Testamentary Suit No.45 of 2005,Testamentary Petition No.23 of 2004

12th October, 2010

Petitioner Counsel: Mr. TEJAS VORA,D. R. MISHRA
Respondent Counsel: Mr. G. N. SALUNKHE,Mr. J. S. SURYAVANSHI

Cases Cited:
Mahendra Nath Surul Vs. Netai Charan Ghosh, AIR 1944 Cal. 241 [Para 30]
Govinda Chandra Pal Vs. Pulin Behari Bannerjee, AIR 1927 Cal. 102 [Para 30]
Dhanapal Chettiar Vs. Govindaraja Chetty, AIR 1961 MADRAS 262 [Para 31]
Balwant Vs. Mainabai, AIR 1991 M.P. 11 [Para 34]
Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, 2003(2) ALL MR 689 (S.C.)=(2003)2 SCC 91 [Para 34]
Jaikaran Vs. Pratap, 43 Cal. WN 1084 [Para 34]
Babu Singh Vs. Ram Sahai, 2008 ALL SCR 1638=(2008)14 SCC 754 [Para 34]
V. Lakshminarayan Vs. S. V. Balsubramanian, 2009(1) MLJ 966 [Para 34]

JUDGMENT

JUDGMENT :- This Petition is for grant of Probate of the last Will and Testament dated 22nd September, 1967 of one Janardhan Banduji Navghare who expired on 27th December, 1969. The wife of the deceased had predeceased him. The deceased left behind 2 sons and 4 daughters. The deceased left behind essentially 2 immovable properties; one in Matunga, Mumbai and one in Dahanu, Thane District. The property in Matunga was bequeathed to the original Petitioner and the property in Dahanu was bequeathed to the other son, Surendra. All the children of the deceased essentially accepted the use and management of the aforesaid properties by the 2 sons. Surendra is stated to have sold the Dahanu property in 1984. The sale has not been challenged.

2. It appears that certain disputes have arisen between the Petitioner and his sisters more than 3 decades after the death of the deceased father leading the original Petitioner to file this Petition for grant of Probate essentially in respect of the Matunga property bequeathed to him.

3. The original Petitioner filed the Petition in person. He failed to file affidavit in support of Petition. He is one of the beneficiaries under the Will. He is an executor under the Will. He is not an attesting witness. Nevertheless he filed his affidavit along with Petition as the affidavit of the attesting witness. That is clearly erroneous.

4. Upon his death, his son and daughter, the present Petitioner have been brought on record of the Petition since the estate of the deceased bequeathed to the original Petitioner devolved upon them by succession. They have been allowed to amend the Petition and have been shown as the Petitioners in their capacity as the beneficiaries to the estate of the deceased though not named as such in the Will of the deceased. (There is an error in the amendment carried out in paragraph 5 of the Petition also showing them as beneficiaries named in the Will).

5. Upon the citation being served in respect of the Petition, the Caveatrices filed their Caveats and affidavits in support thereof. The Petition is converted into above Suit.

6. It is the contention of the Petitioner that the Will was validly executed by the deceased. It is the contention upon the Caveatrices that the Will has been fabricated by the Plaintiffs.

7. Based upon such pleadings, the following issues were framed by Justice Oka on 13th November, 2009 and are answered as follows :

ISSUES

1. Whether the Plaintiffs prove that the deceased Janardhan Banduji Navghare executed Will dated 22nd September, 1967 ? No.

2. Whether the Defendants prove that the said Will was fabricated by the Plaintiffs ? No.

8. The Petitioners have examined Petitioner No.1. He is a grandson of the Testator. He was not present at the time of the execution of the Will. He was a mere child at the relevant time. He has no knowledge about the execution of the Will and any related aspects. It is conceded that his evidence is rather irrelevant.

9. The Petitioners have not examined any attesting witness to the Will. One attesting witness is stated to have expired. The other attesting witness is stated not to have been known or identified by the Petitioners. This may be natural given the fact that the Will was executed more than 35 years prior to the filing of the Petition and more than 4 decades prior to the evidence being led.

