Bombay High Court
Shobhana Sahadev Shah & Ors vs Sangeeta Porbanderwala & Anr. ... on 10 February, 2017
Author: G.S. Patel
Bench: G.S.Patel
Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors
TS-30-2004-SHAH-V-PORBANDERWALA.DOC
GSP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY & INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 30 OF 2004
IN
TESTAMENTARY PETITION NO. 130 OF 2002
1. SHOBHANA SAHADEV SHAH,
Occupation: Business, Age: Religion:
Jain of Bombay Indian Inhabitant
residing at C-10, Aasawari, 214, Veer
Savarkar Marg, Mumbai - 400 016.
2. NAGIN P CHHEDA,
Occupation: Business, Age: Religion:
Jain also of Mumbai Indian Inhabitant,
having his address at Parshwa Sadan,
Navyug Co-operative Housing Society
Ltd. Road No. 4, Vile Parle (West),
Mumbai - 400 066.
3. DR. DHIMANT GALA,
Occupation: Business, Age: Religion:
Jain also of Mumbai, Indian Inhabitant
having his address at 22 Radhika
Apartments, Behind UCO Bank, JVPD
Scheme, Road No. 10, Vile Parle
(West), Mumbai - 400 056. ... Plaintiffs
~ versus ~
1. SANGEETA PORBANDERWALA,
a U.S. Citizen of Indian origin, having
her address at 162-C South Post Road,
304, Weston, F-33331, United States of
Page 1 of 73
10 February 2017
::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 :::
Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors
TS-30-2004-SHAH-V-PORBANDERWALA.DOC
America acting through her sister and
duly Constituted Attorney Mrs. Babita
Fernandes having her address at 6A,
Stella Maris, Off Sitladevi Temple
Road, Mahim, Mumbai - 400 016.
2. BABITA FERNANDES,
Of Mumbai Indian Inhabitant, residing
at 6A, Stella Maris, Off Sitladevi
Temple Road, Mahim, Mumbai - 400
016.
3. RATAN SHANTILAL CHHEDA,
Of Mumbai Indian Inhabitant residing
at Tara Niwas, Sarojini Road, Vile
Parle-West, Mumbai - 400 056.
4. KOKILA PREMJI SHAH,
Of Mumbai Indian Inhabitant residing
at Parreira Sadan, "B" Wing, Room
No. 15, 3rd Floor, Opp. Natraj Studio,
Andheri-East, Mumbai. ... Defendants
A PPEARANCES
FOR THE PLAINTIFFS Mr. H. J. Thacker, Senior Advocate, with
U. Patel i/b Ms. K. Shah.
FOR DEFENDANT NOS. Mr. S. Bharucha, with Ms. B. Bhansali,
1 AND 2 Mrs. F. Behramkamdin i/b M/s. FZB
and Associates.
FOR DEFENDANTS NO. Mr. Z. Behramkamdin, i/b M/s. K.V.
3 AND 4 Chheda and Co.
Page 2 of 73
10 February 2017
::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 :::
Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors
TS-30-2004-SHAH-V-PORBANDERWALA.DOC
CORAM : G.S.Patel, J.
JUDGMENT RESERVED ON : 7th May 2015
JUDGMENT PRONOUNCED ON : 10th February 2017
JUDGMENT:
INDEX A. INTRODUCTORY ................................................................. 4 B. FACTUAL BACKGROUND .................................................. 6 C. THE CAVEATS IN OPPOSITION........................................16 D. ISSUES ................................................................................. 18 E. THE EVIDENCE ON RECORD: AN OVERVIEW...............19 F. RE: ISSUE NO. 1 -- DUE EXECUTION............................. 20 G. RE: ISSUE NO.2 -- UNDUE INFLUENCE, FRAUD, UNCERTAINTY .................................................................. 44 H. RE: ISSUE NO.3 -- WHETHER THE DEFENDANTS PROVE THAT THE AMOUNTS THEY ACCEPTED FROM THE EXECUTORS WERE UNDER PROTEST AND WITHOUT PREJUDICE........... 67 I. CONCLUSIONS AND ORDER ............................................73 Page references follow the numbering of the record.
Page 3 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC A. INTRODUCTORY
1. This contested probate petition is unlike most in one critical, central aspect: neither of the two attesting witnesses to the Will is willing to depose or make an affidavit that accords with the 1st Plaintiff's version of the due execution of the Will. Specifically, both attesting witnesses deny the presence of the testator at the time they signed the Will; the first, a solicitor of this Court, Mr Ramesh Makhija, admits only to a telephonic communication with the testator. So does the second attesting witness, one Dr Vinod Shetty. Neither attesting witness filed an Affidavit in lieu of Examination- in-Chief. Their examinations-in-chief were taken in Court. The Plaintiffs were permitted specifically to put questions to Mr Makhija in the nature of cross-examination. Similar leave was sought for Dr Shetty, but I find no record of any specific permission. Both attesting witnesses were then cross-examined by the Defendants.
2. The case turns on a single determinant: whether the attesting witnesses' evidence, taken as a whole, should be believed. If it is, and neither saw the testator sign the testamentary document but, at best, received only a telephonic confirmation, and neither signed as attesting witnesses within his eyesight, can such a Will be said to have been 'proved in its solemn form'?
3. On the question of due execution and attestation, a most unusual submission came from the Plaintiffs: they said the 1st Plaintiff's 'version' of execution and attestation should be preferred to that of the two attesting witnesses. In other words, the Plaintiffs Page 4 of 73 10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC accepted that these versions did not accord. They said the attesting witnesses' evidence -- their own witnesses -- should not be believed. This seems to me to have been an attempt to bring the case within Section 71 of the Evidence Act: where an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. Neither Mr Makhija nor Dr Shetty denied execution and attestation at all. They only denied the presence of the testator. He was not present before them when he signed it, and he was not present when each of them, separately, attested it. The question is therefore not of an attesting witness's denial of execution, but whether, first, with this evidence from the attesting witnesses, the 1st Plaintiff's contrary evidence should receive any weightage, and, second, whether the evidence on record meets the requirements of Section 63(c) of the Indian Succession Act.
4. Taking an overall view of the evidence, I cannot with any conviction claim to be satisfied that the due execution and attestation of the Will has been established, or that the Will has been properly proved in its solemn form. Having heard Mr Thacker for the Plaintiffs, and Mr Behramkamdin and Mr Bharucha for the Defendants, I have held for the Defendants, dismissing the suit (and, therefore, the Petition).
