Bombay High Court
Prakash Sunderdas Aswani vs Mahesh Kishinchand Aidasani on 16 July, 2019
Equivalent citations: AIRONLINE 2019 BOM 1718, (2019) 4 RECCIVR 87
Author: G.S. Patel
Bench: G.S.Patel
Prakash S Aswani v Mahesh K Aidasani
ts38-2007-J01-F.doc
ATUL
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 38 OF 2007
IN
TESTAMENTARY PETITION NO. 554 OF 2006
Prakash Sunderdas Aswani,
Adult, Aged 48 years, Hindu, Occ.: Self-
employed, Domicile Bombay, Indian
Inhabitant, residing at 25, Versova Venus
Coop Hsg Soc Ltd., Plot No. 6, SVP Nagar,
MHADA Layout, Andheri (West), Mumbai
400 053,
being the sole executor named under the last
Will of Testatrix ...Plaintiff
~ versus ~
Mahesh Kishinchand Aidasani,
Indian Inhabitant of Mumbai, residing at Park
View, 4th Floor, Road No. 10, Opp. Madhu
Park, Khar, Mumbai 400 052 ... Defendant
A PPEARANCES
FOR THE PLAINTIFF Mr SN Vaishnava, with Nupur Mukherjee,
& Kritika S Kothari, i/b M/s. NN
Vaishnawa & Co.
FOR THE DEFENDANT Mr UJ Makhija, with Preeti Shah & Ravi
Irle, i/b Preeti A Shah.
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CORAM : G.S.Patel, J.
JUDGMENT RESERVED ON : 26th February 2019
JUDGMENT PRONOUNCED ON : 16th July 2019
JUDGMENT:
SECTIONS A. BACKGROUND....................................................................3 B. THE 18TH APRIL 2006 WILL..............................................5 C. AIDASANI'S CAVEAT.........................................................9 D. ISSUES...................................................................................9 E. EVIDENCE...........................................................................10 F. THE POSITION OF THE SADHU VASWANI MISSION.............................................11 G. ISSUES NOS. 1 AND 2........................................................12 G.I Preparation and Execution of the April 2006 Will............................................................14 G.II Aidasani's Involvement with the Deceased's Assets and Estate.....................................26 H. RE: ISSUE NO 3 & FINAL ORDER....................................37 A. BACKGROUND
1. The Petition seeks probate to a Will dated 18th April 2006 1 of one Pushpa Thakurdas Aswani ("the Testator"; "Pushpa"). She 1 Compilation, Exhibit "P2", p. 8.
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2. The contest to the April 2006 Will, strangely in such cases, comes from an outsider to the family, one Mahesh Kisshinchand Aidasani ("Aidasani"). He claims Pushpa made an earlier Will dated 8th February 2006, i.e. just a few months before the April 2006 Will, and under it, appointed him the sole executor. 2 Both Wills are therefore said to have been made very shortly before Pushpa's demise. Aidasani himself has filed Testamentary Petition No. 853 of 2008 for probate to the February 2006 Will. This is contested and is now numbered as Testamentary Suit No. 61 of 2009. It was filed some 22 months after Prakash filed the present Petition for probate of the April 2006 Will.
3. Aidasani claims that in the February 2006 Will, Pushpa left her estate largely to the Sadhu Vaswani Mission ("SVM"). This is a well-known charitable trust headquartered in Pune of the followers of Sadhu Thanwardas Lilaram Vaswani. The SVM's non-sectarian spiritual head until his passing in 2018 was Jashan Pahlajrai Vaswani, better known as 'Dada' Vaswani. Aidasani himself never held an ofcial position with the SVM. He challenges the April 2006 Will that Prakash propounds chiefy on the ground that it is a forgery and a fabrication. He claims it was 'got up' only after Aidasani 2 Compilation, Exhibit "D8", p. 279-284.
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4. Pushpa was a well-educated professional. For several years, she was a Professor of Hindi at the Lala Lajpatrai College in Mumbai. The family was large and, as we shall see, evidently of ample means. It once held a plot of land at 14th Road, Khar, Mumbai 400 052. On this, the family put up a construction, initially of ground and two upper foors. The Aswani family took up the entire second foor. The ground and first foors contained apartments. A society known as the Ish Kripa Cooperative Society came to be formed. Later, some time in 1974, the family constructed an additional foor. Pushpa lived on this newly-constructed third foor with her sister, Rupawati, also unmarried.
5. Pushpa was one of five children of one Thakurdas Aswani. She had three brothers, Sunderdas, Lekhraj and Chimanlal and a sister Rupawati. Pushpa, Rupawati and Chimanlal remained unmarried. Lekhraj had three children, two daughters and a son, Renu, Shubhra and Janak respectively. Sunderdas had five children, three daughters and two sons: Sushma, Shalini, Hema, Prakash (the Plaintif ) and Mahesh.
6. Rupawati and Pushpa lived jointly in the third foor apartment of the Khar property until the former's death in 1997. Pushpa Page 4 of 40 16th July 2019 ::: Uploaded on - 06/08/2019 ::: Downloaded on - 14/04/2020 18:18:47 ::: Prakash S Aswani v Mahesh K Aidasani ts38-2007-J01-F.doc continued living there alone. The only access to this third foor was from some of the Aswani family apartments on the second foor, viz., Flat Nos. 9 and 10 occupied by Janak, Lekhraj's son. This question of access, as we shall presently see, is sought to be deployed in arguments by Aidasani.
B. THE 18TH APRIL 2006 WILL
7. The executor named in the April 2006 Will is Pushpa's nephew, Prakash, her brother Sunderdas's son. Prakash fills many roles in this narrative: he participated in the preparation of the Will; he is its named executor; he was present at the time of its execution; he is a beneficiary under it (along with his siblings and paternal cousins); and he propounds it. The attesting witnesses are also related to Pushpa (and therefore Prakash). The first attesting witness is one Ramesh R Tinani, Prakash's brother-in-law, the husband of his second sister Shalini. The second attesting witness is one Dhimant Prabodh Poladia. He is Prakash's nephew, his sister Sushma's son.
