IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION.
TESTAMENTARY SUIT No. 48 of 1996.
IN
TESTAMENTARY PETITION No. 601 of 1995.
Gunvantrai S. Gupta of Bombay,
Indian Inhabitant, residing at
"Shiv-Krupa", 18/20, St Mary
Road, Mazgaon, Bombay-400 010.
..Plaintiff.
VERSUS.
1. Gaurang Gunvantrai Gupta,
Indian Inhabitant residing at
2nd Floor, "Shiv-Krupa" 18/20
St Mary's Road, Mazgaon, Mumbai
400 010.
2. Miss Snehlata Chhotalal
Mody.
3. Miss Nurupama Chhotalal
Mody Both residing at A/32
Eeshita Apartment, Navrangpura
Ahmedabad 380 009.
4. Miss Nita Hasmukhlal Mody
5. Miss Rupa Hasmukhlal Mody
Both residing at 102/4 Shreyas,
Sewree Wadala Scheme Road No.7,
Wadala, Mumbai- 400 031.
..Defendants.
CORAM: V.C.DAGA,J.
DATED: 22.07.2008.
Mr D.C. Shah i/b Indu D. Shah for the
Petitioner-Plaintiff.
Mr S. J. Shobhavat, Advocate for Respondent
No.1.
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Mr S.C.Mody, Advocate for Respondent Nos. 2
to 5.
JUDGMENT:-
---------
1. In this Testamentary Petition, the
Plaintiff-propounder of the Will is praying
for probate with the Will annexed thereto of
the properties owned by Late Narendra Shivlal
Gupta together with the credits held by him in
business establishment.
FACTUAL MATRIX:
—————
2. One Narendra S/o Shivlal Gupta died on
12.12.1993 in Kambala Hill Hospital in Mumbai
after having undergone major surgery since he
was a cancer patient. He is said to have
executed his alleged last Will and testament
on 27.11.1993 at about 2.00 a.m. (midnight)
before being admitted to the hospital for
acute abdominal pain. His brother Shri
Hemantrai s/o Shivlal Gupta (hereinafter
called the “Petitioner/Plaintiff/Propounder”)
has filed Testamentary Petition on 28.7.1995
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to seek probate of the alleged Will dated
27.11.1993 alleged to have been executed by
his brother Late Narendra Gupta.
3. On being served with the citation, widow
of the deceased Narendra Gupta had filed a
caveat on 3.8.1998 alongwith affidavit in
support thereof denying execution of the
alleged Will by her husband and alleged fraud
on the part of the propounder of the Will and
contended that her husband was not mentally
fit to
ig execute the alleged Will at the
relevant time and on the date mentioned and
that the alleged Will is not genuine, valid
and legal. In view of the contest, the
Testamentary Petition became contentious as
such registered as Testamentary Suit. The
affidavit filed in support of the caveat was
treated as written statement.
PLAINT ALLEGATIONS:
ALLEGATIONS
——————-
4. The petitioner-plaintiff, Guvantrai
Gupta, has stated in the petition/plaint that
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his brother Late Narendra Shivlal Gupta died
in Mumbai on 12.12.1993 (“the said deceased”
for short). At the time of his death, his
fixed place of abode was Mumbai. The
properties left by him are situate within the
jurisdiction of Greater Mumbai in the State of
Maharashtra. The petitioner has further
stated that the deceased left the writing as
his last Will and Testament and that he is
appointed as executor of the Will. The
description of the property left by the
deceased
ig is to be found in the Schedule-I
marked as Exhibit B. The expenses incurred
are shown in Exhibit C. The beneficial
interest held by the deceased is described in
Exhibit D annexed to the plaint. The assets
of the deceased are valued at Rs.62,83,452.46.
The name of Mrs Lalitadevi N. Gupta is
disclosed as next of kin and kith, according
to Hindu Law. The prayer is made to grant
probate with Will annexed thereto in respect
of the properties and credits to which the
deceased was entitled during his life time.
DEFENCE PLEA:
————-
5. The Caveator (“the defendant” for short)
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Mrs Lalitadevi (since deceased) had filed her
caveat alongwith affidavit cum-written
statement stating therein that she was the
widow of Late Shri Narendra Shivlal Gupta of
Mumbai entitled to succeed to the estate left
behind by her husband Late Narendra Gupta.
6. The defendant had also stated in defence
that to the best of her knowledge and belief,
her husband Late Narendra Gupta did not make
any Will or testament and that her husband
died
intestate; that she came to know about
the alleged Will for the first time, when a
Subpoena dated 1.3.1996 was served on her
through the Sheriff of Bombay.
7. She had further stated, in defence, that
as per Rule 397 of the Bombay High Court
Original Side Rules (O.S.Rules) the petitioner
was bound to give her advance notice about
filing of the Probate Petition in this Court.
According to her, the petitioner had
deliberately kept her in dark about filing of
the present Probate Petition and did not give
her any notice of the Petition with sole
intention to obtain Probate in a surreptitious
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manner. Thus, breach of Rule 397 on the part
of the Petitioner is alleged.
8. The defendant had further stated in
defence that the Plaintiff did not comply with
Rule 374 of the Original Side Rules and failed
to file the alleged Original Will with the
office of Prothonotary and Senior Master of
this Court at the time of the presentation of
this Suit/Petition; that he had deliberately
made false statement in para 3 of the
suit/petition with regard to the filing of the
alleged Original Will in the office of the
Prothonotary and Senior Master of this Court
and also challenged the bonafides of the
petitioner.
9. The defendant had further challenged the
order allowing the amendment sought by the
Petitioner to the plaint/petition and has
further asserted, in para 5, of her counter
affidavit that she had sent a reply dated
3.4.1996, within eight days from the date of
receipt of the Subpoena, addressed to the
Prothonotary and Senior Master of this Court
and informed this Court that the Original Will
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alleged to have been executed by her late
husband on 27.11.1993 was not in her
possession, power or control as alleged by the
Petitioner; that she was neither aware of the
execution of the alleged Will dated 27-11-1993
nor had any knowledge about it; that the
Petitioner has falsely alleged that the
alleged Will was and is in her possession;
that the said allegations are made with
ulterior motive of creating false evidence to
show that the original Will was in existence
so as
to avoid the responsibility for the
production of the original Will alleged to
have been executed by her late husband on
27.11.1993.
10. The defendant did produce copy of the
letter addressed to the Prothonotary and
Senior Master of this Court on 3.4.1996. She
had also stated that the said letter was
received by the office of the Prothonotary and
Senior Master of this Court and that she was
holding postal acknowledgement and certificate
evidencing posting of the letter dated
3.4.1996 and undertook to produce the same.
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11. The defendant had also stated that the
petitioner deliberately did not give notice of
filing of the probate petition. She had
further asserted that the Will propounded by
the petitioner was non existent and that the
photo copy of the Will was not a genuine but
fabricated by the Petitioner. That the
petitioner had adopted dubious method in
filing Testamentary Petition.
12. The defendant had further reiterated
that
her husband had not made any Will at any
point of time during his life time, and more
particularly, on 27.11.1993 as alleged by the
petitioner. That during the last three weeks
prior to the death of her husband i.e. on
27.11.1993, he was not keeping good health and
she had at all times remained by the side of
her Late husband. She had never left her
husband alone at any time during his illness,
especially, during the period from 22.11.1993
to 12.12.1993. She has further stated that
her husband was suffering from cancer which
was detected when her husband had undergone
major surgery in the month of April, 1992 and
that the health of her husband was
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deteriorating day by day and that he was
mentally depressed and physically weak and
handicapped. As such he was not a normal
person.
