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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
USJ
TESTAMENTARY SUIT NO.37 OF 1992
IN
TESTAMENTARY PETITION NO.603 OF 1990
Subhash Hiraji Jadhav
(Since deceased)
1. Mrs. Kumud Subhash Jadahv, aged
about 29 years, widow of the
deceased original petitioner No.1
(Plaintiff No.1,) daughter-in-law
of the deceased, Hindu, Inhabitant
of Bombay, residing at B/15,
Swapna Safalya Co-op.Housing Soc.Ltd.,
J.B. Temkar Marg, Prabhadevi,
Bombay - 400 025.
2. Akhilesh Subhash Jadhav
son of the deceased
original petitioner NO.1/plaintiff No.1
of Hindu, Indian Inhabitant, residing
at Block No,15, B-1,
Swapna Safalya Co.-Op. Housing
Society, Ltd., J.B. Temkar Road,
Prabhadevi, Mumbai-400 025. ..Plaintiffs
Verses
1. Padmakar Hiroo Jadhav,
7/14, Municipal Staff Colony,
Sashmira Road, Prabhadevi,
Bombay - 400 025.
2. Smt.Indira Hiroo Jadhav
7/14, Municipal Staff Colony,
Sashmira Road, Prabhadevi,
Bombay - 400 025.
(since deceased)
3. Smt.Sumitra Surve,
Mankar Bldg, 2nd Floor, Room No.39,
11th Lane, Khetwadi, Bombay-400 004.
4. Smt.Meghana Vasant Shinde,
7/14, Municipal Staff Colony,
Sashmira Road, Prabhadevi,
Bombay - 400 025. ..Defendants/
Caveators
......
Miss. K.C. Nichani for plaintiffs
Mr. H.S.S. Murthy i/by D.R. Mishra for defendants
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......
CORAM : R.Y. GANOO, J.
DATED : 25th March, 2009
Judgment :
1. One Mr. Subhash Hiraji Jadhav and Mrs. Kumud
Subhash Jadhav filed petition No.603 of 1990 for
Letters of Administration with a Will annexed in
regard to the Will purported to have been executed by
Hiroo alias Hiraji Laxman Jadhav on 3rd December,
1988. After the filing of the petition, citations
were served upon the heirs of said Hiroo alias Hiraji
Laxman Jadhav
ig (hereinafter referred to as the “said
deceased”). In all four persons i.e. Padmakar,
present defendant, Smt.Indira, Mrs.Sumitra and
Mrs.Meghana filled caveat jointly. Present defendant
No.1 Mr. Padmakar filed affidavit in support of the
caveat for himself and on behalf of other caveators.
It is in these circumstances, office while converting
the testamentary petition in the suit showed the name
of Padmakar H. Jadhav and others as the defendants.
Hence, to the present suit Padmakar Hiraji Jadhav
would be defendant No.1, Smt. Indira Jadhav (since
deceased) would be defendant No.2, Smt. Sumitra
(correct name Sunetra S. Surve) would be defendant
No.3 and Mrs. Meghana Vasant Shinde would be
defendant No.4.
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2. In the affidavit in support of the caveat,
with a view to oppose the grant of the petition
following points were raised.
(i) The purported Will is not the Will as per
the law. (ii) The deceased was not in sound
state of mind. (iii) The deceased was
controlled by Subhash Jadhav and present
petitioner No.1 Mrs. Kumud. (iv) The Will
was executed under force and coercion. (v)
There was no reason to deprive Smt. Indira
and
unmarried daughter Shubhangi who is now
known as Mrs.Sunetra. (vi) The Will is forged
and fabricated.
3. It is required to be mentioned that during the
pendency of this suit, Subhash Jadhav, original
petitioner No.1 expired. He left behind him Mrs.
Kumud and Akhilesh his son. Consequently, name of
Akhilesh was brought on record as petitioner. Based
on the text of the petition as well as affidavit in
support of the caveat, following issues came to be
framed on 19th December, 2007.
ISSUES FINDINGS
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1. Whether the Will dated 3rd
December, 1988 is the last In the affirmative
Will and testament of Hiroo
alias Hiraji L. Jadhav and
the same is legally and
validly executed by him?
2. Do the defendants prove
that the subject Will is In the negative
forged and fabricated by the
plaintiffs ?
3. What order ? As per final Decree
. My answer to each of the issue is mentioned
as against the respective issues.
4. At trial on behalf of the plaintiffs, Smt.
Kumud
Attesting
S.
Jadhav
witness
plaintiff
of the
No.1
said
gave
Will
evidence.
dated 3rd
December, 1988 by name Mr. Jayant C. Kamani gave
evidence as PW-2. No other witness was examined on
behalf of plaintiffs. On behalf of the defendants,
defendant No.1 Mr. Padmakar H. Jadhav son of the
deceased gave evidence as DW-1. Mrs. Sunetra S.
Surve daughter of the deceased gave evidence as DW-2.
Mrs. Sunetra was unmarried in December, 1988 and her
maiden name was Shubhangi and a reference to her is
found in the text of the Will. No other witness was
examined on behalf of the defendants.