8. The April 2006 Will is a typed document of three pages. Pushpa has signed in full at the foot of each page. Her signature appears against the execution clause at page 3. Below this in handwriting are the names, addresses and signatures of the two attesting witnesses Tinani and Poladia.
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9. Page 1 of the Will has two important clauses. The second appoints Prakash as the executor. But the opening clause is central to this dispute. I believe it is best reproduced in full.
"I, KUM. PUSHPA THAKURDAS ASWANI, by profession a retired professor, adult Indian Inhabitant, aged 69 years, residing at Flat No. 13, Ish Kripa, Plot No. 617, 14th Road, Khar, Mumbai 400 052; being of sound mind and memory, acting of my own free will without any coercion, infuence, duress or compulsion; make this, my last WILL and Testament. I hereby revoke all former Wills, Codicils and Testamentary Dispositions if any, made by me and declare this to be my last WILL and Testament. I wish to specifically revoke an earlier Will made by me on 8th February 2006 wherein a major portion of my estate had been bequeathed to Sadhu Vaswani Mission, Pune because:
I have donated several lakhs of rupees to Sadhu Vaswani Mission, Pune; with specific and exact instructions that they create a corpus fund in the name and style of "Shree Krishna Arpanam Kendra" into which this money donated by me, be put. "Shree Krishna Arpanam Kendra" should then invest the money; and the interest earned therefrom should be spent towards purchase of medical equipments like crutches, wheelchairs, artificial limbs and other such supplies, for poor and needy patients. I have now realized that Sadhu Vaswani Mission has failed and deliberately neglected in following my explicit instructions. My repeated reminders to their representative and the only son-in-law of Dada Jashn Vaswani, and who was also the executor of my earlier Will, Mr. Mahesh Kishinchand Aidasani to follow my instructions, have been totally ignored and sidelined. I am thus convinced that Sadhu Vaswani Mission does not deserve to receive any further monies from my estate. I have also realized that I had been coerced, cajoled and lured by Mr Mahesh Kishinchand Aidasani into naming Sadhu Page 6 of 40 16th July 2019 ::: Uploaded on - 06/08/2019 ::: Downloaded on - 14/04/2020 18:18:47 ::: Prakash S Aswani v Mahesh K Aidasani ts38-2007-J01-F.doc Vaswani Mission as a beneficiary of my estate. Moreover, during my recent hospitalization at Holy Family Hospital, Bandra, the attitude of members of Sadhu Vaswani Mission in general, and Mahesh Aidasani in particular has made me learn that their sole motive was to extract maximum money from me. Even during my illness, they were only concerned about money and not my health or well-being. With their behaviour it seems that they were waiting for my death. I am now thus, vide this Will; debarring Sadhu Vaswani Mission and/or anyone claiming to represent them, including Mahesh Kishinchand Aidasani; from receiving even a single rupee out of my estate."
10. There is thus a clear reference in the April 2006 Will to the February 2006 Will. There is also the mention of donations of "several lakhs of rupees" to SVM, evidently a reference to the transactions Pushpa efected in her lifetime. Then there are the statements in the April 2006 Will that Pushpa's wishes in relation to these donations were not followed. The April 2006 contains statements against Aidasani, in explicit and damaging phrasing. The opening paragraph assumes importance because (a) it explicitly acknowledges the existence and making of the earlier February 2006 Will and (b) furnishes reasons for its revocation.
11. Page 2 contains listing of Pushpa's eight heirs, the children of her two brothers, Sunderdas and Lekhraj. Then there is a mention of her third foor Flat No. 13, and her investments. On page 3, we find a set of bequests in clauses (a) to (f ). The remainder clause at page 3 is to be read with the clause regarding Pushpa's immovable assets on the previous page. In short, she left her estate including her fat and assets to the eight children of her two brothers, her Page 7 of 40 16th July 2019 ::: Uploaded on - 06/08/2019 ::: Downloaded on - 14/04/2020 18:18:47 ::: Prakash S Aswani v Mahesh K Aidasani ts38-2007-J01-F.doc nephews and nieces. These are the only ones who would succeed to her estate on intestacy. The specific bequests at page 3 were in relatively minor amount of Rs. 25,000/- (three bequests) and Rs. 50,000/- (one bequest) and Rs. 5,000/- (two bequests). These third party bequests are, incidentally, unchanged between the two Wills of 2006.
12. There is also no doubt that under the February 2006 Will, Pushpa's nieces and nephews, her eight heirs at law, stood to gain only Rs. 2 lakhs, the rest going to SVM. Under the April 2006 Will, in contrast, they inherited significantly more.
13. The fate of this Testamentary Suit, propounding the April 2006 Will, will materially afect Aidasani's Testamentary Suit No. 61 of 2009 propounding the February 2006 Will. If Prakash succeeds in this suit, Aidasani automatically fails in his. But the converse is not true: both suits may fail. The failure of Prakash's (present) suit will not result in the automatic success of Aidasani's suit. Prakash and his siblings may yet be able to disprove the February 2006 Will. Should both petitions fail, Pushpa's eight legal heirs are no worse of. In fact, they are in exactly the same position as they would be if Prakash's suit succeeds. The reason is self- evident. In the April 2006 Will that Prakash propounds Pushpa's bequests conformed to the line of succession to her estate. All her legal heirs received equal bequests. Even without the Will they would take her estate in exactly the same manner. If the present Will is not proved, only the third party bequests would fail.
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14. In his Caveat, Aidasani said that the April 2006 Will was fabricated and got up. It was 'not disclosed to him' when he met the Aswani family members after Pushpa died. He claims he made a condolence visit and, at that time, disclosed the February 2006 Will. This is his pleading.3 It is also his evidence. Aidasani then claims he was told by Hema Tinani, Prakash's sister of a plan to fabricate a Will. He alleges that the first attesting witness Tinani was set up. He says it is suspicious that the two attesting witnesses were related to Pushpa (though it was also argued on his behalf and suggested in cross-examination that she should have got attesting witnesses who were even more closely related, a contradiction he never resolves). Importantly, he says that Pushpa made a nomination of her Ish Kripa fat No. 13 personally in his favour.
