TESTAMENTARY SUIT NO. 67 OF 1997

13th February 2020

Petitioner Counsel: Mr. H. S. S. Murthy Mr. Abhishek Patil
Respondent Counsel: Mr. V. Y. Sanglikar Ms. Vaishali Ugle
Act Name: Indian Evidence Act, 1872 Indian Succession Act, 1925

Section :
Section 63 Indian Evidence Act, 1872 Section 68 Indian Evidence Act, 1872 Section 162 Indian Evidence Act, 1872 Section 164 Indian Evidence Act, 1872 Section 32 Indian Evidence Act, 1872 Section 35 Indian Evidence Act, 1872 Section 74 Indian Succession Act, 1925

Cases Cited :
Paras 18, 59, 60, 62: Sridevi & Ors. Vs. Jayaraja Shetty & Ors., (2005) 2 SCC 784
Paras 18, 61: Uma Devi Nambiar & Ors. Vs. T.C. Sidhan (Dead), (2004) 2 SCC 321
Paras 18, 61: Rabindra Nath Mukherjee & Anr. Vs. Panchanan Banerjee (Dead) by LRS. And others, (1995) 4 SCC 459
Paras 18, 62: Pentakota Satyanarayana & Ors. Vs. Pentakota Seetharatnam & Ors., (2005) 8 SCC 67
Paras 18, 32, 53, 62: Pushpavati & Ors. Vs. Chandraja Kadamba & Ors., AIR 1972 SC 2492
Paras 18, 63: Smt. Malkani Vs. Jamdar & Ors., AIR 1987 SC 767
Paras 32, 71: Venkatachala Iyengar Vs. B. N. Thimmajamma and Ors., AIR 1959 SC 443
Paras 32, 51: Rani Purnima Debi & Anr.Vs. Kumar Khagendra Narayan Deb & Anr., AIR 1962 SC 567
Paras 32, 52: Gorantla Thataiah Vs. Thotakura Venkata Subbaiah and Ors., AIR 1968 sc 1332
Paras 32, 54: Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and Ors., (1977) SCC 369
Paras 32, 55: Kalyan Singh Vs. Smt Chhoti and Ors., AIR 1990 SC 396
Paras 32, 55: Smt. Rukmani Devi and Ors. Vs. Narendra Lal Gupta, AIR 1984 SC 1866
Paras 32, 56, 83: Guro (Smt) Vs. Atma Singh and Ors., (1992) 2 SCC 507
Paras 32, 57: N. Kamalam (Dead) and Anr. Vs. Ayyasamy and Anr., (2001) 7 SCC 503
Paras 32, 58: Union of India and Ors. Vs. Vasavi Co-operative Housing Society Limited and Ors., (2014) 2 SCC 269
Paras 32, 73: Anil Kak Vs. Kumari Sharada Raje & Ors., (2008) 7 SCC 695
Paras 32, 59: Rebendra Datta Vs. Seema Parab & Ors., 2019 (4) ABR 486: AIROnline 2019 Bom 359
Paras 32, 59, 73, 74: B. Venkatamuni Vs. C.J. Ayodhya Ram Singh, (2006) 13 SCC 449
Para 50: Narbada Devi Gupta Vs. Birendra Kumar Jaiswal & Anr., 2003 (8) SCC 745
Para 59, 61: Umabai Vs. Nilkanth Dhondiba Chavan, [(2005) 6 SCC 243]
Para 59: Madhukar D. Shende Vs. Tarabai Aba Shedage, (2002) 2 SCC 85

JUDGEMENT

1. The suit is the result of a challenge to a writing said to be the last Will and testament of late Mr. Tarapada Chatterjee, a widower. The deceased’s wife Ruby Chatterjee predeceased him on 3rd September, 1983 and the deceased had two children one daughter Ms. Shanta Chatterjee alias Shanta Ashok Tolat who is the plaintiff and son Mr. Avijit Chatterjee who filed the caveat.
The pleadings, in brief reveal the facts set out below:-

2. The deceased Mr. Tarapada Chatterjee died on 24th August, 1990 at Mumbai. He was a resident of 32-A, Jaldarshan, Nepeansea Road, Mumbai400 036 and left movable and immovable properties in the States of Maharashtra, West Bengal, Tamil Nadu and in Union Territory. According to the plaintiff, the deceased left behind a Will said to have executed on 21st March, 1989. The plaintiff claims to be the sole beneficiaries and has filed Testamentary Petition No. 360 of 1995 seeking probate of the Will, since no executor was appointed.

3. The Caveat filed by the defendant is supported by affidavit dated 4th August, 1997 in which the defendant has contended that the Will dated 21st March, 1989 is not an authentic document. The defendant states that citation was served on him belatedly on 23rd July, 1997. Since the plaintiff and the defendant are the only legal heirs of late Tarapada Chatterjee, the defendant claims he is entitled to half share in the estate of his father. According to the defendant his father died intestate, had never made a Will and the document which is produced as the Will does not bear his father’s signature. He further states that the plaintiff at no point of time ever mentioned him of the existence of a Will of their father. The defendant has filed Suit no. 852 of 1995 in this Court for administration of estate and obtained ad-interim order appointing Court Receiver on 5th April, 1995. Even at that time there was no mention of any Will, though petitioner was represented by an Advocate. Based on the aforesaid, the following issues were settled on 6th January, 2011 :
(1) Whether the last Will and Testament of the deceased Tarapada Chatterjee was validly executed ?
(2) What relief, if any, the Plaintiff is entitled to ?

4. The will is said to have been attested by one Sandeep Dave and Dr. Nari N. Kriplani. Sandeep Dave (PW-1) as one of the attesting witnesses was examined and cross examined. He has filed an affidavit in lieu of examination in chief dated 30th November, 2007. The plaintiff also examined Hemant Vishnu Prabhu, Manager of Jaldarshan CHS Ltd. (PW-2) wherein the deceased was a member and owned a flat. Mr. Jatinder Kumar Sethi was the third witness (PW-3). He was a resident of Jaldarshan CHS Ltd. and a member of the managing committee who has also deposed in support of the plaintiff. Lastly, the plaintiff examined Dilip Pralhad Ahiwale, a forensic examiner of documents (PW- 4). All these witnesses were cross examined by Mr. Sanglikar. The original defendant-Caveator (since deceased) was the first witness (DW-1) He filed his affidavit in lieu of examination-in-chief dated 23rd March, 2015. The original defendant expired on or about 23rd August, 1990 and the heirs of the original defendant are on record. The second witness was the son of the defendant who filed his affidavit dated 12th January, 2017 (DW-2). In support of the challenge to the Will defendants also examined Hiral A. Mehta, a handwriting expert who filed her affidavit on 27th May, 2017(DW-3). One Vijaysudha Talwar was also examined by the defendant (DW-4). Her affidavit is dated 7th December, 2017.

5. In support of the plaintiffs case, Mr. Murthy submitted that the Will is genuine and that the testator had executed the same of his own free will. Mr. Murthy submitted that the plaintiff being the daughter of the deceased had been staying with him throughout her life. She had looked after her parents including her late mother and the deceased. Mr. Murthy further submitted hat the plaintiffs dedication was such that she did not even marry for long years and that enabled her to look after her parents despite the fact that she was employed.

6. The original defendant no.1 on the other hand was never close to his parents. According to him defendant was so engaged in his career that since his school days he had ignored his parents. Mr. Murthy submitted that defendant no.1 has always studied in boarding schools and was never close to his parents. The defendant was not aware of the various health issues of the parents. He submitted that the evidence, in particular the cross examination of the defendant would establish that he was unaware of the state of affairs at his parents home. Between 1965-1969 the defendant was a student in Delhi. He had attended college in Delhi soon after he started working out of Thane from there he moved to Chennai (earlier known as Madras) He was later transferred from Chennai to Gomia in Bihar then towards Hyderabad and back to Chennai. He was briefly in Mumbai after his marriage in the year 1970 but never stayed at the parental home. He stayed separately with his wife and family. His parents were not present for his marriage though the marriage took place in Mumbai, yet he has contended that he was very close to the deceased.

7. Mr. Murthy sought to demonstrate from the evidence that the defendant never bothered to stay in touch with his parents and in particular with the deceased. When his mother died the defendant did not attend the funeral claiming that he was working in a remote area. He submitted that the defendant was unaware of the medical problems that his parents had suffered and never bothered to look after them in their time of need. The defendant had been contending that the plaintiff had spread rumors that the defendant did not have good relations with his parents. Inviting my attention to the documents on record, he submitted that the plaintiff had all along kept the defendant informed of the state of health of their parents and the treatment that they were undergoing. The plaintiff had faithfully looked after the parents and the Will was a natural consequence of the love and affection that the deceased had for his daughter.

8. On the other hand, the defendant was distant in his emotional relationship with the parents and his physical presence. The defendant has merely objected to the Will to seek benefits from the property Mr. Murthy submitted that the plaintiff had acted in a selfless manner and to the knowledge of the defendant she had discharged the responsibility of looking after their parents. He therefore submitted that the suit is liable to be decreed in favour of the plaintiff and the caveat discharged.

9. Mr. Murthy invited my attention to the evidence of Mr. Sandeep Dave, PW-1 and submitted that perusal of the deposition would clearly establish that the Will stands proved since PW-1 was the only available attesting witness, the second attesting witness Dr. Kriplani having passed away. Mr. Murthy submitted that there is nothing suspicious about the deceased executing the Will. It was only natural that the plaintiff being the daughter and who had looked after the deceased being the beneficiary under the Will. The plaintiff was already the nominee in the records of the co-operative society housing the flat. The fact that the nomination had been made is evident from the deposition of PW-2 Hemant V. Prabhu.

10. The next witness examined in support of the plaintiffs case was Jatinder Kumar Sethi (PW-3) followed by the forensic examiner Dilip Ahiwale (PW-4). According to Mr. Murthy in order to avoid any doubt and in the light of the defendant’s contention that the Will was not signed by the deceased, the plaintiff had taken the precaution of examining a very experienced forensic document examiner who was formerly a Chief State Examiner of Documents C.I.D. Crime. Mr. Murthy further submitted that the forensic examiner PW-4 Ahiwale was further examined on 23rd July, 2014 and extensively cross examined on behalf of the defendant. Commenting on the evidence led on behalf of the defendant, Mr. Murthy submitted that the defendant in his affidavit dated 23rd March, 2015 (page 164) had deposed that the defendant died intestate and that the Will was a bogus document. He has admitted that he has been staying away from Mumbai but contended that his relationship with his father was extremely cordial. He claimed that the deceased had stayed with the defendants family for a long duration in Hyderabad and Chennai but that is far from the truth. Mr. Murthy submitted that there is absolutely no evidence of the deceased having stayed at Hyderabad and in Chennai. The deceased had only sought to prevent the plaintiff from benefiting under the Will. He had filed a Suit for administration of the estate in February 1995 and had taken up the contention that the plaintiff had not disclosed existence of the Will, if any, to the defendant, till after the filing of the Suit and passing off an ad-interim order. According to Mr. Murthy the defendant had made incorrect statements that the deceased had spent more time with the defendant and his family than at Mumbai with the plaintiff who has emotionally blackmailed the deceased.

11. Mr. Murthy submitted that the case set out in the affidavit of evidence is different from the case of the defendant in the affidavit in support of the Caveat. In the affidavit in support of the Caveat dated 4th August, 1997 had disputed the signature of the deceased and that the deceased died in August 1993, till June 1995 the petitioner had never disclosed the existence of the Will. The only intention in filing the Caveat is to deprive the plaintiff of her entitlement and Caveat is but an attempt to prevent the wishes of the deceased being carried out. In this behalf, my attention was invited to correspondence addressed by the plaintiff to the defendant in particular letter at Exhibit D1/6 dated 11th November, 1983, D1/7 dated 4th September, 1983, D1/8 dated 2nd April, 1993, D1/9 dated 14th January, 1999, D1/10 dated 1st September, 1983 and D1/11 dated 2nd September, 1982 in support of the plaintiffs case that it was the plaintiff who all along kept the defendant abreast of the deceased’s health condition. He submitted that the aforesaid correspondence showed that the defendant had not bothered to spend time with his parents. It was the plaintiff who had kept in touch with the defendant informing of the developments in Mumbai. On 4th September, 1983, (see Exhibit D-1/7) the plaintiff had to write to inform the defendant that their mother had passed away the previous afternoon at 12.10. Reference was made to the letter written by the deceased to the defendant a couple of days of earlier, a copy of that letter was also marked Exhibit D1/10 and which Mr. Murthy pressed into service. In this letter sent by the deceased he informed the defendant that his mother’s condition was serious.