5. Before I proceed to deal with the issues, it
would be convenient to narrate certain persons who
figure in the entire matter. Subhash H. Jadhav
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original plaintiff No.1 and defendant No.1 Padmakar
H. Jadhav are the sons of the deceased, out of which
Subhash died during the pendency of the suit. Smt.
Indira was wife of the deceased who died after the
deceased during the pendency of the suit.
Mrs.Meghana is the married daughter of the deceased,
Mrs. Sunetra (nee Kum.Shubhangi) is the daughter of
the deceased. Mrs. Kumud, present plaintiff No.1 is
the daughter-in-law of the deceased and Akhilesh
plaintiff No.2 is the grand son of the deceased.
Advocate Mr.A.G.Shah who is referred to in the
evidence is the advocate who is said to act as an
attested witness and who is said to have prepared the
Will at the instance of the deceased. Mr. Jayant
Kamani an attesting witness has been family friend of
deceased.
6. I have extensively heard learned Counsel
Miss. Nichani on behalf of the plaintiffs and Mr.
Murthy on behalf of the defendants. Since the
dispute between the parties relates to the suit Will,
it became necessary for the Court to appreciate the
evidence and ascertain whether the plaintiffs have
been able to prove the Will in accordance with the
provisions of law and whether the plaintiffs have
been able to show that the said Will dated 3rd
December, 1988 is the last Will and testament duly
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executed by the deceased. Considering the case law
developed in the matter, it became necessary for the
Court to consider certain circumstances, which in the
submission of the Counsel for the defendants could be
termed as suspicious circumstances as regards making
of the Will and it became necessary for this Court to
consider the evidence from that angle. At this
juncture itself, it would be convenient to point out
that learned Counsel Mr. Murthy relied upon the
judgment in case of H.Venkatachala Iyengar Vs.
B.N.Thimmajamma and Ors., AIR 1959, SC 443 (V46 C56)
and drew my attention to paragraph Nos.18 to 21. As
per paragraph
ig 18 the Court is required to consider
the record as regards execution of the Will. As per
paragraph No.19 the Court is required to ascertain
the mental and physical condition of the testator.
Paragraph 20 lays down the law as regards the various
suspicious circumstances and how to appreciate the
evidence. Paragraph 21 deals with the point viz.
propounder of the Will taking prominent part in the
execution of the Will and related aspects. He also
relied upon the judgment in the case Rani Purnima
Debi and Anr. Vs. Kumar Khagendra Narayan Deb and
Anr., AIR 1962, SC 567 (V 49 C 86) to bring to the
notice of the Court the concept of the unnatural Will
as discussed in paragraph No.5 and the role to be
played by the Registering authority as discussed in
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paragraph No.23. He also relied upon judgment in the
case of Ram Piari Vs. Bhagwant and Ors. AIR 1990,
SC 1742 which deals with a situation when
disinheritance is amongst heirs of equal decree and
no reason for exclusion is disclosed. He also relied
upon judgment in case of Kalyan Singh Vs. Smt.Chhoti
and Ors. AIR,1990, SC 396 which redeclares the law
as regards appreciation of various circumstances
which could be termed as suspicious circumstances.
He also relied upon the judgment in the case of
Kanakku Veettil K.P. Sankarankutty Menon Vs.
Malathy Amma and Ors. AIR 1991, Kerla 123 which
equally
deals with various points discussed in
earlier judgments. The learned Counsel Miss.
Nichani relied upon the judgment Smt.Malkani Vs.
Jamadar and Ors.AIR 1987, SC 767 (Punjab & Hariyana)
wherein the Supreme Court indicated that the
testamentary capacity of the testatrix and the
genuineness of the Will cannot be doubted only
because the beneficiaries under the Will took active
part in its execution.
7. I have perused the aforesaid judgments and I
have appreciated the evidence in the light of the
principles discussed in the said judgments. The
three issues as above can be discussed together
keeping in view the nature of the evidence placed
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before the Court. Now, I proceed to appreciate the
evidence from the stand point of deciding whether the
plaintiffs have proved the due execution of the Will.
Learned Counsel Miss. Nichani appearing on behalf of
the plaintiffs pointed out to the Court that the Will
came to be drafted by advocate Mr.A.G. Shah
(hereinafter referred to as the “said advocate”) and
the said Will came to be executed at the residence of
the deceased on 3rd December, 1988 in the presence of
Mr. Subhash Jadhav, Mrs.Kumud S. Jadhav PW-1 and
the said advocate and Mr.Jayant PW-2. It was pointed
out that the evidence placed before the Court through
Kumud PW-1 and Jayant PW-2 if perused carefully would
go to show that these two witnesses have given cogent
evidence as regards the execution of the Will in all
respect i.e. signature of testator and signature of
two attesting witnesses. She had also drawn my
attention to the evidence of Padmakar H. Jadhav,
DW-2 in cross-examination where Padmakar DW-1 has
conceded that the Will was properly executed and he
(Padmakar DW-1) was challenging the legality of the
Will. The Counsel for defendants Mr. Murthy had
opposed the submission made by learned Counsel Miss.
Nichani and had tried to submit that the plaintiffs
have failed to prove the Will in accordance with the
provisions of law.