5. Three issues were framed. The first was about due execution. The second was about the testator's dispositive capacity. Again, for the reasons that follow, I am not persuaded that the Will reflects the necessary testamentary capacity. The Defendants point to a number of circumstances that make it improbable that the testator knew or Page 5 of 73 10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC fully understood the dispositions he is supposed to have made, and there is, too, evidence of his rapidly failing health at about the time of the Will.
6. Finally, there is the question of whether the Defendants, having received benefit under the Will, are estopped from assailing it or are put to an election. I have considered here the legal position and the facts as they emerge from the evidence. I have found there is no such restriction or impediment in the Defendants' way.
7. On all three issues, therefore, I have held for the Defendants and against the Plaintiffs.
B. FACTUAL BACKGROUND
8. Sahadev Deraj Shah (in this judgment, variously "the Testator", "the deceased", or "Sahadev") died in Mumbai on 5th January 1998. Sahadev was earlier married to a lady named Pushpa. They had two daughters, the 1st and 2nd Defendants ("Sangeeta" and "Babita"). Sahadev and Pushpa divorced on 16th February 1978. Sahadev remarried. His second wife is the 1st Plaintiff ("Shobhana"). They had a son ("Punit"). At the time of his death, Sahadev's widowed mother ("Devkabai") was also alive. Sahadev also had four brothers and six sisters. Defendants Nos. 3 and 4 ("Ratan" and "Kokila") are two of his married sisters. They claim a share in his estate through Devkabai, who died on 5th September 1998, apparently at the age of 100. Though there is an assertion she Page 6 of 73 10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC left her own Will, there is no evidence of probate ever being obtained of it.
9. Shobhana claims Sahadev left a Will dated 15th September 1997.1 The document is typed and has a formal quality. We find Sahadev's signature at the bottom left of the first two pages, and on the last page against the execution clause. There are two witnesses:
Mr Makhija and one Dr Vinod Shetty ("Dr Shetty"). Each has signed. Mr Makhija has written his name, the words "Advocate & Solicitor" and placed his rubber stamp beneath. Dr Shetty has placed his rubber stamp and, in his hand, his registration number 42308. The Will has the docket of Mr Makhija's firm. The Will appoints Talakshi Shah (Sahadev's brother), one Dhimant Gala and one Ramesh C. Ashar as the executors. Clause 3 says Shobhana and Punit are Sahadev's only heirs and legal representatives, an evident misstatement. In Clause 4, the testator says he has immovable properties in Mumbai and Kutch. The Mumbai property is Deepak Talkies, the fabled cinema house of a bygone era in Parel (lately seeing a resurgence following a renovation). Clause 6 speaks of a residential flat at Mahim. To Shobhana and Punit, Sahadev left a right of residence, use and occupation of this flat. In Clause 11, Sahadev directed the net income from his various business interests and investments after deducting expenses be paid to Shobhana and, after her, to Punit. In Clause 12, Sahadev left Rs 2 lakhs to be divided equally between his grandchildren alive at the time of his death, and Rs. 10 lakhs to be divided between Sangeeta and Babita (or the survivor of the two). This Will has no final bequest at all 1 Record, Exhibit D, pp. 394-396.Page 7 of 73
10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC other than the monetary dispositions in Clause 12. There is no residuary clause. For the rest of the estate, and by all accounts this was considerable, there are only life-interests created.
10. Sahadev died on 5th January 1998. On 20th January 1998, Shobhana, Punit, Sangeeta, Babita and one of the named executors, Talakshi Shah, met at Mr Makhija's his office. Shobhana says that in their presence, Mr Makhija retrieved the original Will from his drawer, read it out and handed it over to Talakshi Shah. Mr Makhija agrees he read out the Will, but insists he never had the original: it was given to him by Talakshi Shah.
11. The executors seem to have paid out the monetary bequests, at least in part. On 2nd April 1998, Babita wrote to Mr Makhija, saying she had yet received nothing under the Will.2 Mr Makhija wrote to Shobhana the next day, 3rd April 1998, saying he had a letter from Babita and referring to the matter of obtaining probate to Sahadev's Will. He asked Shobhana to meet him as soon as possible to discuss this.3 On 6th June 1998, Talakshi wrote to Babita and paid some portion of her legacy.4 On 9th September 1998,5 Sangeeta wrote to the executors saying she did not accept the correctness of the Will and accepted the amount sent to her without prejudice to her rights and contentions. On 17th September 1998, Babita wrote to the executors complaining about the delay in obtaining probate. She referenced the monetary legacies in the Will and said she had 2 Ex. P-1, p. 465.
3 Ex. P-22, p. 466.
4 Ex. P-2, p. 467.
5 Ex. D-20, p. 843.
Page 8 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC received only part.6 On 30th September 1998,7 Babita wrote to the three executors, Shobhana and Punit specifically disputing the Will. She claimed a one-fourth share in the estate. She demanded they not take any steps to prove the Will. Sangeeta too sent a virtually identical letter to the executors, Shobhana and Punit on 8th October 1998.8 On 7th November 1998, the executors wrote to Sangeeta enclosing a cheque for the balance legacy, Rs.1.25 lakhs.9 Sangeeta accepted this.
12. In 1998, Shobhana filed Miscellaneous Petition 73 of 1998 seeking the removal of the three named executors. On 12th November 1998, the parties tendered signed Minutes of Order (dated 11th November 1998) and took an order in those terms.10 Ramesh Ashar and Talakshi Shah were removed as executors. Shobhana and one Nagin Chheda (present Plaintiff No 2) were appointed in their place. Dhimant Gala continued as an executor.
13. On 15th March 2001, Sangeeta and Babita filed Administration Suit No. 1252 of 2001.11 In this, they disputed the Will and pointed out that though Sahadev died in 1998, there was yet no application for probate.
6 Ex. P-3, p. 487.
7 Ex. P-4, pp. 488-489.
8 Ex. P-5, pp. 490-491.
9 Ex. P-6, p. 100.
10 Ex. P-18, pp. 493-496.
11 Record, pp. 871-912.
Page 9 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC
14. The present Plaintiffs filed this probate petition on 6th November 2001. Contrary to the requirements of Rule 374 of the Bombay High Court (Original Side) Rules, the Petition was not accompanied by an affidavit of either of the attesting witnesses. The record shows the Registry raised an objection. The petition names Shobhana, Punit, Sangeeta and Babita as heirs (Devkabai having died by then).
