{"id":76917,"date":"2009-03-25T00:00:00","date_gmt":"2009-03-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mrs-kumud-subhash-jadahv-vs-b-n-thimmajamma-and-ors-on-25-march-2009"},"modified":"2019-03-12T18:05:29","modified_gmt":"2019-03-12T12:35:29","slug":"mrs-kumud-subhash-jadahv-vs-b-n-thimmajamma-and-ors-on-25-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mrs-kumud-subhash-jadahv-vs-b-n-thimmajamma-and-ors-on-25-march-2009","title":{"rendered":"Mrs. Kumud Subhash Jadahv vs B.N.Thimmajamma And Ors. on 25 March, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Mrs. Kumud Subhash Jadahv vs B.N.Thimmajamma And Ors. on 25 March, 2009<\/div>\n
Bench: R.Y. Ganoo<\/div>\n
                               ( 1 )\n\n             IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                ORDINARY ORIGINAL CIVIL JURISDICTION\nUSJ\n                  TESTAMENTARY SUIT NO.37 OF 1992\n                                 IN\n                TESTAMENTARY PETITION NO.603 OF 1990\n\n\n\n\n                                                               \n       Subhash Hiraji Jadhav\n       (Since deceased)\n\n\n\n\n                                       \n       1. Mrs. Kumud Subhash Jadahv, aged\n       about 29 years, widow of the\n       deceased original petitioner No.1\n       (Plaintiff No.1,) daughter-in-law\n       of the deceased, Hindu, Inhabitant\n\n\n\n\n                                      \n       of Bombay, residing at B\/15,\n       Swapna Safalya Co-op.Housing Soc.Ltd.,\n       J.B. Temkar Marg, Prabhadevi,\n       Bombay - 400 025.\n\n\n\n\n                              \n       2. Akhilesh Subhash Jadhav\n       son of the deceased\n       original petitioner NO.1\/plaintiff No.1\n                 \n       of Hindu, Indian Inhabitant, residing\n       at Block No,15, B-1,\n       Swapna Safalya Co.-Op. Housing\n       Society, Ltd., J.B. Temkar Road,\n                \n       Prabhadevi, Mumbai-400 025.             ..Plaintiffs\n                               Verses\n\n       1. Padmakar Hiroo Jadhav,\n       7\/14, Municipal Staff Colony,\n       Sashmira Road, Prabhadevi,\n        \n\n\n       Bombay - 400 025.\n     \n\n\n\n       2. Smt.Indira Hiroo Jadhav\n       7\/14, Municipal Staff Colony,\n       Sashmira Road, Prabhadevi,\n       Bombay - 400 025.\n       (since deceased)\n \n\n\n\n\n       3. Smt.Sumitra Surve,\n       Mankar Bldg, 2nd Floor, Room No.39,\n       11th Lane, Khetwadi, Bombay-400 004.\n\n       4. Smt.Meghana Vasant Shinde,\n\n\n\n\n\n       7\/14, Municipal Staff Colony,\n       Sashmira Road, Prabhadevi,\n       Bombay - 400 025.                       ..Defendants\/\n                                                 Caveators\n\n                               ......\n       Miss. K.C. Nichani for plaintiffs\n       Mr. H.S.S. Murthy i\/by D.R. Mishra for defendants\n\n\n\n\n                                       ::: Downloaded on - 09\/06\/2013 14:27:27 :::\n                                        ( 2 )\n\n                                       ......\n\n\n                                      CORAM : R.Y. GANOO, J.\n<\/pre>\n
                                      DATED : 25th March, 2009<\/p>\n
     Judgment :\n<\/p>\n<\/p>\n
     1.     One    Mr.    Subhash Hiraji Jadhav and                 Mrs.        Kumud<\/p>\n
     Subhash      Jadhav      filed    petition No.603            of     1990       for<\/p>\n
     Letters      of    Administration        with a       Will       annexed         in<\/p>\n
     regard    to the Will purported to have been executed by<\/p>\n
     Hiroo    alias      Hiraji      Laxman Jadhav on           3rd      December,<\/p>\n
     1988.     After      the filing of the           petition,          citations<\/p>\n
     were    served upon the heirs of said Hiroo alias Hiraji<\/p>\n
     Laxman    Jadhav
\n                     ig      (hereinafter referred to as the                    “said<\/p>\n
     deceased”).         In    all    four    persons        i.e.        Padmakar,<\/p>\n
     present       defendant,        Smt.Indira,           Mrs.Sumitra              and<\/p>\n
     Mrs.Meghana        filled caveat jointly.             Present defendant<\/p>\n
     No.1    Mr.    Padmakar filed affidavit in support of                          the<\/p>\n
     caveat    for himself and on behalf of other                      caveators.<\/p>\n
     It    is in these circumstances, office while converting<\/p>\n
     the    testamentary petition in the suit showed the name<\/p>\n
     of    Padmakar H.        Jadhav and others as the                defendants.<\/p>\n
     Hence,    to      the    present suit Padmakar             Hiraji        Jadhav<\/p>\n
     would    be    defendant No.1, Smt.            Indira Jadhav             (since<\/p>\n
     deceased)      would      be    defendant      No.2,       Smt.         Sumitra<\/p>\n
     (correct      name      Sunetra S.      Surve) would be             defendant<\/p>\n
     No.3     and      Mrs.     Meghana       Vasant       Shinde        would        be<\/p>\n
     defendant No.4.\n<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>\n<\/p>\n
                                        ( 3 )<\/p>\n
     2.          In    the    affidavit in support of               the      caveat,<\/p>\n
     with    a    view    to    oppose the grant           of     the      petition<\/p>\n
     following points were raised.\n<\/p>\n<\/p>\n
                 (i)    The purported Will is not the Will as per<\/p>\n
                 the    law.    (ii) The deceased was not in                    sound<\/p>\n
                 state    of    mind.     (iii)        The      deceased            was<\/p>\n
                 controlled      by    Subhash        Jadhav        and      present<\/p>\n
                 petitioner      No.1    Mrs.     Kumud.        (iv) The          Will<\/p>\n
                 was    executed      under force and coercion.                     (v)<\/p>\n
                 There    was    no reason to deprive Smt.                    Indira<\/p>\n
                 and<\/p>\n
                        unmarried      daughter Shubhangi who is                    now<\/p>\n
                 known as Mrs.Sunetra.          (vi) The Will is forged<\/p>\n
                 and fabricated.\n<\/p>\n<\/p>\n
     3.          It is required to be mentioned that during the<\/p>\n
     pendency      of    this    suit,     Subhash         Jadhav,         original<\/p>\n
     petitioner        No.1    expired.     He left behind               him      Mrs.<\/p>\n
     Kumud    and      Akhilesh his son.        Consequently,              name       of<\/p>\n
     Akhilesh      was brought on record as petitioner.                         Based<\/p>\n
     on   the     text of the petition as well as affidavit                           in<\/p>\n
     support      of    the caveat, following issues came                     to      be<\/p>\n
     framed on 19th December, 2007.\n<\/p>\n<\/p>\n
                      ISSUES                                    FINDINGS\n\n\n\n\n                                                 ::: Downloaded on - 09\/06\/2013 14:27:27 :::<\/span>\n                                        ( 4 )\n\n\n     1. Whether the Will dated 3rd\n     December, 1988 is the last                       In the affirmative\n     Will and testament of Hiroo\n     alias Hiraji L. Jadhav and\n     the   same is    legally  and\n     validly executed by him?\n\n\n\n\n                                                                        \n     2.   Do the defendants prove\n     that the subject    Will  is                     In the negative\n\n\n\n\n                                                \n     forged and fabricated by the\n     plaintiffs ?\n\n     3. What order ?                                  As per final Decree\n\n\n\n\n                                               \n     .         My    answer to each of the issue is                   mentioned\n\n<\/pre>\n
     as against the respective issues.\n<\/p>\n<\/p>\n
     4.        At    trial    on behalf of the plaintiffs,                     Smt.<\/p>\n
     Kumud<\/p>\n
     Attesting
\n              S.<\/p>\n
\n                    \n                     Jadhav\n\n                     witness\n                               plaintiff\n\n                                  of    the\n                                                 No.1\n\n                                                said\n                                                            gave\n\n                                                          Will\n                                                                      evidence.\n\n                                                                     dated       3rd\n                   \n     December,      1988    by name Mr.        Jayant C.         Kamani        gave\n\n     evidence      as PW-2.    No other witness was examined                       on\n\n     behalf    of plaintiffs.          On behalf of the            defendants,\n      \n\n\n     defendant      No.1    Mr.    Padmakar H.        Jadhav son of              the\n   \n\n\n\n     deceased      gave    evidence as DW-1.          Mrs.         Sunetra         S.\n\n<\/pre>\n
     Surve daughter of the deceased gave evidence as DW-2.<\/p>\n
     Mrs.    Sunetra was unmarried in December, 1988 and her<\/p>\n
     maiden    name was Shubhangi and a reference to her                           is<\/p>\n
     found    in the text of the Will.             No other witness was<\/p>\n
     examined on behalf of the defendants.<\/p>\n
     5.        Before      I proceed to deal with the issues, it<\/p>\n
     would    be    convenient to narrate certain persons                        who<\/p>\n
     figure    in    the    entire matter.         Subhash         H.       Jadhav<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>
\n                                        ( 5 )<\/p>\n