12. Mr. Murthy relied upon the cross examination of the defendant and in particular reference was made to admissions that the witness was not present when his mother died on 3rd September, 1983 because news of her demise was received several days after her demise. The defendant admitted that the plaintiff was staying with his parents although he sought to deny that the deceased never stayed with the defendant or his family. Making reference to questions put in cross examination to the reasons for demise of his father and ill health of his father, Mr. Murthy sought to demonstrate that the witness had no knowledge at all of the cause of the death of the mother or the father and that there is no evidence whatsoever of the deceased having stayed with the defendant and his family. He had no recollection of the doctors treating his parents. He therefore submitted that the entire attempt of the defendant was to obstruct grant of probate without any basis. He submitted that the defendant had not made any case in support of his Caveat and submitted that these are the documents disclosed by the defendants and therefore had admitted.

13. Mr. Murthy submitted that reading of these documents established that the defendant was not in regular touch with his parents or the plaintiff and that he led a busy life with his family. Making reference to the evidence of the present defendant no.1(a), the son of the original defendant, Mr. Murthy said that there is no merit in the evidence sought to be filed in affidavit dated 12th January, 2017 (page 170) wherein the defendant’s son seeks to support the defendant’s case by making an attempt to establish that the deceased stayed with the defendant in Hyderabad and Madras. He assailed the deposition by making reference to paragraph 8 in which the deceased is said to have signed in the Madras club in 1988 when the deceased was not a member of the club. He submitted that in paragraph 6 of the very same affidavit, the deponent had admitted that the original defendant was the member of the Club and it is well known that non-members could not sign for a member of a Club. Mr. Murthy highlighted this fact in support of his contention that the evidence of the defendant/ his son was not believable. He also assailed the deposition of the witness in attempting to cast aspersions on the plaintiffs behavior by seeking to rely upon evidence of one Manohar Taribagil, maternal uncle of the plaintiff. In his affidavit particularly paragraph 14, where the witness states that his father viz. the original defendant had visited one Smt. Leela Chander widow of Susheel Chander. Leela Chander is said to have complained about the plaintiffs behaviour with the deceased attributing to the plaintiffs acts of collusion along with Smt. Leela Chander’s daughter Asha Chander to appropriate Susheel Chander’s property to herself i.e. the plaintiff. The witness refers to a communication with Mrs. Chander, when Mrs. Chander is believed to have told the witness DW-2 about the plaintiffs behavior. He submitted that this was not evidence since the witness DW-2 had no personal knowledge.

14. Making reference to the evidence of DW-3, Hiral Mehta, Mr, Murthy submitted that the deposition of Hiral Mehta, forensic examiner of documents was of no assistance at all since the witness had not compared the signature on the Will with any original signature. The witness admitted that she had not enquired about the physical condition and health of the person and not taken into consideration the fact that the author of the signature was unwell suffering from disease affecting motor functions. She was unaware that the deceased was suffering from Parkinson’s disease for a few years prior to his demise. She was aware that Parkinson’s disease is a neurological condition which affecting the nervous system. She admitted that the handwriting of a person suffering from Parkinson’s disease could be shaky and may not be able to sign like a normal person. Yet she deposed that even assuming such health issues were involved her opinion would not differ. Mr. Murthy had suggested to the witness DW-3 that she was not sure of the genuineness of the signature because witness had used the word “probably” in her report indicating a possibility that the signature could have been that of the deceased. The witness had not even seen the original documents when the first opinion was given. She gave a second opinion after she was allowed to examine and compare signatures with some clearer copies. According to Mr. Murthy, the evidence of the handwriting expert is of no assistance to the defendant. On the contrary he submitted that the evidence of the witnesses forensic examiner Ahiwale could be treated as conclusive of these issues.

15. DW-4 is one Vijaysudha Talwar who is the sister-in-law of the original defendant (his wife Aruna’s sister). Aruna expired on 30th July, 2011. Aruna was not examined prior to her demise. DW-4 Talwar seeks to refer to communications between her and her late sister Aruna. She had not met the deceased but claimed to be close to the defendant’s late wife. She deposed about the discussions she had with her sister Aruna about the death of the deceased. She seeks to depose about the sister’s visit to Hyderabad and Madras and that Aruna had informed her about the deceased undergoing mental tension. All strange people moving through the suit flat. She refers to certain notes allegedly written by late Aruna (Article Y-3) she seeks to depose that Aruna and the defendant were aware of the deceased intended to divide his estate in three equal parts, one for the plaintiff, one for the defendant and third share for his grandchildren.

16. Reference is made to one Kavita Sabarwal, the daughter of the deponent who had employed a caretaker for her child, who had earlier worked for Leela Chander suggesting that Sushil Chander was involved closely with the plaintiff, used to stay with the plaintiff and died in the suit flat. The plaintiff was a colleague of the said Sushil Chander. The deponent states that her brother Manohar Taribagil had met Leela Chander who had allegedly bitterly complained about treatment meted out to her by the plaintiff. The plaintiff claimed to be a legatee under the Will of Sushil Chander. The deponent thus seeks to assail the character of the plaintiff but the deponent has no personal knowledge. The affidavit had been filed before the Commissioner and had therefore formed part of the record.

17. Mr. Murthy submitted that as far as issue no.1 is concerned, Section 63 read with Section 68 of the Evidence Act, provided for the basic requirements in proving the will and one of the attesting witnesses Dave had clearly identified the signatures of the deceased, his own signature and that of Dr. Kriplani. In view of the same plaintiff had discharged the burden cast upon her. He submitted that the challenge to the Will is only a denial of a plaintiffs case. No affirmative case has been set up, no positive evidence had been led. The defendant no.1 had not relied upon any signature of the father of over 77 years, no letters had been written by the defendant to the deceased nor has the defendant produced any evidence to justify his conduct. He has in fact questioned the right of the deceased to the flat itself by contending that it was ancestral property. He has accused his father of harassing the daughter-inlaw viz. the wife of the defendant although the defendant’s wife late Aruna had never stayed in the suit flat when the deceased was alive. He reiterated the fact that defendant had obtained a scholarship soon after school and left and since 1965 he had not bothered about the deceased. He reiterated that there is nothing unnatural about the bequest. The plaintiff was faithful to the testator. She was therefore named as the beneficiary under the Will, the mother of the parties hereto having predeceased the testator in the year 1983. In view of the indifferent attitude of the defendant it was the plaintiff who alone came to the assistance of the deceased. Inviting my attention to D-1/3, at page 518, Mr. Murthy submitted that when the deceased was hospitalized in Calcutta and despite the defendant being present in Calcutta, he did not meet his father. All the evidence points to the absolute lack of affection for his deceased father. Nothing suspicious surrounded the execution of the Will nor was it an unnatural Will.

18. Mr. Murthy relied upon the following judgments :
1) Sridevi & Ors. v/s. Jayaraja Shetty & Ors., (2005) 2 SCC 784
2) Uma Devi Nambiar & Ors. v/s. T.C. Sidhan (Dead), (2004) 2 SCC 321
3) Rabindra Nath Mukherjee & Anr. v/s. Panchanan Banerjee (Dead) by LRS. And others, (1995) 4 SCC 459
4) Pentakota Satyanarayana & Ors. v/s. Pentakota Seetharatnam & Ors., (2005) 8 SCC 67
5) Pushpavati & Ors. v/s. Chandraja Kadamba & Ors., AIR 1972 SC 2492
6) Smt. Malkani v/s. Jamdar & Ors., AIR 1987 SC 767

19. Mr. Sanglikar on behalf of the defendant contended that the Will was fabricated for the reasons set out in the affidavit in support of the caveat and the affidavit of evidence of the defendant since deceased. He submitted that the execution of the Will was surrounded by suspicious circumstances, rendering the Will susceptible to challenge. The plaintiff had maneuvered her way to have the Will executed. According to Mr. Sanglikar, the depositions of the defendant and DW-2, 3 and 4 clearly establish that the Will was not genuine.

20. Mr. Sanglikar submitted that the probate is a judgment in rem and the plaintiff should prove her case and not rely on the weakness of the defendants case, if any. The onus lies on the petitioner-plaintiff and there is a duty cast upon the plaintiff to discharge Onus Probandi. The plaintiff had failed to discharge this burden of proof and thus not entitled to probate. The plaintiff was required to prove firstly, that this was the last will and testament of the deceased as also the fact that this Will was executed by the deceased of his free will and free of all doubts. The defendants had sought to challenge the Will and by doing so had informed the Court of the fact that the Will was not genuine. The Court must therefore conduct its own enquiry into the plaintiff’s case and satisfy itself as to the genuineness of the Will. The deceased was suffering from Parkinson’s disease and he could not sign on this Will. He submitted that the signature on the Will was so shaky that it is a suspicious circumstances whereas the alleged Will is drafted by the plaintiff and that itself is a suspicious circumstances. The Will does not mention the son of the deceased and the plaintiff had manipulated the deceased. The distribution of assets was unnatural. Furthermore, the deceased was unwell for a long period of time prior to his demise and hence there were suspicious circumstances surrounding the execution of the Will which the propounder must dispel. Alternatively he submitted that the signature on the Will is not that of the deceased. According to Mr. Sanglikar, independent witnesses are required to prove the Will and in the present case the plaintiff has failed to do so. Neither the attesting witness Dave nor Prabhu, Sethi or Ahiwale were independent witnesses. He submitted that on 10th February, 1995 the defendant had filed Suit no.852 of 1995 seeking partition. It is only thereafter that the will surfaced.

21. My attention was invited to an order dated 25th January, 2011 passed by this Court in which the plaintiff was permitted to lead evidence in rebuttal. The plaintiff could have led evidence but yet she did not depose because she did not want to face cross examination. This is also evident from order dated 22nd September, 2014. No evidence in rebuttal has been led. He submitted that the plaintiff had ample opportunities to lead evidence; firstly when the Suit no.852 of 1995 was filed, secondly, on 25th January, 2011 when she was granted liberty to lead evidence in rebuttal yet she led no evidence. In view of the circumstances, surrounding the execution of the Will being suspicious, it was for the plaintiff to discharge the burden which she has failed to do.

22. Mr. Sanglikar relied upon the averments in the affidavit in support of the Caveat wherein the defendant had contended that the deceased did not make a Will. The signature on the Will was not of the deceased, no Will had been disclosed earlier and that Citation was served only 2 years after the filing of the petition. He submitted that the attesting witness oath had not been filed. The testator died on 24th August, 1990. Considering the date of demise and that the Will is dated 21st March, 1989, the oath of Dr. Kriplani ought to have been annexed. He stated to be a witness to the execution of the Will but he did not depose in favour of the Will. This is according to Sanglikar is a relevant factor since Dr. Kriplani would have been aware of the state of health of the deceased and the fact that the deceased could not have validly executed a Will and that is the reason why Dr. Kriplani was not examined.

23. Firstly he submitted that DW-2 had no authority to produce the document. The witness was a production witness in that sense he could not have been examined despite which an affidavit by way of examination-inchief was filed. No doubt he was cross examined but that is subject to an objection as to the right to examine Prabhu without authorization to produce the documents viz. nomination form. The witness could not have been called as a production witness at all. In the absence of authority, Prabhu would only be the plaintiff’s witness although he was a manager of the society when the affidavit was made. The question is whether the documents has been produced from proper custody.