13. The defendant had further stated that
the petitioner had tried to obtain signature
of her husband through Dr. Gangal,
brother-in-law of her husband (sister’s
husband), who had specially come down to
Bombay from Hubli to see her husband. That,
at the instance of the petitioner, Dr. Gangal
had given some papers to her husband for his
signature in her presence. After scanning
those papers, her husband had returned those
papers to Dr. Gangal without putting his
signature, who in turn returned them to the
Petitioner. After Dr Gangal had left the
Nursing Home, her husband had told her that
the paper which Dr.Gangal had given to him was
the Will which was prepared by the petitioner
and had given to Dr Gangal to obtain his
signature. She has further stated that after
the papers were returned by Dr.Gangal to the
petitioner, there was heated discussion
between the petitioner and her Late husband
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and the petitioner had become very angry with
her husband and started shouting at her
husband for having refused to sign the papers.
On hearing the shouts of the petitioner, Dr
Antia, who was attending her husband
immediately came to her husband’s room and
scolded the petitioner for shouting and
misbehaving with the patient, who had
undergone major surgery.
14. The defendant had also stated in her
affidavit that her husband was temperamentally
very cool and quiet and that the petitioner is
temperamentally very hot and aggressive in
nature and always dominated in domestic as
well as business matters inspite of the fact
that her husband was the elder brother of the
petitioner. She had further stated that while
her husband was alive and active in business,
he used to give her an amount of Rs. 5,000/-
every month for her personal expenses and that
after the death of her husband, the petitioner
continued to maintain the said practice for
sometime without asking her for any
acknowledgment. However, subsequently,
acknowledgement was asked for the purpose of
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maintaining account of the estate of her
husband and gave her a bunch of receipts which
were simple receipts in respect of payment of
Rs. 5,000/- which were already scribed. She
had thus stated that she had signed those
acknowledgments in good faith and later on
found out that those vouchers were prepared to
establish the genuineness of the Will. She
has, thus, stated that her signatures had been
fraudulently obtained on these vouchers.
15.
The defendant had also given a graphic
picture about the health of her husband. On
27.11.1993 he had suffered severe pain in the
stomach and abdomen which had increased
considerably by midnight. The pain had become
absolutely unbearable. Due to severe pain in
the stomach and abdomen, her husband had
gradually lost consciousness. She was
frightened due to sudden deteriorated health
of her husband, therefore, she had to request
the petitioner, his wife and two sons at 2.00
a.m. on 27.11.1993 to make necessary
arrangement for his medical treatment. Dr
Godbole, who was attending her husband, was
informed of the bad health. He advised to
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take her husband immediately to the hospital.
Thereafter, her husband was admitted in the
hospital. She had, thus, alleged that the
allegations made in the petition about
execution, custody and possession of the
original Will purported to be the last Will of
her husband in her possession is patently
false to the knowledge of the Plaintiff. She
had further asserted that the petitioner did
not disclose as to how the original Will
purported to be the last Will dated 27.11.1993
came in
ig her possession. She had further
stated that it was highly improbable for her
husband to execute Will purported to be the
last Will as pleaded in the Testamentary Suit.
Thus, in her written statement, she had
challenged the execution, existence and
validity of the Will and went on to allege
fraud played by the petitioner. She had also
alleged that the Will of which the Probate is
sought is a Will manufactured by the
Petitioner showing himself and his sons as
beneficiaries. The Will is not attested by
any independent witnesses. Rival pleadings
have given rise to the following issues framed
by this Court.
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ISSUES:-
——-
1. Whether he Plaintiff/Petitioner
proves that the deceased Narendra S.
Gupta had validly executed the Will
being Exhibit A to the Petition?
2. Whether the Defendant Nos. 2 to 5
prove that the deceased Narendra S.
Gupta had not executed the Will being
Exhibit A to the Petition?
3. Whether the Plaintiff is entitled to
grant of Probate of the xerox copy of
the Will of deceased Narendra S. Gupta
being Exhibit A to the Petition in the
absence of the Original Will?
4. What order?
5. Whether the probate could be granted
on the basis of xerox copy of the Will
without production of the original Will?
6. Whether the xerox copy of the Will
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produced by the Plaintiff/Petitioner is
a genuine copy of the Will propounded by
the Petitioner/Plaintiff?
7. Whether the original of the Will
propounded by the Plaintiff/Petitioner
was in the possession of the original
Caveator/defendant and widow of the
deceased Narendra Shivlal Gupta as
alleged, keeping in view reply to the
subpoena sent by the original Caveator
and affidavit dated 6th August, 1996
filed by her in support of the Caveat?
8. Whether the production of the
Original Will could be dispensed with by
the Hon’ble Court keeping in view of the
order dated 13.6.1996 passed by the
Hon’ble Court on the application of the
Plaintiff/Petitioner?
9. Whether the Petition for Probate is
entertainable by the Hon’ble Court on
the basis of xerox copy of the Will
propounded by the Petitioner/Plaintiff?
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10. Whether the Plaintiff/Petitioner is
entitled for the Probate of the Will in
view of the order passed by the Hon’ble
Court on 13.6.1996?
11. Whether the secondary evidence is
admissible for the purpose of granting
the probate of the Will?
12. Whether the Plaintiff/Petitioner
has sufficiently explained and accounted
for the non-production of the original
Will?
13. Whether the Plaintiff/Petitioner
is entitled for the grant of the probate
of the Will, keeping in view the
suspicious circumstances in which the
Petition for probate was filed?
16. Parties were permitted to lead evidence.
The plaintiff has examined witnesses namely;
Gunvantrai Shivlal Gupta (P.W.1), Gaurang
Gupta (P.W.2), Anand Gunvantrai Gupta (P.W.3),
Prabhakar Sambhaji Kamble (P.W.4), Dr. Sanjay
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Ganesh Godbole (P.W.5), whereas the defendants
did not examine anybody.
17. Before considering the matter on its own
merits, it is necessary to sketch the rival
submissions made before this Court.
RIVAL SUBMISSIONS:
—————–
18. The learned counsel appearing for the
Petitioner/plaintiff submits that the
plaintiff has examined himself as P.W.1. The
plaintiff has also examined attesting
witnesses P.W. Nos. 2 and 3, i.e. his sons.
Both the attesting witnesses have affirmed the
execution of the Will. The Bank Officer
(P.W.4) was examined to prove signature of the
deceased put on the Will. Dr Sanjay Ganesh
Godbole, ( P.W. 5 ), who had treated the
deceased Late Mr N.S. Gupta for number of
ailments had testified that the deceased was
healthy and in sound state of mind at the time
of execution of the subject Will. The
plaintiff, thus, submits that the Will has
been duly proved as validly executed by the
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deceased. The plaintiff claims to have proved
photocopy of the Will as the original was not
forthcoming. The plaintiff submits that the
burden cast on the (plaintiff) propounder of
the Will has been discharged and all
suspicious circumstances are cleared. In his
submission the subject of the Will was opened
one month after the death of the deceased i.e.
on 21.1.1994 in presence of all family members
of the plaintiff as well as one of the
relatives of the widow of the deceased one Dr.
Hasmukh
ig Mody, i.e. the brother of the widow.
According to the plaintiff, the subject Will
was read over and, thereafter, two photo
copies thereof were prepared, out of which one
was handed over to Dr. Hasmukh Mody, brother
of the widow of the deceased and the other
copy was retained by the plaintiff and that
the original Will was handed over to the widow
of the deceased for safe custody.
19. The learned counsel for the plaintiff
urged that the Will was written by the
deceased in his own handwriting. It was
signed by him in the presence of two witnesses
i.e. sons of the plaintiff Mr Gaurang G.
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Gupta (P.W.2) and Anand G. Gupta (P.W.3). He
further submits that the Will was written at
about 2.00 a.m. on 27.11.1993 by the deceased
and, therefore, it is quite obvious that, at
that point, independent witnesses could not
have been made available to witness the
execution of the Will. He submits that both
the witnesses have corroborated the said
version of the plaintiff.