     original      plaintiff No.1 and defendant No.1                      Padmakar<\/p>\n
     H.    Jadhav are the sons of the deceased, out of which<\/p>\n
     Subhash      died during the pendency of the suit.                          Smt.<\/p>\n
     Indira    was      wife of the deceased who died after                        the<\/p>\n
     deceased       during       the    pendency            of       the       suit.<\/p>\n
     Mrs.Meghana        is the married daughter of the deceased,<\/p>\n
     Mrs.     Sunetra (nee Kum.Shubhangi) is the daughter of<\/p>\n
     the deceased.        Mrs.    Kumud, present plaintiff No.1 is<\/p>\n
     the    daughter-in-law        of    the deceased            and      Akhilesh<\/p>\n
     plaintiff      No.2    is    the grand son of              the     deceased.<\/p>\n
     Advocate      Mr.A.G.Shah        who    is    referred          to     in     the<\/p>\n
     evidence      is    the advocate who is said to act                      as     an<\/p>\n
     attested witness and who is said to have prepared the<\/p>\n
     Will    at    the instance of the deceased.                   Mr.        Jayant<\/p>\n
     Kamani an attesting witness has been family friend of<\/p>\n
     deceased.\n<\/p>\n<\/p>\n
     6.        I    have    extensively        heard        learned         Counsel<\/p>\n
     Miss.     Nichani      on behalf of the plaintiffs and                        Mr.<\/p>\n
     Murthy    on    behalf      of    the    defendants.              Since       the<\/p>\n
     dispute between the parties relates to the suit Will,<\/p>\n
     it    became necessary for the Court to appreciate                            the<\/p>\n
     evidence      and    ascertain whether the plaintiffs                       have<\/p>\n
     been    able    to prove the Will in accordance with                          the<\/p>\n
     provisions      of    law and whether the              plaintiffs           have<\/p>\n
     been    able    to    show    that the said            Will       dated       3rd<\/p>\n
     December,      1988    is the last Will and testament                       duly<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>
\n                                       ( 6 )<\/p>\n
     executed     by the deceased.          Considering the case                 law<\/p>\n
     developed       in the matter, it became necessary for the<\/p>\n
     Court to consider certain circumstances, which in the<\/p>\n
     submission of the Counsel for the defendants could be<\/p>\n
     termed     as suspicious circumstances as regards making<\/p>\n
     of the Will and it became necessary for this Court to<\/p>\n
     consider     the    evidence      from that       angle.          At       this<\/p>\n
     juncture     itself, it would be convenient to point out<\/p>\n
     that     learned    Counsel      Mr.    Murthy relied           upon        the<\/p>\n
     judgment     in    case    of     H.Venkatachala           Iyengar          Vs.<\/p>\n
     B.N.Thimmajamma        and Ors., AIR 1959, SC 443 (V46 C56)<\/p>\n
     and    drew my attention to paragraph Nos.18 to 21.                          As<\/p>\n
     per    paragraph
\n                     ig   18 the Court is required to                  consider<\/p>\n
     the    record as regards execution of the Will.                       As per<\/p>\n
     paragraph      No.19   the Court is required to                 ascertain<\/p>\n
     the    mental     and physical condition of the                 testator.<\/p>\n
     Paragraph 20 lays down the law as regards the various<\/p>\n
     suspicious      circumstances       and how to appreciate                   the<\/p>\n
     evidence.       Paragraph       21 deals with the            point         viz.<\/p>\n
     propounder      of the Will taking prominent part in                        the<\/p>\n
     execution      of the Will and related aspects.                   He       also<\/p>\n
     relied    upon     the judgment in the case              Rani       Purnima<\/p>\n
     Debi     and Anr.    Vs.   Kumar Khagendra Narayan Deb                      and<\/p>\n
     Anr.,    AIR    1962, SC 567 (V 49 C 86) to bring to                        the<\/p>\n
     notice of the Court the concept of the unnatural Will<\/p>\n
     as    discussed     in paragraph No.5 and the role                    to     be<\/p>\n
     played    by the Registering authority as discussed                          in<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>
\n                                          ( 7 )<\/p>\n
     paragraph No.23.            He also relied upon judgment in the<\/p>\n
     case     of Ram Piari Vs.           Bhagwant and Ors.                AIR       1990,<\/p>\n
     SC      1742        which    deals       with      a      situation            when<\/p>\n
     disinheritance           is amongst heirs of equal decree                        and<\/p>\n
     no reason for exclusion is disclosed.                         He also relied<\/p>\n
     upon judgment in case of Kalyan Singh Vs.                            Smt.Chhoti<\/p>\n
     and     Ors.       AIR,1990, SC 396 which redeclares the                         law<\/p>\n
     as     regards      appreciation         of    various         circumstances<\/p>\n
     which     could       be termed as suspicious                 circumstances.<\/p>\n
     He     also    relied       upon the judgment in               the      case       of<\/p>\n
     Kanakku        Veettil       K.P.        Sankarankutty             Menon         Vs.<\/p>\n
     Malathy       Amma     and      Ors.    AIR 1991, Kerla              123       which<\/p>\n
     equally<\/p>\n
                   deals      with    various         points        discussed           in<\/p>\n
     earlier        judgments.         The     learned           Counsel          Miss.\n<\/p>\n
     Nichani       relied      upon    the judgment            Smt.Malkani            Vs.<\/p>\n
     Jamadar       and Ors.AIR 1987, SC 767 (Punjab & Hariyana)<\/p>\n
     wherein        the     Supreme      Court        indicated           that        the<\/p>\n
     testamentary          capacity      of    the        testatrix          and      the<\/p>\n
     genuineness         of    the    Will     cannot        be     doubted         only<\/p>\n
     because       the beneficiaries under the Will took active<\/p>\n
     part in its execution.\n<\/p>\n<\/p>\n
     7.        I     have perused the aforesaid judgments and I<\/p>\n
     have    appreciated          the evidence in the light                    of     the<\/p>\n
     principles         discussed      in     the said         judgments.             The<\/p>\n
     three     issues       as    above can        be     discussed          together<\/p>\n
     keeping       in    view the nature of the                evidence          placed<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>
\n                                    ( 8 )<\/p>\n
     before    the Court.     Now, I proceed to appreciate                  the<\/p>\n
     evidence from the stand point of deciding whether the<\/p>\n
     plaintiffs have proved the due execution of the Will.<\/p>\n
     Learned Counsel Miss.         Nichani appearing on behalf of<\/p>\n
     the plaintiffs pointed out to the Court that the Will<\/p>\n
     came     to    be   drafted   by   advocate       Mr.A.G.            Shah<\/p>\n
     (hereinafter        referred to as the “said advocate”) and<\/p>\n
     the said Will came to be executed at the residence of<\/p>\n
     the deceased on 3rd December, 1988 in the presence of<\/p>\n
     Mr.     Subhash     Jadhav, Mrs.Kumud S.        Jadhav PW-1            and<\/p>\n
     the said advocate and Mr.Jayant PW-2.               It was pointed<\/p>\n
     out that the evidence placed before the Court through<\/p>\n
     Kumud PW-1 and Jayant PW-2 if perused carefully would<\/p>\n
     go to show that these two witnesses have given cogent<\/p>\n
     evidence      as regards the execution of the Will in all<\/p>\n
     respect      i.e.   signature of testator and signature of<\/p>\n
     two    attesting     witnesses.     She had       also      drawn        my<\/p>\n
     attention      to   the evidence of Padmakar           H.       Jadhav,<\/p>\n
     DW-2    in    cross-examination where Padmakar              DW-1       has<\/p>\n
     conceded      that the Will was properly executed and                    he<\/p>\n
     (Padmakar      DW-1) was challenging the legality of                   the<\/p>\n
     Will.     The    Counsel for defendants Mr.              Murthy        had<\/p>\n
     opposed      the submission made by learned Counsel Miss.<\/p>\n
     Nichani      and had tried to submit that the              plaintiffs<\/p>\n
     have    failed to prove the Will in accordance with the<\/p>\n
     provisions of law.\n<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>\n<\/p>\n
                                        ( 9 )<\/p>\n
     8.        With    the      assistance of the Counsel of                  both<\/p>\n
     the    sides,    I    have      perused   the     evidence.            Since<\/p>\n
     Subhash    H.     Jadhav expired before             commencement             of<\/p>\n
     recording of evidence, Subhash has not been examined.<\/p>\n
     According      to plaintiffs, at the time of execution of<\/p>\n
     the    Will, Mrs.      Kumud PW-1, said advocate and Jayant<\/p>\n
     PW-2     were     present.           Plaintiffs       have        examined<\/p>\n
     Mrs.Kumud and Jayant PW-2.             I have gone through their<\/p>\n
     evidence.        Mrs.          Kumud   PW-1       states          in       her<\/p>\n
     cross-examination           that     deceased       had        instructed<\/p>\n
     Subhash    to    get      advocate      Mr.     A.G.Shah          for      the<\/p>\n