15. Some two years later, on 23rd June 2003,12 the Plaintiffs' erstwhile Advocates, M/s IR Joshi & Co, wrote to Mr Makhija forwarding an affidavit for his affirmation and asking when it might be convenient for him to affirm this. There is no explanation for the intervening delay. On 7th July 2003, M/s IR Joshi & Co wrote to Mr Makhija asking if it was 'possible' for him to sign the affidavit as an attesting witness.13 Mr Makhija replied on 22nd July 2003.14 He said he was not concerned with the litigation between Shobhana on the one hand and Sangeeta and Babita on the other. Shobhana had, he said, already called on him and asked for his affidavit. Mr Makhija said the affidavit sent to him was factually incorrect -- and this is now of signal importance. He said Sahadev and Shobhana called at his residence about a month before the date of the Will. They sought his advice. Mr Makhija himself did not draft the Will. On 15th September 1997, Shobhana brought the Will to Mr Makhija's office. She was alone. Sahadev's signature was already on the document. Mr Makhija telephoned Sahadev, who told him that he (Sahadev) had signed the Will. Mr Makhija then signed it. At Shobhana's 12 Ex. P-24, pp. 554-556.
13 Ex. D-7, p. 557.
14 Ex. P-11, p. 523-524.
Page 10 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC request, Mr Makhija called Dr Shetty, a personal friend, and asked him too to sign the Will. Dr Shetty agreed. Shobhana took the Will in original to Dr Shetty's dispensary and clinic -- again, she was alone. She took Dr Shetty's signature on the Will.
16. This is important because the Will's execution clause says in terms in the execution clause that Sahadev signed it as his last Will and Testament:
"after the same has been read over to him in the joint presence of himself and us who, at his request and in such joint presence, have hereunto set and have subscribed our names as attesting witnesses."
17. I must here comment on this fashion, and it is nothing but a fashion, of insisting on the 'joint presence' of both attesting witnesses. This comes from a form in our High Court (Original Side) Rules, Form No. 102, clause no. 3. The wording of this form has now, in the minds of practitioners, passed into the realm of substantive law. This is unthinking. It is wrong. The form is incorrect and should be changed, or, at a minimum, there must be a remark allowing for such changes as circumstances demand. As it stands, the wording of this form is contrary to the explicit words of Section 63(c), viz., "it shall not be necessary that more than one witness be present at the same time". As far as I can tell, the provision in the form has been borrowed from English law, possibly carried forward from a time before the Succession Act, 1925. As a matter of law, no supporting affidavit needs compulsorily to contain a statement that both witnesses were present at the same time.
Page 11 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC
18. To continue: At this stage, Mr Makhija did not explain why he had signed the Will in such peculiar circumstances or got Dr Shetty to sign as the second attesting witness. As we shall see, this version does not conform to Shobhana's testimony; and the entire matter hinges on this.
19. M/s IR Joshi & Co replied to Mr Makhija on 24th July 2003 claiming (I believe wrongly) there was a 'normal presumption' that both attesting witnesses were present at the time when the testator signed the Will.15 The Plaintiffs' attorneys said they would place these facts before the Court for necessary directions. No such application was ever made.
20. Two years went by. In March 2005, Shobhana filed a complaint against Mr Makhija with the Disciplinary Committee of the Bar Council, numbered as DC Case No 85 of 2005. She alleged Mr Makhija was in collusion with Sangeeta and Babita.
21. Sangeeta and Babita entered caveats on 21st April 2004.16 They filed two affidavits in support dated 27th July 200417 and 25th July 2006.18 On 13th July 2005, Ratan and Kokila entered a caveat19 and filed an affidavit in support dated 13th July 2005,20 and, later, a 15 Ex. D-6, pp. 558-560.
16 Record, pp. 60-62.
17 Record, pp. 63-68.
18 Record, pp. 69-82.
19 Record, pp. 90-92.
20 Record, pp. 93-98.
Page 12 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC second dated 19th July 2006.21 They made it clear they claimed through Devkabai.
22. In September 2005, M/s IR Joshi & Co, in consultation with Mr Nitin Thakker, Senior Counsel, then seem to have recast the 'draft' Affidavit to be signed by Mr Makhija. The recast draft affidavit preserved Mr Makhija's version of the events, including, importantly, that Sahadev was not present before either Mr Makhija or Dr Shetty. On 14th September 2005, Mr Makhija finally affirmed an affidavit. He did so in the High Court registry.22 He was accompanied by an advocate from the Plaintiffs' attorneys' office. In this affidavit, Mr Makhija confirmed that Shobhana alone came to his office with a Will already signed by Sahadev. He personally telephoned Sahadev. At Shobhana's request, he 'arranged' for another witness, Dr Shetty.
23. On the same day, Dr Shetty also affirmed an affidavit.23 He said in this that on 15th September 1997, Mr Makhija telephoned him and asked him to attest his friend's Will. Shobhana came alone to Dr Shetty's dispensary. Dr Shetty wanted personal confirmation. He says he spoke with Sahadev on the telephone at a number Shobhana gave him.
24. On 24th September 2005,24 Mr IR Joshi of M/s IR Joshi & Co wrote to Mr Nitin Thakker, Senior Counsel, requesting him to act as 21 Record, pp. 99-101.
22 Ex. D-12, pp. 145-149.
23 Ex. D-12, pp. 150-154.
24 Ex. D-9, p. 142.
Page 13 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC a stakeholder. Specifically: that Mr Thakker should hold with him a letter from Shobhana withdrawing her complaint against Mr Makhija to the Bar Council and the two affidavits now affirmed by Mr Makhija and Dr Shetty.
25. On 4th October 2005, Shobhana wrote to Mr Thakker.25 This letter set out her contrary version of the execution of the Will. She began by saying she was no longer represented by M/s IR Joshi & Co, and no further correspondence should be addressed to them. As to the Will, she said this: that early morning on 15th September 1977, Sahadev telephoned Mr Makhija at his home. There was urgency, she claimed, because Sahadev and she had to travel to America that very night as Sahadev was to undergo a heart surgery in Milwaukee. Mr Makhija asked Sahadev and Shobhana to come to his house at once. There, Mr Makhija said they would need a second witness. He arranged for Dr Shetty to be the second attesting witness. In her letter, Shobhana also said she had no desire to prosecute her complaint against Mr Makhija, but only required affidavits to be filed 'as per the requirement of Section 63 of the Indian Succession Act'. Only when that was done, she said, could her letter withdrawing her complaint against Mr Makhija be filed and used.
