Appeal No.167 of 2017,Miscellaneous Petition No.57 of 2014,Testamentary Petition No.869 of 2011,Notice of Motion No.63 of 2013

30th August, 2018.

Petitioner Counsel: Mr. ABHAY THORAT i/b MANOHAR P. MHASKAR
Respondent Counsel: Mr. PRASHANT GOVIND KARANDE, Mr. VISHWAJEET SHREEMANTRAO KAPSE

Cases Cited:
Lynette Fernandes Vs. Gertie Mathias, 2018 ALL SCR 192=(2018) 1 SCC 271 [Para 22]
Crystal Developers Vs. Asha Lata Ghosh, 2005(5) ALL MR 64 (S.C.)=(2005) 9 SCC 375 [Para 23]
Anil Behari Ghosh Vs. Smt. Latika Bala Dassi, 1955 ALLMR ONLINE 83 (S.C.) : (1955) 2 SCR 270 [Para 23]

JUDGMENT

Nitin W. Sambre, J. :- Admit. Heard finally by consent of the parties.

2. Late Arvind Puttappa Nadkarni was married to respondent no.1. Since both were not blessed by any issue, they adopted present appellant. Late Arvind Nadkarni left for heavenly abode on 20.12.2010. It is claimed that at the time of his death, he was suffering from Parkinson and had chronic infection in his stomach because of ischemic colitis which developed septicemia.

3. Said Arvind Nadkarni executed a will dated 09.12.2010. The said will though does not bear signature of deceased Arvind, particularly having regard to his medical condition, he has put his thumb impression on each page of the will which was witnessed by respondent no.5 Ananda Godbole and respondent no.4 Avinash Lad. The will was supported by the medical certificate issued by family physician Dr. Chetan Mehta certifying that deceased Arvind at the time of execution of the will was in sound disposing mind and executed the same after duly understanding the complete contents of the will.

4. Based on the aforesaid will, respondent no.1 Snehalata, widow of deceased Arvind, initiated probate proceedings vide Testamentary Petition No.869 of 2011. In the said testamentary petition initiated by respondent no.1, probate came to be issued on 09.11.2012.

5. The present appellant approached this Court in testamentary and intestate jurisdiction via Misc. Petition No.57 of 2014 in Testamentary Petition No. 869 of 2011 seeking revocation of probate granted in respect of will and testament of deceased Arvind Nadkarni. Needless to mention that the probate was granted on 09.11.2012 in Testamentary Petition No. 869 of 2011.

6. Amongst others, the grounds which were raised by the appellant seeking revocation of probate granted on 09.11.2012 can be summarized as under:-

According to the learned counsel for the appellant, there remains a genuine dispute as to whether the will in question was really executed. So as to substantiate the said contention, the learned counsel would invite attention of this Court to the affidavit filed by respondent Nos. 4 and 5 the attesting witnesses, wherein it is stated that the deceased has executed a will on 09.12.2010 at his residence, when it is an admitted position that on the date of execution of the will, deceased Arvind was hospitalized since he was suffering from Parkinson, septicemia due to infection. It is also claimed by the learned counsel for the appellant that it is the case of the respondents that the will in question was executed in the hospital. The other ground on which the probate is sought to be revoked by the appellant is the consent affidavit was executed by the present appellant without making her understand the contents of the same. According to the learned counsel for the appellant in view of death of her father late Mr. Arvind, the appellant was in depression almost for six months. During said period her signature on the consent affidavit was obtained by the respondent no.1 by misrepresenting that the same was required for complying with certain formalities. It is claimed that though she has admittedly signed the affidavit, however, same was in the backdrop of her adverse health condition, in good faith and without reading the contents of the document.

7. The learned counsel for the appellant then would urge that the will itself is a false and fabricated document as the deceased on the date of execution of will was in hospital in intensive care unit from which ailment he never recovered and passed away in the hospital. Since it is undisputedly claimed by the respondent no.1 that the will was executed in the hospital when deceased was in ICU, the said circumstance itself raises a strong ground of suspicion about execution of the will in normal condition. According to him, absence of signature of the deceased on the will which was substituted by his thumb impression also justifies the claim of the appellant that the will was executed in suspicious circumstances. He would then urge that the fact that the deceased was in ICU in hospital and died after execution of the will speaks voluminous about the impossibility of the execution of the will under normal circumstances. The learned counsel for the appellant then would urge that since the appellant is an adopted child, the respondent no.1 has connived with the other respondents in keeping her away from the property of her father as respondent no.1 not being a biological mother, there was absence of love and affection and the relations were not that cordial. Though it is claimed that in January, 2013 certain suspicious circumstances were noticed which prompted her to take steps for initiating the proceedings, however, such suspicious circumstances are not spelt out anywhere in the pleadings. He would then urge that strained relations between the appellant and the respondent no.1 could be appreciated from the fact that an offence was registered against the respondent no.1 for attempt to murder in which she was required to take pre-arrest bail from the Hon'ble Court. As such, according to the appellant, the probate dated 09.11.2012 is required to be revoked.