     purposes of drafting the Will.             Evidence of Mrs.Kumud<\/p>\n
     PW-1    clearly
\n                     ig   shows that the deceased             knew       Mr.A.G.<\/p>\n
     Shah.     It is required to be noted that the                     deceased<\/p>\n
     was    working as a Clerk in the Municipal                   Corporation<\/p>\n
     and    had retired.        After having considered the                 Kumud<\/p>\n
     PW-1’s    evidence,        I    am   inclined     to     observe         that<\/p>\n
     Mr.A.G.    Shah acted as an advocate for preparation of<\/p>\n
     the    Will.    I am also inclined to accept the case                        of<\/p>\n
     the plaintiffs that the said advocate and Jayant PW-2<\/p>\n
     were    present      in    the house of the deceased                on     3rd<\/p>\n
     December,      1988    and      the Will was      executed          on     3rd<\/p>\n
     December, 1988 and that said advocate and Jayant PW-2<\/p>\n
     tendered    their      signatures as       attesting           witnesses.<\/p>\n
     Jayant    PW-2    in      his evidence has stated              that      said<\/p>\n
     advocate    had shown the original Will to the deceased<\/p>\n
     on    3rd December, 1988 and the deceased went                      through<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>
\n                                         ( 10 )<\/p>\n
     it and thereafter tendered his signature and given to<\/p>\n
     to    Mr.A.G.         Shah for his signature as an                 attesting<\/p>\n
     witness      and after Mr.A.G.           Shah signed, it was given<\/p>\n
     to    Jayant      PW-2      for his signature as            an     attesting<\/p>\n
     witness         and    Jayant     did     tender       his        signature.<\/p>\n
     Mrs.Kumud        PW-2 has also stated in her evidence as to<\/p>\n
     how    the      Will    was executed.       It is required               to     be<\/p>\n
     mentioned        that all suggestions given to Mrs.Kumud as<\/p>\n
     well    as Jayant PW-2 so as to disprove the                       execution<\/p>\n
     of    the    Will      came    to be denied.           Apart       from       the<\/p>\n
     aforesaid         evidence,       the    Padmakar          DW-1      in       the<\/p>\n
     cross-examination has given evidence as follows :-\n<\/p>\n
              “It is true that my father has executed this<\/p>\n
               Will now shown to me. It is true that the
\n               Will has been attested by two attesting
\n               witnesses.  I am challenging the legality of
\n               the Will”.\n<\/p><\/blockquote>\n
     9.          After      having     gone     through         the     aforesaid<\/p>\n
     portion      of the evidence of Padmakar DW-1, the                        stand<\/p>\n
     of    the    defendants as regards the execution                       of     the<\/p>\n
     Will    cannot stand.          Mr.   Padmakar DW-1 had               admitted<\/p>\n
     that    deceased had executed the Will and it was                           duly<\/p>\n
     attested        by two attesting witnesses.                Since no other<\/p>\n
     witness      came      to    be   examined        on     behalf        of     the<\/p>\n
     defendants        to    challenge the said execution                   of     the<\/p>\n
     Will.       I    hold    that      the    plaintiffs          have       proved<\/p>\n
     execution        of the Will.        According to learned Counsel<\/p>\n
     for    the      defendants,       the     plaintiffs          should        have<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>
\n                                        ( 11 )<\/p>\n
     examined      advocate Mr.A.G.         Shah to dispel all doubts<\/p>\n
     regarding the execution of the Will.                   Learned Counsel<\/p>\n
     Miss.       Nichani has submitted that if the evidence of<\/p>\n
     Jayant      PW-2    and    Mrs.Kumud PW-1 was led in                 such       a<\/p>\n
     fashion      that    these two witnesses have been able                       to<\/p>\n
     prove    the      case    of    the    plaintiffs,          it     was      not<\/p>\n
     necessary      for    the      plaintiffs to examine             the      said<\/p>\n
     Mr.A.G.       Shah    and      no adverse inference             should        be<\/p>\n
     drawn    for non-examination of said Mr.A.G.                     Shah       and<\/p>\n
     it cannot be considered as a suspicious circumstance.<\/p>\n
     I    have considered the rival submission.                    Evidence of<\/p>\n
     Mrs.     Kumud PW-1 clearly indicate that Mr.A.G.                         Shah<\/p>\n
     had acted as an advocate in the matter of preparation<\/p>\n
     of    the Will.      She has stated that her              father-in-law<\/p>\n
     had    instructed Subhash to get Mr.A.G.                  Shah for          the<\/p>\n
     preparation        of the Will.       Her evidence also goes                  to<\/p>\n
     indicate that Mr.A.G.            Shah knew the deceased.                In my<\/p>\n
     view, there is no specific challenge to the fact that<\/p>\n
     Mr.A.G.       Shah and the deceased knew each other.                          In<\/p>\n
     any    case,      reading the evidence as a whole the                     case<\/p>\n
     put    up    by    the plaintiffs that          the      deceased         knew<\/p>\n
     Mr.A.G.       Shah cannot be doubted.            Mr.      A.G.       Shah is<\/p>\n
     a practicing advocate in Bombay.                There is nothing to<\/p>\n
     doubt    the      word of Kumud PW-1 whose             evidence         shows<\/p>\n
     that    Mr.A.G.Shah was involved in the preparation                           of<\/p>\n
     Will.    Jayant PW-2 who is a third party so far as the<\/p>\n
     entire      matter    is concerned and he has made out                      the<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>
\n                                      ( 12 )<\/p>\n
     presence      of    Mr.A.G.     Shah    in    the      house       of     the<\/p>\n
     deceased      on 3rd December, 2008.          In my view,            Jayant<\/p>\n
     had    no reason to give false evidence as regards                        the<\/p>\n
     presence      of    Mr.A.G.    Shah.    It is well          known       that<\/p>\n
     services      of an advocate are availed of in the matter<\/p>\n
     of    preparation of Will and it is not necessary                       that<\/p>\n
     in    each and every case an advocate who prepared                        the<\/p>\n
     Will    is    required     to be examined.           The      plaintiffs<\/p>\n
     after    having gone through the evidence of Kumud PW-1<\/p>\n
     and    Jayant      PW-2 appear to have taken a decision                     of<\/p>\n
     not    examining the said Mr.A.G.Shah.               Their       decision<\/p>\n
     was    proper.       In   my view, non examination               of     said<\/p>\n
     Mr.A.G.\n<\/p>\n
                    Shah    cannot    be     termed       as       suspicious<\/p>\n
     circumstance.         Similarly,      no adverse        inference           is<\/p>\n
     required to be drawn against the plaintiffs.<\/p>\n
     10.       Considering       the aforesaid discussion and                    in<\/p>\n
     particular      the evidence of Padmakar DW-1,                 discussed<\/p>\n
     above,    I am inclined to observe that the                   plaintiffs<\/p>\n
     have proved the execution of the Will by the deceased<\/p>\n
     and    that    plaintiffs      have     also     proved        that       two<\/p>\n
     attesting      witnesses      namely said Mr.A.G.              Shah       and<\/p>\n
     Jayant PW-2 did their job as attesting witnesses.                           At<\/p>\n
     this    stage      itself, it is required to            be     mentioned<\/p>\n
     that    a stand was taken by the defendants that Jayant<\/p>\n
     PW-2    is    an    outsider to the entire family                and      his<\/p>\n
     acting    as an attesting witness is unnatural.                      So far<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>
\n                                         ( 13 )<\/p>\n
     as    this      aspect is concerned, defendants                  could       not<\/p>\n
     bring on record any material to show that Jayant PW-2<\/p>\n
     was    a got up witness.           Mr.   Jayant PW-2 is             reported<\/p>\n
     to    be    a friend of Subhash and he used to visit                         the<\/p>\n
     house of the deceased and eventually Jayant PW-2 is a<\/p>\n
     family      friend.      The two photographs of Exhibit                      D-4<\/p>\n
     and     D-5      came   to    be     produced.          In     these         two<\/p>\n
     photographs,        Jayant     is     seen.       These        photographs<\/p>\n
     pertain      to birthday celebration of Subhash’s son and<\/p>\n
     in    the cross-examination of Padmakar DW-1,                       Padmakar<\/p>\n
     had    to accept that Jayant was present at the time of<\/p>\n
     birthday        celebration     in    the      two      photographs            of<\/p>\n
     Exhibit      D-4
\n                       igand D-5 and eventually he knows                     Jayant<\/p>\n
     PW-2 and that Jayant PW-2 was family friend.\n<\/p>\n<\/p>\n
     11.         In    view of the aforesaid discussion, I                      hold<\/p>\n
     that    the plaintiffs have been able to prove the                           due<\/p>\n
     execution of the Will.\n<\/p>\n<\/p>\n
     12.         Learned     Counsel      Mr.     Murthy had           tried        to<\/p>\n