D. ISSUES
15. On 19th April 2011 Mrs RS Dalvi J framed three issues. These are set out below with my findings against each:
SR. ISSUES FINDINGS
NO.
1. Whether the Will and Testament of Yes.
the deceased Kumari Pushpa
Thakurdas Aswani dated 18th April
3 Compilation, p. 55.
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SR. ISSUES FINDINGS
NO.
2006 was validly executed?
2. Whether the said Will has been
No.
forged and fabricated?
3. What relief, if any the Plaintif is The Suit is decreed.
entitled to? The Petition is made
absolute. Probate is
ordered to be issued.
E. EVIDENCE
16. Prakash led the evidence of three witnesses. The first, PW1, was himself.4 PW2 was Poladia, the second attesting witness. 5 PW3 was Tinani, the first attesting witness.6 Aidasani only led his own evidence.7 Importantly, Aidasani made no attempt whatsoever to lead evidence of any handwriting or forensic expert on the question of forgery.
17. Both side led several documents in evidence. Aidasani put in evidence the February 2006 Will. 8 This was incorrectly received in evidence since Aidasani had not complied with Section 68 of the Evidence Act by leading the evidence of at least one attesting witness. But that cannot be undone. It is sufcient to clarify that the 4 Compilation, Evidence Afdavit of PW1 Prakash Aswani, pp. 81-84. 5 Compilation, Evidence Afdavit of PW2 Dhimant Poladia, pp. 85-87. 6 Compilation, Evidence Afdavit of PW3 Ramesh Tinani, pp. 88-90. 7 Compilation, Evidence Afdavit of DW1 Mahesh Aidasani, pp. 251-264. 8 Compilation, Exhibit "D8", pp. 279-284.
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F. THE POSITION OF THE SADHU VASWANI MISSION
18. One important qualification is, I believe, necessary at the forefront before I turn to the evidence itself. In my analysis of the evidence, and in particular Aidasani's evidence including of his dealings with Pushpa and her estate, I make no comment at all on SVM itself. The Trustees of the SVM did attempt to be impleaded in the matter. I declined this application. Aidasani himself has no ofcial position with SVM. He is not an ofce-bearer. He is not a Trustee. It seems that his connection, apart from being a follower, is that he and his wife manage a guest house or hostel in Pune that is owned and run by the SVM for the use of SVM visitors and followers. As far as SVM is concerned, that is all. It may have been named a beneficiary in the February 2006 Will, but it has played no role, and taken no stand in these proceedings.
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19. I propose to deal with these issues together since both Mr Vaishnava for the Plaintif and Mr Makhija for the Defendant have addressed me on all aspects of the two issues together.
20. I have understood Mr Makhija to say that while there is no direct evidence from Aidasani on the allegation of fabrication, this is a conclusion that in his submission is irresistible and one I must of necessity draw. Mr Vaishnava on the other hand argues that having said not once but twice (in the Afdavit in Support of the Caveat 9 and in the Evidence Afdavit10) that the Will was 'forged', it was for Aidasani to adduce evidence of this forgery. He cannot substitute evidence with conjecture or surmise. Having carefully considered the rival submissions, I am not persuaded that there is any substance at all in Aidasani's claim of forgery. There are very many reasons to hold against him, and while I express my appreciation of the exemplary detachment and objectivity that Mr Makhija has brought to bear on the conduct of his case by confining himself to an attempt to show that the Will propounded cannot possibly be genuine, his labours are undermined by Aidasani's own conduct.
21. There is no dispute before me about Pushpa's mental faculties or mental health. Nobody has alleged that she was incapable of understanding what she was doing. The question of soundness of mind and whether this is to be established is simply not part of the lis between the parties. In any case, the rival Wills are far too close 9 Compilation, p. 53.
10 Compilation, p. 251.
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22. A few dates are relevant. Aidasani admittedly did not know Pushpa much before September 2005.11 He claims he got to know her as a fellow attendant at SVM satsangs.12 His evidence is that she expressed a desire to make a bequest to SVM. 13 It seems that between September and November 2005 she made donations of Rs. 46 lakhs to the SVM.14 Her specific instructions was that the amount was to set up the Shree Krishna Arpanam Kendra with the corpus and to use the income for specified purposes such as cataract surgeries etc for the poor and needy.15
23. Pushpa took ill on 31st March 2006. She was admitted to the Holy Family Hospital at Bandra. She was in that hospital for 12 days, until 12th April 2006, when she was discharged and returned home. Six days later she supposedly made the 18th April 2006 Will. A week later, on 25th April 2006 Pushpa was admitted to hospital again, this time to the Ramkrishna Mission Hospital in Mumbai. Nine days later, on 4th May 2006, she died.
11 Compilation, pp. 252-253, paragraphs 4 to 6. 12 Compilation, p. 252, paragraph 4.
13 Compilation, p. 252, paragraph 4.
14 Compilation, pp. 252-253, paragraphs 4 and 6. 15 Compilation, p. 253, paragraph 6.
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24. The evidence about the preparation of the April 2006 Will is entirely contained in the evidence of PW1, the Plaintif Prakash. 16 In his brief Afdavit in lieu of examination-in-chief, he explains the circumstances in which the April 2006 Will came to be made. He begins by describing his relationship with Pushpa: she was his father's sister, his paternal aunt. Their relations were cordial. He also says that he assisted her -- he does not give particulars -- in regard to her investments and portfolio management. In paragraph 3 he says that in March 2006 Pushpa was admitted to the Holy Family Hospital in Bandra. According to him, Pushpa told him that she had donated a large amount to the SVM to establish a trust to be called the Shree Krishna Arpanam Kendra, the interest from the corpus of which was to purchase the medical equipment for the poor and needy. Aswani then says that Pushpa told him that she was persuaded or lured into executing an earlier Will in favour of the Mission. She complained that the trust had not been set up and the Mission was not using her money for its intended purpose. He claims that she told her she felt cheated by the conduct of those associated with the trust, in particular Aidasani. It was in these circumstances and in this state of concern that she supposedly told Prakash she had decided to revoke the earlier Will and execute a new one bequeathing her estate to her relatives. She intended her wealth to remain in the family. Prakash then says Pushpa instructed him in regard to the making of her Will. He responded by saying he could help her in preparing the Will after she recovered.