26. There followed another prolonged quietus till 7th February 2006,26 when Shobhana wrote to Mr Nitin Thakker again, this time demanding that Mr Makhija and Dr Shetty file affidavits that 'conclusively proved' the due execution of the Will as required by 25 Ex. D-16, pp. 561-566.
26 Ex. D-17, pp. 567-568.
Page 14 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC the Indian Succession Act and the Bombay High Court (OS) Rules. Only then, she said, would she withdraw her complaint; and till such affidavits were filed, her letter of withdrawal was to be held in trust. The matter had not, she said, been 'settled', contrary to Mr Makhija's assertions before the Bar Council.
27. On 1st March 2006, Mr Makhija filed an affidavit before the Bar Council.27 In this, he pointed out that following discussions between Mr IR Joshi, Mr Nitin Thakker and himself, Mr IR Joshi received draft affidavits. Mr Thakker made minor corrections. The drafts were approved. These were got engrossed on ledger paper for affirmation by Ms Lata Bachani of M/s IR Joshi & Co, and both Mr Makhija and Dr Shetty then affirmed these affidavits. The originals of both affidavits were in escrow, pending withdrawal of the complaint. What is important in this affidavit, however, is what follows. Mr Makhija then said Sahadev was a family friend. He often came to Mr Makhija's office and got personal work done by Mr Makhija's staff and juniors. Mr Makhija denied preparing the draft Will -- in 1997, Sahadev and Shobhana called on him at his residence and showed him the draft Will. He said Shobhana got the draft probate petition prepared by one of his juniors, but never reverted on the draft petition.
28. On 7th March 2006, Mr Nitin Thakker wrote to Shobhana in reply to her two previous letters.28 He confirmed that Mr Makhija's 27 Ex. D-2, pp. 597-604.
28 Ex. D-15, pp. 174-176.
Page 15 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC affidavit was prepared in conformity with the stand he took in his letter of 22nd July 2003.
29. In this narrative, I have somewhat departed from the usual practice of only setting out the Petition and the Caveats and then proceeding to the rest. Much of this material comes in evidence, both oral and documentary, and is addressed later, but I felt it essential to set it out at the beginning, first, to provide the broad framework of this matter, and, second, to focus on what appears to me to be a central issue -- the discordant versions regarding the execution of the Will.
C. THE CAVEATS IN OPPOSITION
30. In their Affidavits in Support of their Caveats,29 Sangeeta and Babita mentioned Mr Makhija's letter of 22nd July 2003 to M/s IR Joshi & Co. They alleged fraud. In the second Affidavit in Support, they added that Sahadev was seriously unwell with a chronic heart ailment for six months before he died. In September 1997 -- the Will is of 15th September 1997 -- Sahadev underwent an angioplasty in Milwaukee, USA. The surgery was not a success. There was trouble with the stent. His condition deteriorated. On 30th December 1997, he was admitted to the Lilavati Hospital in Mumbai for 'triple vessel coronary artery disease' and a liver malfunction. He had an emergency bypass surgery in December 1997 in Mumbai. During the last six months of his life, he was frail, 29 Record, pp. 60-62 and 63-68.
Page 16 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC feeble and could not manage his daily routine without assistance. He had 'lost his mental faculties and confidence', was depressed, unsure of himself and vulnerable. He was dependent on Shobhana. He was bedridden at about this time when Shobhana took his signature on the purported Will, thus exercising undue influence and coercion. Shobhana completely dominated him. In regard to the payout to them, Sangeeta and Babita confirmed having received Rs.4,66,666, but said they were then unaware of the dubious circumstances surrounding the Will. In any case, these amounts were accepted on a without prejudice basis. They reiterated that Mr Makhija's letter of 22nd July 2003 made it clear that the Will was not properly executed. The Will was void for uncertainty containing no absolute bequests to Shobhana and Punit and no bequests of any part of the estate other than the monetary bequests in Clause 12.
31. Ratan and Kokila, for their part, also took the plea of the Will being void for uncertainty containing no absolute bequests. They adopted Sangeeta's and Babita's stand.30 In the second affidavit, they too said Sahadev lacked the necessary testamentary capacity.31 30 Affidavit, pp. 93-98 at p. 95.
31 Affidavit, pp. 99-101.
Page 17 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC D. ISSUES
32. On 11th February 2008, VC Daga J framed issues. These are set out below, with my findings against each.
Sr Issue Finding
No
1 Whether the plaintiffs-petitioners prove that the
Will dated 15th September 1997 is validly No
executed?
2 Whether the defendants prove that the Will
dated 15th September 1997 [of the] late Sahadev Shah is invalid being outcome of undue Yes influence, fraud and [as] suffering from uncertainty?32 3 Whether these defendants prove that the amounts accepted by these defendants from the executors of the alleged Will of the deceased Yes were under protest and without prejudice to their rights and contentions?33 4 What relief and order? Suit dismissed 32 The word used was 'unworthy', clearly a typographical error. 33 'These defendants' evidently means Defendants Nos 1 and 2, Sangeeta and Babita.
Page 18 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC E. THE EVIDENCE ON RECORD: AN OVERVIEW
33. The Plaintiffs led the evidence of the 1st Plaintiff, Shobhana (PW1). She filed an Evidence Affidavit,34 on which she was cross- examined.35 Mr Makhija was summoned to give evidence (PW2).36 The Plaintiffs were allowed to put questions to him in the nature of cross-examination.37 The Defendants cross-examined him thereafter. Then the Plaintiffs called Dr Shetty (PW3). The record does indicate they sought leave to put questions in the nature of cross-examination to him too but I find no order permitting this. It matters little; the so-called examination-in-chief on commission was itself very like a cross-examination.38 The Defendants led the evidence of the 1st Defendant, Sangeeta, who filed an Evidence Affidavit dated 3rd April 2014, affirmed in the USA.39 She was cross-examined.40 Finally, Defendant No.4, Kokila, gave evidence. She filed an Evidence Affidavit41 on which she was cross- examined.42
34. The documents marked in evidence are compiled in Volumes D and D-1. I will refer to them as necessary.
34 Record, pp. 104-119.
35 Record, pp. 120-176.
36 Record, pp. 177-194.
37 Per AS Oka J, order dated 11 December 2009, pp. 184-188. 38 Record, pp. 260-275.
39 Record, pp. 285-293.
40 Record, pp. 309-324.
41 Record, pp. 325-329.
42 Record, pp. 330-366.
Page 19 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC F. RE: ISSUE NO. 1 -- DUE EXECUTION
35. Section 63 of the Indian Succession Act, 1925 prescribes the manner of execution and attestation of an unprivileged Will.