20. The learned counsel for the
plaintiff-propounder submits that to establish
handwriting of the deceased as well as his
signature on the subject Will (Exh. A), the
plaintiff has produced Exh.B to H, i.e. two
cheques bearing signatures of the deceased and
the passports of the deceased bearing his
signature together with driving licence issued
by the R.T.O. and power of attorney executed
by the deceased. In order to prove
handwriting of the deceased, the plaintiff has
also examined one more witness, the Manager of
the Central Bank of India, (P.W.4), who had
issued signature verification certificate and
produced two slips bearing specimen signatures
of the deceased. He further submits that
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though medical evidence is on record to prove
good physical health and sound mental
condition of the deceased testator, as such
the Will has to be taken as proved beyond
doubt. He, thus, submits that the plaintiff
is entitled for grant of Probate.
21. The learned counsel for the plaintiff
placed reliance on the decision of the Apex
Court in the case of Mrs Hem Nalini Judha v.
Mrs Isolyne Sarojbashini A.I.R. 1962 S.C.
1471 in support of his submission.
22. Per contra, at the out set, Mr Mody,
learned counsel appearing for the defendants
submits that the plaintiff has not come to
this Court with clean hands to seek the
Probate and tried to set up a false case, as
such, the suit is liable to be summarily
thrown out. Reliance is placed on the law
laid down by the Apex Court in the case of
S.P. Chengal Naidu vs. Jagannath, A.I.R.
1994 S.C. 853. He further submits that the
fraudulent conduct of the plaintiff is matter
of record, reflected in the form of the order
dated 13.6.1996 passed by the learned Single
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Judge (Shri K. G. Shah,J as he then was).
He submits that this is not a fit case,
wherein this Court can grant Probate in favour
of the plaintiff, especially, when the probate
proceedings are in rem and binds the whole
world. He further submits that the probate
proceedings of the purported Will filed by the
present plaintiff is tainted with bad motive
which is quite apparent from the conduct of
the plaintiff. He submits that the Original
Side Rules lay down various requirements for
filing
petition for Probate. He submits that
every possible attempt was made by the
plaintiff to throw dust in the eyes of this
Court and he tried to obtain Probate in his
favour by playing fraud on this Court. He
sought to urge that the Will suffers from
various mysterious circumstances and tried to
demonstrate the same on the basis of the
record of this Suit.
23. Mr Mody drew my attention to the cause
title of the petition wherein words “xerox
copy of ” were inserted and to the statement
made in para 3 of the Probate Petition wherein
correction is made in title of the petition by
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adding word “xerox copy of Will” after filing
of the petition. Mr Mody further submits that
no service of the citation was made on the
widow of the deceased. No notice was given to
the widow of the deceased for handing over
possession of the alleged original Will prior
to filing of the Petition which was necessary
if the possession of the alleged Original Will
was with the widow of the deceased as alleged
in the petition dated 31.1.1996.
24. Mr
ig Mody also tried to demonstrate that
the office of this Court had raised an
objection with regard to the filing of the
photo copy of the Will instead of original
one. When the plaintiff was asked to file the
original Will he came out with a false story
that the original Will was in possession of
the widow of the deceased testator and
requested Court for issuing subpoena to her.
25. Mr Mody also tried to highlight the
circumstances under which the alleged Will was
sought to be prepared and also highlighted
attempts on the part of the plaintiff to
obtain consent order in collusion with his
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sons which was, ultimately, set aside by the
Appellate Court.
26. Mr Mody submits that an attempt was made
not to add defendant Nos. 2 to 5 as the
defendants to the Testamentary Suit and every
possible attempt was made to seek orders from
this Court behind their back. He further
submits that the documents filed by the
plaintiff are not admissible in evidence for
want of foundation in the pleadings. Some of
the
documents tendered in evidence by the
plaintiff were never disclosed in the
affidavit of documents. He further submits
that large number of isolated vouchers in
respect of payments alleged to have been made
to the widow were produced without producing
books of accounts. No person was examined
through whom alleged payments were made. He
thus, submits that neither alleged payments
were established, nor alleged vouchers were
proved in accordance with the provisions of
the Evidence Act. He further submits that
affidavit of evidence by way of
examination-in-chief of one Kantilal Mehta was
sought to be filed without producing him for
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verification of his affidavit or for his
cross-examination. Now he is dead. He
submits that the identity of the person, who
has prepared alleged vouchers was also not
disclosed. The said person was not examined.
The actual payments alleged to have been made
have also not been proved. He, thus, submits
that the said affidavit of Shri Kantilal Mehta
cannot be read in evidence.
27. Mr Mody further submits that purported
Will
dated 27.11.1993 propounded by the
plaintiff alleged to have been certified as
true copy by the Notary Public on 21.2.1993
has also not produced. He further submits
that it was obligatory on the part of the
plaintiff to examine Mr N. N. Dalvi, Notary
Public who alleged to have notarised true copy
of the alleged subject Will and should have
been made available for the cross-examination.
He thus submits that the notarized copy has
neither been produced nor proved.
28. Mr Mody further submits that attesting
witnesses who have appeared were interested
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witnesses being sons and beneficiaries under
the alleged Will. That no leave to lead
secondary evidence was obtained by the
plaintiff from this Court. That this Court
had never permitted the plaintiff to lead
secondary evidence. In his submission, the
Will was required to be proved by primary
evidence unless permitted by the Court to lead
secondary evidence as per law laid down by the
Apex Court in the case of Wasudeo v. Vilas
2006 (2) Mh.LJ 605 (page 627).
627)
29. Mr Mody submits that the plaintiff had
made application in the initial stage of the
Suit (before Justice K.G.Shah as he then was)
to dispense with the production of the
original Will but the said application was
rejected by an order dated 13.6.1996. No
permission was granted by this Court to lead
secondary evidence. That the widow-defendant
had categorically stated that she had never
seen any Will nor was she ever in possession
of the alleged original Will. The possession
of the widow so far as subject Will is
concerned has also not been established. With
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the aforesaid submissions, Mr Mody also tried
to highlight that there are various suspicious
circumstances to disprove the case sought to
be made out by the plaintiff. He, in ultimate
submission, prayed for dismissal of the suit
with heavy costs.
LAW OF WILL.
————
30. Before dealing with the various aspects
of
rival submissions surfaced during the
course of arguments, it is necessary to trace
the law of Will expounded by the Supreme Court
in the matter of proof of the Will and duty of
the Courts in considering the question
relating to the execution of the Will
surrounded by suspicious circumstances.
31. The learned counsel for the parties have
cited number of decisions, reference to all of
them is not necessary except following few
leading cases of the Apex Court from which the
settled legal principles can be culled out.
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32. The Apex Court in the case of Shashi
Kumar Banerjee and others v. Subodh Kumar
Banerjee since deceased and after him his
legal representatives and others reported in
A.I.R. 1964 S C 529 ruled that the mode of
proving a will does not ordinarily differ from
that of proving any other document except as
to the special requirement of attestation
prescribed in the case of a will by S. 63,
Succession Act. The onus of proving the Will
is on the propounder and in the absence of
suspicious
ig circumstances surrounding the
execution of the will, proof of testamentary
capacity and the signature of the testator as
required by law is sufficient to discharge the
onus. Where, however, there are suspicious
circumstances, the onus is on the propounder
to explain them to the satisfaction of the
court before the court accepts the Will as
genuine. Where the Caveator alleges undue
influence, fraud and coercion, the onus is on
him to prove the same. Even where there are
no such pleas but the circumstances give rise
to doubts, it is for the propounder to satisfy
the conscience of the Court. The suspicious
circumstances may be as to the genuineness of
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the signature of the testator, the condition
of the testator’s mind, the dispositions made
in the will being unnatural, improbable or
unfair in the light of relevant circumstances
or there might be other indications in the
Will to show that the testator’s mind was not
free. In such a case the court would
naturally expect that all legitimate suspicion
should be completely removed before the
document is accepted as the last Will of the
testator. If the propounder himself takes
part
in the execution of the Will which
confers a substantial benefit on him, that is
also a circumstance to be taken in to account,
and the propounder is required to remove the
doubts by clear and satisfactory evidence. If
the propounder succeeds in removing the
suspicious circumstances the court would grant
probate, even if the Will might be unnatural
and might cut off wholly or in part near
relations.