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8. With the assistance of the Counsel of both
the sides, I have perused the evidence. Since
Subhash H. Jadhav expired before commencement of
recording of evidence, Subhash has not been examined.
According to plaintiffs, at the time of execution of
the Will, Mrs. Kumud PW-1, said advocate and Jayant
PW-2 were present. Plaintiffs have examined
Mrs.Kumud and Jayant PW-2. I have gone through their
evidence. Mrs. Kumud PW-1 states in her
cross-examination that deceased had instructed
Subhash to get advocate Mr. A.G.Shah for the
purposes of drafting the Will. Evidence of Mrs.Kumud
PW-1 clearly
ig shows that the deceased knew Mr.A.G.
Shah. It is required to be noted that the deceased
was working as a Clerk in the Municipal Corporation
and had retired. After having considered the Kumud
PW-1’s evidence, I am inclined to observe that
Mr.A.G. Shah acted as an advocate for preparation of
the Will. I am also inclined to accept the case of
the plaintiffs that the said advocate and Jayant PW-2
were present in the house of the deceased on 3rd
December, 1988 and the Will was executed on 3rd
December, 1988 and that said advocate and Jayant PW-2
tendered their signatures as attesting witnesses.
Jayant PW-2 in his evidence has stated that said
advocate had shown the original Will to the deceased
on 3rd December, 1988 and the deceased went through
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it and thereafter tendered his signature and given to
to Mr.A.G. Shah for his signature as an attesting
witness and after Mr.A.G. Shah signed, it was given
to Jayant PW-2 for his signature as an attesting
witness and Jayant did tender his signature.
Mrs.Kumud PW-2 has also stated in her evidence as to
how the Will was executed. It is required to be
mentioned that all suggestions given to Mrs.Kumud as
well as Jayant PW-2 so as to disprove the execution
of the Will came to be denied. Apart from the
aforesaid evidence, the Padmakar DW-1 in the
cross-examination has given evidence as follows :-
“It is true that my father has executed this
Will now shown to me. It is true that the
Will has been attested by two attesting
witnesses. I am challenging the legality of
the Will”.
9. After having gone through the aforesaid
portion of the evidence of Padmakar DW-1, the stand
of the defendants as regards the execution of the
Will cannot stand. Mr. Padmakar DW-1 had admitted
that deceased had executed the Will and it was duly
attested by two attesting witnesses. Since no other
witness came to be examined on behalf of the
defendants to challenge the said execution of the
Will. I hold that the plaintiffs have proved
execution of the Will. According to learned Counsel
for the defendants, the plaintiffs should have
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examined advocate Mr.A.G. Shah to dispel all doubts
regarding the execution of the Will. Learned Counsel
Miss. Nichani has submitted that if the evidence of
Jayant PW-2 and Mrs.Kumud PW-1 was led in such a
fashion that these two witnesses have been able to
prove the case of the plaintiffs, it was not
necessary for the plaintiffs to examine the said
Mr.A.G. Shah and no adverse inference should be
drawn for non-examination of said Mr.A.G. Shah and
it cannot be considered as a suspicious circumstance.
I have considered the rival submission. Evidence of
Mrs. Kumud PW-1 clearly indicate that Mr.A.G. Shah
had acted as an advocate in the matter of preparation
of the Will. She has stated that her father-in-law
had instructed Subhash to get Mr.A.G. Shah for the
preparation of the Will. Her evidence also goes to
indicate that Mr.A.G. Shah knew the deceased. In my
view, there is no specific challenge to the fact that
Mr.A.G. Shah and the deceased knew each other. In
any case, reading the evidence as a whole the case
put up by the plaintiffs that the deceased knew
Mr.A.G. Shah cannot be doubted. Mr. A.G. Shah is
a practicing advocate in Bombay. There is nothing to
doubt the word of Kumud PW-1 whose evidence shows
that Mr.A.G.Shah was involved in the preparation of
Will. Jayant PW-2 who is a third party so far as the
entire matter is concerned and he has made out the
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presence of Mr.A.G. Shah in the house of the
deceased on 3rd December, 2008. In my view, Jayant
had no reason to give false evidence as regards the
presence of Mr.A.G. Shah. It is well known that
services of an advocate are availed of in the matter
of preparation of Will and it is not necessary that
in each and every case an advocate who prepared the
Will is required to be examined. The plaintiffs
after having gone through the evidence of Kumud PW-1
and Jayant PW-2 appear to have taken a decision of
not examining the said Mr.A.G.Shah. Their decision
was proper. In my view, non examination of said
Mr.A.G.
Shah cannot be termed as suspicious
circumstance. Similarly, no adverse inference is
required to be drawn against the plaintiffs.