10. The Petitioners have examined their mother, the daughter-in-law of the deceased under Section 69 of the Indian Evidence Act read with Rule 384 of the High Court Rules. The Caveatrices have not examined anyone on their behalf. The only material evidence to be considered to decide whether the Testator had duly executed the Will and the attesting witnesses had duly attested the same is the oral evidence of Kusum read with the only documentary evidence being the death certificate of one of the attesting witnesses, admitted by the Caveator as will be considered presently.

ISSUE NO.1 :

11. The daughter-in-law of the Testator, one Kusum who is the mother of the Petitioners, has filed an affidavit dated 20th July, 2009 as a person present at the time of the execution of the Will. In Para 4 of the said affidavit she has stated that on 22nd September, 1967 the deceased, her father-in-law told her that he was going to execute his Will which was already prepared by him and asked her to remain present at that time. She has deposed in Para 4 of the said affidavit that the execution of the Will was done in her presence and in the presence of the grand-daughter of the deceased one Ms. Lilawati Bhalchandra Mahajan alias Mrs. Asha A. Vedak. The said grand-daughter has not been examined. She is not questioned about this aspect in her cross-examination.

12. In Para 5 of the said affidavit, she has deposed that she was present at the time of the execution of the Will. At that time 2 witnesses, one being Mr. Jaidev Keshav Borkar and another witness were present. She has deposed in Para 5 of her examination-in-chief itself that the identity of the witness Jaideo Borkar "has been now revealed, as earlier it could not be revealed". She has explained that was at the time of making her earlier affidavit dated in 2007. That was the affidavit annexed to the Petition. She has further deposed in the said Para that the other witness has not been known to her even as of the date of her examination-in-chief.

13. In paragraphs 6 & 7 of her said affidavit, she has set out how the attesting witnesses signed in the presence of the Testator herself and the other sons of the deceased. In her affidavit of examination-in-chief, she has once again deposed how in her presence and in the presence of the aforesaid grand-daughter of the Testator, the Testator "set and subscribed his name and signature in English at the foot of the testamentary paper in the Marathi language and character" in the presence of all the aforesaid parties.

14. In Para 6 of her examination-in-chief, she has deposed that the 2 attesting witnesses were one Dr. Jaidev Keshav Borkar and another witness whom she did not know personally. She has described the attestation of the Will in Paragraph 7 of her affidavit of examination-in-chief.

15. It may be mentioned that she has referred to Jaidev Borkar as Mr. in her affidavit of examination-in-chief. That witness is stated to be a doctor. Cross-examination has revealed that he was her family doctor. It was revealed that she has gone to him after her marriage. That was more than 4 decades prior to her cross-examination. The Will does not show the designation of doctor against either of the attesting witness' signature. Even if the witness was a doctor, he has signed as attesting witness simplicitor. He has not certified the medical condition of the deceased in his capacity as a doctor.

16. He is stated to have expired. His death certificate has been relied upon by the Plaintiffs. Its certified copy is issued by the Mumbai Municipal Corporation which is the rightful public authority that issues such certificates. The certified copy of the death certificate issued by the public authority carries a presumption as to its correctness and does not require to be proved by direct oral evidence. It can be simplicitor tendered in evidence. It is required to be taken on record in evidence. The Advocate on behalf of Caveatrices fairly accepts this position. Upon the Death Certificate of Dr. Borkar being tendered in Court, it is considered as a document on record and marked Exhibit P-7. It shows the designation of the witness. He has expired on 5th June, 1969. He was resident of Dadar, Mumbai-400 014. He was, therefore, in the locality where the deceased resided and where the deceased had his property which he bequeathed under his last Will and Testament. He died soon thereafter.

17. In Paragraph 4 of her cross-examination, she has deposed that when she made her first affidavit, she did not know Jaidev Borkar but thereafter she remembered that it was his signature. She explained that after she saw some documents in her cupboard she realized that the signature of one attesting witness was that of Mr. Borkar. She stated that she would produce the document which made her so recollect the signature of the attesting witness. That has not been insisted upon and She has not produced such document.