24. According to Mr. Sanglikar, under section 162 of the Evidence Act a production witness is a witness summoned to produce the document in his power in possession and bring it to Court notwithstanding any objection to its admissibility and the validity of such objection is to be decided by the Court. The Court is entitled to inspect the document unless it refers to matters of state and to take other evidence to determine its admissibility. He submitted that in the instant case, production of the documents itself is irregular. Custody had not been established and in these circumstances, the Commissioner had no authority to mark the document. Merely marking of the document is not proof and therefore document ought not to be read in evidence. Mr. Sanglikar submitted that once the document is marked he will be compelled to cross examine the witness. Prabhu has played “flip flop” and is not trustworthy and a statement once made cannot be retracted in the manner sought to be done. Mr. Sanglikar also objected to the nomination form being exhibited through witness PW-3 Sethi submitting that the evidence of Sethi in paragraph 8 of his evidence was insufficient to prove the contents of the document marked “X-1”. The document was not the original nomination form as claimed by the witness but was being ‘passed off’ as an original. He therefore submitted that the witness has not stated anything about the contents and custody of the document and hence the document cannot be exhibited. It is subject to these objections that he has conducted cross examination of the witnesses. Particular reference was made by Mr. Sanglikar to the conduct of the witness on 12th February, 2012 when PW-3 Sethi contended that he wished to clarify his answer to question no.12. The request to clarify the answer was a voluntary statement of the witness who was under cross examination and the Commissioner had no power to record such suo moto statements. Furthermore, the witness was under cross examination, he was conversant with the English language and cannot be allowed to make any statement which would amount to changing of his deposition especially since the evidence that can be verified and corrected by consent of the Commissioner. Mr. Sanglikar submitted that the attempt of the witness was to improve upon his evidence and that the Commissioner must record evidence as required under law. He was not empowered to record voluntary statements made by the witness by way of clarification or otherwise. The fact is that the witness was permitted to clarify his statement. Without prejudice to these objections Mr. Sanglikar submitted that this Court may decide upon those objections at the material time.

25. Mr. Sanglikar also assailed the evidence of Ahiwale. He submitted that the witness had failed to establish his credentials which is evident from the cross examination of the witness. He had no proof that he had undergone any training in Forensic Examination at CID Crime Branch, Pune. He merely relied upon an appointment letter issued by the State CID appointing him as examiner of documents. Apart from his appointment letter, he had no evidence that he has undergone any such training. He had no recollection of when he had appeared in the High Court as an expert witness although he claimed to have appeared as expert witness in more than 1000 cases. The witness was unable to produce the evidence of having appeared in many cases despite opportunities being given. There was no evidence of detailed training except that some letters were produced which were said to be letters issued by higher authorities such as Deputy Director General of Police, but they were not on letterhead but on plain paper. He was unable to make a definite statement on when he appeared as expert witness for the State Government. He was called upon to confirm that he had copies of witness summons which he was called upon to produce, he wanted to recall his previous answer since he had only 10 or 15 summons, three of which he produced were marked Exhibit P-3 Colly. whereas other document produced to establish his promotion were marked “X-4 and X-5” for identification. After these were marked Mr. Sanglikar objected to the marking of letter dated 2nd February, 1980 which was taken on record by consent. The Commissioner, has, however, disagreed and that the objection is also required to be decided.

26. According to Mr. Sanglikar, the witness had not compared the signature on the Will with any of the admitted signatures along with “standard documents” for comparison which were signed by the testator. According to him the deceased had signed certain documents in the normal course which Ahiwale has used as admitted signatures for the purposes of comparison. He had called upon the Advocates for the plaintiff to provide signatures for comparison and in response they informed him that the signatures in the society’s books could be inspected for the purposes of the comparison with the signatures on the Will. At the same time that disputed documents cannot be taken as standard documents for inspection. This answer was in relation to a query as to whether he was aware or told that the documents with the society were very seriously disputed by the defendant. According to Mr. Sanglikar the witness evidence was not reliable since he admitted in answer no.100 that he had no independent evidence that documents given to him as standard documents were obtained from the society’s records.

27. Mr. Sanglikar further submitted that D1/11 was written on 2nd September, 1982 by the plaintiff in which the plaintiff had written in detail about the ill health of the plaintiff’s mother who suffered a mild stroke and the details of her malady were narrated. Mr. Sanglikar submitted that these were indicative of the fact that he was unable to visit at the material time and that the plaintiff had not informed the defendant of their mother’s ill health earlier and she had assured the defendant that he need not be worried on account of his mother’s health. My attention was invited to D1/8 which Mr. Sanglikar submitted was written after the demise of a relative in Calcutta and almost three years after the demise of the father. The relationship between the plaintiff and defendant was evidently cordial yet the Will had not been disclosed.

28. Mr. Sanglikar submitted that the mother of the attesting witness Sandeep Dave had appeared for the plaintiff in Suit no.852 of 1995. Sandeep Dave is therefore not an independent witness. The order dated 5th April, 1995 passed in Suit no.852 of 1995 records her appearance at that stage Mrs. Dave Advocate for the plaintiff did not mention existence of a Will, the Will surfaced only in 1997. Furthermore, the testamentary petition was lodged on 3rd July, 1995. He also invited my attention to the order passed by this Court on 25th January, 2011 by which the Court granted leave to the plaintiff to lead evidence in rebuttal but the plaintiff had chosen not to lead any evidence. The plaintiff had one more opportunity on 22nd September, 2014 to lead evidence in rebuttal but once again the plaintiff has failed and neglected to do so. Mr. Sanglikar submitted that reluctance to lead evidence in rebuttal indicates lack of bonafides of the plaintiff who despite having three opportunities led no evidence and therefore had not discharged onus probandi. According to him, the circumstances surrounding the execution of the Will were not free from doubt and hence the Will is suspect.

29. It is contended by the defendant that the father of the defendant did not make a Will. The signature appearing on the writing purporting to be a Will is not the signature of his father. No Will had been disclosed by the plaintiff and citation was served only two years after the petition was filed. These are aspects which the defendants have focused in their opposition to the grant. Considerable stress is laid on the fact that the oath of the attesting witness was not filed on the record. It may be pointed out that testator died on 24th August, 1990, his wife Ruby, mother of the parties hereto predeceased him on 9th August, 1993. The defendant’s wife died on 29th July, 2011 and the defendant died on 14th February, 2019.

30. Drawing my attention to the various dates, Mr. Sanglikar points out that while the deceased died at Bombay Hospital on 24th August, 1990 the Will is said to be dated 21st March, 1989. He submitted that the statement in paragraph 7(A) of the petition cannot be believed and that paragraph reads as follows;
“7(A) The petitioner was not aware to apply for Probate so the delay of filing Probate may be condone.* ” (*sic)
He submitted that this is a incorrect statement. Furthermore, the statement in paragraph 9 that the mother of the deceased predeceased the deceased was also incorrect. The plaintiff had also omitted to annex the oath of Dr. Kriplani. The Caveator has in the affidavit in support contended that the citation was served only on 23rd July, 1997 and that itself indicates suspicious circumstances. Mr. Sanglikar invited my attention to paragraph 2 and 3 of the affidavit of Sandeep Dave, attesting witness, and the relevant portion of the cross examination on 16th November, 2011 in which Dave admitted that he did not know the petitioner personally and prior to March 1989 when the Will was said to be executed he had not met the plaintiff even casually. He was introduced to the plaintiff by a solicitor in the firm where he was working and who had instructed him to accompany the plaintiff. Thus he questioned the independence of Dave. Once the independence of a witness is doubted, there is sufficient reason to doubt the veracity of the evidence of the witness and the correctness of the contentions of the plaintiff. Lack of independence is cited is the primary reason for discarding the evidence of Dave.

31. Mr. Sanglikar further stressed upon the fact that the witness Prabhu is not an independent witness. Furthermore, Prabhu had no authority to give evidence as he was not a production witness. The affidavits of H.V. Prabhu have not been given in advance and therefore the defendant could not object.

32. Mr. Sanglikar then invited my attention to the affidavit of the Caveator and submitted that all the documents sought to be produced are liable to be marked under Section 32 of the Evidence Act being statements in writing of persons who cannot be called as witnesses since they were dead. For these reasons, he submitted Y-3 is liable to be marked in evidence. Mr. Ashim Chatterjee had deposed prior to the death of the Caveator and hence the documents produced by him could be marked. Similarly he stated that Y-1 & Y-2 also deserve to be marked. Referring to the cross examination of the Caveator, he submitted that the plaintiffs had made a lame attempt to show that the Will had been disclosed when in fact it had not been so disclosed. Mr. Sanglikar submitted that during his cross examination, the witness had been asked to explain the basis of his contention that the signature on the so called Will is not of the deceased but that of the plaintiff to which he had responded that his father had informed him and his wife that the plaintiff is used to sign documents on behalf of the deceased.
Mr. Sanglikar relied upon the following judgments :
1. Venkatachala Iyengar vs. B. N. Thimmajamma and Ors., AIR 1959 SC 443 (V 46 C 56)
2. Rani Purnima Debi & Anr.vs. Kumar Khagendra Narayan Deb & Anr., AIR 1962 SC 567 (V 49 C 86)
3. Gorantla Thataiah vs. Thotakura Venkata Subbaiah and Ors., AIR 1968 sc 1332 (v 55 c 256)
4. Pushpavati and Ors. vs Chandraja Kadamba and Ors., AIR 1972 SC 2492 (V 59 C 481)
5. Smt. Jaswant Kaur vs. Smt. Amrit Kaur and Ors., (1977) SCC 369
6. Kalyan Singh vs. Smt Chhoti and Ors., AIR 1990 SC 396
7. Smt. Rukmani Devi and Ors. vs. Narendra Lal Gupta, AIR 1984 SC 1866
8. Guro (Smt) vs. Atma Singh and Ors., (1992) 2 SCC 507
9. N. Kamalam (Dead) and Anr. vs. Ayyasamy and Anr., (2001) 7 SCC 503
10. Union of India and Ors. vs. Vasavi Co-operative Housing Society Limited and Ors., (2014) 2 SCC 269
11. Anil Kak v/s. Kumari Sharada Raje & Ors., (2008) 7 SCC 695
12. Rebendra Datta v/s. Seema Parab & Ors., 2019 (4) ABR 486: AIROnline 2019 Bom 359
13. B. Venkatamuni v/s. C.J. Ayodhya Ram Singh, (2006) 13 SCC 449

33. I have heard the learned counsel at length. They have taken me through the pleadings, evidence and the documents. It will be useful to describe the nature of the deposition of these witnesses. Sandeep Dave was examined as an attesting witness, Jatinder Kumar Sethi was a managing committee member and later appointed as treasurer of the society. His deposition pertains inter alia to the original nomination form in respect of the shares held by the deceased in the society and also to support the plaintiffs since he had witnessed the deceased’s signing the nomination form. This witness had also signed the form Exhibit P marked by the Commissioner. Dilip Pralhad Ahiwale a former state examiner of documents has deposed in relation to the signature appearing on the Will after comparing the same with the sample signatures provided to him.

34. As far as the defendant’s evidence is concerned, the original defendant had disputed the Will which according to him was a bogus document. He has deposed that the Will does not bear his father’s signature and goes on to contend that it is unnatural, sham and fabricated and that his father wanted to divide his estate into three parts, one to the plaintiff and one each to himself and to the grandchildren. The defendant’s son Ashim Chatterjee supported the defendants case that his mother had been ill treated by her inlaws viz. by the deceased and his wife.

35. The defendant did not depose to these writings. Hemant Prabhu-PW-2 was the manager of the society. He was called upon to produce the nomination form. The nomination form was produced from the record of the society and according to Mr. Murthy the cross examination of Mr. Prabhu does not in any manner damage the plaintiffs case. The nomination form, he submitted was executed on 27th February, 1989 and was recorded in the Society’s books under sr.no.53. The deceased died on 23rd August, 1993. The nomination form was executed well before his demise and could not be doubted.