10. Considering the aforesaid discussion and in
particular the evidence of Padmakar DW-1, discussed
above, I am inclined to observe that the plaintiffs
have proved the execution of the Will by the deceased
and that plaintiffs have also proved that two
attesting witnesses namely said Mr.A.G. Shah and
Jayant PW-2 did their job as attesting witnesses. At
this stage itself, it is required to be mentioned
that a stand was taken by the defendants that Jayant
PW-2 is an outsider to the entire family and his
acting as an attesting witness is unnatural. So far
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as this aspect is concerned, defendants could not
bring on record any material to show that Jayant PW-2
was a got up witness. Mr. Jayant PW-2 is reported
to be a friend of Subhash and he used to visit the
house of the deceased and eventually Jayant PW-2 is a
family friend. The two photographs of Exhibit D-4
and D-5 came to be produced. In these two
photographs, Jayant is seen. These photographs
pertain to birthday celebration of Subhash’s son and
in the cross-examination of Padmakar DW-1, Padmakar
had to accept that Jayant was present at the time of
birthday celebration in the two photographs of
Exhibit D-4
igand D-5 and eventually he knows Jayant
PW-2 and that Jayant PW-2 was family friend.
11. In view of the aforesaid discussion, I hold
that the plaintiffs have been able to prove the due
execution of the Will.
12. Learned Counsel Mr. Murthy had tried to
place before the Court some points as suspicious
circumstances and wanted this Court to discard the
Will in question.
13. The first circumstance placed before the
Court is viz. the Will is unnatural. The learned
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Counsel Mr. Murthy drew my attention to the original
Will Exhibit D-1 and submitted that Smt.Indira wife
of the deceased, Shubhangi now known as Sunetra and
Mrs. Meghana being daughters of deceased have been
excluded. According to Mr. Murthy, there was no
reason for the deceased to exclude his wife as well
as unmarried daughter Shubhangi. According to Mr.
Murthy, Subhash and Kumud controlled the deceased and
managed to get the Will executed in their favour. He
pointed out that no bequest is made in favour of any
relatives other than Subhash and Kumud or Akhilesh
son of Subhash and Kumud, which goes to show that the
Will is unnatural. He further pointed out that Kumud
PW-1 admits that there were no disputes between Smt.
Indira and the deceased as husband and wife and if
that be so there was no reason for the deceased to
exclude Smt.Indira. Insofar as this aspect is
concerned, I would like to reproduce the relevant
portion of the Will by which the deceased has given
explanation as to why he does not wish to give
anything to Smt.Indira, Shubhangi and other daughter
Mrs. Meghana. The relevant portion is as under:-
“1. I have in my family my wife Indira,
eldest son Padmakar, Younger Son Subhash and
two daughters i.e. Mangal (married) and
Shubhangi. However my eldest Son with his
family has separated and my wife and my
daughter Shubhangi stay with him separate
from me against my wishes. They have chosen
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not desire to bequeath anything to them under
my this Will. I have given enough to my
married daughter Mangal at the time of her
marriage, I therefore do not desire to
bequeath anything under this Will to her”.
14. A reading of this paragraph would clearly go
to show that the deceased has clarified as to why he
did not wish to give any property to Smt.Indira,
Subhangi and Mrs.Meghana. A reading of the above
paragraph would clearly go to show that Smt.Indira
i.e. wife of the deceased left the house alongwith
Padmakar DW-1 and started staying alongwith Padmakar
in so
against wishes of the deceased.
far as Shubhangi is concerned.
Same is the position
The deceased
has laid emphasis on the fact that Smt.Indira as well
as Shubhangi have not looked after or taken his care
even though he was not keeping well. It is admitted
by both the sides that deceased in the year 1981 had
paralysis and naturally being a paralytic person, he
required care and assistance. In so far as Mrs.
Meghna who is referred to as Mangal in the Will is
concerned, the deceased has clarified that he had
given enough to her at the time of her marriage and
that is why he was not willing to give anything to
her. Paragraph 2 of the said Will also goes to
indicate as to how the deceased wanted to bequeath
his property to Subhash and his family. The relevant
portion of the Will is as under:-
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“2. My other Son Subhash and his family have
looked very well after me and are taking
proper care. I therefore desire to bequeath
to him and his family my present and residue
property at the time of my death as statedhereafter”.
15. In my view, contents of paragraph 1 and 2
throw light on the mental frame of the deceased as to
why he wanted to exclude Smt.Indira, Padmakar,
Shubhangi and Mrs.Meghana and why he wanted to give
property to Mrs.Kumud and Subhash. It is true that
Mrs. Kumud PW-1 states in her evidence that
relations between the Smt.Indira and deceased were
good.
It is required to be mentioned that Mr.Kumud
PW-1 has stated in her evidence that on 29th
September, 1988 certain dispute as regards use of
water took place between Smt. Indira and Subhash and
that in the morning of 30th September, 1988, a
quarrel took place between Subhash on one hand and
Padmakar DW-1 and Mr.Vasant Shinde on the other. It
is seen that a police complaint came to be filed by
Shubhash. Padmakar DW-1 has not accepted this
incident and he claims that this incident is false.
Statement of the deceased came to be recorded by the
Police on 30th September, 1988 and that statement is
at Exhibit D-2. Said statement was read in evidence
at the request of both the Counsel. The said
statement clearly goes to show that in the morning of
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30th September, 1988 exchange of words and a quarrel
took place between Subhash and one Mr. Shinde,
Padmakar DW-1 and Subhash was injured. The deceased
has stated about such a quarrel and the deceased has
also stated in his statement that because he was
paralytic, he just kept himself aloof. The deceased
has narrated about the said incident and has further
stated that Subhash and Kumud went to the hospital.