33. In the case of Kalyan Singh V. Smt.
Chhoti and Others, A.I.R. 1990 Supreme Court
396, the Three Judges Bench of the Apex Court
ruled that the Will is one of the most solemn
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documents known to law. The executant of the
Will cannot be called to deny the execution or
to explain the circumstances in which it was
executed. It is, therefore, essential that
trustworthy and unimpeachable evidence should
be produced before the court to establish
genuineness and authenticity of the Will. It
must be stated that the factum of execution
and validity of the Will cannot be determined
merely by considering the evidence produced by
the propounder. In order to judge the
credibility of witnesses and disengage the
truth from falsehood the court is not confined
only to their testimony and demeanour. It
would be open to the court to consider
circumstances brought out in the evidence or
which appear from the nature and contents of
the documents itself. It would be also open
to the Court to look into surrounding
circumstances as well as inherent
improbabilities of the case to reach a proper
conclusion on the nature of the evidence
adduced by the party.
34. The Apex Court in the case of Guro (Smt)
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vs. Atma Singh and Others (1992) 2 Supreme
Court Cases 507 held that where there were
suspicious circumstances, the onus would be on
the propounder to explain them to the
satisfaction of the court before the Will
could be accepted as genuine. Such suspicious
circumstances may be a shaky signature, a
feeble mind and unfair and unjust disposal of
property or the propounder himself taking a
leading part in the making of the Will under
which he receives a substantial benefit. The
presence of suspicious circumstances makes the
initial onus heavier and the propounder must
remove all legitimate suspicion before the
document can be accepted as the last Will of
the testator.
35. In the case of Gurdial Kaur and others
vs. Kartar Kaur and others (1998) 4 S.C.C.
384, the Apex Court held that the law is well
settled that the conscience of the court must
be satisfied that the Will in question was not
only executed and attested in the manner
required under the Indian Succession Act, 1925
but it should also be found that the said Will
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was the product of the free volition of the
executant who had voluntarily executed the
same after knowing and understanding the
contents of the Will.
36. In the case of M.H. Venkataiya Iyengar
Vs. B. N. Thimmajamma, A.I.R. 1959 S C 443
it has been held that where the propounder was
unable to dispel the suspicious circumstances
which surrounded execution of the question of
valid execution and attestation of the Will,
no
Letter of administration in favour of the
propounder could be granted.
37. Before considering the matter on its own
merits, it is necessary to sketch the rival
submissions made before this Court.
CONSIDERATION IN THE BACKDROP OF THE
———————————————-
DEVELOPMENTS BEFORE THIS COURT.
COURT
——————————
38.
. Having heard parties to the suit and
having seen the documents, various affidavits
and the evidence on record, the present suit
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needs to be decided on the basis of the
evidence led by the plaintiff-petitioner,
since the Caveators-defendants did not lead
any evidence. The plaintiff has to stand on
his own legs.
39. The factual matrix, already drawn
hereinabove, shows that the Testamentary
Petition No. 601 of 1995 was filed by the
Petitioner on 28.7.1995 for the probate of the
alleged will dated 27.11.1993 of late Narendra
s/o
Shivlal Gupta, husband of the deceased
(i.e. the original defendant-Caveatrix).
40. The aforesaid petition was filed by the
Petitioner/Plaintiff one and one half year
after the death of the husband of the deceased
defendant/caveatrix. Her husband died in
Mumbai on 12.12.1993. This delay has not been
explained.
41. The Probate Petition was filed on the
basis of a photocopy/xerox copy of the probate
Will propounded by the Plaintiff/Petitioner.
The original of the Probate Will was not
produced at the time of filing of the
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Petition. The Probate Petition has been
solemnly affirmed by the Petitioner before
appropriate Officer of this Court. In para 3
of the Probate Petition, this is what, the
Petitioner has stated:
“That the deceased left writing, which
is last Will and Testament. The said
writing hereinafter referred to as the
“Will” is marked Exh.”A” and is handed
in separately for being filed, and keptin a safe place in the office of the
Prothonotary and Senior Master. A copy
of the said Will is hereto annexed andalso marked Exh.A”.
(Emphasis supplied)
42. The aforesaid statement made in para 3
of the Petition, shows that the original Will
of which Probate is being sought for was with
the Petitioner at the time when the Petition
was presented and that as per averments made
in the petition, he had handed over the
original Will separately to the office of this
Court for being filed and kept in the safe
custody of the Prothonotary and Senior Master
of this Court. However, after presentation of
the petition, it transpired that the
Petitioner had never handed over original Will
to the Officer of this Court. He only handed
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over a Photo copy/xerox copy of the Will. The
Petitioner, who claims to be the executor of
the Will of the deceased, in his affidavit
dated 28.8.1995, has for the first time,
stated (when the office objection raised) that
he was not in possession of the original Will
and that he had been provided only with xerox
copy of the Will and that the original Will
was in the custody and possession of Smt.
Lalitaben Narendra Gupta, widow of the
deceased.
43. In the above backdrop, the
Petitioner/Plaintiff prayed for issuance of
Subpoena to the widow of the deceased to
produce alleged original Will alleged to have
been executed by the deceased on 27.11.1993.
That Subpoena was issued and served on the
widow of the deceased. She did not produce
the original Will denying possession thereof.
A precipe was, thus, moved by the Petitioner
requesting this Court to dispense with the
production of the original Will.
44. At this juncture, it is relevant to note
that under the provisions of Section 276 of
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Indian Succession Act, 1925 the original Will
on the basis of which the Petition for Probate
was filed, is required to be annexed with the
Petition. Rule 374 of the O.S. Rules of this
Court, specifically, provides that the
original Will is required to be deposited in
the office of the Prothonotary and Senior
Master for safe custody and a copy of the Will
is required to be annexed to the Petition. A
specific averment is also required to be made
in the petition itself, stating that the said
Rule has been complied with.
45. Rule 374 of O.S. Rules prescribes for
filing of the probate petition to confirm to
the requirement of Section 276 of the
Succession Act (the Act). Section 276 of the
Act further provides that a copy of the Will
or, draft or statement of the contents thereof
shall be annexed with the Petition. Copy of
the Will is admissible, subject to necessary
averments made in the petition itself,
explaining facts and circumstances for the non
production of original Will. A specific
averment is also required to be made in the
petition for grant of probate on the basis of
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the copy of Will. The Court has to be
satisfied about facts and circumstances for
non-production of the Will.
46. It may further be noted that Section 237
of Succession Act carves out the exception to
the mandatory provisions of Section 276 of
Succession Act. In the present case,
provisions of Section 237 of the Succession
Act have no applicability. As such,
production of the original Will was absolutely
necessary
ig for entertaining Petition for the
Probate of the property of the husband of the
original defendant propounded by the
plaintiff/petitioner.
47. It is well settled that if certain
things are required to be done in a specific
manner, it cannot be done in any other manner
as laid down by the Apex Court in the cases of
Nazir Ahmed v.
v King Emperor, A.I
A I.R.
R. 1936 P
243, State of Uttar Pradesh v. Singhara Singh
and Ors, A.I.R. 1964 S C 358 and in Vanmala
S. Aney v. National Education Society,
Khamgaon and Ors, 1982 Mh.L.J. 403.
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48. The Plaintiff claims to be the executor
of the property of the original defendant's
husband and as such the plaintiff was supposed
to be in possession of the original Will under
which Executorship is being claimed. In case
the Petitioner was not in possession of the
original Will, the Petitioner was expected to
obtain the possession of the original Will
prior to the filing of the Petition. In
absence thereof, the Petitioner was under
obligation
ig to produce prima facie; evidence
of the possession of the original Will with a
third party. A specific averment was required
to be made in the petition in that behalf to
seek production of the original Will, by
making necessary application for issuance of
the Subpoena for the production of the
original Will.