16 Compilation, pp. 82-84, paragraphs 3 to 5.
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25. In paragraph 4, PW1 Prakash says Pushpa was discharged from the Holy Family Hospital shortly thereafter. On 14th April 2006 he went to her house. She gave him instructions for preparing a fresh Will. He noted down the points. He prepared a draft on his computer at his home. He then went to her house on 16th April 2006, a Sunday. He goes on to say that 'at the time of finalization' of this Will, Pushpa asked him to act as an executor. They decided on this. She named him as the sole executor of this Will. They then decided to call two relatives, PW3 Tinani and PW2 Poladia as attesting witnesses after speaking with them. They decided that they would all met two days later on Tuesday, 18th April 2006 at Pushpa's residence at 7.30 pm. Prakash says that he accordingly took a final print out from his computer and reached Pushpa's house at 7.00 pm on 18th April 2006. Poladia and Tinani arrived a little later. In presence of all of three men, Pushpa signed each page of the April 2006 Will. She signed at the end of pages 1 and 2 and in the middle of page 3. She then gave the April 2006 Will to Tinani and he counter-signed as an attesting witness. Then she asked Poladia to witness her execution and he did so by signing after Tinani. The signatures being done, Pushpa gave the April 2006 Will to Prakash. He says that she was of sound mind and she acted of her volition. He identifies her signature.
26. I must note now the significant aspects of this examination-in- chief in the context of the settled law on the subject. It is clear that Prakash played an active role in the preparation of the April 2006 Will. It is he who drafted it. It is he who took instructions for its preparation. It is in him that Pushpa allegedly confided or at least to him that she conveyed her testamentary wishes. It is Prakash who Page 15 of 40 16th July 2019 ::: Uploaded on - 06/08/2019 ::: Downloaded on - 14/04/2020 18:18:47 ::: Prakash S Aswani v Mahesh K Aidasani ts38-2007-J01-F.doc drew it up both in draft and in final copy. Although he did not sign it himself, he was indeed present at its execution. He was involved in the summoning of the attesting witnesses, both related to Pushpa. He was also the sole executor named in that Will. It is true that he has not received a disproportionate bequest, but he is undoubtedly a legatee.
27. Prakash's description of the making of the April 2006 Will is Mr Makhija's starting point. He submits that having regard to the very many roles Prakash played in bringing into existence of this April 2006 Will, of necessity it is surrounded by suspicious circumstances. There is Prakash's involvement throughout in its making. There is only his deposition in regard to the circumstances in which it came to be made. There is undoubtedly the confation of his roles as scribe, draftsman, executor, beneficiary and a potential witness, though not an attesting witness to the execution of the Will;17 and it is he who additionally propounds the Will and is a Plaintif in this case. Mr Makhija's submission is that it is settled law that in a situation like this a Court will approach the testamentary instrument in question with considerable suspicion, and that it is for the plaintif seeking probate to explain these suspicious circumstances.
28. In cross-examination, PW1 Prakash was asked whether he had actually physically prepared a draft of the Will on 16th April 2006. 18 17 In view of Sections 68 and 69 of the Evidence Act, and Rule 384 of the Bombay High Court (Original Side) Rules, had neither attesting witness been available to give evidence, it would have been Prakash who would have had to depose to the execution of the April 2006 Will. 18 Qn. 314, p. 202.
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29. Some suggestions put to Prakash do not really further Aidasani's case. For instance, he was asked whether it was true that the two attesting witnesses Tinani and Poladia stayed further away than her close relatives who resided in the same building and that neither of the attesting witness was a blood relative.25 Prakash agreed with both suggestions but I fail to see how this assists Aidasani. Apart from anything else, it conficts with his assertion in the Afdavit in Support of the caveat that the April 2006 Will is suspicious precisely because it was witnessed by two relatives. 26 19 Qn. 315, p. 202.
20 Qn. 361, p. 202.
21 Qn. 312, p. 201.
22 Qn. 312, p. 201.
23 Qns. 227-229, p. 177.
24 Qns. 117-120, p. 141.
25 Qns. 249-250, p. 183.
26 Compilation, p. 55.
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30. Prakash was then asked whether Pushpa had shown him the February 2006 Will. He said she had. Asked when, he said that after she was discharged from the Holy Family Hospital and that she showed him a copy. This was so that he could draw on the earlier will for the names of the non-family legatees.29 What he was shown was a copy. This line of cross-examination is revisited several dozen questions later. This is the cross-examination that followed: 30 Q. 304 Would it therefore be correct to say that she had given you instructions about the drafting of her Will while she was in hospital?
A. Yes. She did give me her instructions of revoking the Will via which she left her estate to Shri Krishna Aparnam Kendra via Sadhu Vaswani Mission and also instructed me of her desire to leave her estate to her nephews and nieces.
27 Qns. 251-252, pp. 183-184.
28 Qn. 252, p. 184.
29 Qns. 253-255, pp. 184-185.
30 Qns. 304-310, pp. 198-200.
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A. For the simple reason that my aunt had to show me her previous Will to obtain the details of her assets to be distributed amongst her best friend, cousin, servant, etc. She also assured me of showing me a copy of this Will after discharge from Holy Family Hospital.
Q. 306 Do you wish to suggest that without seeing the earlier Will, she could not give you instructions for making of a new Will?
A. I repeat she did instruct me even during her stay at the hospital to make her last Will and testament bequeathing her entire estate to her nephews and nieces. I was waiting for her to get well, be discharged from the hospital, come home and then give me detailed instructions.