36. PW-3 Jatindar Kumar Sethi had also been examined in support of the plaintiffs case. Sethi had confirmed that the nomination was executed after the society had issued a circular in December 1988 calling upon members to submit nomination forms afresh and that executed the nomination forms on 30th January, 1989 in triplicate. PW-3 had deposed that he was present at the meeting when the application form was placed before the managing committee. He was acquainted with the signature and confirmed that he had affixed his signature on the form as well. He submitted that PW-3 was also cross examined and his testimony has not been shaken.

37. Ahiwale-the examiner had taken photographs of the standard signatures of the deceased from the record of the society and also inspected and took photographs of the signatures on the original Will in the testamentary department of this Court and has thereafter opined that the signatures on the Will and the signatures on the record of the society were of one and the same person thereby indicating that the Will was executed by the deceased himself.

38. DW-2 Ashim had admitted that he had gone through the deposition of his father the defendant and that he had been discussing his affidavit with his Advocate for several years. He admitted that his father has discussed the matter of his affidavit before it was filed and also admitted that he and his father (the original defendant) and his maternal uncle Manohar Taribagil had discussions about this matter when the said Taribagil was alive. My attention was invited to the cross examination of the said witness by Mr. Murthy. He submitted that although the witness was permitted to be reexamined and had in the course of re-examination sought to produce certain photographs as evidence of his grandfather, the deceased, having stayed with witness. Mr. Murthy submitted that he had objected to the said documents since the photographs were not disclosed earlier and all that the witness produced were three scanned copies of photographs which are marked “Y-2”. The original photographs were not produced and hence they were not relevant and could not be considered in evidence.

39. DW-3 Hiral Mehta was an independent professional forensic document examiner who has deposed that having examined the original Will scientifically and concludes her opinion that the disputed signatures appearing on the Will were not of the deceased. DW-4 Vijaysudha Talwar is the sister-in-law of Avijit Chatterjee. She supports the defendant and contends that certain handwritten notes shown to her were in the handwriting of Aruna - the wife of the defendant. These notes attributed to the said Aruna are being relied upon as evidence of the state of mind of the deceased and the behavior of the plaintiff and in relation to one Susheel Chander, a former colleague of the plaintiff. The plaintiff is alleged to have appropriated large sums of money from the estate of Susheel Chander.

40. Vijaysudha Talwar, DW-4 was examined at her residence owing to her advanced age. She had admitted that the affidavit signed by her was read by her a week ago (cross examination on 6/3/18). It was given to her by her niece daughter of the defendant. She had spoken to the defendant Avijit about a month ago. Mr. Murthy stressed upon the fact that the affidavit was signed at her residence in the presence of her niece, the daughter of the defendant and the son of the witness. Only these three persons including deponent were present. He therefore submitted that the witness was not even administered oath. She admitted that her brother-in-law Avijit had told her about the case filed by the plaintiff. She was aware that the defendant had also filed a case against the plaintiff and the defendant had asked her to file this affidavit. She did not have any recollection about having visited the suit flat and that the contents of the affidavit were not personally known to her but based on information given by the employee working with the Chander’s (S. Chander/Leela Chander) She had not even seen the notes referred to by her affidavit which were attributed to authorship of her sister Aruna. She had not seen the original notes for over a year. She had seen them about 30 years ago but she did not remember when. She also admitted that she has never met Leela Chander but her brother met Leela Chander since he was a resident of Bangalore. She clearly had no personal knowledge of the conversion between her brother Manohar & Leela Chander. Her brother did not write to her but her brother Manohar is believed to have written to her sister Aruna and the defendant. She had no recollection of when she had seen the letter and admitted that she had filed the affidavit to support her, the brother-in-law – the defendant. She claimed to know the truth “through Rama” an employee of the Chanders since she given true facts because Rama, Manohar and Aruna were not living. Deposition of DW-4 leaves no manner of doubt that she was tutored.

41. I may mention here that several other objections that had been taken up during the course of the proceedings and those can be conveniently dealt with together. Mr. Sanglikar while objecting to the marking of the nomination form submitted that the nomination form was not required but the plaintiff created it prior to the execution of the Will. He submitted that the date of nomination form is 19th January, 1989 and that the date of Will is 21st March, 1989 and the date of demise was 24th August, 1990. He therefore submitted that the nomination was manipulated and obtained only to suit the plaintiff’s purpose. In view of the challenge to the nomination, I had called upon to Mr. Sanglikar to explain whether he had called upon the witness PW-2 Prabhu or PW-3 Sethi to produce the original old nomination form to which Mr. Sanglikar answered in the negative. Furthermore, it does not appear that any questions have been put to the witness Prabhu or Sethi regarding the nomination forms of other members and whether or not nomination forms were obtained from other members and if so around the same time. This in my view would be a relevant factor to consider whether the plaintiff sought to obtain a fresh nomination form only from the deceased or whether fresh nomination form was sought by the society as deposed by Jatinder Sethi. However, on this aspect there is obviously no evidence forthcoming.

42. In further cross examination, the witness Ahiwale was asked as to why he used the term “purporting” in relation to the Will. Whether he was unsure which the signature of the deceased was as otherwise he would not have used the word “purporting” The witness stated that since the plaintiff had asked him to examine the signature of the deceased on the Will so he had used the word “purporting”.

43. When the defendant was asked what these documents were, the defendant answered they were ‘daily transactions and official requirement’. In answer to question as to when and where the deceased had told the defendant and his wife about the plaintiff signing documents for him, defendant stated that the deceased had told him so during his stay with the defendant at Hyderabad and later at Madras. Mr. Sanglikar stressed upon the fact that in the cross examination his client was asked what steps the defendant and his wife took in relation to the plaintiffs reportedly signing on behalf of the deceased to which the witness answered as follows:
“I had asked my wife to make some notes regarding his important communications so that these will remain as evidence of misguided actions.”
He further deposed that he had told his wife to record these in or around 1983. Mr. Sanglikar submitted that the witness had made reference to these notes which his wife is said to have made while refuting the suggestion that the notes were a creation of the witness. Answers to question no.97 and 98 on behalf of the witness throw light on a different dimension of the deposition.
“Q. 97. How was the relationship between you and your sister (plaintiff) prior to the death of your father?
A. The relationship between my sister (plaintiff) and myself has always been cordial and continues to be so.
Q. 98. Is the relationship between you and your sister (plaintiff) strained after the present proceeding?
A. Not from any point of view and indeed my sister and her husband are mentioned by me during my temple visit every Friday and blessings of the deity are sought for these two.”

44. I may observe here that Mr. Sanglikar has not made any submissions in respect of the handwriting expert’s opinion. He submitted that probate being a judgment in rem the declaration of rights and the declaration of rights being public to the world at large the plaintiff cannot rely upon weakness if any in the evidence on behalf of the defendant. The Court cannot rely on the reasons in the Caveat or the affidavit in support but the conscience of the Court must be satisfied. The enquiry should be much wider in scope than the mere statements in the affidavits. According to him the burden of proof has not been discharged by the plaintiff had not established that this was the last Will made by free consent and free of all doubts. He reiterated the suspicious circumstances surrounding the execution of the Will specifying them to be shaky signature, unnatural distribution of the estate and the ill health of the testator, was one other aspect which should be considered. The doubts cast upon the validity of the Will must be removed by the propounder of the Will and the plaintiffs had not proved the Will through independent witnesses contemplated under Section 63 of the Succession Act and Section 69 of the Evidence Act.

45. Mr. Sanglikar invited my attention to Exhibits D-1/3 which reveals that the deceased had been hospitalized about three times and he had spent 45 days in a special room in Mumbai Hospital and gone through two operations. He had to be attended to day and night. Exhibit D1/3 it is submitted was written around 29th May, 1989 by the plaintiff to the defendant. He submitted that considering this admission by the plaintiff herself, the fact that the deceased had undergone a very serious ill health issue cannot be disputed and the execution of the Will around this time would be obviously a suspicious circumstance. D1/3 is produced by the defendant and is a response to the defendant’s letter to the plaintiff. It recalls a telephone call made by the plaintiff in November 1988 when the defendant had stated that he would call back over a weekend but nothing was heard from the defendant. It appears that the defendant in his letter had denied that he was negligent. The letter records that the plaintiffs office colleagues and friends at Jaldarshan had been asking about the defendant and that the plaintiff made up excuses saying that the defendant was out of India. Whenever his father the deceased enquired about the defendant during his first stay at the hospital she used to tell him that the defendant must be busy etc. and these are the circumstances under which she refers to the repeated hospitalization of the deceased and two operations including cataract operation. It records the fact that the plaintiff had taken the deceased to Calcutta for a change of scene and as recommended by the Surgeon and Neurophysician. A week ago the plaintiff went to Calcutta to bring back the deceased. What is lost sight of, is the later part of the letter in which the plaintiff records as follows:
“His contention is still bad and get easily upset which gives rise to complications. That is why I have not told him that I met you in Calcutta when he was there. You did not met him would hurt him badly because of his condition my office work is also suffering.” What this letter reveals that the deceased was not well and had been taken to Calcutta before the date of writing D1/3. The defendant was in Calcutta while his father was in that city yet the defendant did not visit his father. The plaintiff has recorded that she awakens at 4.20 a.m. and rarely goes to bed before 11.30 p.m. She has further recorded in the letter that she showed the defendants letter addressed to the plaintiff to the deceased who was apparently pleased that he had written. It is in this background that we must consider the submission on behalf of the defendant that the Will was executed under suspicious circumstances referred to above. The defendant was far away from home for 7 years and he was not accessible till 1984. Prior to1989-90 the deceased had undergone 3 surgeries whereas the Will is stated to be executed on 21st March, 1989 and the deceased died on 24th August, 1990.

46. Mr. Sanglikar had submitted that from 1995 onwards the relationship deteriorated and Suit no.852 of 1995 has since been filed, a copy of which was tendered in evidence and marked as D1/2. It is also evident that since 1995 there was nothing on record to show where the defendant has been residing. Mr. Sanglikar submitted that Dr. Kriplani was not examined and his oath was not filed. Mr. Sanglikar further submitted that amongst the compilations of documents Y-3 is required to be marked in evidence as an Exhibit.

47. The defendants deposition that the relationship between the plaintiff and the defendant was always cordial needs to be examined with contents of D1/9. D1/9 in my view reveals a strained relationship in January 1999 wherein the plaintiff replies to the defendant’s letter in the following words; “If you wish to mend our relationship under these circumstances, we will be happy to receive a call from you to set up an appointment to meet. A matter like this cannot be resolved by telephone. Ashok thinks that a face to face meeting is always better.”

48. Particular reference was made to Prabhu’s answers to question nos.5, 10, 21, 22, 23, 24, 38 and 39. Prabhu had admitted that it was the plaintiff who requested the Secretary of the society to produce the records. The secretary merely asked him to produce Article “X” and “X-1”. The witness was known to the plaintiff but he did not know where she stayed. He also did not remember that she had met him on 16th December, 2011 or when exactly the witness had met the plaintiff. He admitted during cross examination that neither he (Prabhu) nor the society received any witness summons to appear in Court. When asked whether he had deposed on his own as a witness for the plaintiff he answered in the negative and stated that he had attended to give evidence under the instructions of the society. In view of these answers the defendant had contended that the Prabhu is not a production witness he cannot be examined in chief. Moreover, he had no authorization and therefore the contention that he is a production witness cannot be sustained. Prabhu was not a stranger and was known to the defendant as well. In relation to the custody of the documents. Cross examination records challenge the witnesses authority to depose by suggesting that he had resigned from service and he was no longer the manager of the society. The witness countered this by stating that till date society had not issued any circular informing members that he had resigned as manager of the society. It is suggested that the witness had no authorization and that the document was produced without authority an assertion which Mr. Prabhu denied. The attempt of Mr. Sanglikar was to throw light on the aspect of custody of the relevant nomination form. Under Section 164 of the Evidence Act when a party refuses to produce a document after he was given notice, he cannot afterwards use the document as evidence without the consent of the other party or the order of the Court.