18. She has further deposed in her cross-examination that she had visited the dispensary of Dr. Borkar for 2-3 years of her marriage when she was unwell. She did not remember the illness. The Will was prepared 4 months after her marriage. It must be remembered that her visits to her family doctor upon her marriage were more than 40 years before her cross-examination. The evidence shows that the said doctor was her family doctor prior to 4 decades - he himself died since 1969. That was within 2-3 years of her marriage. She was not called upon to give evidence for as long as 4 decades. She is expected and bound to forget the designation of the person she saw attesting the Will of her father-in-law so early in her marriage and with whom she had no contact for so long. This is specially so because his designation is not even written in the Will. She has deposed that they used to visit the dispensary of Dr. Borkar as and when someone fell ill for 2-3 years. She has accepted in the cross-examination that she had no occasion to see the signature on the document.

19. It is contended on behalf of the Caveatrix that the Testator usually wrote entire documents in English. Hence it is contended that the Will of the deceased running into 4 pages in Marathi is not natural. The witness has been cross-examined on that aspect. She has refuted that she has not seen her father-in-law writing in Marathi. The mother-tongue of the Testator is Marathi. Hence it cannot be put past him that his Will was written in his mother-tongue and signed in English. As the Testator had already prepared the Will the execution of which Kusum was asked to witness, there is no evidence as to the hand-writing of the scribe of the Will. Yet the case that it is not in his hand-writing has been denied in her cross-examination. Kusum's evidence shows that her father-in-law told her that his Will was prepared and he was going to execute it which he directed her to see.

20. She has deposed that she does not know or remember who the other attesting witness was. This is most natural given the distance of time. She has not embellished her evidence at all.

21. She was a new bride. She was in the house of the deceased. The deceased had prepared his Will. He was to execute it. He asked her to witness the execution. She was not to partake in the procedure. The deceased was to give her husband the prime immovable property which he owned. He had every reason to show the ceremony of execution to his newly wedded daughter-in-law. His Will is the most natural Will. She was the most natural witness. Her evidence as such witness must be accepted. Her evidence is only with regard to the ceremonial procedure required in law, without more. The attesting witnesses who were present were not personally known to her. Yet she has deposed about 2 such persons signing and attesting the Will of her father-in-law who had made that intention clear. She has also produced the Death Certificate of one of them. The name in the Death Certificate, Jaidev Keshav Borkar is unmistakably reflected in the signature of the attesting witness on the Will.

22. The deceased expired as far back as in 1969. The original Petitioner, her husband, continued to use, occupy, possess and enjoy the property at Matunga bequeathed to him. The other heirs of the deceased, who were his brother and sisters allowed him and his family to do so far more than 3 decades without a whisper. He never needed to probate the Will. All was well in the family. The other brother (the other original Petitioner) also acted upon the Will. He used, enjoyed and later sold the property at Dahanu bequeathed to him without even the need for probating the Will.

23. The Will makes the most natural bequests. A person in a healthy, happy family having 2 sons and 4 daughters is most naturally expected to bequeath 1 immovable property each out of the 2 that he owned to his 2 sons. Even if he bequeaths none to his daughters, he must be taken to have expended for them at the time of their respective marriages. The quiet is the family for so long is the test of its reasonableness and naturalness.

24. It must be appreciated that if the daughters had challenged the Will within any reasonable time, even a decade after the death of the deceased, the memory of Kusum may not have blurred as much as it is expected to have blurred at the time of her evidence. In fact her evidence as given is itself a pointer to its honesty. Evidence showing blunted edges sharpened at such length of time would have been suspect.

25. Kusum's evidence shows due execution of the Will of her father-in-law, the deceased Testator. It fully complies with the requirement of Section 69 of the Indian Evidence Act, 1872 which runs thus :-

"69. Proof where no attesting witness found.- If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his hand-writing, and that the signature of the person executing the document is in the hand-writing of that person."

26. The attestation is proved to be in the hand-writing of Dr. Borkar and one other person, unknown to the witness deposing about the attestation. The signature of the executant of the Will is also proved to be in his hand-writing, not only upon direct oral evidence of the witness who saw him execute the document, but whom she knew at close quarters. It is further proved from a comparison of his signature on an earlier document admittedly executed by him which shall be referred to presently.