     place      before    the     Court some points            as     suspicious<\/p>\n
     circumstances        and     wanted this Court to discard                    the<\/p>\n
     Will in question.\n<\/p>\n<\/p>\n
     13.         The    first     circumstance        placed        before        the<\/p>\n
     Court      is    viz.   the Will is unnatural.               The      learned<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>
\n                                    ( 14 )<\/p>\n
     Counsel Mr.      Murthy drew my attention to the original<\/p>\n
     Will   Exhibit D-1 and submitted that Smt.Indira                      wife<\/p>\n
     of   the deceased, Shubhangi now known as Sunetra                       and<\/p>\n
     Mrs.     Meghana being daughters of deceased have                     been<\/p>\n
     excluded.       According    to Mr.    Murthy, there             was      no<\/p>\n
     reason    for the deceased to exclude his wife as                     well<\/p>\n
     as   unmarried      daughter Shubhangi.        According to             Mr.<\/p>\n
     Murthy, Subhash and Kumud controlled the deceased and<\/p>\n
     managed to get the Will executed in their favour.                         He<\/p>\n
     pointed     out that no bequest is made in favour of any<\/p>\n
     relatives     other    than Subhash and Kumud or               Akhilesh<\/p>\n
     son of Subhash and Kumud, which goes to show that the<\/p>\n
     Will is unnatural.         He further pointed out that Kumud<\/p>\n
     PW-1   admits that there were no disputes between Smt.\n<\/p>\n
     Indira    and    the deceased as husband and wife and                     if<\/p>\n
     that   be    so there was no reason for the deceased                      to<\/p>\n
     exclude     Smt.Indira.      Insofar    as       this       aspect        is<\/p>\n
     concerned,      I   would like to reproduce           the      relevant<\/p>\n
     portion     of the Will by which the deceased has                   given<\/p>\n
     explanation      as   to   why   he does not         wish      to     give<\/p>\n
     anything     to Smt.Indira, Shubhangi and other daughter<\/p>\n
     Mrs.   Meghana.       The relevant portion is as under:-<\/p>\n
               “1.   I have in my family my wife Indira,
\n               eldest son Padmakar, Younger Son Subhash and
\n               two daughters i.e.    Mangal (married) and
\n               Shubhangi.  However my eldest Son with his
\n               family has separated and my wife and my
\n               daughter Shubhangi stay with him separate
\n               from me against my wishes. They have chosen
\n               not to look after me or take care of me even<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>
\n                                       ( 15 )<\/p>\n
                 though I am not keeping well. I therefore do
\n                 not desire to bequeath anything to them under
\n                 my this Will.     I have given enough to my
\n                 married daughter Mangal at the time of her
\n                 marriage, I therefore do      not desire to
\n                 bequeath anything under this Will to her”.\n<\/p><\/blockquote>\n
     14.         A    reading of this paragraph would clearly go<\/p>\n
     to    show that the deceased has clarified as to why he<\/p>\n
     did    not      wish    to give any property          to     Smt.Indira,<\/p>\n
     Subhangi        and    Mrs.Meghana.   A reading of             the     above<\/p>\n
     paragraph        would    clearly go to show that              Smt.Indira<\/p>\n
     i.e.       wife of the deceased left the house                  alongwith<\/p>\n
     Padmakar        DW-1 and started staying alongwith Padmakar<\/p>\n
     in    so<\/p>\n
     against wishes of the deceased.\n<\/p>\n
                 far as Shubhangi is concerned.<\/p>\n
\n                                                  Same is the position\n\n                                                              The      deceased\n                    \n<\/pre>\n
     has laid emphasis on the fact that Smt.Indira as well<\/p>\n
     as    Shubhangi have not looked after or taken his care<\/p>\n
     even    though he was not keeping well.                 It is admitted<\/p>\n
     by    both the sides that deceased in the year 1981 had<\/p>\n
     paralysis        and naturally being a paralytic person, he<\/p>\n
     required        care    and   assistance.      In so far          as     Mrs.<\/p>\n
     Meghna      who      is referred to as Mangal in the Will                    is<\/p>\n
     concerned,        the    deceased has clarified that                he     had<\/p>\n
     given      enough to her at the time of her marriage                       and<\/p>\n
     that    is      why he was not willing to give anything                      to<\/p>\n
     her.       Paragraph      2   of the said Will          also      goes       to<\/p>\n
     indicate        as    to how the deceased wanted to               bequeath<\/p>\n
     his property to Subhash and his family.                    The relevant<\/p>\n
     portion of the Will is as under:-\n<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>\n<\/p>\n
                                        ( 16 )<\/p>\n
                 “2. My other Son Subhash and his family have
\n                 looked very well after me and are taking
\n                 proper care. I therefore desire to bequeath
\n                 to him and his family my present and residue
\n                 property at the time of my death as stated<\/p>\n
                 hereafter”.\n<\/p><\/blockquote>\n
     15.         In    my    view, contents of paragraph 1                     and      2<\/p>\n
     throw light on the mental frame of the deceased as to<\/p>\n
     why    he    wanted      to     exclude    Smt.Indira,              Padmakar,<\/p>\n
     Shubhangi        and Mrs.Meghana and why he wanted to                        give<\/p>\n
     property      to Mrs.Kumud and Subhash.                 It is true           that<\/p>\n
     Mrs.        Kumud      PW-1    states    in      her      evidence           that<\/p>\n
     relations        between      the Smt.Indira and deceased                    were<\/p>\n
     good.\n<\/p>\n
                 It is required to be mentioned that                       Mr.Kumud<\/p>\n
     PW-1    has      stated    in    her     evidence           that      on     29th<\/p>\n
     September,        1988    certain dispute as regards                    use      of<\/p>\n
     water took place between Smt.              Indira and Subhash and<\/p>\n
     that    in    the      morning    of 30th        September,           1988,        a<\/p>\n
     quarrel      took      place between Subhash on one hand                       and<\/p>\n
     Padmakar      DW-1 and Mr.Vasant Shinde on the other.                            It<\/p>\n
     is    seen that a police complaint came to be filed                              by<\/p>\n
     Shubhash.         Padmakar      DW-1    has        not      accepted         this<\/p>\n
     incident      and he claims that this incident is                         false.<\/p>\n
     Statement        of the deceased came to be recorded by the<\/p>\n
     Police      on 30th September, 1988 and that statement is<\/p>\n
     at    Exhibit D-2.        Said statement was read in evidence<\/p>\n
     at    the    request      of    both    the      Counsel.           The      said<\/p>\n
     statement clearly goes to show that in the morning of<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>
\n                                      ( 17 )<\/p>\n
     30th    September, 1988 exchange of words and a quarrel<\/p>\n
     took    place     between     Subhash and       one      Mr.        Shinde,<\/p>\n
     Padmakar     DW-1 and Subhash was injured.                 The deceased<\/p>\n
     has    stated about such a quarrel and the deceased has<\/p>\n
     also    stated     in   his statement that because                  he     was<\/p>\n
     paralytic,       he just kept himself aloof.               The deceased<\/p>\n
     has    narrated about the said incident and has further<\/p>\n
     stated     that Subhash and Kumud went to the                   hospital.<\/p>\n
     The deceased in the earlier part of the statement has<\/p>\n
     stated     that    relations     between       Padmakar         DW-1       and<\/p>\n
     Mrs.Indira       on one hand did not go well with                   Subhash<\/p>\n
     and his wife Kumud and he does not take part in that.<\/p>\n
     It    is\n                  \n                admitted by both sides that the deceased                        was\n\n     residing     in    the house namely flat            No.B-15,          Swapna\n                 \n     Saphyalya     CHS    Ltd., J.B.     Temkar Road,             Prabhadevi,\n\n     Mumbai-25.        Evidence     of Mrs.Kumud PW-1 as               well       as\n\n     Padmakar     DW-1    goes     to show that all was              not      well\n      \n\n\n     between     Subhash     and    Padmakar      DW-1.         Evidence          on\n   \n\n\n\n     record     also go to show that Padmakar and his                      family\n\n     members,     Smt.Indira and Shubhangi left the house                         on\n\n\n\n\n\n<\/pre>\n
     30th    September, 1988.        Even Padmakar DW-1 has stated<\/p>\n
     that    he alongwith his family members, Smt.Indira and<\/p>\n
     Shubhangi left the house and got accommodated himself<\/p>\n
     finally     in    the quarters provided to him.                 From       the<\/p>\n
     evidence     on record, it is clear that Smt.Indira                        and<\/p>\n
     Shubhangi left deceased without any justification.<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>\n<\/p>\n