8. Per contra, the learned counsel for the respondents would urge that there are no suspicious circumstances which could be inferred from the entire event of execution of the will by deceased Arvind. So as to substantiate the said contentions, the learned counsel for the respondents would invite attention of this court to certain events. According to them, the process of execution of will started in the 1st week of November, 2010 when deceased made certain suggestion in the draft will and then approved revised draft at the end of November, 2010. It is claimed that the deceased was admitted in the hospital because of high grade fever of suspected infection in the month of December, 2010 and on 09.12.2010 the deceased executed a last will which was read over by Advocate C.D. Patwardhan in the presence of witnesses, family doctor. It is claimed that since deceased was suffering from Parkinson, as such was unable to hold a pen and put his signature, he put his thumb impression in presence of the witnesses on each page of the will. It is also claimed that after the death of Arvind on 20.12.2010, i.e. after eleven days of execution of the will, on 07.01.2011 the will was opened and read out by the executor Advocate Patwardhan in the presence of appellant and other relatives. The minutes of the said text were drawn which were acknowledged by the appellant by putting her signature. Thereafter the appellant executed the consent affidavit for obtaining probate by signing the same before the Notary on 08.05.2011 extending consent and waiving service of citation. Based on the aforesaid, the probate came to be issued on 09.11.2012.

9. The appellant after a period of about more than two years preferred present proceedings for revocation of probate.

10. The learned counsel for the respondents then would urge that the Sessions Court in Crime No. 198 of 2013 registered with Dadar Police Station granted pre-arrest bail to the respondent no1. Apart from above, it is also claimed that the affidavits which are placed on record by the respective parties were in proper terms appreciated by the learned Single Judge, interpreted the contents thereof and rejected the claim for revocation of probate. As such it is claimed that the present appeal is liable to be dismissed.

11. Considered the rival submissions. From the respective pleadings of the parties, it is required to be appreciated that the appellant has sought revocation of probate on the ground that the will itself was never executed and if the issue is answered in negative, then it has to be held that in suspicious circumstances will was executed and probate was obtained.

12. In the aforesaid background, this Court is required to appreciate the respective pleadings of the parties including the affidavits which were placed on the record.

13. The foremost contention that is raised by the appellant for attacking the order of grant of probate is that the attesting witnesses to the will have in their affidavits stated that the will was executed at the residence of the deceased whereas in fact the will was executed in the hospital where the deceased Arvind was admitted. If the said contentions of the appellant are appreciated from the record, in my opinion, for the following reasons said contentions are required to be rejected and rightly rejected by the learned Single Judge while dealing with the miscellaneous application:-

It has come in the affidavit of the respondent Nos. 1 and 2 which were filed in sur-rejoinder that the will was read out on Friday- 07.01.2011 at the residence of respondent no.1 and deceased Arvind in the presence of in all six persons namely Smt.Snehlata Arvind Nadkarni, Miss. Sonali Arvind Nadkarni, Shri Vijay Putappa Nadkarni, Mrs. Manda Uday Nadkarni, Shri Brahmesh Balkrishna Sanzgiri and Shri C.D. Patwardhan. It is also stated that all these six persons which includes the present appellant have signed the document and the said signature is not denied by the present appellant. Under the head confirmation on the very same document, the present appellant along with respondent no.1 has signed a declaration which speaks of the will dated 09.12.2010 of deceased was read out on 07.01.2011. The endorsement in the said declaration in categorical terms speaks of the voluntary act on the part of the present appellant. For the ready reference, the relevant portion of the will is reproduced as under:-

"......The entire WILL was read over by the Executor and we have inspected the contents of the said Will and also seen Left Hand Thumb Impression of the deceased. We hereby confirm the same.

We as the legal heirs and successors of the deceased hereby further confirm that we have accepted and admitted the contents of the said WILL and we have 'NO OBJECTION' for the same. We have signed this confirmation as per our own wish and desire and without any undue influence and or coercion of whatsoever by any person/s. We shall co-operate to each other to implement the said WILL without obtaining the 'Probate' of the said WILL."