The deceased in the earlier part of the statement has
stated that relations between Padmakar DW-1 and
Mrs.Indira on one hand did not go well with Subhash
and his wife Kumud and he does not take part in that.
It is
admitted by both sides that the deceased was
residing in the house namely flat No.B-15, Swapna
Saphyalya CHS Ltd., J.B. Temkar Road, Prabhadevi,
Mumbai-25. Evidence of Mrs.Kumud PW-1 as well as
Padmakar DW-1 goes to show that all was not well
between Subhash and Padmakar DW-1. Evidence on
record also go to show that Padmakar and his family
members, Smt.Indira and Shubhangi left the house on
30th September, 1988. Even Padmakar DW-1 has stated
that he alongwith his family members, Smt.Indira and
Shubhangi left the house and got accommodated himself
finally in the quarters provided to him. From the
evidence on record, it is clear that Smt.Indira and
Shubhangi left deceased without any justification.
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16. It is to be noted that if relations between
the deceased and the said Smt.Indira were good
naturally, the deceased expected that Smt.Indira
should stay with him. So far as Subhangi is
concerned, she has given evidence as DW-2 in the name
of Mrs.Sunetra S.Surve and she has admitted that her
relations with Subhash and Mrs.Kumud were cordial.
If that is so, she had no reason to leave the house
where the deceased was living. The deceased was not
very happy with Smt.Indira and Shubhangi leaving his
place and hence the deceased did not give any
property to Smt.Indira and Shubhangi. In so far as
Mrs.Meghna
is concerned, deceased is very much clear
that he had made enough arrangement for her at the
time of her marriage and, therefore, he was not
inclined to give anything to her. There is no reason
to challenge the statement of the deceased made in
the Will that he had provided enough money to
Mrs.Meghna at the time of her marriage. It is
pertinent to note that when such statement is
appeared in the Will, that should have been contested
by Mrs. Meghna. Mrs. Meghna has not given any
evidence to contest the statement made by the
deceased in the Will viz. enough provisions were
made by him during the marriage ceremony of Mrs.
Meghna. The record clearly goes to show that the
deceased was conscious of the fact that there is
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dispute between Mrs.Indira and Kumud. The statement
recorded clearly indicates that on 30th September,
1988, some dispute took place between Subhash and
Padmakar DW-1 and that lead to such a situation that
Padmakar thought of leaving the house and staying
somewhere else. The statement made by the deceased
that quarrels used to take place everyday goes to
show that the deceased was not happy with the quarrel
between Padmakar DW-1 and Subhash.
17. Considering the text of the Will and the
evidence of Padmakar DW-1 as well as Mrs.Kumud PW-1,
it is
clear that the deceased was not in favour of
the Padmakar DW-1. It is seen that the deceased was
convinced that Subhash and Mrs. Kumud are taking his
care and attending to him. In fact, after Smt.Indira
and Padmakar DW-1 left the house in September, 2008,
the deceased was looked after by Subhash and Kumud
and mother of Kumud who is said to be residing little
away from the residence of the deceased. In my view,
the deceased was impressed by the fact that the
Subhash and Kumud are taking his care and, therefore,
property was bequeathed to them. In my view, the
frame of mind of the deceased was in consonance with
the terms which are set out in the Will and there is
no reason to treat exclusion of Smt.Indira and others
as suspicious circumstance.
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18. There is a provision in the Will whereby if
son is born to Subhash and Kumud in addition to
Akhilesh, 1/3rd share coming to Akhilesh be divided
equally amongst them. Some arguments were advanced
by the Counsel for the defendants to show that the
said part of the bequest is not in consonance with
the provisions of law. However, no specific
provision of law was quoted by Counsel for the
defendants. In my view, the said bequest was in the
nature of an explanation if one more son was to be
born to Subhash. Record shows that Subhash had only
one son Akhilesh as such the bequest to Akhilesh will
operate. In any case, as no specific provision was
shown to treat that bequest as void, the said
argument is rejected.
19. Another suspicious circumstance in the
submission of the Counsel for the defendants was non
examination of Mr.A.G.Shah, advocate. I have already
discussed the effect of non examination Mr.A.G.Shah.
However, it will be proper to discuss some of the
aspects with reference to the evidence which are on
record whereby plaintiffs wanted to show that
Mr.A.G.Shah acted as attesting witness. Learned
Counsel Mr.Murthy has drawn my attention to the
following portion of cross-examination of Kumud
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PW-1:-
“I do not know whether my father-in-law had
met Mr.A.G.Shah advocate any time prior to
the date of the Will”.
20. Counsel for the defendants had contended that
this would go to show that Kumud PW-1 could not
confirm as to whether Mr.A.G.Shah had met the
deceased. In my view, this evidence cannot be read
in isolation as Kumud PW-1 has stated that the
deceased had asked Subhash to get Mr.A.G.Shah as
attesting
witness. This would clearly go to show
that the deceased had communication with Mr.A.G.Shah
and he was called as attesting witness. In so far as
this aspect is concerned, I have already held that
Padmakar DW-1 has conceded that the said Will is that
of the deceased and was attested by two witnesses.