                                        ( 18 )<\/p>\n
     16.       It    is to be noted that if relations                      between<\/p>\n
     the    deceased      and    the    said     Smt.Indira           were      good<\/p>\n
     naturally,      the    deceased        expected       that       Smt.Indira<\/p>\n
     should    stay      with    him.       So    far      as     Subhangi          is<\/p>\n
     concerned, she has given evidence as DW-2 in the name<\/p>\n
     of    Mrs.Sunetra S.Surve and she has admitted that her<\/p>\n
     relations      with    Subhash and Mrs.Kumud were                   cordial.<\/p>\n
     If    that is so, she had no reason to leave the                         house<\/p>\n
     where    the deceased was living.              The deceased was not<\/p>\n
     very    happy with Smt.Indira and Shubhangi leaving his<\/p>\n
     place    and    hence      the    deceased       did      not     give       any<\/p>\n
     property      to Smt.Indira and Shubhangi.                 In so far           as<\/p>\n
     Mrs.Meghna<\/p>\n
                     is concerned, deceased is very much clear<\/p>\n
     that    he    had made enough arrangement for her at                         the<\/p>\n
     time    of    her    marriage and, therefore,                he     was      not<\/p>\n
     inclined to give anything to her.                 There is no reason<\/p>\n
     to    challenge      the statement of the deceased made                        in<\/p>\n
     the    Will    that    he    had    provided        enough        money        to<\/p>\n
     Mrs.Meghna      at    the    time      of her     marriage.             It     is<\/p>\n
     pertinent      to    note    that       when     such      statement           is<\/p>\n
     appeared in the Will, that should have been contested<\/p>\n
     by    Mrs.     Meghna.       Mrs.      Meghna has not            given       any<\/p>\n
     evidence      to    contest      the     statement         made       by     the<\/p>\n
     deceased      in    the Will viz.        enough       provisions           were<\/p>\n
     made    by    him    during the marriage ceremony                   of     Mrs.<\/p>\n
     Meghna.       The    record clearly goes to show                  that       the<\/p>\n
     deceased      was    conscious      of the fact that              there        is<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>
\n                                     ( 19 )<\/p>\n
     dispute      between Mrs.Indira and Kumud.              The statement<\/p>\n
     recorded      clearly     indicates that on 30th              September,<\/p>\n
     1988,      some   dispute took place between              Subhash         and<\/p>\n
     Padmakar      DW-1 and that lead to such a situation that<\/p>\n
     Padmakar      thought     of leaving the house            and      staying<\/p>\n
     somewhere      else.    The statement made by the                deceased<\/p>\n
     that    quarrels     used to take place everyday                 goes       to<\/p>\n
     show that the deceased was not happy with the quarrel<\/p>\n
     between Padmakar DW-1 and Subhash.<\/p>\n
\n\n\n\n\n                                 \n     17.         Considering     the   text    of the Will            and      the\n\n     evidence      of Padmakar DW-1 as well as Mrs.Kumud PW-1,\n\n     it    is\n                   \n                 clear that the deceased was not in favour                       of\n\n<\/pre>\n
     the    Padmakar DW-1.       It is seen that the deceased was<\/p>\n
     convinced that Subhash and Mrs.             Kumud are taking his<\/p>\n
     care and attending to him.          In fact, after Smt.Indira<\/p>\n
     and    Padmakar DW-1 left the house in September, 2008,<\/p>\n
     the    deceased     was looked after by Subhash and                   Kumud<\/p>\n
     and mother of Kumud who is said to be residing little<\/p>\n
     away from the residence of the deceased.                    In my view,<\/p>\n
     the    deceased     was    impressed by the          fact      that       the<\/p>\n
     Subhash and Kumud are taking his care and, therefore,<\/p>\n
     property      was   bequeathed to them.          In my        view,       the<\/p>\n
     frame      of mind of the deceased was in consonance with<\/p>\n
     the    terms which are set out in the Will and there is<\/p>\n
     no reason to treat exclusion of Smt.Indira and others<\/p>\n
     as suspicious circumstance.\n<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>\n<\/p>\n
                                         ( 20 )<\/p>\n
     18.         There      is a provision in the Will whereby                       if<\/p>\n
     son    is    born      to Subhash and Kumud            in     addition          to<\/p>\n
     Akhilesh,        1\/3rd share coming to Akhilesh be                     divided<\/p>\n
     equally      amongst them.         Some arguments were               advanced<\/p>\n
     by    the    Counsel for the defendants to show that                          the<\/p>\n
     said    part      of the bequest is not in consonance                       with<\/p>\n
     the     provisions        of   law.      However,           no       specific<\/p>\n
     provision        of    law   was    quoted by        Counsel         for      the<\/p>\n
     defendants.           In my view, the said bequest was in the<\/p>\n
     nature      of    an explanation if one more son was to                         be<\/p>\n
     born    to Subhash.          Record shows that Subhash had only<\/p>\n
     one son Akhilesh as such the bequest to Akhilesh will<\/p>\n
     operate.         In any case, as no specific provision                        was<\/p>\n
     shown    to      treat    that     bequest      as     void,       the      said<\/p>\n
     argument is rejected.\n<\/p>\n<\/p>\n
     19.         Another       suspicious     circumstance                in       the<\/p>\n
     submission        of the Counsel for the defendants was non<\/p>\n
     examination of Mr.A.G.Shah, advocate.                      I have already<\/p>\n
     discussed        the effect of non examination Mr.A.G.Shah.<\/p>\n
     However,      it      will be proper to discuss some                   of     the<\/p>\n
     aspects      with reference to the evidence which are                           on<\/p>\n
     record      whereby      plaintiffs     wanted           to     show        that<\/p>\n
     Mr.A.G.Shah        acted     as    attesting       witness.            Learned<\/p>\n
     Counsel      Mr.Murthy       has    drawn my       attention           to     the<\/p>\n
     following        portion     of     cross-examination              of     Kumud<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>
\n                                     ( 21 )<\/p>\n
     PW-1:-\n<\/p>\n<\/p>\n
                 “I do not know whether my father-in-law had<\/p>\n
                 met Mr.A.G.Shah advocate any time prior to<\/p>\n
                 the date of the Will”.\n<\/p><\/blockquote>\n
     20.         Counsel for the defendants had contended that<\/p>\n
     this    would      go   to show that Kumud        PW-1       could       not<\/p>\n
     confirm      as    to   whether    Mr.A.G.Shah         had      met      the<\/p>\n
     deceased.         In my view, this evidence cannot be                  read<\/p>\n
     in    isolation      as   Kumud   PW-1 has      stated        that       the<\/p>\n
     deceased      had    asked   Subhash to get         Mr.A.G.Shah            as<\/p>\n
     attesting<\/p>\n
                    witness.      This would clearly go              to     show<\/p>\n
     that    the deceased had communication with Mr.A.G.Shah<\/p>\n
     and he was called as attesting witness.                  In so far as<\/p>\n
     this    aspect      is concerned, I have already held                  that<\/p>\n
     Padmakar DW-1 has conceded that the said Will is that<\/p>\n
     of    the    deceased and was attested by two                witnesses.<\/p>\n
     The    fact that Mr.A.G.Shah participated in the matter<\/p>\n
     of    preparation of Will is clear on the basis of what<\/p>\n
     is    stated by Jayant PW-2 and the relevant portion is<\/p>\n
     as follows :-\n<\/p>\n<\/p>\n
                 “Advocate Mr.A.G.Shah handed over one paper<\/p>\n
                 to late Hiraji, which      he read.     After
\n                 reading, the said paper; late Hiraji told
\n                 Mr.Arvind G.Shah, advocate that the Will has
\n                 been properly drafted by him. After reading
\n                 and confirming the correctness of the Will,
\n                 late Hiraji signed on his will in my presence
\n                 and,   thereafter, he    requested   Advocate
\n                 A.G.Shah to sign on his Will as an attesting<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>
\n                                      ( 22 )<\/p>\n
               witness”.\n<\/p><\/blockquote>\n
     21.       It    is    required to be mentioned that                  Jayant<\/p>\n
     PW-2    stood    to the test of the cross-examination                       of<\/p>\n
     learned    counsel      for the defendants.            In     fact,       the<\/p>\n
     aforesaid quoted portion clearly shows that the Will,<\/p>\n
     which    came    to    be engrossed as        original         Will       was<\/p>\n
     handed    over by Mr.A.G.Shah advocate to the                    deceased<\/p>\n
     and     the    deceased    after       reading       the      same        and<\/p>\n
     confirming      the    fact    that    the    Will      was      properly<\/p>\n
     prepared      by Mr.A.G.Shah tendered his signature.                        It<\/p>\n
     is    required    to    be mentioned that the             Will       is     in<\/p>\n