14. The said document also bears signature of the present appellant and that of respondent no.1. Though the production of aforesaid document was objected before the learned Single Judge as same was produced at belated stage, however, no convincing explanation is coming forward from the appellant on the aforesaid issue even before this Court to disbelieve the conduct of the appellant in signing the document. Apart from above, the fact remains that in the affidavit referred above, the existence of the document was very much pleaded.

15. Apart from above, so as to claim that the will in question is a forged or fabricated document and her signature appearing on the document at Exh.I to the sur-rejoinder is not her signature, she has not been able to discharge the burden cast on her by a friction of law to disprove the same. It is then to be noted that the affidavit of consent for grant of probate is claimed to have been signed by the present appellant, however, according to her same is not a voluntary act. She had tried to take shelter of her mental health condition suffered due to death of her father and the suspicious circumstances in which the will was executed. The affidavits of the attesting witnesses, speaks of the will was executed on 09.12.2010 at his residence. It is the case of the appellant so also that of the respondent that the will was executed in the ICU where the deceased Arvind was hospitalized. There are affidavits filed by the respondent no.1 and the executor which in categorical terms speaks of execution of the will at hospital. Apart from above, the fact remains that signature of the appellant on the declaration and other documents along with the executor and the respondent no.1 in categorical terms speaks of and establishes the fact that the will was executed in the hospital and not at the residence. As such the mention of the words that the will was executed by the deceased Arvind at the residence, as could be noticed in the affidavits of the respondent Nos. 4 and 5, attesting witnesses, will not have much bearing so as to form an opinion that the will was never executed or same is sham and bogus document.

16. Apart from above, the fact remains that the will in question is certified by the family doctor, who is also added as respondent no.3 to the present appeal. Taking cumulative effect of the aforesaid piece of evidence, the only opinion to which this Court can reach is that the will was very much executed in the hospital and the circumstances narrated by the appellant in no case raise a suspicion of execution of will particularly under any doubtful or unnatural circumstances.

17. The next contention of the present appellant that she had admitted her signature on the consent affidavit, however, the contents thereof were never explained to her and she was under depression when she signed the document under bona fide belief. The fact remains that when the consent affidavit was signed, the appellant was admittedly of 25 years of age and also a practicing advocate. The executor appointed by deceased Arvind has opened the will on 07.01.2011 at the residence of respondent no.1 in the presence of the brother of deceased Arvind namely Uday, his wife Manda and the present appellant. He has drawn minutes of the said meeting which are admittedly signed by the present appellant. Apart from above, from the discussion narrated in the foregoing paras, in answer to the earlier issue, it is noticed that it is in January, 2011, the present appellant was aware about the execution of the will. Not only this, after the death of Arvind, she was party to the discussions in regard to the disposal of certain part of the properties. In the aforesaid background, the claim of the appellant that she was under depression and without reading the contents of the consent affidavit she has executed the same, cannot be accepted or believed. There is one more aspect of which this Court must take note of it is consent affidavit is entered at Serial No.104 wherein she has put the date by signing as 08.05.2011. This consent affidavit appears to be prepared/drafted on 04.05.2011. However, it appears that the present appellant has not signed the affidavit on the very same day i.e. 04.05.2011. She appears to have visited the office of the Notary on 08.05.2011 and put her signature in the affidavit. If the aforesaid conduct of the appellant of not signing the consent affidavit on 04.05.2011 and on 08.05.2011 voluntarily visiting the office of the Notary and putting her signature on the affidavit so also in the Notary register, speaks of the conduct of the appellant to be a natural one of signing the consent affidavit. In the aforesaid backdrop, the claim of the present appellant that consent affidavit was coerced from her is at all not established.

18. Apart from above, the fact remains that the signature issued by Dr. Wagh who was treating the deceased in ICU, coupled with the certificate of the respondent no.3 in support of the will document, in categorical terms establishes the fact that the deceased Arvind at the time of execution of will was very much conscious of the fact that he is executing the will with free mind and same was executed by putting thumb impression as he was unable to put his signature because he was certified to be suffering from Parkinson.

19. There is one more angle to the story sought to be put forth by the present appellant that she was under depression as she lost her father. The conduct of the appellant when deceased Arvind was hospitalized in ICU if appreciated, it has come on record that the appellant never visited the deceased Arvind and has rather claimed that she was under depression because of loss of her father. On one hand, the appellant claims to have suffered mental pain, as she was more affectionate to her deceased father, however, her own conduct of not visiting her father when he was hospitalized in ICU speaks of the affectionate relations between the appellant and her father.