Q. 307 Do you wish to suggest that your aunt did not known what were her assets and she had to therefore see her previous will and find out the nature of the assets and the extent of estate? A. I have never stated that she wished to see her previous Will to know about her assets. I had said that I needed to see the previous Will only to know the names and amounts hat she bequeathed to her best friend, cousin, servant, etc. Q.308 Can you tell us why were you required to see the previous Will to know the names of the persons and the amounts bequeathed by your Page 19 of 40 16th July 2019 ::: Uploaded on - 06/08/2019 ::: Downloaded on - 14/04/2020 18:18:47 ::: Prakash S Aswani v Mahesh K Aidasani ts38-2007-J01-F.doc aunt to such persons in her Will dated 8th February 2006?
A. So that I may comply with her instructions of retaining only that part of her Will dated 8th February 2006.
Q. 309 Can you tell us how did that prevent you at that time from making at least a draft of the Will? A. Like I said earlier, I was awaiting my aunt's detailed instructions.
Q. 310 Would it therefore be correct to say that she was unable to give you instructions at that time? A. In so far as her bequeaths to her best friend, cousin, servant, etc. are concerned, yes.
31. The cross-examination continues like this:31 Q. 320 I further put it to you that the alleged will was not even prepared with the lifetime of the deceased Pushpa Thakurdas Aswani, but was prepared by you after her death.
A. The Will was drafted by me on the instructions and express desire of my late aunt Pushpa Aswani and this is her last Will and Testament signed by her during her lifetime.
Q. 321 I further put it to you that your aunt Pushpa Aswani never gave you instructions in any time to prepare her alleged Will and that all statements made by you to suggest that the will has been prepared by you on her instructions are 31 Qns. 320-322, pp. 205-206.
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A. I have already stated and enumerated the facts as they took place during my answers to your earlier questions. I repeat here that this Will is the last Will and Testament of my aunt and has been worded as per her express will and desire and also signed by her in her full senses.
Q. 322 I further put it to you the alleged Will has been prepared by you only after the Will dated 8th February 2006 of your aunt was shown to you by Mahesh Aidasani after her death.
A. I have already replied to your queries in my earlier answers. A copy of the Will dated 8th February 2006 was shown to me by my aunt during her lifetime and not by Mahesh Aidasani.
32. I am unable to understand how Aidasani could have put a case to PW1 Prakash about Pushpa's mental faculties in the cross- examination. This was no part of his pleadings. His case in pleadings rests on only two assertions. First, that the Will is a fabrication and was procured after Aidasani visited the family to ofer condolences on Pushpa's demise. He says it was at this time that he disclosed the Will, a pattern of conduct that is excessively odd and certainly contrary to any normal practise at a condolence visit in any strata of Indian society. His first case, therefore, is that the Will that Aswani propounds was back-dated. The second assertion is that there was bad blood and enmity between Pushpa and her family members, and, for this reason too, the Will was got up and fabricated. But this destroyed in the cross-examination of PW1 Prakash itself. Aidasani's suggestion in cross-examination was to the contrary -- that she was Page 21 of 40 16th July 2019 ::: Uploaded on - 06/08/2019 ::: Downloaded on - 14/04/2020 18:18:47 ::: Prakash S Aswani v Mahesh K Aidasani ts38-2007-J01-F.doc on good terms with her family -- and this was put as a suggestion, i.e. Prakash was asked whether it was true that his brother Mahesh and Pushpa got along. He said they did, and added that it was in fact Mahesh who got her admitted to the Holy Family Hospital. 32 If this be so, the question of fabrication on account of enmity will not survive.
33. What remains is the question of the April 2006 Will being back-dated after Aidasani disclosed to Aswani family during a condolence visit a copy of the February 2006 Will. As I have previously noted, what Aidasani presents in support of this is not scanty evidence, but no evidence at all. There is not a thing to establish that the signatures on the April 2006 Will are not Pushpa's. If, according to Aidasani, the April 2006 Will was made only after he disclosed the February 2006 Will, then this necessarily postulates that Pushpa's signatures on the April 2006 Will are forgeries; for the disclosure of the February 2006 Will, according to Aidasani, was made for the first time at a condolence visit, i.e. after Pushpa passed. Aidasani made no attempt at all to lead any evidence of forgery. He leaves it to speculation.
34. Prakash's testimony must be read as a whole. It is impermissible to read some portions in isolation sans context. Prakash made no attempt at all to conceal anything about his involvement in the preparation of the April 2006 Will. He was wholly candid about it. He explained why it was to him that Pushpa turned in the last weeks of her life.
32 Qn. 251, p. 183.
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35. Aidasani's cross-examination of the Prakash's case contains another glaring omission. The allegation of fabrication or forgery must, necessarily, extend beyond Prakash to the two attesting witnesses. If there was a fabrication, the two attesting witnesses had to have been participants in it. Yet Aidasani never once confronted either attesting witness with the suggestion that they took part or had any hand in the fabrication of the April 2006 Will or that it was later got up. Instead, PW3 Tinani in cross-examination deposed that Prakash prepared the Will on Pushpa's instructions. 33 PW3 Tinani was also asked what PW1 Prakash had told him, and he confirmed that Pushpa gave Prakash instructions.34 The wordings of these suggestions is important:35
36. Q. 95 Would it therefore be correct to say that Mr Prakash Aswani told you that he had received instructions and had had discussions with Pushpa Aswani on 16th April 2006?
A. I do not know when the discussion was held between Pushpa Aswani and Prakash Aswani.
Q. 96 I put it to you that you only agreed to attest the document when you learnt that your wife was to get some beneft under the document?
A. It is not correct because Prakash Aswani told me 33 Qn. 93, p. 239. He was also asked whether he signed an earlier Afdavit supporting the Petition. He said he had not but I will disregard this because he was not aforded the minimal courtesy of being shown the referenced Afdavit and was more or less put to a memory test and asked to recall it. 34 Qns. 93-96, pp. 239-240.