49. The contention of the defendant is that the witness who is summoned to produce the document shall, if it is in his possession and power to bring it to the Court, notwithstanding any objections of production or admissibility and the validity of the objection is to be decided by the Court. In the instant case, whether or not the Prabhu was a production witness was in my view is not material. Prabhu was admittedly the manager of the society at the material time. He had deposed that he had witnessed the deceased signing on the nomination form. When confronted, he had offered to delete paragraph 3 and 4 of his affidavit of evidence. When asked why the paragraph proposed to be deleted was included in the first place, the witness answered that he was the treasurer of the society at the material time when the nomination form was submitted. One of the other objections of Mr. Sanglikar was the power of the Commissioner or lack of it to mark a document. He contended that the marking of a document did not amount to treating it as evidence.

50. It is settled law that marking of a document as an Exhibit is an administrative act. Marking of documents have been considered by the Supreme Court in Narbada Devi Gupta v/s. Birendra Kumar Jaiswal & Anr., 2003 (8) SCC 745 The Supreme Court held that mere production or marking of a document is quite enough that the execution by the admissible evidence and documents are admitted by signatories thereto only when documents are produced and readmitted by the signatories. Thus, in my view in the facts of the present case there is no merit in the objection raised by Mr. Sanglikar for marking of a document as an Exhibit. That having been said, I am not suggesting that Commissioner should be encouraged to mark documents as Exhibits, a task that is best left to the Court. Mr. Sanglikar’s objection to the evidence of Mr Sethi is twofold; firstly that once a document is marked, Mr. Sanglikar would be compelled to cross examine the witness. If such an objection were to be taken in Court while recording evidence, the issue would not arise. As far as Mr. Sethis’s evidence is concerned, the witness had done a flip-flop, he was not trustworthy and had attempted to retract a statement which was again not permissible.

51. Let us now consider the judgments cited by the learned counsel. In Rani Purnima Debi (supra), the Supreme court was considering Section 63 of the Indian Succession Act and the effect of registration of a Will. The evidence did not show that the relation between testator and the son-in-law was strained. There was no satisfactory evidence that relations between testator and daughters were bad and the Court observed they would have expected the testator to make provision for the daughter particularly since she was not well-off. The Will was therefore found to be unnatural and that exclusion was a suspicious circumstance which was required to be satisfactorily explained before the respondent can be granted letters of administration. The respondent was alone to benefit from the Will and it was found necessary to remove the suspicion by clear and satisfactory evidence. In the cross examination, the attesting witness had stated that the testator signed in his presence at the bottom of the Will. He did not say that the Will was read over to the testator or read by him and that the testator admitted execution of the Will. The registration of the Will notwithstanding, it is not sufficient to dispel all suspicion regarding it and where suspicion exists and if it is revealed that registration was made in such a manner that it was brought home to the testator, but if the evidence as to registration shows that it was done in a perfunctory manner and that the officer registering the Will did not read it over to the testator or did not bring home to him that the testator was admitting execution of a Will or in any other manner such that the testator knew that it was a Will, the execution of which he was admitting, the fact that the Will was registered would not be of much value. In the present case, the aspect of registration does not arise and the only aspect to be considered is to whether the suspicious circumstances, if any, are dispelled.

52. In Gorantla Thataiah (supra), the Supreme Court was considering the effect of Section 74 of the Succession Act in the matter of construction of Will and suspicious circumstances, the Court has reiterated that suspicious circumstances must be touched in the facts and circumstances of the each case and it is this decision in which the Will is prepared under circumstances which raises suspicion of the Court indicating that it does not express the mind of the testator. It is for those who propound the Will to remove that suspicion. The propounder takes a prominent part in the execution of the Will which confers substantial benefits on him that itself is a suspicious circumstance. Reference was made to Williams on “Executors and Administrators” Vol. I, 13th Edition. Page 92 which observes as follows:
“Although the rule of Roman Law that ‘Qui se scripsit haeredem’ could take no benefit under a will does not prevail in the law of England, yet, where the person who prepares the instrument, or conducts its execution, is himself benefited by its dispositions, that is a circumstance which ought generally to excite the suspicion of the court, and calls on it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce, unless the suspicion is removed, and it is judicially satisfied that the paper does express the true will of the deceased.”

53. In Pushpavati & Ors. (supra), the Supreme Court reiterated that the burden of proof of the Will is on the propounder of the Will especially when it is alleged to be a forgery. In the instant case, the affidavit in support of the caveat does not allege forgery but it indirectly suggests that the deceased died intestate and the document which is propounded as Will does not bear the signatures of the deceased. There is no specific allegation that the Will has been forged. In the affidavit in lieu of examination-in-chief of the Caveator, he reiterates that the deceased had Parkinson’s disease, had difficulty in signing and on several occasions he is alleged to have been informed that the plaintiff used to sign for the deceased. There is an assertion in paragraph 8 that the signature on the so called Will is not of the deceased but that of the plaintiff and it is for this reason that the plaintiff engaged a handwriting expert. There is no specific contention taken up that the signature appearing on the Will is a forgery, therefore the allegation has not been taken to its logical conclusion. The Supreme Court held that where the signature of the testator is challenged as a forged one, and the will does not come from the custody of a public authority or a family solicitor the fact that the disposition made in the will were unnatural, improbable or unfair would undoubtedly create some doubt about the will, especially when the document is unregistered and comes from the custody of a person who is the major beneficiary under the Will.

54. In Jaswant Kaur (supra) the Supreme Court observed that the defendant was the propounder of the will and the principal legatee probably the sole legatee who had set up the will in answer to the defendant’s claim in the suit for a one-half share. The burden as it was commonly held was to test whether a party would fail in the suit if no evidence was led on the fact alleged by him. In that case it was held that the defendant ought to have led satisfactory evidence to prove the due execution of the Will by his grandfather. The Court observed that in cases where the execution of a will is shrouded in suspicion, proof cannot be simple and in adversarial proceedings, urged the Courts to consider whether the evidence led by the propounder would satisfy the conscience of the Court and the Will was duly executed by the testator and further that it was impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanations of the suspicious circumstances.

55. In Kalyan Singh (supra), the principle reiterated is similar, that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will that the Court could consider circumstances brought out in evidence or which would appear in the nature of the contents of the documents itself. The Court would have to consider the credibility of the witnesses and disengage the truth from falsehood. In another case of Rukmani Devi (supra), the Supreme Court held that a decision of the probate court is a judgment in rem and a probate granted by a competent court is conclusive of its validity until it is revoked and no evidence can be admitted to impinge on it except in a proceeding for revocation of probate.

56. In Smt. Guro (supra) the Supreme Court noticed and summarized certain suspicious circumstances which are as follows;
“(1) The will mentioned that the testator had been ill for a long time and was seriously ill at the time of execution of the will.
(2) The testator stated that he did not have any sister, which was not correct.
(3) The respondent, the sole legatee, had been wrongly described as the real brother of the testator.
(4) No reasons were mentioned in the will why the appellant, who was the natural heir of the testator, was being ignored.
(5) Although the testator was literate, the will bore his thumb impression.
(6) The will was an unregistered document not scribed by a regular deed writer and as such could be prepared at any time.
(7) Within eight days of the execution of the will the testator died. The appellate court also found that contradictory statements had been made by the respondent with regard to his presence at the time of execution of the will, by the scribe as well as by K. The appellate court, therefore, reversed the decree of the trial court and dismissed the suit of the respondent. But the High Court allowed the second appeal filed by the respondent and restored the judgment and decree of the trial court on the view that the will had been validly executed.”

57. In N. Kamalam(dead) and another (supra), it was held that signature of scribe of the will cannot be granted equality of status with signatures of attesting witnesses, must be proved by evidence to have animus attestandi and every such signatures of such witness would be valid. The Court inter alia held that onus probandi and animus attestandi are the two basic features that a court was concerned with in its testamentary jurisdiction. Onus probandi is on the party propounding to will and animus attestandi means intention to attest the will. Thus, these two factors must co-exist. The will being a solemn document and probate being in rem, it is only appropriate that stringent standards be applied. Onus probandi lies on every person propounding a will and who must satisfy the conscience of the court that the will was executed when the testator was of sound and disposing mind and memory. Attestation is required under Section 68 of the Evidence Act meaning thereby that if a document is required by law to be attested, it cannot be used in evidence until at least one attesting witness has been called for proving execution of the will except in cases of registered wills. In cases where surrounding circumstances were shrouded in suspicious, it is the duty of the propounder to remove suspicion by leading satisfactory evidence. In the case at hand Dave was an attesting witness.

58. In Vasai CHS Ltd. (supra), while considering a suit for declaration of title and possession under the Specific Relief Act, the Court had occasion to observe, under Section 35 of the Indian Evidence Act, relevancy of a public record. An entry in the register was held to be relevant but not proof and cannot confer any title. This judgment was pressed into service by Mr. Sanglikar in support of his submission that the entry in the revenue records are of no assistance. I do not however, find this of much assistance to the plaintiffs case.

59. In B. Venkatamuni (supra), the Supreme Court was considering an appeal and scope of interference on facts. The Court relied on its decision in Umabai v/s. Nilkanth Dhondiba Chavan. [(2005) 6 SCC 243] and observed that the proving of execution of a will does not only mean proving of the signatures of the executors and the attesting witnesses. The Court must satisfy its conscience having regard to the totality of the circumstances of the case that the Will was valid. A will is not an ordinary document and though it required to be proved like any other document, the statutory conditions imposed by Section 63(c) and 68 of the Evidence Act cannot be ignored. Proof of signature alone would not prove the execution of a Will, if the mind of the testator appears to be very feeble and debilitated but if a defence of fraud, coercion or undue influence is raised, the burden would be on the Caveator, as decided by the Supreme Court in the case of Madhukar D. Shende v/s. Tarabai Aba Shedage (2002) 2 SCC 85, Sridevi v/s. Jayaraja Shetty (2005) 2 SCC 784. The Court also reiterated the requirement of satisfying its conscience and the fact that animus attestandi is a necessary ingredient. The Supreme Court has set aside the Division Bench judgment which had held that upon compliance of legal formalities, the suspicious circumstances surrounding the execution of the Will are not of much significance. In Rebendra Datta (supra), the father and wife of the executor were attesting witnesses. The testator was neither showed the alleged Will to the daughters of the testator nor did he send them any communication. The affidavits of attesting witnesses were not filed as required under law. There were serious discrepancies and contradictions in the two affidavits filed by the executor about the place of alleged execution of Will. The Court held that the Will could not be probated, interalia, the Will being registered with the Registrar of Assurance and collection of the original will by the father of the plaintiff was ex facie in violation of provisions of law. It was contended that there was no original will. There were allegations of delay in filing the affidavit of attesting witness of more than 7 years.

60. In Sridevi and others v/s. Mr. Jayaraja Shetty (supra), the Supreme Court held that the propounder of a Will has to show that the Will was signed by the testator; that at the relevant time he was of sound and disposing state of mind and had understood the effect and nature of the disposition and had put his signatures to the testament of his own free will. Further that he had signed in the presence of two witnesses who attested the Will in his presence and in the presence of each other. Once these elements were established, the onus resting on the propounder is discharged, DW 2 the scribe, in his testimony has categorically stated that the Will was scribed by him at the dictation of the testator. The attesting witnesses have deposed that the testator had signed the Will in their presence while in sound disposing state of mind after understanding the nature and effect made by him. In the cross examination, the appellants had failed to elicit anything to persuade the Court to disbelieve testimony. The testimony of the scribe and the two attesting witnesses were fully corroborated. The Court therefore held that the Will had been duly executed. As far as suspicious circumstances are concerned, in that case the testator was about 80 years of age. He died 15 days after execution of the Will. Two attesting witnesses had categorically stated that the testator was in a sound state of health and possessed his full physical and mental faculties and nothing had been brought on record that the testator was not in good health or not possessed of his physical or mental health. The appellants had failed to bring out anything which could have put a doubt regarding the physical or mental incapacity of the testator to execute the Will. Although the appellant in that case had contended that the respondent had played a prominent part in execution of the Will and he was present in the house at that time. Mere presence in the house is not proof that he had taken prominent part in executing the Will. In Sridevi (supra), the Will was disclosed after a period of 4 years and that was stated to be a suspicious circumstance. The Court however, on facts did not find any merit in the contention. It is thus contended on behalf of the petitioners that the presence of the petitioner at the time of execution of the Will, advanced age of the petitioner, the presence of the plaintiff when the Will was being executed in the house were suspicious circumstances. Delay in disclosing the will was not found to be a suspicious circumstances in that case.