20. The appellant has also tried to involve her adoptive mother in Crime No. 198 of 2013 for an incident of 07.03.2013 for which she lodged a first information report on 04.07.2013 for an offence under Section 307 of the Indian Penal Code. The learned Sessions Judge granted pre-arrest bail to the respondent no.1 vide an order dated 12.06.2014 in ABA No.874 of 2014.

21. The appellant in her pleadings has admitted that she had spied on respondent no.1 by fixing a bug in land-line telephone instrument. The aforesaid conduct of the appellant of claiming deep affection with deceased father and on other hand after his death filing complaint of attempt of murder against adoptive mother, fixing of bug in her telephone instrument speaks voluminous about the approach of the appellant in regard to her relations with her adoptive parents.

22. The Apex Court in the recent judgment in the case of Lynette Fernandes .vs. Gertie Mathias reported in (2018) 1 Supreme Court Cases 271 : [2018 ALL SCR 192], had an occasion to consider the scheme of Section 263 of the Indian Succession Act, 1925. While dealing with the said powers about revocation or annulment of grant of probate under Section 263 of the said Act, the Apex Court has observed that the power conferred on the Court speaks of a vesting of judicial discretion to revoke or annul a grant that too for a just cause. The Court then proceeded to consider defective in substance qua the probate issued to mean the defect of such a character which substantially affect the regularity and correctness of proceedings of grant of probate. In the case in hand, what is noticed is the just cause for revocation of probate canvassed in the present case is that of execution of will in suspicious circumstances so also the issue of consent affidavit. The learned Single Judge, so also this Court has appreciated the facts and the entire evidence and has noted that the case sans any just cause which prompts this Court to exercise the powers under Section 263 of the said Act. The present appellant has failed to demonstrate any defect of such a character which substantially affect the regularity and the correctness of the earlier proceedings.

23. Similarly in the matter of Crystal Developers .vs. Asha Lata Ghosh reported in (2005) 9 Supreme Court Cases 375 : [2005(5) ALL MR 64 (S.C.)], the Apex Court has considered the law governing the provisions of the Indian Succession Act, 1925 in the backdrop of revocation of probate, particularly on the issue of genuineness of the will in question. The Apex Court held that the question of genuineness cannot be considered till a case of revocation is made out. A similar view was expressed by the Apex Court in the matter of Anil Behari Ghosh .vs. Smt. Latika Bala Dassi reported in (1955) 2 S.C.R. 270 : [1955 ALLMR ONLINE 83 (S.C.)].

The Apex Court observed that under Section 263 of the Act, the grant of probate or letters of administration, can be revoked on any of the five grounds mentioned therein. Amongst other grounds on which the probate can be sought to be revoked is if it is obtained fraudulently. Sofar as the case of the appellant is concerned, the appellant has failed to establish that there was any fraud practised on her or the will itself is fraudulent document. The fact that she being a lawyer by profession on the date of the execution of the will, prompt this Court to believe that appellant is well aware of the legal process. Apart from above, this Court hardly notices any suspicious circumstances in which the will claimed to have been executed. No circumstances are spelt out from the case of the appellant which can be termed as not a normal situation or which are abnormal.

That the case for causing interference has to be based on the given set of facts and the circumstances and the provisions of law. In the present case, the inference that has been drawn by the learned Single Judge is upon appreciation of the pleadings and evidence. The same is based on the realistic diversity qua the facts and circumstances of the case in hand and that being so, we hardly notice any cause which warrants interference in the view expressed by the learned Single Judge.

24. The appellant herein claims that there are certain properties left out of the will and the said aspect also creates a suspicion about execution of the will. It is brought on record by the respondent Nos.1 and 2 in an affidavit of January, 2018 that the appellant has filed a partition suit against the respondent no.1, summons of which was served some time in February/March, 2017 without the copy of the plaint. In view of above statement, which is not countered by the appellant, the properties left out of the probate proceedings can be looked into by the Court taking partition suit. However, the submission that the properties were left out of probate proceedings creates suspicion, cannot be accepted without any basis thereto.

25. In the aforesaid backdrop, we have appreciated the judgment of the learned Single Judge which is made in the present appeal wherein rejection of probate is sought. The learned Single Judge has in detail appreciated the entire pleadings and affidavits and also the circumstances as are narrated therein in the matter of execution of will and has reached to a conclusion that no case for revocation of probate is made out. In our opinion, the view expressed by the learned Single Judge is after taking into account the entire pleadings and evidence of the matter to which we are in agreement with.

26. That being so, in our opinion, no case for interference is made out. The appeal as such fails and is dismissed.

27. Notice of Motion No. 63 of 2018 does not survive and is disposed of.

Appeal dismissed.