handwriting expert.
26. The Defendant contends that though his father was a
polyglot who knew French, Sanskrit, Flemish, and Hindi,30 he was
an avid Gujarati poet and fostered a ‘deep love’ for his mother
tongue.31 He was most comfortable speaking and writing to the
family in Gujarati.32 All correspondence between the Testator and
the Defendant is written by hand in Gujarati, evidenced by letters
which are on record. These letters are indicative not only of the
30 Defendant’s Evidence Affidavit, para. 4-5, pp. 125-126; Evidence
Affidavit of PW2, para. 5, p. 77; Plaintiff’s cross-examination, Qn. 16, p.
45.
31 Caveat, para 6(c), p. 33c.
32 Defendant’s Evidence Affidavit, para. 4, p. 126.
Testator’s choice of language, but its contents also expressed his
pride in communicating in Gujarati. He was also a Gujarati
litterateur, and had published a book of his selected poems titled
Runanubandh. This book had but only one English poem.33 This is
countered inter alia by Sushil, PW2, who asserts that the Testator
was very comfortable with speaking in English, to the extent that he
often used English words in Gujarati correspondence.34 It is also on
the record that the Testator ordinarily drew up official documents in
English.35
27. It has always been the Plaintiff’s case that the Testator could
communicate in English, and did so reasonably well. It is nobody’s
case that the Will is fabricated because the Testator could not speak
English. The only case, as I understand it, is that it was exceedingly
odd for him to have done so considering he had written his previous
wills in Gujarati and took great pride in his mother tongue. A very
similar argument was taken before a Division Bench of the Calcutta
High Court in Sanat Kumar Das v Arati Das.36 Here, the testator,
who was educated in English, had signed the Will in Bengali.
Though the caveators in this matter were aware that the testator
knew Bengali, they had not known him to sign in that language
before. The High Court dismissed the submission. It is settled law,
the Division Bench said, that the Probate Court cannot require
33 Defendant’s cross-examination, Qn. 40, p. 154.
34 Sushil’s Evidence Affidavit, para. 5, p. 77; Cross-examination of PW-2,
Qn. 35, p. 91.
35 Documents D5-D7, Compilation of Documents by the Defendant, pp.
295-297.
36 (2009) 4 CHN 593 (DB).
proof ‘beyond reasonable doubt’
, nor must the Court proceed on a
presumption that the Will is suspicious. I am in most respectful
agreement with this decision. I do not find that the language of the
Will is troublesome enough to doubt its veracity. Every person is at
liberty to draw up their Will in whatever language they please; and
once there is, as we have here, proof that the testator was fluent in
more than one language, this aspect, on its own, assumes no
significance at all. I am therefore unable to accept Mr. Narula’s
submission in this regard.
28. As regards the second contention, the Defendant alleges that
the signature of the Testator on the Will is not his, but has been
forged by someone else. He relies on the report of Dr. Khatri, a
handwriting expert who the Defendant commissioned to analyse
Popatlal’s signature.
29. The Defendant has only questioned the Testator’s signature
on the last page of the Will. The first three pages of the Will, which
bear the handwritten initials of the Testator, have not been called
into question. Furthermore, despite Mr. Narula’s arguments, a
personal allegation of forgery and fabrication was never put to any of
the Plaintiff’s witnesses.
30. Dr. Khatri’s report is an elaborate analysis of the Testator’s
signature. He compares the signature on the Will, which he calls
“Disputed Document Q”
, to four documents, viz., three letters to
the Bank of Baroda dated 23rd February 1987 (called, respectively,
“Known Document K-1”); 8th April 1988 (“Known Document K-
2”), and 22nd September 1989 (“Known document K-3”), and the
passport of the deceased (“Known document K-4”) The analysis is
divided into what Dr. Khatri calls class characteristics and individual
characteristics.
31. Class characteristics are, he claims, based on various
parameters such as the movement of the writing instrument, the
slant, the pressure applied etc.; individual characteristics deal with
aberrations in the disputed signature when compared to individual
signatures in the known documents. The Testator’s signatures on
his passport and other documents tendered for comparison reveal
that his signature had a forward slant and was made at some speed.
The speed in the disputed signature had decreased. Discrepancies
can also be found between individual characteristics of the admitted
and disputed signatures.
32. I will deal with the so-called class characteristics first, as they
speak to the general nature of the Testator’s signature. Tendered for
consideration as his standard signatures are the exhibits in the ‘K’
series of the report. There exist several anomalies in the class
characteristics; to my mind, they follow a trend. To begin with, the
Testator wrote at a medium speed and with superior skill in the ‘K’
series of signatures; his speed is said to decrease and the skill is said
to be inferior in the contested signature. As for the slant of the
letters and their alignment, the difference is negligible. The muscle
co-ordination is said to have deteriorated in the disputed signature.