The fact that Mr.A.G.Shah participated in the matter
of preparation of Will is clear on the basis of what
is stated by Jayant PW-2 and the relevant portion is
as follows :-
“Advocate Mr.A.G.Shah handed over one paper
to late Hiraji, which he read. After
reading, the said paper; late Hiraji told
Mr.Arvind G.Shah, advocate that the Will has
been properly drafted by him. After reading
and confirming the correctness of the Will,
late Hiraji signed on his will in my presence
and, thereafter, he requested Advocate
A.G.Shah to sign on his Will as an attesting::: Downloaded on – 09/06/2013 14:27:27 :::
( 22 )witness”.
21. It is required to be mentioned that Jayant
PW-2 stood to the test of the cross-examination of
learned counsel for the defendants. In fact, the
aforesaid quoted portion clearly shows that the Will,
which came to be engrossed as original Will was
handed over by Mr.A.G.Shah advocate to the deceased
and the deceased after reading the same and
confirming the fact that the Will was properly
prepared by Mr.A.G.Shah tendered his signature. It
is required to be mentioned that the Will is in
English
language and the deceased was working as a
Clerk in the B.M.C. and there is no reason to hold
that the deceased could not read English.
22. It was faintly argued by learned advocate Mr.
Murthy that Kumud PW-1 knew Mr.Shah as her office was
close to the office of Mr.Shah and Mr.Shah had helped
Kumud PW-1 and Subhash. Evidence of Kumud PW-1 shows
that her office was at Dalal street and Mr.Shah’s
office is at Examiner Press Building. There is no
cross examination to suggest that Mr.Shah favoured
Kumud. Reading the evidence of Kumud PW-1 and Jayant
PW-2 it is clear that advocate Mr.A.G.Shah
participated in the process of preparation of Will
and signed as attesting witness. Therefore, merely
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because the plaintiffs have not examined Mr.A.G.Shah
as a witness in the matter cannot be termed as
suspicious circumstance.
23. Mr.Murthy Learned advocate had raised another
circumstance namely the role of sub-Registrar in the
process of registration of Will. The said Will has
undergone the process of registration and the
sub-Registrar at Bombay has participated in the job
of registration. On the question of fetching the
sub-Registrar to the place of the deceased, Kumud
PW-1 states that while returning from her office, she
had taken sub-Registrar to her house. Jayant PW-2 in
the examination-in-chief has stated that after the
Will was executed, he and Mr.A.G.Shah were requested
by late Hiroo alias Hiraji Jadhav to wait for
sometime and Subhash was asked to get the
sub-Registrar. He further stated that sub-Registrar
of Assurance examined the subject Will and found to
be corrected. He further states that the
sub-Registrar registered the subject Will and he also
states that at the time of registration again
signatures that is to say signature of Mr.A.G.Shah
and his signature were obtained on the reverse page
No.5 of the Will. He has also identified the
signature of Mr.A.G.Shah as also his signature which
was obtained by the sub-Registrar at the time of
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registration of the document. The fact that the
sub-Registrar’s services were secured and the
registration of Will cannot be disputed by the
defendants. The endorsement on the Will goes to show
that the job of registration was performed on 3rd
December, 1988 between 5.00 p.m. to 6.00 p.m. at
the residence of the deceased. Now the question is
whether any specific importance is to be give to the
word of Kumud PW-1 who says that she brought the
sub-Registrar from his office while returning from
her office. Nodoubt, insofar as this aspect is
concerned, there is little controversy. Jayant PW-2
states
that as he reached the house of the deceased,
he came across the deceased advocate Mr.A.G.Shah,
Subhash and Kumud. He further states that after the
will was executed, Subhash was asked to fetch the
sub-Registrar. Considering the word of Kumud PW-1 as
well as Jayant PW-2, which is discussed above, it is
clear that Kumud was present when Will came to be
executed. In my view, evidence of Kumud PW-1 that
she brought sub-Registrar appears to be an evidence
given out of confusion and in my view no much
importance can be given. Fact remains that the Will
was registered.
24. Learned Counsel Mr. Murthy appearing on
behalf of defendants had drawn my attention to the
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judgment in case of “Rani Purnima Debi and anr. Vs.
Kumar Khagendra Narayan Deb and anr. AIR 1962 SC 567
(V 49 C86) and in particular paragraph 23. He
submitted that a duty was cast upon the sub-Registrar
to ascertain that the Will has been executed by the
deceased in a proper manner. Reading of paragraph 23
would go to show that if the sub-Registrar did not
comply with requirement quoted therein then the fact
that the Will was registered would not be of much
valuse.
25. Learned Counsel Mr.Murthy had submitted that
if one
peruses the endorsement as regards
registration, it is clear that the sub-Registrar did
not comply with requirements contained in paragraph
23 of the aforesaid judgment. Even if for a moment
is accepted that the sub-Registrar did not perform
his job as was expected to be done in paragraph 23 of
the aforesaid judgment, once it is observed that the
Will is properly executed that is to say it is
executed by the deceased and duly attested by the
attesting witnesses that itself is sufficient and
there is no reason to discard the Will merely because
the sub-Registrar has not performed his job properly.
