Testamentary Suit No.38 of 1994,Testamentary Petition No.756 of 1993

11th August, 2009

Petitioner Counsel: SNEHAL SHAH,Mr. B. G. SARAF
Respondent Counsel: Mr. MAHENDRA C. DASADIA

Cases Cited:
Kanwarjit Singh Dhillon Vs. Hardyal Singh Dhillon, 2008 ALL SCR 432 : (2007)11 S.C.C. 357 [Para 11]
Krishna Kumar Birla Vs. Rajendra Singh Lodha, 2008 ALL SCR 1143 : (2008)4 S.C.C. 300 [Para 11]
Mallappa Fakirappa Sanna Nagashetti Vs. Shivappa, AIR 1962 Mysore 140 [Para 13]
Bharpur Singh Vs. Samsher Singh, 2009 ALL SCR 334 : (2009)3, S.C.C. 687 [Para 15]
K. Laxmanan Vs. Thekkayil Padmini, 2009 ALL SCR 1289 : (2009)1 S.C.C. 354 [Para 15]
Anil Kak Vs. Kumari Sharada Raje, 2008 ALL SCR 1610 : (2008)7 S.C.C. 695 [Para 15]

JUDGMENT

JUDGMENT :- This is a Suit/Petition for Probate of the Last Will and Testament of late Champaben Nanavati (deceased), mother of the Plaintiffs/Petitioners and the Defendant.

2. The Petition for Probate filed on 30th November, 1993 by the only son (Dr. Manoj) and Mrs. Jayashri, one of the daughter of the deceased. The caveat/objection was filed by Mrs. Nandini M. Dasadia another daughter of the deceased on 18th July, 1994. Therefore, the Petition was converted into the suit in question.

3. Following are the issues-

1.	Do the Plaintiffs prove that Will dated 18th March, 1983 is true and genuine and executed by the deceased in accordance with law ?	Yes.
2.	Does the Defendant prove that the alleged Will was executed by the said deceased under undue influence ?	No.
3.	What order ?	The Petition/ Suit is allowed.

4. The Plaintiffs wanted to led the evidence of Mrs. Anjaniben Raja who expired on 25th December, 2001, one of the attesting witness. Mrs. Charuben V. Porecha @ Charulata C. Sampat. (Chartered Accountant and Partner of M/s. J. K. Doshi & Co.) one of the attesting witness and subjected himself to the cross-examination, at the instance of Defendant though he withdrew his examination-in-chief as ordered on 21st February, 2009 by the Court. The Defendant did not lead any evidence.

5. Issue Nos.1 & 2 :- The issue so framed casts burden upon the Plaintiffs to prove that the Will dated 18th March, 1983 is true and genuine and executed by the deceased in accordance with law. So far as Issue No.2 is concerned, the burden is upon the Defendant to prove that the Will was executed by the deceased under undue influence.

6. Admittedly, the Plaintiff has examined two witnesses including one attested witness to the Will. The Defendant though filed written Statement and objected the proceedings, did not lead any evidence. Having once raised the objection in such proceedings that resulted into the suit, but failed to appear in the witness box for cross-examination that in my view, goes against the Defendant, in view of the principle of adverse inference. The party who had raised objection to the Will, which was treated as the written statement in the suit, but failed to prove the same, that itself is a self destructive step. She failed to discharge the burden cast upon her by issue No.2.

7. The Plaintiff and his witness made themselves available for the cross-examination and their evidence as remained undisturbed, therefore, basic burden to prove the case that the Will dated 18th March, 1983 so executed by the deceased in accordance with law is duly discharged. The learned counsel appearing for the Defendant has submitted and tried to prove the case by referring to the cross-examining of these two witnesses. However, considering issue No.2 and the burden so casted upon them to prove and or to bring on record the substantial material and the circumstantial evidence, in support of alleged case of execution of the Will under undue influence are totally missing. The averments with regard to the undue influence, fraud, misrepresentation, suspicious circumstances must be brought on record initially and basically by the parties one who make the averments and or allegations. The submission that through the cross-examination and by extracting material from the Plaintiffs witness has sufficiently discharged the basic burden, is unacceptable. The Defendant has failed to discharge the basic burden by not leading the evidence in support of the averments so raised about undue influence. Even otherwise, those suggestions are not sufficient to destroy the case of the Plaintiffs.

8. In my view Plaintiff has proved his case by leading evidence. The evidence of the attesting witnesses though cross-examined throughly, remained intact. Some minor discrepancies or omissions in no way sufficient to accept the case and submission of the Defendant. The Plaintiffs have proved the points which are sufficient to maintain the execution of the Will, those are-

The signature of the deceased is not in dispute. The testatrix was of sound mind and health at the relevant time. No contrary material placed on record. The attested witness elaborated the whole events and that shows due and valid execution of the Will. Petitioner No.1 is the only son of the deceased and except Defendant, all other sisters have accepted the said Will and filed affidavit accordingly. Plaintiff No.1 was not present when the Will was executed and signed. His role was very minimal. The Plaintiff and his family were looking after the deceased throughout her life as she was staying with them. The Defendant had filed suit for injunction and declaration against the deceased mother and plaintiff No.1. However, it was withdrawn on 4th April, 1972 by consent. They had strained relationship. The caveat was filed because of this, that delayed the proceedings. The Defendant though alleged fraud, and undue influence, failed to lead any evidence. She did not even examine herself. The Will is natural.