61. In Uma Devi Nambiar (supra), natural heirs were excluded. It was held that merely excluding natural heirs or giving them lesser share by itself cannot be said to be a suspicious circumstances. Similarly in Rabindra Nath Mukherjee v/s. Panchanan Banerjee (supra) the Supreme Court held that depriving natural heirs should not raise suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession. Paragraph 3, 4 and 8 in Panchanan Banerjee (supra) reveals that the natural heirs had been deprived by the testatrix. The testatrix was identified before the Sub-Registrar by an Advocate of Calcutta who had acted as a lawyer of one of the executors in some cases. The witnesses to the documents were interested in the appellants and the close relative of Rabindra, one of the executors in executing the Will. Apropos the first aspect, to deprive all natural heirs the Court observed that itself would not raise suspicion because the whole idea behind execution of Will is to interfere with the normal line of succession. The natural heirs can be debarred in any Will some partially and completely in others. Likewise, identification of the testatrix by an Advocate who was contacted by one of the parties was not a suspicious circumstances.

62. In Pentakota Satyanarayana (supra), the Supreme Court held that the initial onus is on the propounder. In paragraph 24, the Court found that the propounders were called upon to show by evidence that the Will was signed by the testator and that the testator was not in a sound and disposing state of mind. The onus was discharged by the propounder adducing prima facie evidence, proving competence of the testator and execution of the Will in the manner contemplated by law. The onus shifts to the persons opposing the Will to bring the material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the Will and executed the same in a sound and disposing capacity. That every circumstance is not a suspicious one and therefore active participation of the beneficiaries and the execution of the Will by the propounders and beneficiaries, cannot create doubt about the testamentary capacity or genuineness of the Will. Mere presence of the beneficiary at the time of execution would not prove that the beneficiary had taken a prominent part in execution of the Will. This aspect had been considered in Sridevi v/s. Jayaraja Shetty (supra). It is also necessary to observe that in Pushpavati (supra), the Court found that evidence of handwriting experts was relied upon. They were of the opinion that the disputed signatures on the Will was that of the testator. Both the witnesses did not know Kannada or the Kannada script. The trial court rejected the evidence of both attesting witness. The High Court did not agree. The judges knew Kannada and also the Kannada script were inclined to accept the evidence as reliable. Evidence was given as to number of “pen lifts”. There were more pen lifts in the disputed signature than in the admitted signatures but the handwriting expert was not cross examined in that case. The High Court took a view that the Will was genuine.

63. In Malkani (supra), the Supreme court considered the circumstances in which the plaintiff knew that her mother was about to execute a Will and she tried to prevent her from doing so but the testatrix did execute the Will. After execution of the Will, the testatrix lived with the plaintiff till her demise. If the allegation that the defendants have procured the Will by fraud were to be believed, the testatrix would have made a report to the authorities against the defendants or revoked the Will. If the testatrix had been abducted by the defendants, the testatrix could have but did not seek to revoke the Will or alter it and the Court thus found the Will to be a genuine one.

64. In this suit, it cannot be disputed that the petitioner was the only person who was available at hand for assisting the testator, his daughter, the plaintiff was living with him. There were only two heirs. The plaintiff’s daughter had been staying with him since her birth till her father’s demise. She was the only person to look after her parents till their demise. She was unmarried for large part of the time and a bequest by a father to his only daughter who had lived with him for all these long years cannot be termed as a suspicious in the face of a few allegations. Apropos the exclusion of a natural heir, there is a little or no evidence that the son is lived with his parents or vice versa. There is no evidence to suggest that he looked after his parents for a substantial length of time. Ever since he completed his education and till the demise of the father, the defendant was employed at various places. There was no evidence to show regular contact with the parents. It is not in dispute that the parents did not attend his marriage and were reportedly unaware of his marriage. Although while in Bombay, he stayed in close proximity to his parents house, there is no evidence of any regular visit to the parents. Although the decision to stay independent and separately is not uncommon, even when he was in Thane, he did not opt to visit or spend time with his parents. The defendant also did not ask the parents to stay with him in Thane. The case of the plaintiffs is that the defendant was unaware of the state of health treatment of the father, filing of tax returns properties and hospitalization of the father towards later part of his life. It is contended that the testator would have been disappointed with the defendants conduct and although he did not express such displeasure. Merely because the bequest is made in favour of the daughter cannot be termed as a suspicious circumstance.

65. As far as the attesting witness Dave is concerned he was an Advocate and attested execution of the Will and merely because Dave’s mother was the Advocate representing the plaintiff it cannot lead to the conclusion that he was an interested witness. As far as shaky signature is concerned, it was contended that Exhibit P is the nomination form along with original letter. The signature on the nomination form was used for comparison and an elderly person is likely to have a shaky signature. As far as the sound and disposition state of mind is concerned, it is contended that no evidence has been brought on record to justify the alleged incapacity of the testator. No doubt Mr. Sanglikar had time and again pointed out that a neurophysician has been consulted by the deceased but that in my view is not proof that the testator was not sound mind or that he was incapable of making a testamentary disposition. Reliance was placed on Section 63 and 68 of the Evidence Act and it was contended that secondary evidence has been led and a copy was made from the original oral accounts of a person who has himself seen it, is also relevant as secondary evidence. Merely because Dr. Kriplani the second attesting witness was not examined is no ground to reject the plaintiffs case.

66. I have also had occasion to peruse Exhibit D1/2 being the copy of plaint in Suit no.852 of 1995 filed by the defendant against the plaintiff herein. The plaint proceeds on the basis that the defendant had been posted at different places during the course of his employment. He had no residence of his own and he was working in Hong Kong at the time of demise of his father. The plaintiff herein the sister was residing in the suit flat and her name was entered in the records of the society. She got married in April 1992 and was permanently residing in Ahmedabad. She travels most of the times. Reference is made to the fact that the flat had been let out and that he had made attempts to meet his sister on several occasions but had failed. He then wrote to her on 25th November, 1994 to meet and discuss the issue pertaining to the flat but there was no response and therefore he was left with no alternative but to seek administration of the estate to recover his half share and his personal belongings and for consequential reliefs. The plaintiff had allegedly surreptitiously, got transferred to her name some of the assets including the flat. The deceased father died intestate in Mumbai and therefore he is entitled to a decree for administration of the estate.

67. In the affidavit in support of the Caveat and in the affidavit of evidence of the defendant, there are no allegations of forgery of the Will at all. The language used in the plaint is that the plaintiff has “surreptitiously” got transferred to her name “some” of their late father’s assets including the flat.

Thus the allegations of surreptitious transfer of the flat and properties would in my view could indicate exercise of undue influence. If that be so the burden shifts to the defendant-brother. Exhibit D1/2 contains annexures which include a letter written by Mrs. Nayana Dave, Advocate, mother of the attesting witness Sandeep Dave informing the defendant that a caveat has been filed and notifying her as the plaintiff’s Advocate to be contacted by the defendant. He has sought to contend that the property is ancestral property and called upon the plaintiff to settle the matter. The correspondence initiated by the defendant and referred to in the suit field by him does not contain any allegations of fraud or forgery or exercise of undue influence.

68. In the course of recording evidence it appears that both sides raised several objections. Objections were raised by Mr. Sanglikar in respect of the several questions put to Sandeep Dave, Hemant Vishnu Prabhu and Jatindar Kumar Sethi by way of further examination in chief and on one occasion clarification sought to be introduced by the witness. Likewise in the evidence of Mr. Avjit Chatterjee and the defendant Ms. Hiral Mehta, Mr. Sanglikar raised objection to question put to the witness in cross examination. During the cross examination of the plaintiff witness Mr. Nilesh Modi Mr. Rajesh Shah, Ms. Bhramania and Mr. Murthy had also raised objections to questions put to the witness in cross examination as also certain questions put to Mr. Avjit Chatterji and Mr. Ashim Chatterjee by way of further examination in chief. It will be appropriate to deal with these objections at this stage. For convenience the objections raised with respect the examination of each of these witness are being separately set out :

Objections to evidence of Sandeep Dave

Certain questions were put to the attesting witness by way of further examination in chief to which Mr. Sanglikar raised objections interalia contending that once an affidavit in lieu of examination in chief has been filed the deposition could not be improved upon by asking further questions. These objections cannot be sustained since even in order to administer oath to the witness it may be necessary to put further questions to him by way of examination in chief. Considering the nature and the number of questions put to him I am of the view that the objection to further examination in chief of Sandeep Dave cannot be sustained.

Objections to evidence of Mr Hemant Vishnu Prabhu

As far as Hemant Vishnu Prabhu is concerned Mr. Sanglikar had objected on the ground that the witness was purportedly being examined to produce document but in fact he was not a production witness. Mr. Sanglikar’s contention appears to be that the witness is not production witness because no summons was issued to him. Prabhu has appeared only at the request of the plaintiff and not pursuant to notice under Section 162. Section 162 contemplates a witness summons to produce a document and the right of the party to object thereof. Section 162 empowers the Judge to put question and order production. Prabhu was examined on oath not merely as witness to produce document. He was cross examined as well albeit without prejudice to Mr. Sanglikar’s contention that Prabhu is not a production witness. I find no substance in this objection and hence it cannot be sustained. Although cross examination of Prabhu was opposed by the counsel on behalf of the plaintiff on the basis that he was witness to produce documents, Mr. Sanglikar had correctly contended that the said witness had filed detailed affidavit and was not merely producing documents and therefore liable to cross examination. This objection has since been given up and Mr. Sanglikar contention that he was entitled to cross examine witness was fully justified. There is no merit in the objection based on this behalf.

69. The next objection to Prabhus’ evidence was raised by Mr. Sanglikar on the basis that evidence of the witness in paragraph 8 was insufficient to mark Article X-1 as an Exhibit. The nomination form in evidence that X-1 is allegedly not the original nomination form and is being passed off as one. Secondly the witness had not said anything about the contents or custody and hence the document cannot be executed. Thirdly the witness had not said anything about the contents. Document has since been proved through Jatinder Kumar Sethi and in view of the evidence of Mr. Sethi I find no difficulty in marking this document. Objection in relation to marking of the nomination form is overruled. The nomination form is marked Exhibit P.

Objection to evidence of Mr Jatinder Kumar Sethi

As regards objection to evidence of Sethi is concerned Mr. Sanglikar had contended that the Commissioner could not record voluntary statements of the witness under cross examination and that the witness was attempting to change his deposition on a subsequent date, after corrections were carried out by consent and only to improve his evidence. No doubt it was a voluntary statements normally need not be disregarded by the Commissioner provided the context and objections thereto are also recorded but considering the fact that this so called clarification was sought to be made after examination was made on a subsequent date, I find the objection is justified. A witness cannot be permitted to “clarify” an answer unless the background was laid out which justifies it. Eventually Mr. Sanglikar had stated that subject to orders of the Court the witnesses voluntary statement should be recorded verbatim and it was so recorded. In this case the witness wished to clarify that the affidavit in question was prepared by the plaintiff lawyer and not the plaintiff. Thus while upholding the objection generally in this particular instance I am of the view that the clarification although belated may be permitted.