49. In the present case, as indicated
hereinabove, the plaintiff has neither made
any averment in the petition about non-
possession of the original Will nor any proof
of any attempt made to seek possession of the
original Will was tendered. No steps, well
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within time, were taken to seek Subpoena for
production of the alleged original Will. On
the contrary, he made a specific averment in
para 3 of the Petition to the effect that the
original Will of the deceased was handed in
separately to in the office of the
Prothonotary in accordance with Rule 374 of
the O.S.Rules. This statement, ultimately,
turned out to be a false statement, which the
Petitioner/Plaintiff has also admitted in his
evidence, in para 19, which reads as under:
“It is correct that originally when the
petition was filed, I made a false
statement that the original Will is
handed over to the Prothonotary.”
(Emphasis supplied)
50. It is relevant to note that the false
averment made by the Plaintiff/Petitioner in
the petition was detected by the Testamentary
Department of this Court when the petition was
scrutinized. The precipe was required to be
filed by the Advocate for the Plaintiff for
issuance of a Subpoena to the defendant
alongwith affidavit dated 28.8.1995. But
Subpoena was not issued till 1.3.1996,though
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widow of the deceased.
51. The Caveatrix, in her reply- cum-
affidavit filed on record, made a positive
statement that her husband had died intestate,
as such question of production of the Will,
much less original Will did not and could not
arise. The reply to the Subpoena was sent by
her by Registered post A.D. It was delivered
in
the office of the Prothonotary and Senior
Master on 8.4.1996 as per the photocopy of the
postal acknowledgement available on record.
The defendant’s reply to the Subpoena is not
to be found on the record of the proceedings.
The attention of the then Judge of this Court,
( Shri K. G. Shah, as he then was) was also
drawn to the non-availability of the reply to
the Subpoena at the time of hearing of the
Petition on 28.1.1996. The learned Judge had
issued directions to the Testamentary
Department on 21.8.1996 to trace out
defendant’s reply to the subpoena.
52. The photocopy of the reply given by the
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widow of the deceased alongwith photocopy of
the acknowledgement both are produced on
record. It is, no doubt, true that no
evidence in this behalf, as required under the
provisions of the Evidence Act, was led by the
Caveatrix, since during the pendency of the
Suit she left for heavenly abode. Her
statement, that she had replied to the
Subpoena was ordered to be investigated by the
learned Judge of this Court. Till today, no
report from the Testamentary Department has
been received or placed on record.
53. At this juncture, it is relevant to note
that looking at the affairs of the
Testamentary Department, as noticed from time
to time by this Court, the statement made by
the deceased on oath cannot be ignored. This
is no doubt a disturbing feature of the
working of the Testamentary Department.
However, it is clear that the Testamentary
Department has failed to carry out directions
of this Court.
54. Be that as it may, the question will
have to be considered on the basis of the
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admissible evidence and circumstances
available on record as to whether, at any
point of time, the alleged original Will was
in existence and if so, was it in possession
of the widow of the deceased. This issue is
being addressed hereinafter at the appropriate
stage of this judgment.
55. It may further be pointed out that the
defendant’s reply to the subpoena was not
before
this Court when the petition was heard
by Shri K.G. Shah,J (as he then was) on
13.6.1996.
56. At this juncture, it will be relevant to
point out that the Judge of this Court
(K.G.Shah,J (as he then was) had heard the
matter in detail and after having heard,
delivered the order dated 13.6.1996 which
speaks volume about the conduct of the
plaintiff in the present case. The learned
Judge recorded a specific finding about the
methodology adopted by the Plaintiff in filing
of this Petition, wherein the learned Judge
has observed as under:
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“In the present case, as I read para 3
of the petition, the petitioner has
stated that the original Will (Exh.A) is
handed in separately for being filed and
kept in safe place in the office of the
Prothonotary and Senior Master. This
would mean that the original Will was in
his hand at the time when the petition
was presented. Undisputedly, he had not
handed over the original Will in the
office of this Court at the time when
petition was presented and, therefore,
the office raised the objection. Now,
the Petitioner wants to contend that the
original Will is not with him. It was
not with him at any point of time. But
it was in possession of the widow of the
deceased. Now, these facts are not at
all to be found in the petition. He has
prayed for a subpoena being issued to
the widow of the deceased calling upon
her to produce the original Will which
he alleges is in possession of the widow
of the deceased. Not only that the
petitioner has in para 3 of the petition
clearly purported to say that he
produces the original Will implying
thereby that the original Will was in
his hand at the time petition was
presented but nowhere in the petition
has he stated that original Will was
with the widow of the deceased.”
“The matter was taken up yesterday and I
heard Mr D.C. Shah, the learned counsel
for the Petitioner at length. At that
time, it appeared that there were
several things which raised suspicion
about the petitioner’s case that the
Original Will is in the possession of
the widow of the deceased. In para 3 of
the petition, the Petitioner has made
statements which would clearly go to
show that at the time the petition was
presented the original Will was with
him. In the petition, nowhere has it
been stated that the Will was with the
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widow of the deceased. In the affidavit
of Gaurang Gupta filed along with the
petition, there is not a whisper to say
that the original Will is with the widow
of the deceased.”
(Emphasis supplied)
57. In the aforesaid order Justice K.G.
Shah (as he then was) made it absolutely clear
and recorded a categorical finding reading as
under:
“It is claimed that the Petitioner has
never served the widow with a notice
calling upon her to hand him over theoriginal Will or to produce the same in
Court. Under these circumstances, I
think the ends of justice demand that
the widow of the deceased should be
supplied with all the affidavits filed
by the Petitioner on the record of thecase including the affidavit of the
attesting witnesses, precipe and allother papers on record and she should be
called upon to have say in the matter of
the Petitioner’s request for dispensing
with the production of the original
Will. I, therefore, direct that theoffice of this Court shall serve the
widow of the deceased with all the
papers on record of the case so far
produced including all the affidavits,
the precipis and other papers on record
of the case and ask by a notice toappear before this Court on 10th July,
1996 to show cause why the Court should
not pass an order dispensing with
production of the original Will.”
(Emphasis supplied)
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58. In the above order, it was specifically
made clear that issuance of notice by itself
will not be a ground in favour of the
Petitioner to dispense with production of the
original Will.
59. With the above caveat, show cause notice
was issued. The widow of the deceased was
called upon to file a reply, which she had
filed,
denying the alleged execution and/or
the existence of the Will and strongly opposed
the prayer for dispensing with the necessity
of filing of the original Will.
60. The Notice of Motion No. 503 of 1997
was taken out by the original
defendant-Caveatrix Ms Lalitaben (since
deceased) for dismissal of the Probate
Petition. The original defendant died at
Ahmedabad on 25.3.1998, during pendency of the
said notice of Motion No. 503 of 1997. The
original defendant had made a Will dated
27.10.1997.
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61. In the above Will, the original
defendant has appointed Ms Snehlata, Ms
Nurupama, both daughters of Chhotalal Mody,
and Ms Nita and Ms Rupa, both daughters of
Hasmukhlal Mody, as Executrix of the Will.
62. The Advocate for the defendant had
informed the Advocate for the Plaintiff about
the death of original defendant Ms Lalitaben
Gupta by a letter dated 6.4.1998. The copy of
the Will dated 27.10.1997 executed by the
original
ig defendant was forwarded to the
Advocate of the Plaintiff. A specific request
was made to bring the four ladies
beneficiaries under the Will on record as
legal representatives of the original
defendant in accordance with the provisions of
Order XXII Rule 4 of the Code of Civil
Procedure. However, the Advocate for the
Plaintiff failed to take action for bringing
them on record. This inaction also speaks
volumes about the foul and malafide intentions
of the plaintiff.
63. Instead of bringing above four ladies on
record as legal representatives of the
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original defendant, the plaintiff took out a
Chamber Summons No. 626 of 1998 in the
present Suit and brought his son Gaurang
Gunvantrai Gupta, the present defendant no.1
on record, as legal representative of the
original defendant, on the basis of purported
Will of the deceased widow alleged to be dated
2.4.1994. The said Chamber Summons No. 626
of 1998, taken out by the Plaintiff, was made
absolute by consent of the father and son i.e.