Section 63 --Execution of unprivileged Wills "Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary."
(Emphasis added) Page 20 of 73 10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC
36. These requirements are mandatory. There is no question of 'substantial compliance'. The options or variants are limited to those in the statute. What might constitute a 'personal acknowledgement' of the testator's signature? Will telephonic confirmation suffice? Even if it does, there remains the last requirement that the witness must sign in the presence of the testator.
37. I will turn first to the testimony of the Plaintiffs' three witnesses: Shobhana, PW1; Mr Makhija, PW2; and Dr Shetty, PW3.
38. Shobhana filed an Affidavit in lieu of Examination-in-Chief.43 In paragraphs 3 to 11 of this Affidavit, she deposed to the execution of the Will:
3. I say that my husband had first heart attack in 1982 and there was a second attack in 1987 when the doctors in Mumbai advised Engioplasty. As per doctor's advice we went to USA in 1987 where Engioplasty was done upon my husband. My husband again developed heart problem in 1992 and again Enjioplasty was done in 1992 in USA. In the year 1997 my husband again developed heart problem and Doctors advised my husband to get the stent inserted in the heart for which purpose we decided to go to USA.
4. In the midnight of 15th September 1997 i.e. night of 15th September 1997 and morning of 16th September 1997 myself and my husband decided to go to Florida, USA where my daughter was at that time staying, for the purpose of heart operation of my husband. My husband also told me that he had decided to make a Will before he would go to abroad and that my husband had requested to Mr. Ramesh 43 Record, pp. 104-119.Page 21 of 73
10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC Makhija to prepare the Will and he also informed me hat Mr. Ramesh Makhija had prepared the Will which was lying with Mr. Ramesh Makhija. My husband informed me that Mr. Ramesh Makhija had given time of 9.00 a.m. on 15th September at his residence for execution of the said Will.
5. Accordingly myself and my late husband proceed from our residence at Shivaji Park by about 8.00 am, to go to the residence of Mr. Ramesh Makhija at Nepeansea Road and we i.e. myself and my husband reached at Mr. Ramesh Makhija's residence at about 9.00 a.m. When myself and my husband reached the residence of Mr. Ramesh Makhija, on pressing the door bell by my husband one old gentleman opened the door and we were instructed to wait in the hall. After sometime Mr. Ramesh Makhija came in the hall and he chatted with my husband for five minutes. The said Mr. Ramesh Makhija also informed my husband that he had also arranged for attestation of the Will by second witness through his doctor friend one Dr. Vinod J. Shetty and that Mr. Ramesh Makhija had requested his friend Dr. Vinod J. Shetty to attest the Will as a second witness. The said Mr. Ramesh Makhija stated that he would attest the said Will as one witness and the said Dr. Vinod J. Shetty would attest the Will as a second witness.
6. Thereafter in my presence and in the presence of my husband the said Mr. Ramesh Makhija phoned Dr. Vinod J.
Shetty and requested him to visit the residence of Mr. Ramesh Makhija for attestation of the said Will as the second witness. Within 15 to 20 minutes of the call the said Dr. Vinod J. Shetty arrived at the residence of Mr. Ramesh Makhija. After the said Dr. Vinod J. Shetty arrived, the said Mr. Ramesh Makhija took my husband, myself and Dr. Vinod J. Shetty to an adjoining room where there was one cupboard. From that cupboard Mr. Ramesh Makhija took Page 22 of 73 10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC out the original Will which he prepared for my husband and the said Ramesh Makhija informed my husband to put his signature on all the pages of the Will and also in the margin at the end of the said Will in token of execution of the said Will by my husband. My husband went through the said Will and after going through the contents thereof put his signature on all the pages of the Will and also in the margin on the last page as appearing in the execution clause of the said Will in token of his execution of the said Will. The said Mr. Ramesh Makhija also instructed my husband to put the date as "15th" at the blank appearing on the last page of the said Will and my husband put the said date as instructed by Mr. Ramesh Makhija. I say that when my husband executed the said Will by putting his initials and signature as stated above, I myself as well as the said Mr. Ramesh Makhija and the said Dr. Vinod J. Shetty were present and all the three of us saw my husband executing the said Will.
7. Thereafter the said Mr. Ramesh Makhija put his initials and signed the said Will as attesting witness and in bracket put his name and his designation and he also affixed his rubber stamp as Advocate and Solicitors in the name of his Company Ramesh Makhija & Co. Thereafter the said Ramesh Makhija requested Dr. Vinod J. Shetty to put his signature as second attesting witness and at the request of the said Ramesh Makhija the said Dr. Vinod J. Shetty also put his signature as and by way of second attesting witness at the end of the said Will and the said Dr. Vinod J. Shetty thereafter put his rubber stamp beneath hi signature and put his Registration No. The said Original Will has been deposited with the Prothonotary and Senior Master, High Court, Bombay.
8. I say that both the said attesting witnesses namely Mr. Ramesh Makhija and Dr. Vinod J. Shetty attested the said Will and put their signatures as attesting witnesses in Page 23 of 73 10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC presence of my late husband the said deceased and myself and they put their signatures in the presence of each other and in the presence of my deceased husband and I also saw both the attested witnesses attesting the said Will and put their signatures thereon as attesting witnesses.
9. Thereafter my husband requested the said Mr. Ramesh Makhija to preserve the original Will with him and supply to us one Xerox copy duly notarized whereupon the said Mr. Ramesh Makhija informed my husband that he would notarize one Xerox copy from his office and supply to us the said notarized copy.
10. 1 say that accordingly the said Mr. Ramesh Makhija on the very same day notarized one Xerox copy of the said Will as true copy in his capacity as a Notary and furnished to my husband the said Xerox copy duly certified by him in his capacity as a Notary as true copy of the said Will. I hereby produce the said original certified true copy and the said Mr. Ramesh Makhija kept the original Will with him.