37 Dr. Khatri’s report, p. 394.
38 Dr. Khatri’s report, p. 394.
33. To my mind, these observations merely accommodate the
fact that the Testator had grown older. Dr. Khatri was not informed
at the time of analysing the signatures that he had suffered a
paralytic attack some years earlier and was also suffering from heart
disease.
34. Individual characteristics are often more telling of deceit, as
they analyse the strokes of the pen in minute detail. Dr. Khatri’s
findings are that the signature in K-4, made around 1960, was made
with a good rhythm and speed, which is missing from the rest. The
other signatures were made in the period of 1987-89, almost thirty
years after the first. There are other discrepancies found by the
handwriting expert, none too great. He observes that the letter ‘P’
in ‘P.B. Shah’ in the admitted signatures has a certain stroke, in the
shape of an oval, which he says the disputed signature does not
have. I notice that the admitted signatures have varying versions of
that stroke, as does the disputed signature. Further, Dr. Khatri says,
the word ‘Shah’ has been written with a trembling hand.40
35. The report in itself does not offer any conclusive finding. It
merely opines that there are fundamental and significant
dissimilarities, except some resemblance.41 In his cross-examination, Dr.
Khatri states that the document ‘seems to be forged’.42 He further
states that he has not used the word “forgery”
, but the meaning was
39 Dr. Khatri’s cross-examination, Qns. 130, 131, p. 234.
40 Dr. Khatri’s report, p. 395.
41 Dr. Khatri’s report, p. 394.
42 Dr. Khatri’s cross-examination, Qn. 197, p. 244.
the same.43 As for attempts at disguising the signature, Dr. Khatri
admits that he did not find any.
36. Before moving on, a look at the information that the expert
had before him when preparing his Report. The relevant questions
of Dr. Khatri’s cross-examination are these:
Q – 130. Did you have any discussion about the
health of the Testator with anybody?
Ans. No.
Q – 131. Do you agree that you were not aware that
he was suffering from any ailment?
Ans. No, I was not aware whether he was
suffering from any ailment.
Q - 162. Are you aware if the signatory had suffered
from a paralytic attack?
Ans. No.
Q - 163. If a person suffers from a paralytic attack,
the signature can differ. Is that correct?
Ans. Yes.
Q – 166. Did you enquire whether the Testator was
writing with his left hand or the right hand?
Ans. No, since it does not matter.
Q – 167. Is it correct to say that the handwriting or
signature of a person differs if he suffers
43 Dr. Khatri’s cross-examination, Qn. 201, p. 244.
from partial blindness, heart problem as
well as due to ageing?
Ans. Yes.
Q – 309. Does the signature of a person differ from
time to time; say over a period of 2 years,
depending upon the age of a person?
Ans. Yes, may be.
Q – 311. According to you, what are the
circumstances or reasons when signature
or handwriting differs?
Ans. It could be the age of a person, time,
health and mental orientation.
Q – 312. Does the signature differ, when the person
is required to sign in a limited space?
Ans. Yes, a little variation may happen.
Q – 313. Would it be correct to say that the Testator
had to sign in a limited space i.e. in
between two lines?
Ans. Yes.
37. It is known that the Testator suffered a paralytic stroke in his
late sixties. He also suffered from heart disease. I presume that a
paralytic stroke might well impede a person’s physical ability to
write. This is substantiated by Dr. Khatri in Q. 53 of his crossexamination.44
So would afflictions such as heart disease and aging,
and this, too, is borne out by Dr. Khatri himself in his response to
44 p. 221.
Q. 167. After his paralytic attack, the Testator learnt how to write
and sign with his left hand.45 This is, in fact, a question elicited by
the Defendant in the Plaintiff’s cross-examination, and it creates an
anomaly in and of itself. For, if it is the Defendant’s case at one
stage that Popatlal used his left hand, then there is little point in this
exercise of comparing signatures. That assumes a certain continuity
in the manner and mode of writing — the same hand without any
great or intervening impairment. This conflict in the Defendant’s
own case is never reconciled at all. It is therefore unreasonable on
the Defendant’s own showing to expect that Popatlal would sign
with the same level of dexterity after the attack as he did before. It is
apparent from the expert’s cross-examination that he was unaware
of this fact.46 Further, he says that in a given case, it would not
matter if the Testator signed with his right or left hand as far as his
report is concerned.47 I find this hard to believe. Many of us simply
cannot sign with the other hand; not everyone is ambidextrous; and
should we have to learn to use that hand, it would be very difficult to
achieve the same fluency in signatures that we once had with the
good hand. Indeed, most of us have difficulty signing with the same
hand on an unfamiliar medium, such as an electronic tablet. I do not
find in Dr. Khatri’s report any allowance for this working-hand
reversal; the assumption is that all the signatures are with the same
hand. Surely, had he been made aware of the Testator’s paralysis
and the consequent adoption of his left hand for writing and signing,
Dr. Khatri might have considered this fact of some moment in his
assessment of the so-called aberrations in the disputed signature.
