Testamentary Suit No.61 of 1997,Testamentary Petition No.505 of 1996

15th December, 2009

Petitioner Counsel: Mr. DIPEN MERCHANT,M/s. P. Mehta , Mithi & Co.
Respondent Counsel: Mr. D. M. SETH . Mr. A. C. SINGH

Cases Cited:
Bharpur Singh Vs. Shamsher Singh, 2009 ALL SCR 334 : (2009)3 SCC 687 [Para 9,18]
Kanwarjit Singh Dhillon Vs. Hardyal Singh Dhillon, (2007)11 SCC 357 [Para 16]
Krishna Kumar Birla Vs. Rajendra Singh Lodha, (2008)4 SCC 300 [Para 16]
Zarina R. Irani Vs. Shapur Jawanmardi, 2004(4) ALL MR 408=2004(6) Bom.C.R. 142 [Para 18]

JUDGMENT

JUDGMENT :- The petitioners have filed the present Petition for a Probate of the Last Will and Testament of Krishnaraj Jagjivandas Parekh (the deceased) dated 5th October, 1992, who expired on 22nd December, 1995.

2. As caveat was filed by the caveatrix, the petition is converted into Suit bearing No.61/1997.

3. Petitioner no.1 is the wife of the deceased. Petitioner no.2 is the son of the deceased.

4. The caveatrix is one of the daughter of the deceased. The other two daughters namely Bina and Shraddha have not challenged or objected at any point of time to the Petition.

5. Considering the pleadings and the documents, this Court on 10.12.2007 framed the following issues :

(1) Whether the plaintiffs prove that the Will dated 5th October, 1992 is a last will and is validly executed, as required by Law ?

(2) Whether the plaintiffs prove that the deceased was in a sound state of disposing mind at the time of execution of the Will dated 5th October, 1992 ?

(3) Whether the plaintiffs prove that the properties and assets held by the deceased were self acquired property only ?

(4) Whether the plaintiffs are entitled to probate of the Will dated 5th October, 1992 ?

(5) What reliefs, if any ?

ISSUE NOS.1, 2, 4 AND 5 :

6. The plaintiffs have led evidence of one Solicitor and Advocate Shishir R. Tejpal. The caveatrix has led her evidence.

7. The parties have exchanged the notice to admit the documents including the Will dated 5th October, 1992. The caveatrix has relied upon the said Will. Therefore, there is no serious dispute about the existence of the Will as both the parties have admitted the same.

8. The said Will having been admitted, this Court has not allowed her to cross-examine so far as the challenge to the execution and/or existence of the Will. That relief/order remained intact till this date. The caveatrix in her evidence admitted that she knows Shri. Tejpal and is also her distant cousin. She has also admitted that between 1990 till his death, the deceased was only admitted to Hospital on two occasions, one in 1990 and second in 1995. She has also admitted in the evidence that except a heart-attack suffered by the deceased in 1990, he did not suffer from major illness. She has also admitted that between 1990 and 1995 she used to meet her father regularly during her visits. They used to discuss with her family members various things on regular basis. The deceased was in sound state of mind and health and, therefore, could able to participate and discuss in the family matters. She has also admitted that the shop at Mulji Jetha Market and Godown at Kalbadevi were disposed of during the lifetime of the deceased and even a shop at Pankaj Building and a property at Lalpur had been sold during the lifetime of the deceased. She has also admitted in the cross-examination that the garage at Hill Sagar and Plot No.33 at Pali Hill belong to her mother who is alive.

9. The basic requirement as contemplated to prove the Will has been complied with in the present matter. Strong reliance has been placed on Bharpur Singh and ors. Vs. Shamsher Singh, (2009)3 SCC 687 : [2009 ALL SCR 334], referring to Sections 69, 70 and 90 of the Evidence Act, 1872 read with Section 63 of the Succession Act, 1925. The basic burden of proof and due execution of the Will has been discharged by the plaintiffs by examining the attesting witness as referred above. The evidence of attesting witness Shri. Tejpal remained intact. In the cross-examination, nothing could be extracted to destroy the case of the plaintiff on any count.

10. The circumstances need to be tested if a challenge is raised and/or a doubt is raised about the genuineness and/or suspicious circumstances, by leading the basic burden to show that the deceased was in unsound/weak, mental as well as physical condition. As noted, in the present case, the execution of the Will is not in dispute. There is no dispute or objection raised to the signature of the deceased. There is nothing to show/prove that the execution of the Will was the result of any coercion or undue influence. On the contrary, the deceased expired after three years from the date of the Will and during this period, as recorded, he was in good mental condition to discuss and meet other family members and he was hospitalised only twice. There is no contra material and/or evidence brought on record. The caveatrix failed to discharge the basic burden/initial burden to support her case of undue influence or unsound state of mind. On the contrary, the plaintiffs have proved that the deceased was in sound state of disposing mind at the time of the execution of the Will dated 5th October, 1992 and thereafter also till the death. In my view, the plaintiffs have proved the case that the Will dated 5th October, 1992 is the Last Will and is validly executed.