To that extent, I am not inclined to accept the
argument advanced by learned Counsel Mr.Murthy.
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26. The next circumstance is no doctor was
examined to show the mental ability to mark the
fitness of the deceased. No specific provision was
shown to hold that the doctor should have certified
about the mental ability to execute the Will hence
the argument is required to be rejected. It is
required to be mentioned that Counsel for the
defendants could not point out any material to show
that the deceased did not possess necessary mental
ability to mark the fitness. It is true that the
deceased was suffering from paralysis and he was
bedridden. That in my view, cannot be considered as
something
which would make the execution of the Will
impossible. The evidence given by Jayant PW-2 and
Kumud PW-1 as regards what transpired at the time of
execution of the Will would clearly go to show that
the deceased was in a proper frame of mind at the
time of execution of the Will. It is also required
to be noted that the deceased died in the year
September, 1990 that is the deceased survived for a
period of 2 years after the Will came to be executed.
Hence, the stand of the defendants that the deceased
did not possess proper frame of mind cannot be
accepted.
27. It was argued that the deceased was not well
and he was bedridden. Merely because the deceased
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was bedridden, it cannot be said that he was not in
sound state of mind. The evidence of Padmakar DW-1
goes to show that he is challenging the legality of
Will. If the defendants wanted to contend that the
deceased was not mentally sound to execute the Will,
certainly it was open for the defendants to examine
the doctor who was attending to the deceased. No
such effort was made on behalf of the defendants.
Hence, the point raised cannot be accepted.
28. Another circumstance placed for consideration
relates to changing the nomination before the
execution
of Will. Evidence on record goes to show
that initially the nomination in regard to the
membership of the Society in which the suit flat was
situated was in favour of Mrs. Indira and before
execution of the Will, the nomination came to be
changed in favour of Subhash and Kumud. Counsel for
the defendants submitted that the nomination is
changed little before the execution of the Will. The
learned Counsel Miss. Nichani submitted that the
fact that the deceased changed nomination in favour
of Subhash and Kumud and subsequently executed the
Will in favour of Subhash and Kumud clearly shows
that the deceased intended to see that the property
should go to Subhash and Kumud and there are no legal
impediments in the matter. Submission of
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Miss.Nichani is required to be accepted. The fact
that the nomination was changed before execution of
Will shows that the deceased had specific plan to
give the flat to Subhash and Kumud. In view of
above, the submission of learned advocate Mr. Murthy
is rejected.
29. One more circumstance which were termed by
the Counsel for the defendants as suspicious
circumstance viz. Subhash and Kumud kept the
deceased under their control and that is how the
deceased executed the Will in favour of Subhash and
Kumud.
Padmakar DW-1 has admitted in the
cross-examination that he was not present at the time
of execution of the Will. He also states that he had
made a statement on the basis of background
visualized by him and he had no personal knowledge.
These answers given by Padmakar DW-1 in the
cross-examination would clearly go to show that
evidence of Padmakar DW-1 in examination-in-chief as
regards keeping the deceased under control by Subhash
and Kumud was in the nature of surmises and no
specific evidence is placed before the Court by
Padmakar DW-1 in that behalf. The deceased was
staying at his flat and Subhash and Kumud were also
staying in the same flat. In my view, that by itself
is not sufficient to come to the conclusion that
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Subhash and Kumud controlled the mind of the
deceased. In fact, paragraph Nos.1 and 2 of the
Will, which I have quoted earlier clearly shows that
the deceased had a specific frame of mind so far as
Smt. Indira, Padmakar DW-1, Shubhangi and Mrs.
Meghna are concerned. The evidence of Kumud PW-1 as
well Padmakar DW-1 is clearly shows that Subhash and
Kumud played a vital role in taking care of the
deceased. That by itself in my view, would not mean
that Subhash and Kumud controlled the mind of the
deceased.
30.
One more point was pressed by Counsel for the
defendants as regards a complaint filed by Mrs.
Indira to the Police which complaint is at Exhibit
D-3. The said complaint is in the form of a letter
addressed to the Commissioner of Police. In the said
complaint, certain allegations have been levelled.
It is pertinent to note that the said complaint is
dated 28th October, 1988. This complaint is filed by
Mrs.Indira after she had left the house of the
deceased. In a question Padmakar DW-1 has
specifically stated in the cross-examination as
follows :-
“My mother and myself did not approach the
Court to obtain order either to seek custody
of my father or to transfer him to my house”.
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31. Padmakar DW-1 in his evidence says as
follows:-
“My mother was not allowed to stay in the
house by Subhash. She was beaten and,ultimately, she was required to stay with my
sister. My mother left house in the year
1988 and my father expired in the year 1990”.