45 Plaintiff’s cross-examination, Qn. 5, p. 43.
46 Dr. Khatri’s cross-examination, Qn. 162, p. 238.
47 Dr. Khatri’s cross-examination, Qn. 166, p. 238.
Without the information placed at his disposal, Dr. Khatri only
considered signatures made within a span of 5 years, i.e., from 1987
(K-1) to 1992 (Q). He disregarded K-4 saying that because the
signature in K-4 was in very good rhythm and speed, and this was
missing in all the other documents, which signified ageing and
health issues and this, in turn, caused the difference in style of
writing and rhythm. For these reasons, he does not take K-4 as a
standard for comparison.48 In my judgment, this is the single most
telling fallacy in Dr. Khatri’s report. Simply put, he disregarded the
issue of age and health, and refused to examine K-4 as a standard
specimen. Moreover, he was not told of the paralytic attack, nor did
he have any information as to the Testator’s forced adoption of his
left hand to write and sign. These are undoubtedly material
circumstances and they would certainly have had a bearing on his
final assessment.
38. An expert’s opinion does not always need corroboration, but
it must be complete, i.e., based on a completeness of factual
material, and must reflect sound reasoning. Mr. Narula relies on the
decision of the Supreme Court in Murari Lal s/o Ram Singh v State of
Madhya Pradesh49 for the proposition that corroboration is not
invariably required. This is true. However, the Court in Murari Lal
also held that on the facts of a particular case, a court may require
corroboration; the degree of corroboration might vary from case to
case. A court should be cautious, not suspicious.50 It should
48 Dr. Khatri’s report, p. 394.
49 (1980) 1 SCC 704.
50 H. Venkatachala Iyengar v. B. N. Thimmajamma and Ors., 1959 Supp (1)
SCR 426.
consider all other relevant evidence and then decide whether to
accept or reject it. Handwriting analysis is an imperfect science.
Experts’ opinions are error-prone. They are not to be brushed aside,
but they are also not to be accepted as the unvarnished truth merely
because they say a particular thing. Nothing prevents the court from
comparing the disputed writing with the admitted writing and then
coming to a conclusion of its own. If there is an opinion of an expert,
or of any witness, the court may apply its own observation by
comparing the signatures, or handwriting for providing a decisive
weight or influence to its decision. In Ajay K. Parmar v State of
Rajasthan,51 the Supreme Court held that the evidence of an expert
witness, though inconclusive on its own, was not to be discarded
entirely. The final decision is always that of the Court.52
39. I find little evidence to support Mr. Narula’s submissions.
Some discrepancies are inevitable, and allowance must be made for
them. Dr. Khatri’s report does not prove forgery.
40. Issue No. 3 is answered in the negative.
RE: ISSUE NO. 4:
41. The Defendant argues that the circumstances surrounding
the Will are suspicious and unnatural. He raises several grounds in
this regard. I have considered these in detail.
51 (2012) 12 SCC 406.
52 Delhi Administration v Pali Ram, (1979) 2 SCC 158.
42. On the ground of the ‘unnatural’ character of the Will, Mr.
Narula argues that the intention of the Testator was never to exclude
the Defendant from a share in his estate. To establish this, the
Defendant has brought to light several factors such as one of the
previous Wills of the deceased written in 1985, the letters written to
him by the deceased showing the closeness in their relationship, the
Testator having held the Power-of-Attorney for him, and so on.
43. The Defendant insists that he had a close and loving
relationship with the Testator, despite having moved to the United
States of America.53 Mr. Narula submits that the Testator’s love for
the Defendant is evident from the letters written by him to the
Defendant. The Testator had also sent a copy of the previous Will of
1985 to the Defendant wherein he included all his heirs as
beneficiaries. Therefore, there was no reason whereby he would
have excluded the Defendant from a share in his estate.
44. In response, Mr. Panicker points out, and I agree, that the
Defendant is not the only one who has been left out by the deceased
in the said Will. The Will bequeaths the entire estate to Lilavati, to
the exclusion of all four of their children, including the Defendant. I
do not see anything so very unnatural in leaving his estate to his
widow. I would consider it considerably more suspicious if he
excluded her.
53 Defendant’s Evidence Affidavit, para. 3, p. 125; para. 15-16, pp.
133-134.