35 Qns. 95-96, pp. 239-240.
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(Emphasis added) Both questions put a positive case; i.e. a case propounded by the Defendant, Aidasani. In the first, Question 95, the suggestion is "would it therefore be correct to say", meaning that according to him what is stated in the question is true, viz., that Pushpa did have a discussion with Prakash and did give him instructions on 16th April 2006. Having put it this way, Aidasani cannot now be heard to deny his own suggestion. The second question, Q.96, actually afrms the attestation of the Will. The reason for an attestation is irrelevant. What matters, and what matters only, is whether the attesting witness duly witnessed the execution of the Will as required by Section 63 of the Succession Act (by seeing it being signed or receiving an indication of it having been signed, etc). Once, therefore, Aidasani himself suggested that Tinani had indeed witnessed the Will, he can hardly be heard to deny the due execution and attestation of it.
37. PW3 Tinani also said he knew of the Will being prepared but not who prepared it.36 He accepted that Prakash told him to act as an attesting witness and that he was present at the execution of the April 2006 Will.37 36 Qns. 59-61, p. 124.
37 Qn. 175, p. 157.
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38. Mr Makhija's submission that PW1 Prakash had been cut out by his own immediate family takes us nowhere.38
39. The only evidence that Aidasani obtained in cross- examination was that Pushpa had some disagreement about the access to her fat against Janak, one of Lekhraj's sons. But that is hardly a ground to dislodge the entire Will. 39 Prakash asserts that all diferences were bridged,40 and Aidasani does nothing to dislodge this. There is no doubt that it was her family which attended to her in hospital.41
40. Prakash has throughout referred to the manner in which Aidasani, far from passing on Pushpa's assets to the SVM, got many of Pushpa's assets clandestinely transferred to his own. 42 There is no cogent explanation for this.
G.II Aidasani's Involvement with the Deceased's Assets and Estate
41. Aidasani's involvements in Pushpa's life divides itself into three more or less distinct phases. The first is from the time when he says he first came into contact with her and runs up to the date of 38 Qn. 314, p. 325.
39 Qns. 35, 38, 40, 57-60 and 88-95, pp. 116-133. 40 Qn. 115, p. 138.
41 Qns. 52-54, p. 122.
42 Qns. 27, 28,& 29, cross-examination of PW1, p. 114; Qns. 111, 112 p. 137, Qn. 136, p. 145, Qn. 142, p. 147, Qn. 210, p. 172, Qn.214, p. 173, Qns. 193-196, p. 165-166.
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42. Aidasani filed an Evidence Afdavit of some 14 pages afrmed on 21st September 2011.43 In this, he says that he knew her as a fellow satsangi at SVM gatherings. He says that Pushpa had approached Dada Vaswani saying she wanted to donate part of her estate to the Mission. How he knew this Aidasani does not say, nor does he lead any evidence to substantiate or corroborate it. His earliest contact with her seems to have been in September or October 2005.44 He says she deposited Rs. 6 lakhs in two tranches and signed two endowment forms against which two separate receipts were issued.45 He produced these endowment forms.46 He then says that Pushpa frequently sought his assistance to sell her stocks and shares in diferent companies. This again is without explanation: Pushpa clearly had her own brokers. Yet we are asked to believe that she, despite all her evident prudence, entrusted her financial afairs to someone she knew only as a satsangi, and chose to transact through his broker one Krant Narayan Agnani, rather than her own. Aidasani then speaks in paragraph 7 of his Evidence Afdavit of advice that Dada Vaswani gave her; 47 again there is no way Aidasani could have had any personal knowledge of this.
43 Compilation, pp. 251-264.
44 Compilation, p. 252, paragraph 5.
45 Compilation, p. 253, paragraph 5.
46 Compilation, p. 254, paragraph 5.
47 Compilation, p. 254, paragraph 7.
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43. What follows in paragraph 7 of that Evidence Afdavit is puzzling and is contrary to the previous assertions. According to Aidasani, Pushpa's intentions were to make a donation to the SVM. Why then she would have invested Rs. 10 lakhs in bonds with a nomination in Aidasani's favour is unclear. There were several such nominations. Mr Makhija would have it that these were held and are being held by Aidasani more or less in trust for the SVM. Again, there is no evidence of this. There is no evidence that anyone at the SVM was ever told of this. There is certainly no reason to have followed so circuitous a route if this was indeed so.
44. Aidasani then speaks of the February 2006 Will. In many ways, it is not dissimilar to the April 2006 Will Prakash propounds. Like Prakash for the April 2006 Will, Aidasani was involved in the preparation and present at the execution of the February 2006 Will that he propounds. He says as much in his Afdavit. 48 This Will was apparently registered.49 Aidasani claims Pushpa's nephew, Janak, and her niece harassed Pushpa precisely because they had learnt of the February 2006 Will.
45. In paragraph 11 of Aidasani's Evidence Afdavit comes the most astonishing deposition.50 By his own admission, Aidasani was in Hong Kong between 25th April 2006 and 7th May 2006. Yet, according to him, on 27th April 2006, Pushpa made a written complaint against Janak and his sister to the Khar Police Station. This was not given to the police by Pushpa herself. It could not have 48 Compilation, p. 255, paragraph 8.
49 Compilation, p. 256, paragraph 9.
50 Compilation, pp. 257-258, paragraph 11.
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46. But it does not end at that. In paragraph 12, Aidasani goes on to say that on 27th April 2006 Pushpa executed a nomination form in respect of her fat. The named nominee was none other than Aidasani. Again, this is supposedly done while Aidasani was in Hong Kong and while Pushpa was in hospital during her last illness. This form is marked in evidence.51 The entire document has typewritten information: it was obviously prepared elsewhere. It purports to have the signature of Rakesh Melwani and Jay Motiani as witnesses, at least one of whom was involved in the so-called police complaint. The nomination form itself was filed with the society on 4th May 2006, the very date of Pushpa's death. Aidasani's cross-examination shows us that there were in fact no witnesses properly so-called, and that, at best, if her signature was indeed obtained on this document, it could only have been while she was in hospital.52 51 Exhibit "D10" p. 299.