     English<\/p>\n
                language      and the deceased was working as                      a<\/p>\n
     Clerk    in the B.M.C.        and there is no reason to                 hold<\/p>\n
     that the deceased could not read English.<\/p>\n
     22.       It was faintly argued by learned advocate Mr.<\/p>\n
     Murthy that Kumud PW-1 knew Mr.Shah as her office was<\/p>\n
     close to the office of Mr.Shah and Mr.Shah had helped<\/p>\n
     Kumud PW-1 and Subhash.          Evidence of Kumud PW-1 shows<\/p>\n
     that    her    office was at Dalal street              and     Mr.Shah’s<\/p>\n
     office    is    at Examiner Press Building.               There is          no<\/p>\n
     cross    examination      to suggest that Mr.Shah                favoured<\/p>\n
     Kumud.    Reading the evidence of Kumud PW-1 and Jayant<\/p>\n
     PW-2     it     is    clear     that     advocate           Mr.A.G.Shah<\/p>\n
     participated      in    the process of preparation of                   Will<\/p>\n
     and    signed as attesting witness.            Therefore,            merely<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>
\n                                        ( 23 )<\/p>\n
     because      the plaintiffs have not examined Mr.A.G.Shah<\/p>\n
     as    a   witness      in    the matter cannot           be     termed        as<\/p>\n
     suspicious circumstance.\n<\/p>\n<\/p>\n
     23.        Mr.Murthy Learned advocate had raised another<\/p>\n
     circumstance       namely the role of sub-Registrar in the<\/p>\n
     process      of registration of Will.            The said Will              has<\/p>\n
     undergone       the    process     of     registration           and        the<\/p>\n
     sub-Registrar         at Bombay has participated in the                     job<\/p>\n
     of    registration.          On the question of           fetching          the<\/p>\n
     sub-Registrar         to    the place of the         deceased,          Kumud<\/p>\n
     PW-1 states that while returning from her office, she<\/p>\n
     had taken sub-Registrar to her house.                    Jayant PW-2 in<\/p>\n
     the    examination-in-chief          has stated that after                  the<\/p>\n
     Will      was executed, he and Mr.A.G.Shah were requested<\/p>\n
     by    late     Hiroo    alias     Hiraji    Jadhav        to     wait       for<\/p>\n
     sometime        and     Subhash     was     asked        to      get        the<\/p>\n
     sub-Registrar.          He further stated that sub-Registrar<\/p>\n
     of    Assurance examined the subject Will and found                           to<\/p>\n
     be     corrected.           He   further        states          that        the<\/p>\n
     sub-Registrar registered the subject Will and he also<\/p>\n
     states     that    at      the    time    of    registration            again<\/p>\n
     signatures       that      is to say signature of             Mr.A.G.Shah<\/p>\n
     and    his signature were obtained on the reverse                         page<\/p>\n
     No.5      of    the    Will.      He has    also       identified           the<\/p>\n
     signature       of Mr.A.G.Shah as also his signature which<\/p>\n
     was    obtained       by    the sub-Registrar at the               time       of<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>
\n                                      ( 24 )<\/p>\n
     registration      of    the    document.      The fact         that       the<\/p>\n
     sub-Registrar’s         services    were       secured         and        the<\/p>\n
     registration      of    Will    cannot    be     disputed          by     the<\/p>\n
     defendants.      The endorsement on the Will goes to show<\/p>\n
     that    the    job of registration was performed                   on     3rd<\/p>\n
     December,      1988    between 5.00 p.m.         to 6.00 p.m.               at<\/p>\n
     the    residence of the deceased.           Now the question                is<\/p>\n
     whether      any specific importance is to be give to the<\/p>\n
     word    of    Kumud    PW-1 who says that she             brought         the<\/p>\n
     sub-Registrar        from   his office while returning                  from<\/p>\n
     her    office.       Nodoubt,    insofar as        this       aspect        is<\/p>\n
     concerned,      there is little controversy.                Jayant PW-2<\/p>\n
     states<\/p>\n
               that as he reached the house of the deceased,<\/p>\n
     he    came    across the deceased        advocate         Mr.A.G.Shah,<\/p>\n
     Subhash      and Kumud.     He further states that after the<\/p>\n
     will    was    executed, Subhash was asked to                 fetch       the<\/p>\n
     sub-Registrar.        Considering the word of Kumud PW-1 as<\/p>\n
     well    as Jayant PW-2, which is discussed above, it is<\/p>\n
     clear    that    Kumud was present when Will came                    to     be<\/p>\n
     executed.       In    my view, evidence of Kumud PW-1                   that<\/p>\n
     she    brought sub-Registrar appears to be an                    evidence<\/p>\n
     given    out    of    confusion    and in      my      view      no     much<\/p>\n
     importance      can be given.      Fact remains that the Will<\/p>\n
     was registered.\n<\/p>\n<\/p>\n
     24.       Learned      Counsel    Mr.     Murthy        appearing           on<\/p>\n
     behalf    of    defendants had drawn my attention to                      the<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>
\n                                         ( 25 )<\/p>\n
     judgment         in case of “Rani Purnima Debi and anr.                      Vs.<\/p>\n
     Kumar Khagendra Narayan Deb and anr.                    AIR 1962 SC 567<\/p>\n
     (V     49    C86)     and   in particular        paragraph           23.       He<\/p>\n
     submitted that a duty was cast upon the sub-Registrar<\/p>\n
     to    ascertain that the Will has been executed by                           the<\/p>\n
     deceased in a proper manner.            Reading of paragraph 23<\/p>\n
     would       go    to show that if the sub-Registrar did                      not<\/p>\n
     comply       with requirement quoted therein then the fact<\/p>\n
     that    the       Will was registered would not be                  of     much<\/p>\n
     valuse.<\/p>\n
\n\n\n\n\n                                   \n     25.          Learned     Counsel Mr.Murthy had submitted that\n\n     if     one\n                      \n                       peruses    the     endorsement             as       regards\n\n     registration,          it is clear that the sub-Registrar did\n                     \n     not    comply with requirements contained in                      paragraph\n\n     23    of the aforesaid judgment.             Even if for a              moment\n\n     is    accepted        that the sub-Registrar did not                  perform\n      \n\n\n<\/pre>\n
     his job as was expected to be done in paragraph 23 of<\/p>\n
     the    aforesaid judgment, once it is observed that the<\/p>\n
     Will    is       properly    executed   that is to             say      it     is<\/p>\n
     executed         by   the deceased and duly attested                  by     the<\/p>\n
     attesting         witnesses    that itself is           sufficient           and<\/p>\n
     there is no reason to discard the Will merely because<\/p>\n
     the sub-Registrar has not performed his job properly.<\/p>\n
     To    that       extent,    I am not inclined           to     accept        the<\/p>\n
     argument advanced by learned Counsel Mr.Murthy.<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>\n<\/p>\n
                                      ( 26 )<\/p>\n
     26.         The    next    circumstance      is       no     doctor        was<\/p>\n
     examined      to    show    the mental ability           to     mark       the<\/p>\n
     fitness      of the deceased.        No specific provision                 was<\/p>\n
     shown      to hold that the doctor should have                  certified<\/p>\n
     about      the    mental ability to execute the Will                   hence<\/p>\n
     the    argument      is    required to be       rejected.             It     is<\/p>\n
     required      to    be    mentioned     that      Counsel         for      the<\/p>\n
     defendants        could not point out any material to                    show<\/p>\n
     that    the      deceased did not possess necessary                   mental<\/p>\n
     ability      to    mark the fitness.       It is true           that       the<\/p>\n
     deceased      was    suffering      from paralysis and              he     was<\/p>\n
     bedridden.         That in my view, cannot be considered as<\/p>\n
     something<\/p>\n
                      which would make the execution of the Will<\/p>\n
     impossible.         The    evidence given by Jayant PW-2                   and<\/p>\n
     Kumud      PW-1 as regards what transpired at the time of<\/p>\n
     execution        of the Will would clearly go to show                    that<\/p>\n
     the    deceased      was in a proper frame of mind                  at     the<\/p>\n
     time    of execution of the Will.            It is also           required<\/p>\n
     to    be    noted    that    the deceased died           in     the      year<\/p>\n
     September,        1990 that is the deceased survived for                       a<\/p>\n
     period of 2 years after the Will came to be executed.<\/p>\n
     Hence,      the stand of the defendants that the deceased<\/p>\n
     did    not    possess      proper    frame of       mind       cannot        be<\/p>\n
     accepted.\n<\/p>\n<\/p>\n
     27.         It    was argued that the deceased was not well<\/p>\n