11. 1 say that on the very midnight i.e. on the midnight of 15th September 1997 myself and my husband proceeded to Florida, USA for the purpose of heart operation of my husband and we returned after twenty days from USA after the operation of my husband.
39. This is the entirety of Shobhana's case on due execution. What is curious about this narrative is that it found place in an evidence affidavit dated 10th March 2008. This is just under three years after both Mr Makhija and Dr Shetty affirmed their affidavits Page 24 of 73 10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC in the circumstances I set out earlier, both setting out a diametrically opposite version.44
40. Shobhana was cross-examined. Inconsistencies emerged. For instance, in her Evidence Affidavit, she said Sahadev had contacted Mr Makhija some time before 15th September 1997, and got him to draw up the Will and that a date for execution had already been fixed. In her letter of 4th October 2005 to Mr Nitin Thakker, she said Sahadev telephoned Mr Makhija only in the early hours of 15th September 1997, saying he wanted to make his Will urgently before travelling to America, and to which Mr Makhija responded by asking them to come to his house immediately. In cross- examination,45 she said she did not know when Sahadev and Mr Makhija spoke about meeting on 15th September 1997. She said, too, that Sahadev himself drove the car in which they travelled to Mr Makhija's residence, an unlikely circumstance given his heart condition. She also said she did not ask what the Will said, most unusual between spouses.
41. Mr Thacker says 15th September 1997 was a court holiday, and therefore (presumably), this explains why the meeting was with Mr Makhija at his residence and not at his office. But this is not easily reconciled with Shobhana's statement in her letter to Mr Thakker, which suggests that the meeting of 15th September 1997 was decided in some urgency and without advance planning. That 44 Also, Shobhana's evidence affidavit was made through M/s IR Joshi & Co, although on 4th October 2005, in her letter to Mr Nitin Thakker, Senior Counsel, she claimed she was no longer represented by them. 45 Record, p. 126, paragraph 7.
Page 25 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC 15th September 1997 was a court holiday also does not, on its own, establish that Mr Makhija's office was not open. As against this, Shobhana's evidence is that Mr Makhija was not only at home when he received her and Sahadev, but that he had with him his official rubber stamp. In his evidence, Mr Makhija deposed that he did not work out of his residence, and did not keep at home the paraphernalia of his daily practice.
42. These, and other similar inconsistencies, are in my view not determinative. They pale into insignificance when set against more fundamental contradictions and divergences in the rival versions. In this context, I note that both attesting witnesses were called by the Plaintiffs to give evidence in support of the due execution of the Will, i.e., to support Shobhana's narrative. Mr Makhija and Dr Shetty are mutually consistent in their respective versions, but these contradict Shobhana's in at least these respects: (1) both attesting witnesses maintain that Sahadev did not accompany Shobhana at all; (2) both attesting witnesses agree that they were not both present at the same time in the same place; and (3) neither of them saw Sahadev sign the Will, nor did they sign it as attesting witnesses in his presence.
43. I will grant Mr Makhija's evidence is far less satisfactory than it might have been. From a solicitor of this Court, one might reasonably expect greater precision and accuracy. Mr Makhija denied, for instance, that he had drafted or drawn up the Will.46 Yet it bears a docket with his firm's name on it. He made a similar 46 Paragraph 16, p. 194; paragraph 4, p. 179.
Page 26 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC statement in regard to the preparation of the probate petition.47 Indeed, Mr Makhija's evidence shows an egregious misstep. He was asked to narrate the events of 15th September 1997. His answer was to say that both Sahadev and Shobhana came to his house early morning on that day after telephoning him as Sahadev wanted to attest the Will. He immediately corrected himself to say that only Shobhana came, and she came not to his residence but to his office, a position he otherwise maintained throughout.48 He fully identified the Will and the signatures on it.49 He also confirmed that he had certified a photocopy with a notarial stamp,50 and that it was a true copy of the original.51 He claimed he told Shobhana of his version of the execution of the Will in 2003, but was unclear whether this was before or after he received the first draft from M/s IR Joshi & Co. He confirmed that he had not told anyone else, and certainly not in writing.52 He claimed Shobhana, Sangeeta and Babita knew the truth.53 Here lies another unexplained circumstance: Shobhana said Mr Makhija retained the original Will since Sahadev, he and Dr Shetty were all together when they signed it. Later in the day, she got a notarized photocopy from Mr Makhija -- when and how, she does not say. She went on to say that after Sahadev died, at the meeting held on 20th January 1998, Mr Makhija retrieved the original Will from a drawer in his office, read it out and gave the 47 Paragraph 4, p. 179.
48 Q.49, pp. 215-216.
49 Q.2, p. 178.
50 Ex. P-21, pp. 394-396.
51 Ex. P-20 52 Q.9, p. 183.
53 Q.11, p. 191.
Page 27 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC original to Talakshi Shah. This narrative is consistent with her version that Sahadev, Mr Makhija and Dr Shetty were all present at the same time. Now Mr Makhija said that he never had the original
-- indeed, given his version, he could not have had it, because, according to him, after Shobhana took his signature on it, she then took it to Dr Shetty's dispensary for his attestation. Mr Makhija said he did not produce the original at the meeting on 20th January 1998.54 It was Talakshi Shah who had it, and gave it to him to read out, which Mr Makhija did. How and when Mr Makhija made the notarized copy and how it found its way to Talakshi Shah is not explained at all. Mr Makhija was also unable to explain why he signed the Will in such circumstances as he said transpired when the Will itself said to the contrary, and specifically said in its body that all three were present at the same time. Mr Thacker submitted that there is a presumption, stronger in the case of a businessman and one with acumen, that he read the document before he signed it,55 and therefore Mr Makhija's testimony should be disbelieved. But this is surely a rebuttable presumption and, in any case, rejecting the testimony of an attesting witness does not, as we shall see, assist a propounder of a Will in a case such as this where the attesting witness does not dispute the execution of the Will or its attestation but refuses only to agree with a solitary circumstance, viz., the presence of the testator at the time when this execution and attestation was done.