27. The other yardstick for testing the Will would be the action at law taken by the heirs challenging the bequests under the Will. None is taken for the Dahanu property. If the Caveators or any of the heirs of the deceased seek any right in the bequests made under the Will, e.g. in the Matunga property, would they be entitled to sue the Petitioner for any declaratory or injunctive reliefs after 4 decades of silence and acceptance ? The answer would be only in the negative. Hence if they constrain the Petitioner to file a Petition for probate of a Will executed more than 3 decades ago, the same parameters must apply.

28. Further, the Will to be probated is a document executed more than 30 years prior to it being proved in evidence as also the filing of the Petition itself. The presumption as to its correctness under Section 90 of the Indian Evidence Act, 1872 would apply. Section 90 runs thus :

"90. Presumption as to documents thirty years old.- Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the hand-writing of any particular person, is in that person's hand-writing, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested."

29. The twin provisions of Sections 69 and 90 of the Indian Evidence Act specially requires a Will executed at least 3 decades before it is required to be proved not only to be admissible but acceptable in evidence upon satisfactory, credible evidence proving execution of the Will and the presumption of its correctness upon its production. Whereas the rule of evidence enunciated in Section 69 is a rule of prudence in proof, the rule of presumption under Section 90 is a rule of necessity and convenience. It is specially enacted to be able to receive and consider documents genuinely executed which would remain to be proved by direct oral evidence only because the executants have died. It would cause undue hardship to prove transactions that would have transpired under such documents, and would be travesty of justice if truly genuine old documents could not be otherwise proved though they may have stood and weathered many monsoons. The genuineness of such documents would be writ large on their face. They would inspire more confidence to common sense then newer documents, the existence and execution of which may be disputed. Of course such 30 year old documents, a period considered long enough to be able to confer upon them the requisite authenticity, must also come from proper custody and demonstrate that they are otherwise free from suspicion.

30. In the case of Mahendra Nath Surul and Anr. Vs. Netai Charan Ghosh and Ors., AIR 1944 Cal. 241 it was held that the presumption under Section 90 of the Evidence Act would be drawn in case of 30 year old Will when all attesting witnesses have died or cannot be otherwise produced before the Court to prove the execution and attestation of the Will. The earlier case of Govinda Chandra Pal Vs. Pulin Behari Bannerjee, AIR 1927 Cal. 102 observing that such presumption would allow acceptance of Wills merely upon presumption without proof was held to be obiter and dissented from. Of course the Court in its discretion would draw the presumption upon being satisfied of the genuineness of the execution and attestation and its production from proper custody.

In that case 6 witnesses attested the Will executed in 1871. It came up for consideration in 1942, 70 years after execution & attestation. "The executors named in the Will and the attesting witnesses are, as may be expected, all dead". The Court rejected the conclusion of the lower Court without any evidence in that behalf, that the attesting witnesses were illiterate. The Court observed the prefix before the names of the attesting witnesses, which appeared in different hand-writing than the contents of the Will scribed. The Court accepted the genuineness of the signatures of 4 of the 6 attesting witnesses and drew the presumption of correctness of the contents of the documents so signed by the attesting witnesses.

"Having regard to the definition of "may presume" in Section 4 we think it clear that where the Court chooses to make the presumption authorized by Section 90, no further proof of the facts is necessary under Section 69. We regard them as proved."

In this case the genuineness of the signature of Dr. Borkar is seen from his name in the death certificate relating to his profession, his address in the same locality, his own death 2 years after the execution of the Will read with the oral evidence of Kusum in her cross-examination that she went to that doctor as a family doctor for 2-3 years after her marriage, which was 40 years before her evidence was led. The Will has also been produced not only from proper but legitimate and natural custody, it having been preserved for more than 30 years without the requirement of proof, the heirs of the deceased having accepted the contents of the Will and intent of their father the Testator allowing the original Petitioner the exclusive use, occupation, possession and enjoyment of the only immovable property for decades.