Objection to evidence of Mr. Avijit Chatterjee

I now deal with the objection raised to the evidence of Avjeet Chatterjee. Objection to the question 59 and 60 in my view were justified whereas objection to question no. 63 is not. Likewise objection to question 148 and 149, 150 and 157 are sustainable and hence answers to this question shall not be read in evidence.

70. Apropos the evidence of Hiral Mehta, objections to question no.29 cannot be sustained. Objections to question nos. 37, 38, 73, 74 and 75 are sustained.

As regards objections raised on behalf of the plaintiff on question no. 44 put to Mr. Dave and question no. 42 and 52 to Mr. Prabhu and question no. 8 to Mr. Sethi they were in my view justified. Answers to these questions will be read in evidence. Answers to question no. 8, 44, 50 and 123 is also to be read in evidence.

Objection to question no. 44 is upheld. Objection to question nos. 42 and 52 asked to Prabhu are also justified. Whereas objection to question 8, 44, 50 and 123 are justified. However, objection to question nos. 29, 99, 100, 105, 106 and 119 are not justified and the answers will be read in evidence. In the evidence of Ahiwale, objection raised by Ms. Bhramania to question no. 59 is not justified. The objection raised to questions nos. 1 to 3 put to Mr. Avjit Chatterjee by way of further examination in chief are justified.

Question in re-examination

Since these are clearly improvements, objection to question nos. 1 and 3 are justified whereas objection to question no. 2 cannot be sustained. As far as evidence of Ashim Chatterjee is concerned objection raised by Mr. Murthy in re-examination of question nos. 1 and 2 are not sustainable.

71. In Venkatachala Iyengar(supra) the Supreme Court was considering the duty of the Court in the matter of proving of Will, in particular the manner of appreciation of evidence. In paragraph 18, 20, 29 and 39 the Court had occasion to consider these aspects and since the Court found it was a recurring topic which Courts are called upon to decide certain principles were culled out. After making reference to the relevant provisions the Court observed that the testator is required to sign or affix his mark to the will and which shall be signed by some other persons in his presence and by his direction and that the signature or mark should appear in the manner that it was intended to give effect to the writing as a will. Two or more witnesses were required to attest the will. Apart from considering whether the testator signed the Will the Court will consider whether he understood the nature and effect of the depositions and signed it after noting its contents. The propounder would be required to show by satisfactory evidence whether the Will was signed by the testator who was in a sound and disposing state of mind and understood the nature and effect of the dispositions and put his signature to the document of his own free will.

72. The Court observed that ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law. According to Mr. Sanglikar in the instant case execution of the Will was since surrounded by suspicious circumstances as much as the shaky and doubtful signature of the testator and evidence in support of the propounder’s case that the signature in question is that of the testator may not remove the doubt created by the appearance of the same signature. If the testator’s mind appears feeble and debilitated it may not succeed in removing the legitimate doubt as to the mental capacity of the testator. Disposition may appear unnatural, improbable or unfair. In such cases the court would naturally except that all legitimate suspicion should be completely removed. The onus cast upon the propounder is very heavy and unless it is satisfactorily discharged, the Courts would be reluctant to treat the document as the last Will of the testator. In the event of caveat being filed alleging the exercise of undue influence fraud or coercion such pleas made by the Caveator have to be proved. Propounders taking a prominent part in the execution of the Wills which also confer upon them substantial benefits would also give rise to suspicious circumstances and the propounder is required to remove such suspicion by satisfactory evidence. Reference was also made to decision of the English Courts which mentioned tests of satisfaction of judicial functions. For instance in Fulton v. Andrew, 1875-7 H L 448 The House of Lords observed “those who take a benefit under a will, and have been instrumental in preparing or obtaining it, have thrown upon them the onus of showing the righteousness of the transaction”. In Barry v. Butlin, 1837-2 Moo P C 480 two rules of law set out by Baron Parke which are as below :
“first, that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator”. The second is , that, if a party writes or prepares a will under which he takes a benefit, that is a circumstances that ought generally to excite the suspicion of the Court and calls upon it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased”.

The same principle is said to be imposed by the Privy Council in Vellasawmy Servai v. Sivaraman Servai 57b Ind App 96 (AIR 1930 P C 24) where it was held that the Will propounded by the chief beneficiary and who was taking a leading part in giving instructions for preparation and procuring its execution, probate should not be granted unless the evidence removes all suspicion.

73. In Anil Kak (supra), the Supreme Court was considering the mode of proving a Will and in the facts of that case, it was held that the execution of the Will had not been proved since there were appendices that were not signed by the attesting witnesses. The will had remained in the custody of the petitioner who did not examine himself as a witness. The division of the properties was unequal and the petitioner took part in the preparation of the will. It is therefore alleged that these all were suspicious circumstances and it was therefore contended that the High Court had fell in error in passing the judgment to consider that the testatrix had divided her properties equally amongst her four daughters and her grandchildren and there was no reason suspecting the genuineness of the will and the grandchildren were beneficiaries and appendices were annexed to the will for proving out equality in relation to division and medical certificates annexed showed that she had a sound disposing mind and the burden of proof was on the caveator. The will was said to be executed in presence of a notary. Two medical certificates were annexed. It was not denied that the appellant took part in the preparation and execution of the Will and for proving the will, the appellants examine one of the executors who was not aware of the contents of the Will. The will was not executed in his presence. The Court held that the proving of execution of a will does not prove that the attesting witness do something more. Although the will is required to be proved unlike any other document but the statutory conditions imposed by reason of Section 63(c) and Section 68 of the Evidence Act cannot be ignored. The Court adverted to its decision in the B. Venkatamuni (supra) which observed that compliance with statutory requirements itself is not sufficient.

74. Section 68 of the Evidence Act postulates the mode and manner of proof of execution of document which is required by law to be attested stating that the execution may be proved by at least one attesting witness. That an order granting probate being a judgment in rem, the Court must satisfy its conscience and interalia animus attestandi is a necessary ingredient for proving the attestation. In B. Venkatamuni (supra) it is also held that each case may be determined in facts obtaining therein and held that the division bench of the High Court was entirely wrong in proceeding that compliance with legal formalities as regards proof of the will would sub-serve the purpose and the suspicious circumstances surrounding the execution thereof is not of much significance.

75. Having gone through the entire gamut of facts and the law as canvassed by both sides there can be no quarrel on the requirements of a proof of will. The judgments that both counsel have adverted to clearly set out the need of the propounder of the will to prove beyond doubt that the will was genuine and that it was made by the testator with clear intention that he chose. The will ought to have been executed by the testator when he was of sound and disposing mind and without being influenced by the parties whose assistance he may have taken in preparation of the will. The requirement of an attesting witness affirming the execution of the will is only one of those preconditions of proving the will.

76. In the present case, much has been stated about the failure to examine Dr. Kriplani who was said to be one of the witness to the execution of the will specially being a Doctor. Mr. Sanglikar stressed upon the fact that Dr. Kriplani was in all likelihood aware of the mental condition of the testator and knew that he was not in a position to make a will and therefore, he had deliberately not been examined. In my view, what needs to be considered is; whether the legal requirement of proof of the Will were completed, the circumstances under which the Will was executed, the doubts cast upon the signature of the testator upon the Will. I have no doubt that as far as the legal requirements are concerned, execution of the will is proved inasmuch as there is no reason to doubt the veracity of the deposition by the attesting witness Sandeep Dave who has been subjected to cross examination. It is pertinent to note that at no stage during the cross examination of Mr. Dave was he asked about the physical or mental state of the testator. PW-1 Dave being the only person who claims to have witnessed the execution of the Will and who had deposed it was incumbent upon the cross examiner to put to the witness the defendants case that the Will was not signed by the testator and/or that it was signed by the plaintiff. More particularly the witness ought to have been cross examined on the mental faculties of the testator when PW-1 was with the testator, whether the witness observed that testator’s general demeanour, his reactions when PW-1 met him, his interactions with the testator and vice versa. None of these aspects were put to the witness Dave. This was all the more necessary because the defendant knew that Dr. Kriplani was not being examined by the plaintiff and apart from the plaintiff, Dr. Kriplani and Dave, no other person is believed to have been present. Dr. Kriplani and the plaintiff not having deposed, the defendant ought to have cross examined PW-1 Dave on these aspects. This omission is fatal to the defendant’s case. The other contention of Mr. Sanglikar that Dave is not an independent witness does not commend itself to me. The fact that the mother of the witness was an Advocate for the petitioner in the suit filed for administration of the estate of the defendant is no ground to question the independence of the attesting witness. The attesting witness was an Advocate & Solicitor in his own right was requested by another professional to attend to the execution of the will. The fact that the mother of the attesting witness was also a practicing Advocate and the fact that she had represented or was engaged to represent the plaintiff would not by itself be sufficient to establish any wrong doing on the part of the attesting witness. The fact that the attesting witness did attend has not been disproved. It appears that the chain of events which led to the execution of the will have no bearing on the fact that the engagement of the attesting witness’s mother in the suit. That would not justify casting aspersions on the attesting witness’ independence. The will is seen to have been executed on 21st March, 1989 whereas the attesting witness mother has been engaged in the suit in or about April 1995. The engagement of the attesting witness’s mother as Advocate in the suit for administration of the partition of the estate was subsequent in point of time compared to the execution of the will. The defendant has not proved that the will was not validly executed. In fact the only issue framed was whether the last will and testament of the deceased was validly executed. The affidavit in support of the Caveat, the defendant does not alleged forgery. It is not alleged that the attesting witness was party to its forgery or that Dr. Kriplani was party to such forgery. If Dr. Kriplani was so aware of the state of health of the deceased, there was no reason why the defendant not summon Dr. Kriplani at the appropriate time. One fact is evident that the defendant has not questioned the fact that Dr. Kriplani was known to the deceased. The contention that the attesting witness was a interested party or that his mother was an interested party is not something that has been seriously pursued by the petitioner.

77. Mr. Dave was a legal practitioner. He has identified the other attesting witness as Dr. Kriplani and in the cross examination he has clearly admitted that the affidavit was drafted by solicitors who were on record of the cases for the plaintiff. The witness had made factual changes to the affidavit and after being satisfied with the facts and he had signed the affidavit. He has deposed in March 1989 he was working as Senior Clerk with Kanga & Co. and worked there till 1992. He has also clearly stated that he did not know that the plaintiff was the client of Kanga & Co. and he did not know the plaintiff personally at that time. He had not met the plaintiff at any time prior to the day the Will was executed. It transpires that the partner of the firm where he was employed had introduced him to the plaintiff and instructed him to accompany her to attest the Will of the father. The plaintiff was introduced to the witness as a friend of a partner with whom he was then employed. He also did not know him. Apropos the other attesting witness Dr. Kriplani, in answer to cross examination Dave has stated that he could not recollect the appearance of the testator. He did not deny that Nayana Dave was the Advocate for the plaintiff who had later withdrawn her appearance. Dave disagreed with the suggestion that Dave had not witnessed the execution of the Will and that he did not ever visit Jaldarshan Building to witness the execution of the will and that he had simply signed on a Will which was already signed by the somebody, PW-1 has reiterated in answer to question no.56 that the documents bears the signature of the deceased, the attesting witness Dave and that of Dr. Kriplani. He has denied the suggestion that Dr. Kriplani did not sign as a witness and that he had signed the document already signed by somebody only to oblige the partner of the firm where he was working. However, he clarified that he was not working under a gentleman who had requested him to accompany the plaintiff but was employed with another Solicitor of the firm. When Dave challenged as to his being employed with a partner different from the partner who had requested him to accompany the plaintiff, the witness had clearly stated that he had signed articles in the Bombay Incorporated Law society under his Master. Mr. Desai, Advocate Solicitor and partner of the firm. The cross examination then concluded. No further attempt has been made to assail the veracity of his deposition that he had witnessed the execution of the Will by the testator. No suggestions has been put to the witness that would help the defendant in establishing that the attesting witness was not truthful. The deposition in my view successfully withstood the test of cross examination. The fact of execution and the legal requirement in my view stands fulfilled.