45. Every Will disrupts the natural line of succession and the
standard devolution of estate.54 Its purpose is to determine the
inheritance to the Testator’s property, which may or may not
include the natural heirs who would otherwise be entitled to a share
in such legacy. Therefore, whether or not the Defendant had
excellent relations with the Testator is immaterial. Making an
absolute bequest in favour of one’s spouse out of love or to provide
for his or her security is not uncommon, even if this excludes the
children. I find nothing unnatural in the disposition made under the
Will in favour of Lilavati.
46. Finally, Mr. Narula submits that the Plaintiff filed this
Petition for Letters of Administration with Will Annexed 11 years
after the Testator’s death and that this delay remains unexplained.
Therefore, no relief should be granted.55 Mr. Narula contends that
this unexplained delay is substantial and that it gives rise to a grave
suspicion. The Defendant made repeated requests to the Plaintiff to
furnish him with the details of the estate left behind by their father
or with a copy of the said Will. Moreover, the Defendant’s Advocate
sent three letters to the Plaintiff calling upon him to disclose this, all
to no avail. Mr. Narula argues that this, among other circumstances,
makes the Plaintiff’s conduct suspicious.
47. I have looked into the evidence produced on record in this
regard. The Plaintiff states that he had no knowledge that a Probate
is necessary to enforce a Will; that nobody objected and all family
54 Rabindra Nath Mukherjee and Anr v Panchanan Banerjee (dead) by L.Rs.
& Ors., AIR 1995 SC 1684.
55 Defendant’s Evidence Affidavit, para. 24, p. 142.
members had verbally agreed to carry out the Testator’s wishes
under the Will.56 He also states that the petition for Probate was
filed in 2004 because the Defendant had disputed the Will in Suit
No. 2622 of 2004 in the Bombay City Civil Court.57 Sushil
corroborates this.58
48. I cannot agree with Mr. Narula. The lapse of 11 years, though
long, does not draw substantial suspicion towards itself. The
petition for Letters of Administration with Will Annexed was filed
only after the dispositions under the Will became contentious in
2004. Moreover, the alleged failure of the Plaintiff to furnish a copy
of the Will was never put to him in the cross-examination. I find it
difficult to draw an adverse inference against the Plaintiff for these
reasons. Therefore, the arguments as to the delay in filing this Ptn
must fail.
49. The jurisdiction of a testamentary court is not one of
suspicion but one of caution. As the Supreme Court said in H.
Venkatachala Iyengar v. B. N.Thimmajamma and Ors.:
59
It is not for the Probate Court to adopt what has been
described as a resolute scepticism and unshakeable
doubt. It is only required to be cautious and careful in
its approach.
56 Plaintiff’s cross-examination, Qns. 66 & 68, p. 59.
57 Plaintiff’s cross-examination, Qn. 67, p. 68.
58 Sushil’s cross-examination, Qn. 84, p. 104.
59 AIR 1959 SC 443.
50. Where suspicious circumstances are present, they do not ipso
facto preclude the grant of Probate. The Plaintiff must be given an
opportunity to dispel them.Kunvarjeet Singh Khandpur v Kirandeep Kaur and Ors., (2008) 8 SCC
463. This is only to satisfy the judicial
conscience that there is nothing untoward.Smt. Jaswant Kaur v Smt. Amit Kaur, (1977) 1 SCC 369. When more than one
such circumstance exists, the cumulative effect must be
considered.S.R Srinivasa Rao and Ors. v S. Padmavathamma (2010) 5 SCC 274.
51. What are the factors Mr. Narula marshals to show
‘suspicion’? They may be summarised thus: that the Will is in
English rather than Gujarati; that Dr. Shah was asked to travel from
Juhu to attest it instead of the doctor who lived or worked closer by;
that Trivedi’s presence is peculiar and inexplicable; and that Dr.
Khatri says the signature on page 4 of the Will is probably not
genuine. Each of these so-called suspicious circumstances have
found an answer, and a good answer at that. If there were any
suspicious circumstances, they have been explained. I am unable to
dislodge this Will on what to me appears to amount to no evidence
and little more than conjecture. It is also not a ground that because I
held for the Defendant in the matter of Lilavati’s Will, propounded
by this very Plaintiff, I should follow suit in regard to the father’s
Will. That is an argument of falsus in uno, falsus in omnibus, and it
must be rejected out of hand.
52. Issue No. 4 is answered in the negative.
CONCLUSION AND ORDER
53. The suit succeeds and is decreed. Letters of Administration
with Will Annexed are ordered to be issued on a priority basis. The
registry will act on an authenticated copy of this order.
54. At the Defendant’s request, the issuance of Letters of
Administration with Will Annexed is stayed for a period of three
weeks from today.
(G.S. PATEL, J.)
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