11. Petitioner No.1 is the wife. Petitioner no.2 is the son. There is nothing unnatural, in the present facts and circumstances of the case, where the deceased bequeathed and/or executed the Will in favour of the petitioners. The contra submission with regard to the same has no force. It is difficult to read the mind of the deceased now. The Will cannot be said to be unnatural, improbable or unfair. All the daughters have been provided with a lump sum amount. All the daughters have been married long time. As noted, except the caveatrix, no other daughters have raised any objection of any kind at any stage of the proceedings.

12. The attesting witness, who is a Solicitor/Advocate and is known to all. Therefore his evidence just cannot be overlooked merely because he is a friend and known to petitioner no.2, who is son of the deceased. It is not unnatural or improbable that the elder person, in a given case, may take advice and/or assistance from the friend and/or known Advocate/Solicitor known to the son.

13. There is nothing on record to show that petitioner no.2 i.e. Son, took major role to get the Will signed. On the contrary, he was not present when the Will was executed. There is nothing to show that he took a prominent part in the execution of the Will. Even so, the deceased's Will bequeathing all immovable properties to the son and the wife just cannot be the reason to raise any doubt or genuineness of the Will and cannot be said to be a suspicious circumstance. In my view, the plaintiffs/petitioners have proved the Will in accordance with law. The Will is valid and genuine.

14. As noted, the issue with regard to the execution of the Will, if not in dispute and if parties have admitted the same, then unless proved otherwise, the contents of this document need to be accepted as proved. The Will is admitted and also the signature of the deceased. The attesting witness, as required under the law, also supports the execution of the Will and the contents thereof. Therefore, the execution of the Will, as well as, its contents are proved. Admittedly, the caveatrix through her Advocate cross-examined the attesting witness. She herself led the evidence and submitted to the cross-examination on the various aspects including the contents of the Will. Therefore, the submission that there was no opportunity given to cross-examine after having admitted the Will has no force.

15. The submission that the attesting witness being related to the petitioner and known to the petitioners that itself cannot be the reason to overlook the supporting evidence of the attesting witness. In such matters, it is not unnatural to have attesting witness being close relative or close friend of the deceased. Therefore, the submission that he has given evidence in his favour and in support of the petitioners and therefore should not be accepted, is unacceptable. The submission that the plaintiff/petitioners failed to discharge the basic burden that the deceased was in sound state of disposing mind and it is last validly executed Will is also unacceptable. In my view, in view of above, the plaintiffs/petitioners have proved the case whereas the caveatrix failed to do so. Mere allegations of fraud, undue influence, misrepresentation or raising various doubts to the genuineness of the Will are insufficient unless supported and proved by the material and the evidence.

ISSUE NO.3 :

16. In a Testamentary Suit/Petition, the Court cannot decide the right and/or title of the property including the issue whether the properties and assets as bequeathed are self-acquired properties of the deceased. The Apex Court in Kanwarjit Singh Dhillon Vs. Hardyal Singh Dhillon & ors., (2007)11 SCC 357 and Krishna Kumar Birla Vs. Rajendra Singh Lodha & ors., (2008)4 SCC 300, has observed that "The question whether a particular bequest is good or bad is not within the purview of the Probate Court". ..... "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".

17. Therefore, I am not deciding the issue with regard to the title or ownership of the properties/assets bequeathed by the deceased. The remedy is elsewhere.

18. Therefore, the reliance on (1) Bharpur Singh, [2009 ALL SCR 334] (supra) and (2) Zarina R. Irani & anr. Vs. Shapur Jawanmardi & anr., 2004(6) Bom.C.R. 142 : [2004(4) ALL MR 408] by the respondents, in view of the above facts and circumstances, are of no assistance.

19. Accordingly, Issue Nos.1, 2, 4 and 5 are answered in affirmative in favour of the plaintiffs/petitioners. Issue No.3 is kept open.

20. Resultantly, the Caveat is rejected. The Probate Petition filed by the petitioners is allowed. The Office to proceed in accordance with law.

21. With regard to the order dated 8.3.2002 passed in Notice of Motion No.401/2002 in Petition No.505/1996 in Suit No.61/1997, after hearing both the parties, at the relevant time, the Court has passed the order and relevant portion is reproduced as under :

"5. Accordingly, upon depositing a sum of Rs.60 lakhs in this Court by the petitioners to protect the interest of the Defendant/Caveatrix, the petitioners are permitted to proceed further to sell the property known as "Matru Chhaya" (land and structures but not the first Floor) situated at Union Park Road, Pali Hill, Bandra, Mumbai-400 050, to the respondent herein."

22. The property so referred is also subject matter of the Will. The plaintiffs/petitioners have deposited the amount and which is lying in the office of the Prothonotary & Senior Master since then. I have allowed the Probate Petition. In view of this, the plaintiffs/petitioners are entitled to the refund of amount with the accrued interest. This is without prejudice to the rights of the parties. The parties to take steps accordingly.

23. The liberty is also granted to the parties to settle the matter.

24. No order as to costs.

25. The learned counsel appearing for the defendant/respondent/caveatrix seeks stay of the effect and operation of this order. The learned senior counsel for the plaintiffs/petitioners oppose the same as the Suit is pending since 1997. However, considering the facts and circumstances of the case, I am inclined to stay the effect and operation of this order for six weeks from today.

Ordered accordingly.