78. The affidavit in support of the Caveat states that the deceased died intestate and never made a Will and that the document being posed of as a Will does not bear his father’s signature. It has no direct allegation of any forgery. It is therefore appropriate that we considered the averments in the affidavit of evidence filed on behalf of the defendants. After the preliminary depositions the defendant repeated that the document being posed a will is a bogus and sham document and that the Will is fabricated. The signature of the will is not of his father but that of the plaintiff. Yet, there has been no evidence to substantiate the allegation that the will was signed by the plaintiff.

79. The other aspect to be considered is the likelihood of the defendant’s version being correct inasmuch as he has contended that the plaintiff had exercised enormous control over the deceased kept records for him, wrote letters for him and on his behalf and the deceased was so dependent upon the plaintiff. There is no denial of the plaintiffs contentions that the defendant was not in touch with the deceased. There is much evidence on record of the fact that that the defendant was practically unavailable throughout life of the deceased. He was a busy professional in his own right engaged in and immersed in his job which kept him outside the city of residence of the testator for large numbers of years. Although attempts have been made to establish that the deceased had lived with the defendant for certain periods of time in Chennai and in Hyderabad, there is absolutely no evidence of the deceased having spent such time. An attempt has already been made by the defendant’s son who was suggested that he has seen his grandfather signing and that the signature on the Will is not of his grandfather. The said son has also deposed that his father and grandfather were speaking apologetically in Hyderabad and Madras about the ill treatment faced by his mother (daughter-in-law of the deceased) at the hands of her in-laws. The witness deposed that he had seen the notes which were produced by his father the defendant and that those notes in his mother’s handwriting. The mother of the said witness viz. the wife of the defendant expired on or about 29th July, 2011. The Testamentary Petition had been filed in 1995 and the suit for partition being suit no.852 of 1995 was also filed in 1995. Having filed the suit for administration of the estate and for accounts, the defendant claimed one half of the estate of the deceased although it is his case that the Will was never disclosed prior to filing of that suit. It is obvious that upon the testamentary petition being filed and being converted to a suit, the defendant had every opportunity to establish his case that is now sought to be made out and as canvassed on behalf of the original defendant and by the present defendant no.1(A). There is no explanation forthcoming as to why the defendant’s wife Aruna had not deposed in the matter and given evidence as to the notes. Issues were framed on 6th January, 2011 and the defendant’s wife passed away on 29th July, 2011. Surely from 1997 onwards, the defendant was well aware of the impending of the trial. One would have expected that the defendant’s wife would then depose rather than defendant’s son now attempting to prove the writings. The defendant no.1 had admitted that he has been staying away from Bombay because of his job in Calcutta, Chennai and Hyderabad. He deposed to the fact that the father deceased testator had stayed with his family for long durations yet no particulars of these alleged longer stays are forthcoming. No experiences have been narrated of these alleged long stays and even the defendant’s son evidence states that he remembers the testator residing with the family at Hyderabad in 1995, in 1988 at Madras for about a month and half and two months respectively and his health started failing ill thereof just in 1988. One of the remarkable aspects of the present dispute is the indifference of the defendant to the testator. The evidence led by the defendant in support of his case does not even allude to this that the defendant was seriously concerned about the health of the deceased testator at any point of time. The testator did not have indifferent health prior to 1988. The will is said to be executed on 21st March, 1989. There is no evidence of any serious deterioration in the testator’s health in the interregnum. Thus, the contentions on behalf of the defendant that the testator was seriously ill, consulting neurophysicians was not of sound and disposing mind and therefore incapable of executing a Will, is difficult to accept.

80. The defendant has also deposed to the testator’s state of health as of 1988 in paragraph 8 evidence he contends that testator was suffering from Parkinson's disease for a long time and that he had difficulty in signing. The testator had told the defendants several times that the plaintiff used to put his signature and for that reason that the plaintiff engaged a handwriting expert. The defendant’s inability to establish his case on the strength of his own evidence and that of his late wife is evident from the attempts at enlisting support of the other witnesses such as Talwar, and that of defendant’s son. The attempt of the defendant was to show that he was a dutiful son, having cordial relationship with his father and that his father was heavily dependent on the plaintiff even to the extent that she would sign for him. There is no denial of the fact that the plaintiff lived with her deceased testator all her life and was intensely devoted to the testator. In fact there is no attempt to deny that the testator had depended upon the plaintiff to a great extent. The correspondence exchanged between the parties also indicates that the defendant was distant, did not keep in touch with his parents and the letters Exhibit D1/3, D1/6, D1/7, D1/8, D1/9 and D1/11 clearly indicate that it was the plaintiff who was keeping the defendant informed of developments.

81. The next witness is Sethi, PW-2, who was a managing committee member and was later appointed treasurer of the society. Sethi was examined by virtue of his involvement in the managing committee and it is understood on what basis his independence has been questioned so also the Prabhu was the manager of the society if the plaintiff was desirous of examining office bearers of the society her bias would have automatically be limited to persons who are connected with the management of the society and at the material time. Nothing has been shown to him to attribute lack of independence of these witnesses.

82. Mr. Dilip Ahiwale was also a forensic examiner and once again independence of the said examiner has been questioned but there is no material on the basis of which the defendant can successfully urged that these witnesses viz. attesting witness Dave, societies formal manager Prabhu, Jatinder Sethi or Dilip Ahiwale were not independent. The contention that their testimony could not be relied upon has no basis. As regards the contention of the plaintiff that the plaintiff had omitted to step into the box and depose in support the Will. One has to consider whether not leading rebuttal evidence would help in concluding that the deceased did not validly execute the will. The failure to lead rebuttal evidence cannot prevent the petitioner from establishing that the last will and testament of the deceased was validly executed and the decisions of the courts have held that is whether a party would fail in the suit if no evidence was led on facts alleged by that party. In the instant case the plaintiff has led evidence of a attesting witness and to my mind the execution of the Will has been proved beyond all doubt. The contention that absence of the plaintiffs evidence must be held against her in my view has no merit. Personal involvement of the plaintiff in preparation of the will is one other aspect that has been urged as a suspicious circumstances. In the facts of the present case if the plaintiff had not assisted the testator in preparation of the will or execute the will who else could the deceased have turned to. Admittedly the plaintiff lived with the deceased all her life. The defendant was not available to render any assistance to the plaintiff or the deceased. It is under these circumstances that the plaintiff herself took the initiative to have the Will drafted through her solicitor and arranged to have the Will executed. I have scrutinized the cross examination of the witnesses supporting the plaintiffs case, the defendant’s evidence and I am unable to come to the conclusion that the will was not executed by the testator but was signed by the plaintiff herself.

83. As observed earlier, the burden shifted to the defendant. The tests of suspicious circumstances laid down in Guro (supra) are certainly not applicable in the facts of the present case. It is a matter of record that the attesting witness has seen the deceased sign the will in his presence. His cross examination has not brought out anything to the contrary. There was a second attesting witness Dr. Kriplani the fact that Dr. Kriplani present has not been disputed. It is the case of the defendant that if the Dr. Kriplani who ought to have examined since he was a professional and would have been aware of the state of health of the deceased and that if he had examined he would not have been able to justify the execution of the will. Since according to the defendants, Dr. Kriplani would have been aware of the state of mind and body of the deceased and his obvious inability to execute a Will alluding to the contention that the physical and mental faculties were not appropriate. The Supreme court has occasion to consider cases where a beneficiary played a prominent part in execution of the will and remained present at the time of its execution and has held that presence in the house of testator would not necessarily mean that he or she had taken prominent part in executing the will. One of the reasons why the defendants contended that the Will has not validly executed is because the will was not disclosed even after the suit as filed by the defendant. It does seem a little odd that the will then not been so disclosed. To my mind the delay in disclosing the will cannot be fatal to the plaintiffs case.

84. The contention that Prabhu/Sethi were not really the production witnesses is of no avail has not been seriously pressed into service and in any case the said witnesses were permitted to be cross examined and their deposition has been taken into consideration by both sides. I am of the view that the objection that these persons were introduced as production witnesses when they were not in fact the production witnesses is of no consequence. The defendants contention that the documents said to be the handwriting of Aruna must be read in evidence by virtue of Section 32 of the Evidence Act has no merit either. The defendant was aware that the will had been propounded at least in 1997, Aruna expired only in 2011 it was therefore open to the defendant to lead evidence of Aruna herself who could have deposed to these writings which are said to be in her handwriting. Even the defendant could have deposed. However, the attempt to prove these documents is made by introducing the deposition of Vijaysudha Talwar. As I have observed already elsewhere in this judgment Talwar appears to be tutored and her deposition does not inspire confidence. Section 32 of the Evidence Act deals the statements by persons who cannot be called as witnesses. Statements, written or verbal, of relevant facts which are made by a person who is dead may be relevant facts under sub-section (6) of Section 32 which provides that if these statements are made in relation to existence of any relationship between persons deceased and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged and if such a statement was made before the question in dispute was raised. In the present case, the writings (Article Y-3) are said to be in the handwriting of Aruna but could have been established by the Aruna herself or the defendant. Not having done so I am not convinced by the submission that the writings deal with relevant facts. In any event, the writings have not been proved. There is nothing to indicate that this was in the handwriting of Aruna and when these were made. No occasion arises to invoke Section 32 except for a statement on behalf of defendant that these writings were made sometime in the year 1983. One wonders why Aruna would make these notes in 1983 and not produce it earlier. The attempt to prove these writings through the deposition of Vijaysudha Talwar is futile and I am of the view that even assuming these writings were to be proved, the contents of these writings do not allude to any facts that are relevant. These writings (Article Y-3) do not in any manner seek to contribute or assist the Court in arriving at a conclusion as to whether or not the Will is validly executed. Besides the evidence sought to be led on the basis of these writings are far-fetched and cannot come to the assistance of the defendant. The defendant in my view has not been able to establish that the will was signed by the plaintiff and that it is not executed by the testator.

85. As far as the sound and disposing state of mind is concerned, it is a matter of record that the defendant himself have admitted that the testator was ill after 1988. There is nothing to indicate that there was a marked deterioration in the health of the testator to the extent that no will could have been validly executed or that he was not in a sound and disposing and sound state of mind. Reliance sought to be placed on the omission to examine Dr. Kriplani is of no consequence. The fact that Dr. Kriplani was present on 21st March, 1989 has not been disputed. Mr. Sanglikar’s argument that Dr. Kriplani was not examined and/or did not agree to depose since he was aware that the will was not validity executed itself presupposes that the will was executed. The question is when the will was executed, whether the testator was of sound and disposing mind. To this extent, it was for the defendant to establish that the deceased was not of sound and disposing mind. It was open to the defendant to lead evidence of the Doctors who had treated the deceased from time to time. It is not in dispute that the deceased was hospitalized on a few occasions and had also consulted a neurophysician. The defendant has made no attempt to establish that the consultation with the neurophysician was occasioned due to the deceased not being fully possessed of his mental faculties to such an extent that he was incapable of executing a will and to that extent the argument that the deceased was not in a position to execute the will cannot be accepted. Merely because Dr Kriplani did not give evidence will not justify in drawing inference that the deceased was incapable of executing the will.

86. In conclusion this Courts conscience is satisfied to enable me to hold that the Will is valid. I am of the view that the defendant has failed to establish that the will was not validly executed and the plaintiffs have established that the will was validly executed by the deceased testator. In that view of the matter, the suit must succeed and I therefore pass the following order;
(i) Caveat is dismissed.
(ii) The probate of the last will and testament of Tarapada Chatterjee shall be granted.
(iii) No orders as to costs.

87. At this stage, Mr. Sanglikar on behalf of the defendants seek stay of operation of this order since he intends to file an appeal. In that view of the matter, registry shall not issue the grant for eight weeks.

Ordered accordingly.