Plaintiff and Gaurang Gupta, son of the
Plaintiff,
ig in view of the order dated
15.7.1998 passed by this Court (Smt. K.K.
Bam,J, as she then was). That is how, the
plaintiff’s son Gaurang was brought on record
as legal representative of the original
defendant in this Testamentary Suit.
64. It is also interesting to note that the
Plaintiff had taken out Chamber Summons No.941
of 1997 for the liberty to amend the Petition
after service of Notice of Motion No. 503 of
1997 taken out by the original Plaintiff as
mentioned hereinabove. The said Notice of
Motion No. 503 of 1997 was placed for hearing
before this Court (Smt K.K. Bam,J as she then
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was). The Notice of Motion No. 503 of 1997
and Chamber Summons No. 941 of 1997, both
were heard and disposed of by a common order
dated 29.7.1998 on the basis of Minutes of
order signed by the plaintiff, his son and
countersigned by their respective Advocates,
obviously, in collusion with each other.
65. Ms Snehlata, Ms Nurupama, Ms Nita and Ms
Rupa challenged the above order dated
15.7.1998 passed in Chamber Summons No. 626
of
1998 and the common order passed on
29.7.1998 in Notice of Motion No. 503 of 1997
and Chamber Summons No. 941 of 1997 in Appeal
No. 951 of 1998. The said Appeal came up for
admission before the bench presided over by
Hon’ble Justice S.N. Variava (as he then
was). The said appeal was disposed of by
Minutes of order, wherein the plaintiff and
his son had agreed to bring the said four
ladies i.e. Ms Snehlata, Ms Nurupama, Ms Nita
and Ms Rupa on record as the legal
representatives of the original defendant.
The Notice of Motion No. 503 of 1997 and
Chamber Summons No. 941 of 1997 were directed
to be heard and decided on merits.
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66. The Testamentary Suit and Notice of
Motion No. 503 of 1997 were amended as per
the Minutes of order passed in Appeal Nos.951
and 1017 of 1998 and the above four ladies
were brought on record of the suit as
defendant Nos. 2 to 5.
67. At this juncture, one more relevant
aspect needs a reference i.e. the Chamber
Summons No. 941 of 1997, whereby the
plaintiff
ig prayed for grant of leave to amend
the plaint-petition as per Schedule annexed to
the Chamber Summons, whereby he wanted to
insert some words in para 3 of the plaint,
reading as “Xerox copy of which ” in the said
Petition after the words Exh.”A” and also to
incorporate words “xerox copy” after sentence
reading as “the original Will is in custody
and possession of the original defendant of
the deceased Lalita N. Gupta”.
68. In support of the above Chamber Summons,
an Affidavit was filed by the
Petitioner-Plaintiff on 23.7.1997.
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69. The learned Judge of this Court (Smt.
K.K. Bam,J as she then was) by an order dated
31.7.1998 allowed the above Chamber Summons
observing that the added Defendant Nos. 2 to
5 shall be at liberty to file additional
written statement. Parties were directed to
exchange affidavits of discovery and
inspection of documents within two weeks.
70. That after disposal of Appeal Nos. 951
and 1017 of 1998 filed by the Appellants,
Notice
of Motion No. 503 of 1997, taken out
by the original defendant, came up for hearing
and final disposal before Justice K.K.Bam (as
she then was) on 29.1.1999, who was pleased to
dismiss the said Notice of Motion No. 503 of
1997. She allowed the suit to proceed on the
basis of the photocopy of the Will holding
that the issue will have to be tried as to
whether or not the Petitioner/Plaintiff is
entitled to obtain Probate on the basis of
photo/xerox copy of the Will and held that the
suit will have to be decided on the basis of
the evidence led.
71. After service, the aforesaid Defendant
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Nos. 2 to 5 also filed their written
statement opposing the grant of probate and
considering rival contentions of the parties,
issues were framed as reflected in para 15
supra. They are being considered in paras
appearing hereinafter.
CONSIDERATION:
————-
ISSUE Nos. 1 to 12:-
——————–
——————
72. Issue Nos. 1 to 12 being interlinked
they are being considered together in the back
drop of the events, which took place before
this Court as also evidence on record.
73. As already stated hereinabove, in
extenso, the probate petition was filed by the
Plaintiff, one and half years after the death
of the deceased Narendra Gupta, without
producing the original Will. He made a false
statement in para 3 of the plaint already
extracted in para 49 supra. Till the scrutiny
of the petition by the Testamentary Department
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original Will was not produced. A false
statement was made in the Petition as
indicated hereinabove. By an order dated
13.6.1996 Prothonotary and Senior Master
directed the plaintiff to file original Will
before the petition could be proceeded
further. The subsequent developments which
took place before this Court were extensively
sketched hereinabove.
74. Now, the question which needs to be
addressed
ig is: whether the existence of the
original Will is proved by the Plaintiff?
75. In order to address this question one
has to read the Probate Petition, the
affidavits filed from time to time on record
by the plaintiff in support of various Motions
and/or Chamber Summons, coupled with the
evidence of the Plaintiff brought on record.
76. It is also necessary to bear in mind
that the beneficiaries under the Will are the
Plaintiff and his two sons. The attesting
witnesses of the alleged Will are also sons of
the Plaintiff. Under these circumstances, the
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appreciation of evidence has to be with a
pinch of salt.
77. The first question which needs to be
addressed is: Why the Plaintiff should make a
false statement in the Probate Petition? Can
it be said that at the time of filing of the
Probate Petition, he was not aware of the fact
that the alleged original Will was not in his
possession and was with the widow of the
deceased? The answer has to be that he was
well
aware of this fact since he claims to
have issued advance letter to the widow
requesting for original Will (see para 10 of
his evidence).
78. The Probate Petition must have been
drafted by the Advocate on the basis of the
instructions given. If one turns to the
original Probate Petition, one would find the
insertion of the words “xerox copy” appearing
in the petition, just above the name of the
Petitioner in the cause title. Originally, it
was typed as under:-
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“In the matter of Petition of Probate of
the Will of Narendra Shivlal Gupta, who
expired on 12.12.1993 at Bombay
…deceased.”
79. The addition made reads as under:
“In the matter of Petition of Probate of
the xerox copy of Will of NarendraShivlal Gupta, who expired on 12.12.1993
at Bombay …deceased.”
(Emphasis supplied)
80. The word “xerox copy” appearing in the
same ink in which the Plaintiff has signed,
this does not bear the counter-signature of
the Oath Officer. It is, thus, clear that the
words “xerox copy” in the opening part of the
cause title of the Petition were added
subsequent to the affirmation of the petition.
81. With this, let me turn to the evidence
of the plaintiff. In the evidence, the
plaintiff has stated in para 3 that the
original Will was executed by his brother on
27.11.1993 and was kept with his wife Mrs
Lalitaben. He has further stated that he saw
the original Will for the first time on
12.1.1994 at 4.00 p.m. when the envelope
containing subject Will was opened i.e.
exactly a month after the death of his elder
brother. He has further stated that he opened
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the envelope and took out the Original Will
and read over contents thereof to every one
who were present in the room. After having
read the subject Will, he asked his elder son
Gaurang Gupta to get the alleged original Will
laminated and to get two xerox copies thereof.
Accordingly, his son got the original Will
laminated and two xerox copies thereof. He
has further stated that, the original
laminated copy of the alleged Will was again
given to his sister-in-law, Mrs Lalita. Out
of
the two xerox copies of the Will, one was
kept by him and the other was given to Dr
Mody, (brother of Mrs Lalitaben). The
original alleged Will is in Gujarati. From
this evidence, the plaintiff wants to suggest
that the Will was opened for the first time on
12.1.1994. In the wake of this evidence, it
could not have been said in the Probate
Petition that the alleged original Will is
being produced and handed over to the
Prothonotary and Senior Master. This vital
aspect of possession of the Will with Ms
Lalita could not have escaped the mind of the
plaintiff. Hence, the story sought to be put
up by the plaintiff that the Will was given in
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the custody of the widow is contrary to the
material evidence on record. The case sought
to be made out does not inspire judicial
confidence.