9. Having once proved the Will as noted above, the submission with regard to the suspicious circumstances/surrounding circumstances in absence of any contra material on record, except the suggestions so put which are not sufficient to discard the case of the Plaintiff. There are no suspicious circumstances and doubts. The authorities as relied by the Defendant, except on law, are distinguishable, in view of above facts itself. Therefore, merely because the Plaintiff or his witness failed to show who drafted, typed and got it signed at which place, also looses its importance.

10. The submission with regard to the capacity of the deceased to bequeath the whole properties of her deceased husband, as done in the present case, is also cannot be tested in this proceeding. It is difficult to decide the issue with regard to the title and the ownership of the property. There was no such issue framed. The remedy is elsewhere.

11. The Apex Court in Kanwarjit Singh Dhillon Vs. Hardyal Singh Dhillon & Ors., (2007)11 S.C.C. 357 : [2008 ALL SCR 432] (followed in, Krishna Kumar Birla Vs. Rajendra Singh Lodha & Ors., (2008)4 S.C.C. 300 : [2008 ALL SCR 1143]), observed that -

"15. In Ishwardeo Narain Singh Vs. Kamta Devi, AIR 1954 SC 280, this Court held that the court of probate is only concerned with the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court.

"A plain reading of this decision would not show that after the grant of probate by a competent court, the suit for title and permanent injunction cannot be said to be maintainable in law. What this Court held in that decision is that once a probate is granted by a competent court, it would become conclusive of the validity of the will itself, but, that cannot be decisive whether the Probate Court would also decide the title of the testator in the suit properties which, in our view, can only be decided by the civil court on evidence. It is true that the probate of the Will granted by the competent Probate Court would be admitted into evidence that may be taken into consideration by the civil Court while deciding the suit for title but grant of probate cannot be decisive for declaration of title and injunction whether at all the testator had any title to the suit properties or not." (Emphasis added)

Any way that cannot be the reason to raise doubt about the genuineness of the Will.

12. Though there was no specific issue with regard to the serving of citations to the step son of the deceased, yet the submission was made. The relevant part of Section 15 is sub-section (1)(a) of the Hindu Succession Act, 1956 reads as follows :

"15. (1) The property of the female Hindu dying intestate shall devolve according to the rules set out in Section 16, (a) Firstly, upon the sons and daughters (including children of any pre-deceased son or daughter) and the husband."

13. Based upon this, it is clarified in the 12th Edition of Mulla's "Principles of Hindu Law" as recorded in (AIR 1962 Mysore 140) Mallappa Fakirappa Sanna Nagashetti & Ors. Vs. Shivappa & Anr., as under :

" "A stepson" is not entitled as 'son' to inherit to his stepmother as one of the heirs under this Entry. But he can succeed to her property as an heir of her husband under Entry (b)."

In view of this also, I am declined to accept the case and submission as raised by the learned counsel appearing for the Defendant with this regard also.

14. The aspect of withdrawal of the affidavit of examination-in-chief by the Petitioner looses its importance, specially when as Defendant has cross-examined him thoroughly and put various suggestions to extract material in her favour. It is difficult to accept the case/submission that the Plaintiff, failed to lead any evidence by withdrawing the affidavit of examination-in-chief as noted by the Commissioner and the Court. However, it is specifically ordered on 2nd February, 2009 by the Court that the Plaintiff should submit himself for the cross-examination. Having once tested by putting suggestions/cross-examination itself, it is difficult to draw any adverse inference against the Plaintiff for want of the affidavit-in-chief, on the record, even if any.

15. Taking into consideration all the facets as contemplated under Section 63 and 68 of the Indian Succession Act and the Evidence Act respectively, in my view, the Plaintiff has proved his case, whereas the Defendant failed to do so, as contemplated in Bharpur Singh & Ors. Vs. Samsher Singh, (2009)3, S.C.C. 687 : [2009 ALL SCR 334]; K. Laxmanan Vs. Thekkayil Padmini & Ors. (2009)1 S.C.C. 354; Anil Kak Vs. Kumari Sharada Raje & Ors., (2008)7 S.C.C. 695.

16. In view of this the following order.

ORDER

1. The Caveat/objection is dismissed. The Testamentary Suit/Petition is allowed. A Probate of the Last Will and Testament of deceased Champaben Shantilal Nanavati be issued in accordance with law.

2. No order as to costs.

Ordered accordingly.