32. This evidence given by Padmakar DW-1 is not
born out by any material whatsoever. In fact, the
mother in the complaint, which is marked as Exh.D-3
in the first paragraph itself stated that Subhash is
likely to drive her out of the house. This is a
false statement because by this time that is 28th
October,
1988 she had left the house of the deceased
on her own. I have already observed as to how
Smt.Indira left the house of the deceased on 30th
September, 1988 after a quarrel took place between
Subhash on one hand and Padmakar. Even reading the
text of the complaint at Exhibit D-3 as a whole, it
is clear that the said complaint was filed just to
harass Subhash and Kumud. Smt.Indira has left the
house on 30th September, 1988 on her own. Defendants
could not point out that deceased or Subhash drove
Smt.Indira out of the house. It is also required to
be noted that this complaint has been filed 20 days
after Smt.Indira left the house of the deceased and
no further action was taken by her. After this
complaint, Smt.Indira has not taken any steps to
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establish her right to reside in the house of the
deceased. There is no evidence placed before the
Court to show that Smt.Indira called upon Subhash or
the deceased through advocate and addressed suitable
communication to Subhash or the deceased placing her
intention to re-enter the house. In my view, all
this would clearly go to show that Smt.Indira was
residing away from the deceased on her own and had no
mind to go back to the house of the deceased.
33. The next point which is required to be
discussed is whether Kumud PW-1 played a specific
role
in making of the Will. This is required to be
discussed in the wake of the various cases which are
referred to above because Kumud is a propounder of
the Will. It would be necessary to consider what
role was played by Kumud in making of the Will. From
the record, it is clear that Kumud had not played any
substantive role in making the Will. Kumud happened
to reside in the company of the deceased. That by
itself is not sufficient to say that Kumud played a
vital role in making of the Will. It is true that
Kumud gave evidence to show that she was present at
the time when Will was executed. This presence of
Mrs. Kumud at the house of the deceased cannot be
termed as unnatural because Mrs.Kumud was staying
with the deceased after her marriage with Subhash.
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To that extent, it would be difficult to say that
Kumud had played vital role which would dominate the
Will of the deceased. So far as the Subhash is
concerned, Subhash was son of the deceased and
Subhash also was residing with the deceased much
prior to execution of the Will. Padmakar DW-1 was
also residing with the deceased. However, he left
the house on 30th September, 1988. Evidence of Kumud
PW-1 shows that Subhash was asked by deceased to get
advocate Mr.A.G.Shah. Mr.A.G. Shah had participated
in the job of preparation of the Will and execution
thereof. If Subhash has made efforts to get advocate
Mr.A.G.
Shah, that by itself cannot be considered as
a major role played by Subhash. As the deceased was
bedridden, he must have sought the help of his son
who was staying with him. Subhash was also present
when the will was executed. In my view, presence of
Subhash will have to be treated as natural. In view
of the above, role played by Kumud and Subhash as
discussed above, cannot be considered as
objectionable and that also cannot be considered as
suspicious circumstance.
34. For the reasons mentioned aforesaid, I am
inclined to observe that the plaintiffs have been
able to show that Will dated 3rd December, 1988 was
duly executed by the deceased Mr.Hiroo alias Hiraji
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Jadhav and that the said Will was last Will and
testament. This is so because no other Will is
produced before the Court by either party So far as
the question of forgery of the said Will is
concerned, I have with reasons held that the Will was
duly executed by the deceased and that the same was
not fabricated or forged. No evidence was placed in
support of the said allegation.
Issue Nos.1 and 2:-
. For the reasons mentioned aforesaid I hold
that issue No.1 is required to be answered in the
affirmative
igand is accordingly answered in the
affirmative and Issue No.2 is required to be answered
in the negative and is accordingly answered in the
negative.
Issue No.3
. Keeping in view the answers to Issue Nos.1
and 2 in the affirmative and in the negative
respectively, plaintiffs suit will have to be
decreed. The caveat filed by Padmakar DW-1,
Smt.Indira, Mrs.Meghna and Mrs.Sunetra will have to
be dismissed and the Testamentary petition will have
to be granted and appropriate directions will have to
be given to Prothonotary and Senior Master to issue
letters of administration as prayed for.
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35. In the fact and circumstances of the case,
the defendants are not required to be saddled with
the costs of the proceedings. For the reasons
mentioned aforesaid, I pass following decree.
ORDER
(i) Caveat filed by Padmakar DW-1,
Smt.Indira (since deceased), Mrs. Meghna
Vasant Shinde and Smt. Sumitra (correct name
Sunetra) Surve are dismissed.
(ii) It is hereby declared that Will dated
3rd December, 1988 executed by Hiroo alias
Hiraji Laxman Jadhav is the last Will and
testament and petition for letters of
administration as prayed for in respect of
Will dated 3rd December, 1989 is required to
be granted and accordingly petition No.603 of
1990 is made absolute and is granted.
(iii) Office to issue letters of
administration as prayed for. In the facts
and circumstances of the case, there shall be
no order as to costs in the suit.
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36. After the aforesaid judgment was delivered
learned Counsel Mr. Ashutosh Singh appearing for the
defendants submitted that the defendants would like
to go through the text of the judgment and do the
needful. He, therefore, submitted that the operation
of the judgment and decree passed above be stayed for
8 weeks. Plaintiff No.1 Mrs. Kumud who is present
in person at the time of dictation of the aforesaid
judgment. She opposed the submission.
37. The request put up by Counsel for the
defendants is required to be granted. In view of the
above, the operation of judgment and decree is stayed
till 15th June, 2009. The original Will which was
produced before the Court in the Course of hearing is
ordered to be returned to the department.
(R.Y.GANOO, J)
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