82. In para 3 of the evidence of the
plaintiff, he has stated that on 27.11.1993
itself the original Will was given in the
custody of Mrs Lalita and for the first time
he saw it on 12.1.1994 and got it laminated
and the alleged Will was again given in the
custody of Mrs Lalita. In the same para (page
4) the plaintiff has stated the xerox copy was
taken by him from the original which was lying
with him. If, at all, original Will was with
Mrs Lalita, then how the plaintiff got
photocopy from the original? How and when, he
came in possession of the original Will is a
big question. This piece of evidence again
shows that Mrs Lalita was never in possession
of the original Will. The shifting stand
taken by the plaintiff is one of the pointer
to demonstrate falsity of his case.
83. Let me further proceed with the evidence
of the Plaintiff, wherein he has stated that
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he was not in the room where the Will was
prepared by his brother on 27.11.1993. He was
in the adjacent room, which is his bed room.
He was busy on telephone contacting doctor as
his brother was seriously ill. It was about
2:15 to 3:15 a.m. when the said Will was
executed. He has further stated that he was
not awake at 3:15 a.m. but was woken up by
his brother Narendra by knocking his bed room
at 2.00 a.m. and therefore he woke up. That
his brother told him that he wanted to prepare
his
Will. He asked him to get a piece of
paper and a fountain pen. The plaintiff gave
him a letter pad of Saraswati Mill Store Co.
and a pen for writing his Will.
84. After giving fountain pen and paper, he
was busy contacting Dr Gupta and Dalvi
Hospital, so as to take his brother to the
Hospital and that is how he says he was not
present when the Will was executed. This
evidence, thus, makes it clear that he was
completely unaware about the Will which was
executed in his favour. The Will was written
by deceased attested by his two sons as
attesting witnesses. The plaintiff, has thus,
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completely shown absence of his knowledge and
his presence in the room at the time of the
execution of the Will.
85. Now, let me examine the correctness and
the truthfulness of this piece of evidence in
the light of the evidence of his son Mr
Gaurang Gupta. At this juncture, it is
relevant to note that in the Will a figure
“2000” has been altered to “5000”. This
alteration is visible to the naked eye. In
the
cross-examination of defendant No.1
Gaurang, a specific question was put to him
concerning the said corrections made in the
Will. In reply, he has stated that “there is
correction in the figure of “Rs. 2000″, that
was made by my father Narendra Gupta. It is
not correct to say that this figure was
changed from Rs. 2000 to Rs. 5000 at my
instance.” Mr Narendra Gupta is not the father
of the said witness. Obviously, father means
the plaintiff. Thus, the statement made by
the plaintiff about his absence at the time of
execution of the Will is nothing but a false
attempt to show that he did not take part in
the getting the Will of his brother executed
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in his favour and in favour of his sons.
86. The plaintiff in his affidavit dated
23.7.1997 filed in support of Chamber Summons
No. 941 of 1997 has stated as under.
“I further say and submit that it would
also be interesting to note that a theft
had taken place in our office situated
at 56 C.P. Tank road, Bombay 400 004
and a complaint in respect thereof isalready lodged with V.P. Road Police
Station. I say that after knowledge of
theft and complaint being lodged thepolice personnel were making search
trying to find out and assess the amount
involved and for that purpose they were
checking and inspecting each and everypart of the office including the drawers
of the table which was being used by the
deceased N.S. Gupta during his life
time. I say that to my great shock and
surprise during such course of
investigation the copy of such writingwas found in the drawer of the deceased
which is notarised and bearingendorsement “Original seen”. I,
therefore, say and submit that had
thereby no such documents in existence,
firstly the same could not have been
executed and secondly notarised with anen endorsement “original seen”. I crave
leave to refer to and rely upon the said
xerox notarised copy of the Will/writing
found from the drawer of the deceased
lying in the office premises situate at
56 C.P. Tank Road, Bombay 400 004 whenproduced.”
(Emphasis supplied).
supplied)
87. The notarised copy referred to
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hereinabove; in the affidavit affirmed by the
plaintiff, has not been placed on record. So
far as the existence of the notarised xerox
copy of the Will is concerned, one has to put
a question: How this notarised xerox copy has
come into existence? The evidence tendered by
the plaintiff-petitioner was that on
27.11.1993, alleged Will was executed and
signed by the deceased and given in the
custody of his wife Mrs Lalita. It was opened
for the first time one month after the death
of the deceased i.e. on 12.1.1994. Two photo
copies thereof were prepared. The original
Will was laminated and delivered in possession
of Mrs Lalita. Out of two photo copies, one
was retained by the plaintiff and another was
given in the custody of Dr Mody. If this be
so, then a question arises as to how the third
copy, said to be a notarised xerox copy
carrying endorsement of the notary public
“seen original” has come in existence? How it
could be traced out in the office? Why it was
not produced on record? Why it was not
proved? Had there been a third notarised copy
of the Will carrying endorsement “original
seen”, the same would have been produced by
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the plaintiff-petitioner on record being a
best evidence. He did not produce it though
in his affidavit dated 23.7.1997, he had
undertaken to produce it. (See para 86
supra).
88. When the petition for amendment was
taken out, affidavit was filed to say that a
search of the office premises was required to
be done because of the police report of which
there is no evidence. The police complaint is
not on
ig record. The date on which the
complaint was lodged, has not been disclosed.
When the search of the premises was taken by
the police, has not been disclosed. Panchnama
alleged to have been prepared by the Police is
not on record. Under these circumstances, I
have no hesitation to say that the
non-production of the alleged notarised copy
of the Will (if it was in existence)
constituted failure on the part of the
plaintiff to produce the best evidence and
presumption has, therefore, to be raised
against him that if such evidence had been
produced, the same would have gone against the
case propounded by him. The matter does not
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end there. The failure of the plaintiff to
bring the Notary Public into the witness box
and the fact that he made no attempt to have
his Notary book produced (the entry in which,
perhaps, would have clinched the issue in
dispute) must similarly be construed and
presumption drawn that this evidence also
would have gone against the plaintiff. (See
Gopal Krishnaji Ketkar v. Mohamed Haji Latif
and others, A.I.R.1968 S C 1413 and
Khushalbhai Mahijbhai Patel v. A firm of
Mohamadhussain Rahimbux, A.I.R. 1981 S
977.).
977.)
89. In the above premises, I hold that the
existence or the execution of the alleged
original Will itself has not been proved. The
shifting stand taken by the plaintiff, from
time to time, is sufficient to explain the
falsity of the case sought to be made out by
the plaintiff. I go a step ahead and hold
that the plaintiff appears to have prepared a
false document purported to be a last Will of
the deceased Late Narendra Gupta in collusion
with his sons and on the basis of false
document claimed probate. The plaintiff is
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not entitled to get probate, at any rate, on
the basis of the xerox copy of the alleged
Will. The Petitioner-plaintiff has failed to
sufficiently explain and account for
non-production of the original Will. In the
facts and circumstances of the case, no
secondary evidence can be entertained on the
basis of the xerox copy of the alleged Will
for the purpose of granting probate. The
plaintiff has not only failed to sufficiently
explain and account for non-production of the
alleged
ig original Will but the shifting stand,
non-production of the alleged notarised copy
of the alleged original Will and the false
stories sought to be aired has given rise to
number of suspicious circumstances, which the
plaintiff has failed to explain as discussed
hereinafter.
ISSUE No.13:-
———–
90. The Apex Court in the case of Shashi
Kumar Banerjee and others v. Subodh Kumar
Banerjee since deceased cited supra and Kalyan
Singh v. Smt.
Smt Chhoti and others,
others A.I.R.