     and    he    was bedridden.      Merely because the               deceased<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>
\n                                        ( 27 )<\/p>\n
     was    bedridden, it cannot be said that he was not                           in<\/p>\n
     sound    state of mind.          The evidence of Padmakar                 DW-1<\/p>\n
     goes    to show that he is challenging the legality                           of<\/p>\n
     Will.     If the defendants wanted to contend that                          the<\/p>\n
     deceased      was not mentally sound to execute the Will,<\/p>\n
     certainly      it was open for the defendants to                     examine<\/p>\n
     the    doctor     who was attending to the               deceased.            No<\/p>\n
     such    effort      was made on behalf of            the      defendants.<\/p>\n
     Hence, the point raised cannot be accepted.<\/p>\n
     28.       Another circumstance placed for consideration<\/p>\n
     relates      to   changing       the     nomination         before          the<\/p>\n
     execution<\/p>\n
                    of Will.        Evidence on record goes to                 show<\/p>\n
     that    initially        the    nomination      in     regard        to     the<\/p>\n
     membership        of the Society in which the suit flat was<\/p>\n
     situated      was    in favour of Mrs.          Indira        and      before<\/p>\n
     execution      of    the    Will, the nomination came                  to     be<\/p>\n
     changed      in favour of Subhash and Kumud.                  Counsel for<\/p>\n
     the    defendants        submitted      that    the      nomination           is<\/p>\n
     changed little before the execution of the Will.                            The<\/p>\n
     learned      Counsel      Miss.    Nichani submitted             that       the<\/p>\n
     fact    that the deceased changed nomination in                        favour<\/p>\n
     of    Subhash     and Kumud and subsequently executed                       the<\/p>\n
     Will    in    favour of Subhash and Kumud                clearly        shows<\/p>\n
     that    the deceased intended to see that the                      property<\/p>\n
     should go to Subhash and Kumud and there are no legal<\/p>\n
     impediments         in     the         matter.         Submission             of<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>
\n                                          ( 28 )<\/p>\n
     Miss.Nichani        is    required to be accepted.                   The      fact<\/p>\n
     that    the nomination was changed before execution                               of<\/p>\n
     Will    shows      that the deceased had specific                      plan       to<\/p>\n
     give    the    flat      to Subhash and Kumud.                  In     view       of<\/p>\n
     above, the submission of learned advocate Mr.                              Murthy<\/p>\n
     is rejected.\n<\/p>\n<\/p>\n
     29.         One    more      circumstance which were termed                       by<\/p>\n
     the     Counsel      for      the     defendants           as       suspicious<\/p>\n
     circumstance        viz.       Subhash      and        Kumud        kept        the<\/p>\n
     deceased      under      their      control and that is                how      the<\/p>\n
     deceased      executed the Will in favour of Subhash                            and<\/p>\n
     Kumud.\n<\/p>\n
                   Padmakar         DW-1      has        admitted           in       the<\/p>\n
     cross-examination that he was not present at the time<\/p>\n
     of execution of the Will.                He also states that he had<\/p>\n
     made     a    statement        on     the      basis       of       background<\/p>\n
     visualized        by him and he had no personal                     knowledge.<\/p>\n
     These       answers      given      by     Padmakar          DW-1      in       the<\/p>\n
     cross-examination            would    clearly        go      to     show      that<\/p>\n
     evidence      of Padmakar DW-1 in examination-in-chief as<\/p>\n
     regards keeping the deceased under control by Subhash<\/p>\n
     and    Kumud      was    in    the nature of           surmises          and      no<\/p>\n
     specific      evidence        is    placed before            the     Court        by<\/p>\n
     Padmakar      DW-1      in    that behalf.           The      deceased          was<\/p>\n
     staying      at his flat and Subhash and Kumud were                           also<\/p>\n
     staying in the same flat.                In my view, that by itself<\/p>\n
     is    not    sufficient        to come to the            conclusion           that<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>
\n                                        ( 29 )<\/p>\n
     Subhash       and     Kumud    controlled          the      mind       of     the<\/p>\n
     deceased.        In    fact,     paragraph Nos.1 and 2                 of     the<\/p>\n
     Will,      which I have quoted earlier clearly shows that<\/p>\n
     the    deceased had a specific frame of mind so far                             as<\/p>\n
     Smt.       Indira,     Padmakar      DW-1,      Shubhangi          and      Mrs.<\/p>\n
     Meghna      are concerned.        The evidence of Kumud PW-1 as<\/p>\n
     well    Padmakar DW-1 is clearly shows that Subhash and<\/p>\n
     Kumud      played     a   vital role in taking              care       of     the<\/p>\n
     deceased.        That by itself in my view, would not mean<\/p>\n
     that    Subhash       and Kumud controlled the mind                    of     the<\/p>\n
     deceased.\n<\/p>\n<\/p>\n
     30.<\/p>\n
                 One more point was pressed by Counsel for the<\/p>\n
     defendants       as    regards      a complaint          filed       by     Mrs.<\/p>\n
     Indira      to   the Police which complaint is at                      Exhibit<\/p>\n
     D-3.       The said complaint is in the form of a                        letter<\/p>\n
     addressed to the Commissioner of Police.                        In the said<\/p>\n
     complaint,       certain      allegations have been                levelled.<\/p>\n
     It    is    pertinent to note that the said complaint                           is<\/p>\n
     dated 28th October, 1988.             This complaint is filed by<\/p>\n
     Mrs.Indira       after     she    had   left the           house       of     the<\/p>\n
     deceased.         In      a   question        Padmakar            DW-1        has<\/p>\n
     specifically        stated     in     the     cross-examination                 as<\/p>\n
     follows :-\n<\/p>\n<\/p>\n
                 “My mother and myself did not approach the
\n                 Court to obtain order either to seek custody
\n                 of my father or to transfer him to my house”.\n<\/p><\/blockquote>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span><\/p>\n
                                       ( 30 )<\/p>\n<\/blockquote>\n
     31.         Padmakar      DW-1   in    his        evidence         says         as<\/p>\n
     follows:-\n<\/p>\n<\/p>\n
                 “My mother was not allowed to stay in the
\n                 house by Subhash.     She   was beaten and,<\/p>\n
                 ultimately, she was required to stay with my
\n                 sister.   My mother left house in the year
\n                 1988 and my father expired in the year 1990”.\n<\/p><\/blockquote>\n
     32.         This    evidence given by Padmakar DW-1 is                        not<\/p>\n
     born    out      by any material whatsoever.                In fact,          the<\/p>\n
     mother      in the complaint, which is marked as                       Exh.D-3<\/p>\n
     in    the first paragraph itself stated that Subhash is<\/p>\n
     likely      to    drive    her out of the house.                This      is      a<\/p>\n
     false    statement        because by this time that                  is     28th<\/p>\n
     October,<\/p>\n
                   1988 she had left the house of the deceased<\/p>\n
     on    her    own.     I    have already observed                as     to     how<\/p>\n
     Smt.Indira        left    the house of the deceased                  on     30th<\/p>\n
     September,        1988    after a quarrel took place                   between<\/p>\n
     Subhash      on one hand and Padmakar.               Even reading             the<\/p>\n
     text    of the complaint at Exhibit D-3 as a whole,                             it<\/p>\n
     is    clear      that the said complaint was filed just                         to<\/p>\n
     harass      Subhash      and Kumud.     Smt.Indira has left                   the<\/p>\n
     house on 30th September, 1988 on her own.                         Defendants<\/p>\n
     could    not      point out that deceased or Subhash                      drove<\/p>\n
     Smt.Indira        out of the house.       It is also required to<\/p>\n
     be    noted that this complaint has been filed 20                           days<\/p>\n
     after    Smt.Indira left the house of the deceased                            and<\/p>\n
     no    further      action    was taken by          her.         After       this<\/p>\n
     complaint,        Smt.Indira     has    not taken any              steps        to<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>
\n                                     ( 31 )<\/p>\n
     establish      her    right to reside in the house                  of     the<\/p>\n
     deceased.       There     is no evidence placed              before        the<\/p>\n
     Court    to show that Smt.Indira called upon Subhash or<\/p>\n
     the    deceased through advocate and addressed suitable<\/p>\n