54 Record, paragraph 12, p. 191.
55 Grasim Industries Ltd & Anr v Agarwal Steel, (2010) 1 SCC 83.
Page 28 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC
44. Mr Thacker sought leave from the Court to put questions to Mr Makhija in the nature of cross-examination, and, after hearing both sides, this leave was granted.56 Mr Makhija could not explain why, despite the statements in the Will which he said were incorrect, he called Shobhana to his office in regard to probate.57 He said this in writing for the first time in his letter of 22nd July 2003.58 Another unexplained circumstance is that Babita for some time was Mr Makhija's junior in his office. He maintained he had not prepared the draft Will, but that someone in his office might have. He also said he obtained telephonic confirmation from Sahadev before attesting the Will.59
45. Mr Thacker submits that the evidence of a hostile witness may be used in support of the case of the person who called him.60 There is no quarrel with this proposition, generally stated; but for this to be done, it must be first shown that there is evidence given by the hostile witness that supports the party calling him, not merely that his evidence is opposed to that of the party calling him.
46. Dr Shetty, PW3, was 59 years old at the time he gave evidence.61 He has a MBBS degree and a MD in paediatrics. He had practiced for over 20 years, here and abroad. In his evidence, he said 56 Per AS Oka J, order dated 11 December 2009, pp. 184-188. 57 Q.13, p. 192.
58 Ex. P-11, pp. 523-524.
59 Q.98, p. 229.
60 Koli Lakhmanbhai Chanabhai v State of Gujarat, AIR 2000 SC 210 :
(1999) 8 SCC 624.
61 Record, pp. 259-275.
Page 29 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC he attested the Will at Mr Makhija's request. He spoke to a person he was given to believe was Sahadev at a number provided by Shobhana. Dr Shetty also maintained that Shobhana came to him alone. Wanting to be satisfied, he telephoned Sahadev at a number Shobhana gave him, and then attested the Will. He did not budge from his position that Sahadev did not come to him, that Shobhana came alone to his dispensary, that he did not go to Mr Makhija's residence, and that he and Mr Makhija were not both present with Sahadev at the time of execution and attestation.
47. It is fruitless to multiply such factors. Mr Thacker would have it that Mr Makhija perjured himself, and that he did so to favour Babita, who once worked in his office, and that Dr Shetty was a 'mere puppet' in Mr Makhija's hands. The latter submission is without foundation, and the former is the purest conjecture. As Mr Behramkamdin points out, no consequence whatever attaches to an incorrect attestation. At best, Mr Makhija may be accused of having acted in too casual a fashion. A false affidavit, on the other hand, Mr Behramkamdin says, and I think quite correctly, is a very different thing. For a practicing legal professional, a finding of perjury is catastrophic. Mr Makhija stood to gain nothing by opposing Shobhana's narrative; indeed, he risked rather a lot, including his own credibility by going against her version. That he chose to do so, and did not waver from his chosen path seems to me to lend heft to his version of the events. Had he simply signed the draft first presented to him by M/s IR Joshi & Co, he would have affirmed a version consistent with the Will and with what Shobhana said and wanted, and the matter might have ended at that. Instead, he was unwavering in his version that Sahadev had not come to him or to Page 30 of 73 10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC Dr Shetty, and that notwithstanding what the Will itself said, Sahadev was not present when Dr Makhija attested the document. I will let pass for the moment Mr Behramkamdin's comment that Shobhana in her letter to Mr Nitin Thakker sought an affidavit compliant with her requirements and the Succession Act, rather than an affidavit that spoke the truth. His point, though, that by filing an affidavit with a different version, both Mr Makhija and Dr Shetty, neither of whom are shown to have any stake in the estate, risked far more than they gained (which was nothing), is a telling factor. There is also the little detail of how it came to pass, if as Shobhana says, 15th September 1997 was a court holiday and Mr Makhija was at home, and if Sahadev had called him only that morning, Mr Makhija had with him all his official stamps and paraphernalia. Besides, if this was so, there was no reason Mr Makhija would not carry with him his notary's stamps and seals as well, if he had troubled to carry his personal rubber stamp. Moreover, if Shobhana is to be believed, there was time enough to collect the notarized copy later in the day. If so, there was surely no need to rush to Mr Makhija's residence early in the morning, especially when Mr Makhija said he does not entertain clients at his residence.62
48. Both attesting witnesses thus deny Sahadev's presence before them. There is nothing beyond Shobhana's testimony to show this. Both attesting witnesses have consistently maintained in their Affidavits in this matter63 and in Mr Makhija's affidavit before the 62 Paragraph 69, p. 222.
63 Exs D-12 and D-13, at pp. 145 and 150 respectively.
Page 31 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC Bar Council64 that Sahadev was not present when they attested the Will. Shobhana said in her cross-examination that she knew of the conversations between M/s IR Joshi and Mr Thakker.65 She also knew of the draft Affidavits66 prepared for both attesting witnesses.67 She also confirmed that she showed the draft affidavits to an 'eminent jurist', who told her (quite rightly) that these would not conclusively prove the due execution of the Will.68 It was only at this time that Shobhana protested to Mr Nitin Thakker by her letter of 4th October 200569 -- who also held her Bar Council complaint withdrawal letter70 -- saying that she had been advised of the insufficiency of these affidavits. Only then did she demand affidavits consistent with the Succession Act, failing which she would not withdraw her complaint. Mr Thakker's reply of 7th March 2006 is also on record.71
49. There is no explanation why Mr Makhija would put on the line his entire professional standing, credibility and even license to practice by perjuring himself if his present affidavit is as false as the Plaintiffs would have it. There is no reason at all for Dr Shetty to have opposed Shobhana's version. This is the more so when we see from Mr Makhija that he held Sahadev as a close friend of many years. They shared a common interest in cinema. Sahadev was close 64 Ex D-1, p. 597.
65 Paragraph 19, p. 130.
66 Exs D-3 and D-4, pp. 238 and 241.
67 Paragraph 22, p. 138.
68 Paragraph 9, p. 168.
69 Ex. D-16, p. 165.
70 Ex. D-10, p. 145.
71 Ex. D-15, p. 174.
Page 32 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC enough to get his work done by Mr Makhija's juniors and staff. Mr Makhija did not charge him fees. Babita worked for a while as Mr Makhija's junior.
50. The crucial factor in this is Sahadev's absence before the two attesting witnesses. In the Estate of Charles Gibson,72 Pearce J had before him a case of a second codicil signed by a deceased in the presence of a totally blind person, though he knew him personally for many years, and knew his voice well. Pearce J held that 'in the presence of' must mean within eyesight of the testator. This is a rule of safety, meant to avoid fraud, the substitution of another paper, or impersonation. If a witness does not depose in terms that the Will was signed in his presence, there is no valid attestation.73 Where the attesting witness has not signed in the presence of the testator -- the end portion of Section 63(c) -- then there can certainly be no valid attestation. It may be possible for a testator to say to a witness that he has previously signed the Will and to acknowledge and identify his signature (the words "or has received from the testator a personal acknowledgement" must indicate this), but this must be within eyesight of the attesting witness, and, following this, the witness must sign in the presence of the testator. The witness cannot sign before the testator does.74 The attesting witness who deposes in accordance with Section 68 of the Evidence Act, must say that each of the attesting witnesses signed in the presence of the 72 [1949] p. 434, Probate Division.