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1990 (cited supra) Supreme Court 396 ruled
that the Will is one of the most solemn
documents known to law. The executant of the
Will cannot be called to deny execution or
explain the circumstances in which it was
executed. It is, therefore, essential that
trustworthy and unimpeachable evidence should
be produced before the Court to establish
genuineness and authenticity of the Will. The
Apex Court also ruled that factum of execution
and validity of the Will cannot be determined
purely by considering the evidence produced by
the propounder. In order to test the
credibility of the witnesses and disengage the
truth from falsehood, the Court is not
expected to confine only to that testimony and
demeanour. It is open for the Court to
consider the circumstances brought out in the
evidence or which appear from the nature and
contents of the document itself. It is also
open for the Court to look into surrounding
circumstances of the case to reach a proper
conclusion on the nature of the evidence
adduced by the party. Where there are
suspicious circumstances, the onus would be on
the propounder to explain them to the
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satisfaction of the Court before the Will
could be accepted as genuine. Such suspicious
circumstances may depend upon facts and
circumstances of each case. Even where there
are no pleadings relating to influence, fraud
or coercion but the circumstances give rise to
the doubts, then it is open for the Court to
go in the circumstances and genuineness of the
Will and the condition of the Testator’s mind
having disposition made in the Will, if prima
facie found that the disposition made in the
Will
are unnatural, improbable or unfair in
the light of the relevant circumstances. The
onus is on the propounder of the Will to
explain them to the satisfaction of the Court.
91. Considering the above parameters laid
down by the Apex Court, assuming for the sake
of argument but not admitting that the alleged
Will was executed by the deceased, it is
required to be proved by the propounder by
reliable evidence and he has to explain
suspicious circumstances as stated.
92. If, at the time of presentation of the
petition, the original Will was not with him,
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he was required to state in the petition as to
where the original Will was. No such
statement is to be found in the plaint or
petition. The matter does not rest here. Mr
Gaurang Gupta is son of the Petitioner.
According to the plaintiff, his two sons are
attesting witnesses to the alleged Will in
question. The affidavit of Mr Gaurang Gupta
has been filed alongwith the Petition. In the
evidence brought by the plaintiff, he has
stated that the deceased was a patient of
terminal
ig cancer suffering since 1992. The
night falling between 26.11.1993 and
27.11.1993 the deceased testator developed
severe stomach pain, he became serious, he
asked for medical treatment and at the same
time he asked for some papers on which,
according to the plaintiff, he wrote his
subject Will in presence of his wife Mrs
Lalita and two sons of the plaintiff. In none
of the affidavits the presence of Lalita has
been disclosed by the sons of the plaintiff,
namely; attesting witnesses to the Will. The
deceased was admitted in Kambala Hill Hospital
at around 3.00 a.m. on 27.11.1993. He was in
the Hospital for about three days. Mrs Lalita
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Gupta has said in her affidavit dated
26.11.1993 that she was present throughout
with her husband. She has denied her presence
at the time of execution of the alleged Will
by her husband. No such Will was executed was
her assertion. P.W.2 Gaurang has admitted in
his cross-examination that at about 2:30 a.m.
on 27.11.1993 the deceased Narendra Gupta was
admitted in Hospital on the advise of Dr Sunil
Godbole. If this be so, one can very well
imagine the physical and mental condition of
the
petitioner at the relevant time. One can
reasonably reach to the conclusion that at
such juncture no person can be in a position
to take proper decision, much less to execute
the Will. The deceased was suffering from
cancer right from the year 1992. Ample time
was available with him to execute the Will, if
he wanted to do so. Why one would execute the
Will in the mid night, that too, when he is
severely suffering from cancer and stomach
ache warranting his urgent admission in the
hospital. The affidavit of Gaurang also does
not disclose that the deceased wrote down the
Will in his hand in his presence. There are
no independent witnesses and there was no
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reason for the deceased to exclude wife from
inheriting the property. The vouchers on the
basis of which the payments alleged to have
been made have not been corroborated by
producing account books to show actual
payments. All these vouchers appears to have
been written at one stroke. No account books
are produced, especially, when they were
maintained by the plaintiff being a
businessman. (See Hiralal & Ors vs. Badkulal
and Ors A.I.R. 1953 S C 225).
225)
93. The above surrounding suspicious
circumstances lead me to come to the
conclusion that the alleged Will was never
executed by the deceased. The same has been
prepared by the Plaintiff to claim the
property of the deceased and to deprive the
widow of the deceased of her legitimate
rights. In order to establish existence of
original Will, different stories were sought
to be brought on record but none could be
substantiated by cogent evidence.
94. Apart from the above, one more
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circumstance that needs to be taken into
account is that, inspite of the intimation by
the Advocate appearing for Mrs Lalita Gupta
that she has executed Will dated 27.10.1997
and bequeathed her property in favour of Mrs
Snehlata Chhotalal Mody, Mrs Nurupama, Mrs
Nita Hasmukhlal Mody and Mrs Rupa Hasmukhlal
Mody and necessity of bringing them on record,
no attempt was made by the plaintiff to join
them as party-defendants to the Suit. On the
contrary, in collusion with his son defendant
no.1, the consent decree was obtained claiming
probate which was, ultimately, set aside by
the Appellate Court. Thereafter, by consent
of parties, defendant Nos. 2 to 5 were
brought on record. This trick played by the
Plaintiff is also indicative of the scheme
prepared by the Plaintiff to grab the share of
the widow in the property of the deceased.
95. So far as Gaurang Gupta, who has come on
record as legal heir of Mrs Lalita Gupta –
widow of Narendra Gupta is concerned, he has
not proved the Will dated 2.4.1994 as per the
Evidence Act alleged to have been executed by
her in his favour. He came on record as a
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legal heir of Mrs Lalita Gupta on the basis of
this Will. He was brought on record during
the pendency of the suit in collusion with his
father, the Plaintiff, based on one of the
documents styled as” Will” of Mrs Lalita
Gupta, of which legality, authenticity and
genuineness has not been established. At any
rate, the said document has not been proved in
accordance with the provisions of the Evidence
Act so as to claim to be a legal
representative of the deceased Mrs Lalita
Gupta.
He, therefore, could not be recognised
as a party-defendant to the suit. His name
from the array of parties to the plaint as
defendant No.1 is liable to be struck off.
96. As against above, the defendant Nos. 2
to 5 are brought on record by consent of
parties. It was, therefore, not necessary for
them to establish their right as legal heirs
or legal representatives based on the Will
dated 27.10 1997. But it was very much
necessary for defendant No.1 to establish and
prove that he is a legal representative of Mrs
Lalita Gupta-Caveatrix based on the Will dated
2.4.1994 since he came on record in collusion
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with his father. A collusive order cannot
create any right in favour of anybody much
less in favour of defendant No.1. Under these
circumstances, by no stretch of imagination
defendant No.1 could be regarded as legal heir
of Mrs Lalita Gupta for the purpose of the
present suit. His name accordingly stands
deleted from the array of parties.
97. In the above totality of athe facts and
circumstances of the case, the plaintiff has
miserably not only failed to prove the alleged
original Will, existence and execution thereof
by the deceased Late Narendra Gupta, but also
failed to remove suspicious circumstances
sketched hereinabove and approached this Court
with unclean hands, tried to play fraud on the
Court and has left no stone unturned to
exploite the process of law. The suit is thus
liable to be dismissed with exemplary costs.
98. Mere dismissal of the suit will not
serve the ends of justice. The property of
the deceased i.e. keys of the bank locker
shall be held by the Prothonotary and Sr.
Master as ordered in the order dated
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11.2.1999, so long as proper legal heirs of
the deceased do not come forward with their
established legal rights. Till such rights
are established, defendant Nos. 2 to 5 shall
bear the rental charges of the bank locker.
99. In the result, this suit is dismissed in
terms of this order with costs quantified in
the sum of Rs. 50,000/- to be paid by the
plaintiff to the defendant Nos. 2 to 5.
ig (V. C. DAGA,J.)
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