     communication        to Subhash or the deceased placing her<\/p>\n
     intention      to    re-enter the house.          In my        view,       all<\/p>\n
     this    would      clearly go to show that            Smt.Indira           was<\/p>\n
     residing away from the deceased on her own and had no<\/p>\n
     mind to go back to the house of the deceased.<\/p>\n
     33.       The      next   point   which      is     required          to     be<\/p>\n
     discussed      is    whether Kumud PW-1 played               a    specific<\/p>\n
     role<\/p>\n
             in making of the Will.        This is required to                    be<\/p>\n
     discussed      in the wake of the various cases which are<\/p>\n
     referred      to    above because Kumud is a propounder                      of<\/p>\n
     the    Will.       It would be necessary to             consider         what<\/p>\n
     role was played by Kumud in making of the Will.                          From<\/p>\n
     the record, it is clear that Kumud had not played any<\/p>\n
     substantive        role in making the Will.             Kumud happened<\/p>\n
     to    reside    in the company of the deceased.                   That       by<\/p>\n
     itself    is not sufficient to say that Kumud played                           a<\/p>\n
     vital    role      in making of the Will.           It is true           that<\/p>\n
     Kumud    gave evidence to show that she was present                          at<\/p>\n
     the    time    when Will was executed.            This presence              of<\/p>\n
     Mrs.     Kumud      at the house of the deceased cannot                      be<\/p>\n
     termed    as    unnatural because Mrs.Kumud                was      staying<\/p>\n
     with    the    deceased after her marriage with                   Subhash.<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>\n<\/p>\n
                                       ( 32 )<\/p>\n
     To    that    extent, it would be difficult to                   say      that<\/p>\n
     Kumud    had played vital role which would dominate the<\/p>\n
     Will    of    the      deceased.    So far as        the      Subhash         is<\/p>\n
     concerned,        Subhash     was   son   of     the      deceased          and<\/p>\n
     Subhash      also      was   residing with the           deceased         much<\/p>\n
     prior    to    execution of the Will.            Padmakar DW-1              was<\/p>\n
     also    residing        with the deceased.         However, he            left<\/p>\n
     the house on 30th September, 1988.                 Evidence of Kumud<\/p>\n
     PW-1    shows that Subhash was asked by deceased to get<\/p>\n
     advocate Mr.A.G.Shah.           Mr.A.G.     Shah had participated<\/p>\n
     in    the job of preparation of the Will and                     execution<\/p>\n
     thereof.      If Subhash has made efforts to get advocate<\/p>\n
     Mr.A.G.\n<\/p>\n
                  Shah, that by itself cannot be considered as<\/p>\n
     a    major role played by Subhash.              As the deceased was<\/p>\n
     bedridden,        he    must have sought the help of his                    son<\/p>\n
     who    was staying with him.          Subhash was also               present<\/p>\n
     when    the will was executed.            In my view, presence of<\/p>\n
     Subhash      will have to be treated as natural.                     In view<\/p>\n
     of    the    above, role played by Kumud and                  Subhash         as<\/p>\n
     discussed          above,      cannot       be       considered               as<\/p>\n
     objectionable          and that also cannot be considered                     as<\/p>\n
     suspicious circumstance.\n<\/p>\n<\/p>\n
     34.         For    the    reasons mentioned aforesaid,                  I     am<\/p>\n
     inclined      to    observe that the plaintiffs                 have      been<\/p>\n
     able    to show that Will dated 3rd December, 1988                          was<\/p>\n
     duly    executed by the deceased Mr.Hiroo alias                        Hiraji<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>
\n                                            ( 33 )<\/p>\n
     Jadhav       and    that       the said Will was             last     Will       and<\/p>\n
     testament.          This       is    so because no           other      Will       is<\/p>\n
     produced         before the Court by either party So far                           as<\/p>\n
     the    question          of    forgery    of       the       said     Will         is<\/p>\n
     concerned, I have with reasons held that the Will was<\/p>\n
     duly       executed by the deceased and that the same                            was<\/p>\n
     not    fabricated or forged.              No evidence was placed in<\/p>\n
     support of the said allegation.\n<\/p>\n<\/p>\n
     Issue Nos.1 and 2:-\n<\/p>\n<\/p>\n
     .            For    the       reasons mentioned aforesaid I                    hold<\/p>\n
     that       issue    No.1 is required to be answered                       in     the<\/p>\n
     affirmative
\n                       igand       is    accordingly         answered          in     the<\/p>\n
     affirmative and Issue No.2 is required to be answered<\/p>\n
     in    the     negative and is accordingly answered in                            the<\/p>\n
     negative.\n<\/p>\n
     Issue No.3<\/p>\n
     .           Keeping       in       view the answers to Issue                 Nos.1<\/p>\n
     and    2    in     the    affirmative          and      in     the      negative<\/p>\n
     respectively,         plaintiffs         suit      will        have       to       be<\/p>\n
     decreed.           The    caveat       filed       by     Padmakar           DW-1,<\/p>\n
     Smt.Indira,         Mrs.Meghna and Mrs.Sunetra will have                           to<\/p>\n
     be    dismissed and the Testamentary petition will have<\/p>\n
     to be granted and appropriate directions will have to<\/p>\n
     be    given to Prothonotary and Senior Master to                             issue<\/p>\n
     letters of administration as prayed for.<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>\n<\/p>\n
                                       ( 34 )<\/p>\n
     35.      In    the    fact and circumstances of the                    case,<\/p>\n
     the   defendants      are not required to be saddled                     with<\/p>\n
     the   costs    of    the    proceedings.          For      the      reasons<\/p>\n
     mentioned aforesaid, I pass following decree.<\/p>\n
                                      ORDER<\/p>\n
              (i)         Caveat       filed    by       Padmakar           DW-1,<\/p>\n
              Smt.Indira        (since     deceased),         Mrs.         Meghna<\/p>\n
              Vasant Shinde and Smt.            Sumitra (correct name<\/p>\n
              Sunetra) Surve are dismissed.\n<\/p>\n
              (ii)        It is hereby declared that Will dated<\/p>\n
              3rd    December,        1988 executed by Hiroo                alias<\/p>\n
              Hiraji      Laxman      Jadhav is the last             Will       and<\/p>\n
              testament         and    petition        for      letters           of<\/p>\n
              administration          as   prayed for in respect                  of<\/p>\n
              Will    dated 3rd December, 1989 is required to<\/p>\n
              be granted and accordingly petition No.603 of<\/p>\n
              1990 is made absolute and is granted.<\/p>\n
              (iii)       Office        to      issue           letters           of\n\n\n\n\n\n              administration          as prayed for.          In the        facts\n\n<\/pre>\n
              and circumstances of the case, there shall be<\/p>\n
              no order as to costs in the suit.\n<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>\n<\/p>\n
                                     ( 35 )<\/p>\n
     36.        After    the   aforesaid judgment was              delivered<\/p>\n
     learned Counsel Mr.         Ashutosh Singh appearing for the<\/p>\n
     defendants       submitted that the defendants would                   like<\/p>\n
     to    go   through the text of the judgment and                   do     the<\/p>\n
     needful.      He, therefore, submitted that the operation<\/p>\n
     of the judgment and decree passed above be stayed for<\/p>\n
     8    weeks.    Plaintiff No.1 Mrs.       Kumud who is             present<\/p>\n
     in    person at the time of dictation of the                  aforesaid<\/p>\n
     judgment.      She opposed the submission.<\/p>\n
     37.        The    request   put   up    by    Counsel         for        the<\/p>\n
     defendants is required to be granted.                 In view of the<\/p>\n
     above, the operation of judgment and decree is stayed<\/p>\n
     till    15th     June, 2009.    The original Will which                  was<\/p>\n
     produced before the Court in the Course of hearing is<\/p>\n
     ordered to be returned to the department.<\/p>\n
                                              (R.Y.GANOO, J)<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 14:27:27 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Mrs. Kumud Subhash Jadahv vs B.N.Thimmajamma And Ors. on 25 March, 2009 Bench: R.Y. Ganoo ( 1 ) 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-76917","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nMrs. Kumud Subhash Jadahv vs B.N.Thimmajamma And Ors. on 25 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mrs-kumud-subhash-jadahv-vs-b-n-thimmajamma-and-ors-on-25-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mrs. Kumud Subhash Jadahv vs B.N.Thimmajamma And Ors. on 25 March, 2009 - 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