52 Qns. 143-146, p. 371.
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47. All this is decidedly peculiar. If Aidasani's stand is that the February 2006 Will makes the SVM and not he personally a beneficiary, then this nomination form in his personal name is inexplicable. It does not further his argument. It significantly harms it. But Aidasani's narrative, to paraphrase Lewis Carroll, only gets curiouser and curiouser. In paragraph 17 of his Evidence Afdavit, Aidasani says that on returning from Hong Kong -- obviously after 7th May 2006 -- he called on Pushpa's nephews and nieces to ofer them his condolences. It was at this time, he says in all solemnity, that he told them of the February 2006 Will that he propounds. He says he gave them a copy. I find this strains credulity. No one goes to ofer condolences with a copy in hand of a Will that cuts out the bereaved, those who are being condoled. No one uses that occasion of all occasions to even mention the existence of any such document. Why anybody should choose a condolence visit to disclose the Will and give a copy is unclear. There is also a reference in this evidence to one Hema Tinani. She is one of Sunderdas's daughters, Prakash's sister. It is on this basis that Aidasani says that the April 2006 Will propounded by Prakash was put up after Pushpa's demise.
48. Aidasani was cross-examined before me in Court on 27th February 2015,53 and this was concluded before Mr Justice AK Menon on 19th November 2015, 1st December 2015 and 15th February 2016.54 In cross-examination, Aidasani agreed that he had 53 Compilation, pp. 338-347.
54 Compilation, pp. 348-373.
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56 Qn. 21, p. 342.
57 Qn. 3, p. 340.
58 Qns. 10-12, p. 341.
59 Qns. 15-16, pp. 341-342.
60 Qn. 22, pp. 342-343.
61 Qn. 23, p .343.
62 Qns. 26-27, pp. 343-344.
63 Qn. 30, p. 344.
64 Qns. 31-36, pp. 344-345.
65 Qn. 42, p. 346.
66 Qn. 43, p. 346.
67 Qn. 44, p. 346.
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49. Mr Makhija raise a question of how the attesting witnesses to the April 2006 Will could have entered Pushpa's fat if the only access was Flat Nos. 9 and 10, but I hardly think it is the law for an attesting witness to describe every step of his journey. This submission is entirely immaterial.
50. The result of this is that Aidasani's version turns out to be remarkably unconvincing. In fact, it is decidedly suspicious. There is for one thing an admitted connection between Hema, Pushpa's niece, and Aidasani. They were in school together. 72 Aidasani lent money to Hema's husband Dilip.73 This is important in the context of 68 Qn. 55, p. 350.
69 Qn. 147, pp. 371-372.
70 Qns. 150-151, p. 372.
71 Exhibit "P2", p. 374.
72 Qn. 184, p. 160.
73 Qn. 184, p. 160.
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A. Even on the day, she was taken to the hospital, my aunt kept repeating that she was deeply 74 Exhibit "D19", pp. 322-323.
75 Qns. 28-29, pp.114-115.
76 Qn. 297, p. 196.
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51. This is not a question that ought to have been asked at all. Having obtained this answer in cross-examination, nothing further was done and PW1's testimony was not further tested. This testimony has therefore gone entirely uncontroverted.
52. To Mr Vaishnav's submission that there is simply no explanation how Aidasani could have taken or encashed any investments in his own name and continued to do so because the dividends kept coming in, there is no answer. Curiously, Pushpa gave Prakash the original share certificates of which Aidasani was allegedly a nominee.77 Aidasani himself claims to have met Pushpa in the ten-day window between her two hospitalisations; 78 yet she never gave Aidasani those shares. In itself, this refects her intention to revoke her earlier February 2006 Will, even assuming it was correctly made.
53. I took on record a statement tendered to me and which I marked 'M1' for identification. This clearly shows that in the City Union Bank savings account at the Khar branch, an account in 77 Qns. 261-263, pp. 186-187.
78 Qn. 49, p. 349.
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54. On the evidence, therefore, contrasting these two competing cases, I see very little reason to hold in favour of the Defendant, Aidasani. There are far too many unexplained circumstances and suspicions about his own conduct. He does not explain transfers from Pushpa's holdings to his own name, the nominations in his personal name, the peculiar police complaint while she was in hospital, and most of all does not support his case with any evidence whatsoever. On the other hand, Prakash must succeed not only because the opposition is without substance but even on the evidence he led. There is no efective cross-examination of Prakash or his witnesses. Significantly, the failure to put a case to Prakash and the two attesting witnesses about fabrication and backdating is fatal.79
55. Whether or not Aidasani has a caveatable interest is itself debatable. He would not succeed to any part of Pushpa's estate on intestacy. He is not a beneficiary of even the earlier Will. I am, however, leaving this question open simply because the existence of the earlier Will, though not its validity, is undisputed and Aidasani is the named executor in it. It is not necessary therefore to consider the further authorities in this behalf.80 79 Muddasani Venkata Narsaiah v Muddasani Sarojana, (2016) 12 SCC 288. 80 Elizabeth Anthony v Michel Charles John Chown Lengera, (1990) 3 SCC 333; Krishna Kumar Birla vs Rajendra Singh Lodha & Ors, (2008) 4 SCC 300.
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56. As to the law on the subject, this is well settled 81 and I will only summarise it. First, this is not a jurisdiction of suspicion but one of a circumspection. Second, suspicion alone is not enough to return a finding that a Will is bad. What must be tested is the sufciency of the evidence explaining the so-called suspicious circumstances surrounding the Will. Third, a Will is to be proved like any other document. It only needs additional evidence in consonance with Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. Fourth, where the burden is on a defendant or an opponent to a Will, that burden cannot be discharged without evidence merely by saying that there exist certain allegedly suspicious circumstances. Once the due execution of the Will and testamentary capacity are proved, the burden is firmly on the defendant to dislodge the case so established. At the cost of repetition, I note that Aidasani has taken no steps whatsoever to prove fabrication other than alleging it. He led no independent evidence of it. In this context, and given the fact that he says that the Will was backdated, fabrication must necessarily mean forgery. Of this there is no evidence whatsoever.