31. The case of Dhanapal Chettiar and others Vs. Govindaraja Chetty and others, AIR 1961 MADRAS 262 was also a case of the proof of Will more than 30 years old. It was executed in 1920. The Suit was instituted in 1954. It was produced from a proper custody. Actual execution and attestation was held to be presumed under Section 90 of the Indian Evidence Act which was considered. It was observed that the language of the Section "may presume" gives the Courts judicial discretion in drawing the presumption. It was held that the Court however cannot arbitrarily refuse to draw presumption merely because the matter is for the exercise of its discretion. It was held that when the document emanates from an apparently lawful custody and was likely to have been executed having regard to the common course of human conduct and there were no circumstances to excite the Court's suspicion such as unnaturalness or artificiality surrounding the transaction, or interlineation or correction or tampering with the document, the Court will draw the presumption. That would be the presumption of the execution of the Will. This is despite the fact such presumption would dispense with proof of due execution but the Court must act with extreme caution and utmost circumspection.

In that case the Will was presumed to have been executed and attested as effected in the document because it was perfectly natural and bore the attestation of respectable witnesses, one of them being an Advocate. In that case the brother of that attesting witness gave evidence deposing that the signature of the attesting witness was that of his lawyer brother.

It was observed that the degree of proof sufficient to establish a Will was not the proof required to satisfy the mind of every sceptic but what would appease the conscience of the Court. It was observed that it was hardly, likely the 9 persons would conspire together and bring about the forged Will at the time the Testator was not in a conscious state of mind merely to help his widow.

32. The Will in this case is sought to be proved by the daughter-in-law of the deceased who saw the execution and attestation actually being carried out. That was upon she being asked to remain there by her father-in-law. In this case the name of the doctor is reflected in the signature of the doctor who is shown who have expired 2 years after the execution of the Will and lived in that locality and could have been their family doctor. Besides he was the doctor to whom the witness stated that she went for 2-3 years after her marriage, an aspect brought out in the cross-examination and which, though otherwise innocuous, gels well with the length of life of the doctor after the execution of the Will which was about the same as the length of the married life of the witness in that family. In this case further because the doctor expired and the witness never continued going to him as a family doctor she could have forgotten who he could have been and could have legitimately and honestly referred to him as Mr. rather than Dr. The natural state of circumstances and human conduct seen together show the execution of the Will as deposed by Kusum.

33. The Will in this case is fully eligible to merit acceptance as the last Will of the testator, duly executed by him, attested by independent witnesses and witnessed by an apt and natural witness.

34. The Will in this case is, therefore, proved under Section 69 of the Indian Evidence Act as a document proved in the manner provided for proof of documents. [See Balwant Vs. Mainabai, AIR 1991 M.P. 11] by evidence other than of attesting witnesses [Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, (2003)2 SCC 91 : [2003(2) ALL MR 689 (S.C.)] and Jaikaran Vs. Pratap, 43 Cal.WN 1084], upon proof of signature of the Testator and one of the attesting witnesses [see Babu Singh & Ors. Vs. Ram Sahai, (2008)14 SCC 754 : (2008 ALL SCR 1638)] and other available oral and documentary evidence [see V. Lakshminarayan Vs. S. V. Balsubramanian, 2009(1) MLJ 966] all relied upon by the Plaintiff's Advocate.

35. The execution of the Will in this case is, therefore, sufficiently proved. Hence issue No.1 is answered in the affirmative.

ISSUE NO.2 :

36. The Caveatrices contend that the Will was fabricated by the Plaintiffs. The deceased has signed the Will in English. The deceased has initialed all the 4 pages of the Will at various places in the margins. The 2 attesting witnesses who have signed the Will have also initials against the initials of the deceased. The property which has been bequeathed to the Plaintiffs was purchased by the deceased under a conveyance. That conveyance is an admitted document showing the admitted signature of the deceased. It has been marked as exhibit in evidence and relied upon by both the parties. The Advocate of the Caveatrices has called upon the Court to compare the 2 signatures of the deceased. The signature of the deceased on the conveyance is in the same slant and is distinctly the signature identical to the signature on the Will except for the fact that in the conveyance the deceased has put his complete signature showing his name, his father's name and his surname and in the Will the deceased put his initials followed by his surname. Merely on such difference, the Will cannot be stated to be fabricated.

37. The Caveatrices themselves have not led any evidence with regard to the positive aspect of the fabrication. Issue No.2 is, therefore, answered in the negative.

:: O R D E R ::

1. The Suit is decreed as prayed.

2. Probate of the last Will and Testament of the deceased Janardhan Banduji Navghare dated 22nd September, 1967 shall be issued.

Ordered accordingly.