57. Ultimately this matter has to be viewed from a single perspective. The April 2006 Will that Prakash propounds is one that divides the estate more a less equally between Pushpa's heirs, with a few bequests to others close to her life. But these third-party 81 Surendra Pal & Ors v Dr (Mrs) Saraswati Arora & Anr, (1974) 2 SCC 600; Madhukar D Shende v Tarabai Shedage, (2002) 2 SCC 85; Daulat Ram & Ors v Sodha & Ors (2005) 1 SCC 40; Mahesh Kumar v Vinod Kumar & Ors, (2012) 4 SCC 387; Vidhayadhar v Manik Rao & Anr, AIR 1999 SC 1441 (1); Kattinokkula Murali Krishna s Veeramalla Koteshwara Rao & Ors, (2010) 1 SCC 466; H Venkatachala Iyengar v BN Thimmajamma & Anr, AIR 1959 SC 443.
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58. Finally, the portrait that emerges from the evidence on record of Pushpa herself militates against any acceptance of Aidasani's opposition. She appears to have been a singularly determined, focussed, educated, and strong-willed person. She grew her wealth over time, and was clear about what she wanted to do with it and what she did not. As I have noted, there is no dispute that she did make the February 2006 Will; she says so herself in the April 2006 Will. But she also provides good reason for revoking the earlier Page 36 of 40 16th July 2019 ::: Uploaded on - 06/08/2019 ::: Downloaded on - 14/04/2020 18:18:47 ::: Prakash S Aswani v Mahesh K Aidasani ts38-2007-J01-F.doc testament, and these reasons are now borne out by the evidence on record, including of the manner in which Aidasani conducted himself. Once its execution is proved, and Pushpa's testamentary capacity is not in doubt, the statements in the April 2006 Will must be accepted as a truthful account of her sentiments. It is not possible to hold that the Will is genuine but its contents are not.
H. RE: ISSUE NO 3 & FINAL ORDER
59. The opposition is without merit. The suit is decreed. Probate is ordered to be issued to the Plaintif, Prakash Sunderdas Aswani, of the Will dated 18th April 2006 of the deceased, Pushpa Thakurdas Aswani.
60. Having regard to the circumstances of the case there will be an order of costs in favour of the Plaintif and against the Defendant, to be shared equally by the named relatives in Pushpa's Will, in the amount of Rs. 10 lakhs, an amount that I consider reasonable as litigation and other costs. I do so because this defence was utterly frivolous, self-serving, dishonest and caused immeasurable loss to Pushpa's heirs. In the name of the SVM, Aidasani went about doing things that were entirely self-serving. It is open to the Plaintif and the other heirs to have this award of costs donated to the SVM or to any other registered charity of their choice.
61. The statement I took on record on 22nd February 2019 as 'M1' shows that the following amounts are in the City Union Bank account. By an order of 13th July 2007, SJ Vazifdar J (as he then Page 37 of 40 16th July 2019 ::: Uploaded on - 06/08/2019 ::: Downloaded on - 14/04/2020 18:18:47 ::: Prakash S Aswani v Mahesh K Aidasani ts38-2007-J01-F.doc was) directed Aidasani to deposit all dividends received from Pushpa's holdings in a new Union Bank of India account. This was never done.
16TH JULY 2019
62. After arguments concluded, today, 16th July 2019, I pronounced judgment, and only sought a clarification in regard to the amount Aidasani brought into court. I took on record an updated or revised statement from Ms Preeti Shah, who is on record for Aidasani and marked it 'M2' for identification with today's date. It has complete particulars of all dividends or income Aidasani received into the City Union Bank account from Pushpa's holdings, the amounts he deposited in this Court, the amounts realized by the Prothonotary & Senior Master, etc. The last page indicates that the entire amount from the City Union Bank account has been brought into the Court. The original statement showed an amount of Rs.82,07,230.00. The Prothonotary and Senior Master realised an amount of Rs.22.25 lakhs. The amount realised and deposited by Aidasani with the Prothonotary and Senior Master comes to Rs. 73,88,529.42. Both sides agree that there is no amount at all remaining in the City Union Bank. I will accept this statement.
63. Mr Vaishnava on behalf of Aswani seeks liberty to withdraw the amount deposited in this Court with all accrued interest. In fairness, Mr Makhija states that he has no instructions either way, i.e. whether or not Aidasani will appeal this order. Since this order finally disposes of the Suit, and Aidasani has a right of appeal, I will Page 38 of 40 16th July 2019 ::: Uploaded on - 06/08/2019 ::: Downloaded on - 14/04/2020 18:18:47 ::: Prakash S Aswani v Mahesh K Aidasani ts38-2007-J01-F.doc direct that the deposit is to be continued until the expiry of the period provided for filing an appeal. Thereafter, the Plaintif, Aswani, will be at liberty to withdraw the entire amount deposited with all accrued interest subject of course to a continuation of the deposit by an order of the Appeals Court.
64. By an order of 13th July 2007, this Court appointed a Receiver of Pushpa's fat. In view of the present order, the Receiver will necessarily have to stand discharged but without passing any accounts and subject to payment of his costs, charges and expenses by Aswani, the Plaintif, but this order also will take efect after the expiry of the statutory period provided for filing an appeal.
65. Similarly, the issuance of the grant in accordance with this decree is deferred until the expiry of the statutory period for filing an appeal.
66. Drawn up decree dispensed with.
67. In view of this order, Testamentary Suit No.61 of 2009 filed by Aidasani for probate to the February 2006 Will fails. I have made a separate order today on that Testamentary Suit.
68. Original documents to be returned to the parties who filed them upon these being replaced by a compilation of a authenticated photocopies.
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69. The concluding portion of this Judgment is pronounced in open Court today. As I am unavailable from tomorrow, 17th July 2019, until 2nd August 2019, it may not be possible to upload the Judgment immediately but this will be done at the latest on or before 6th August 2019.
(G.S. PATEL, J.) Page 40 of 40 16th July 2019 ::: Uploaded on - 06/08/2019 ::: Downloaded on - 14/04/2020 18:18:47 :::