73 Kashibai & Anr v Parwatibai, (1995) 6 SCC 13. 74 Benga Behera & Anr v Braja Kishore Nanda & Ors, (2007) 9 SCC 728.
Page 33 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC testator,75 i.e., within eyesight of each other. A single attesting witness may give evidence, but his evidence must be of the signing and attestation by both, or the other attesting witness must also give evidence.76 Mr Behramkamdin quite correctly cited the Supreme Court decision in Kashibai & Anr v Parwatibai & Ors,77 where none of the witnesses to the Will deposed that the testator had signed the Will before them. There was no evidence that the testator signed the Will in the presence of the witness. The Will was held not to have been proved.
51. Mr Thacker insists that the Defendants did not put their essential and material case to Shobhana when cross-examining her and the consequence is that her testimony must be believed. He relies on the fabled decision of a Division Bench of the Calcutta High Court in AEG Carapiet v AY Derderian78 in this regard. I had occasion to consider and follow the ratio of this case in Harish Loyalka v Dileep Nevatia79 -- Carapiet is a decision consistently followed and approved.80 The Carapiet principle is, I believe, incorrectly invoked here. Once the affidavits of Mr Makhija and Dr Shetty were available, and these were, as I have said, affirmed before Shobhana's affidavit evidence, the question of 'putting a case' did 75 Yumnam Ongbi Thampha Ibema Devi v Yumnam Joykumar Singh & Ors, (2009) 4 SCC 780.
76 Janki Narayan Bhoir v Narayan Namdeo Kadam, (2003) 2 SCC 91;
Lalitaben Jayantilal Popat v Pragnaben Jamnadas Kataria, (2008) 15 SCC 365.
77 (1995) 6 SCC 213.
78 AIR 1961 Cal 359.
79 2015 (1) Bom CR 361.
80 Badriprasad K Agarwal & Anr v Premier Garage & Ors, 1980 (1) RCJ (Bom) 385; MB Ramesh v KM Veeraje Urs, (2013) 7 SCC 490.
Page 34 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC not arise. There was an internal inconsistency in the Plaintiffs' own case. Shobhana knew this. In her own affidavit evidence, she attempted (unsuccessfully) to address this. She began by disavowing what the two attesting witnesses said in their affidavits. The Carapiet principle arose in different circumstances. In Harish Loyalka, I quoted the relevant portions and said:
5. Carapiet v Derderian was a probate action. The trial court declined probate. The Appeal Court reversed.
Paragraphs 6 to 15 of this decision are material:
6. The outstanding reason for which we are unable to uphold this judgment is two-fold. The learned Judge's reliance only on the evidence of Rev. Venkata Ramiah is, in our opinion, unjustified. Secondly, there are inherent infirmities of serious nature in the testimony of Rev. Venkata. Ramiah which make it entirely unsafe to rely on his uncorroborated testimony.
We shall now state the reasons for this view briefly.
7. The evidence of Rev. Venkata Ramiah is that the testator was not in a sound physical and mental condition to make the will on the date he is supposed to have made it. He bases his conclusion on the ground of his visit to the testator to give him sacrament. He found him not in a fit condition to receive that sacrament. This visit he fixes on the 26th December 1955 in the morning. He says that was his first visit. On the day of the execution of the will, which was the 28th December 1955, he does not pledge his oath that he visited him but he says that he had paid two other visits whose dates he could not Page 35 of 73 10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC definitely fix. In answer to question 32, he says that he cannot remember the date of his second visit but that his third visit was on the 31st of December. Therefore, he presumed in evidence that his second visit must have been either on the 27th or the 28th or the 29th.
8. Now, this case that Rev. Venkata Ramiah visited the testator and found him in such an unfit physical and mental condition was not put to any of the doctors and nurses who were called by the propounder to prove testamentary capacity. That, in our judgment, is so serious an omission as to have led to complete miscarriage of justice in this case. The omission is so serious that, in the absence of this case being put to any of the medical witnesses and strangely enough not being put even to the propounder when she was in the box giving testimony in support of the will, this Court does not know what the evidence of these persons would have been if the case, which was made by witness Rev. Venkata Ramiah, was put to these witnesses. It may be noted that Rev. Venkata Ramiah was practically the last witness in the suit except the formal opinion evidence of one Dr. Pijush Kami Das and one Mr. Chittaranjan Mazumdar called by the respondent. It also is in evidence that Rev. Venkata Ramiah was in Calcutta for this purpose of giving evidence ever since the 10th May 1957. He was in Calcutta when the propounder Mrs. Carapiet was being examined on the 23rd May, 1957. In Spite of the presence of Venkata Ramiah in Page 36 of 73 10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC Calcutta waiting to be sprung as the last dramatic witness for the defendant, not a word was put to the propounder when she was in the box about the witness Venkata Ramiah having found the testator physically and mentally unfit.
9. Failure to put the important and crucial part of the case to the witnesses coming to prove testamentary capacity must be held against the respondents.
6. The purport of this lucid decision is clear. A witness whose testimony or credibility are impeached must be given an opportunity to defend what he has said. He must cross- examined as to the correctness of what he has said. To suggest to him that what he said is incorrect, and to obtain a denial, is entirely pointless. It is one thing to point out contradictions or inconsistencies and to ask the witness to explain these, or to suggest that two statements made by him cannot stand together and therefore to ask him to depose as to which of these is correct. It is quite another to simply suggest that his testimony is generally false. That can never be necessary. An omission to do that can never be an admission or an acceptance of his testimony; after all, he is being cross-examined, and the very fact that he is being questioned necessarily means that his testimony is not accepted.
7. In Carapiet v Derderian there was a positive case:
Reverend Venkata Ramiah visited the testator and found him to be in an unfit physical and mental condition. This case was affirmative and it was absolutely essential that it be put to the other side's witnesses so that they might explain or respond. The opposing party could not possibly be held to have Page 37 of 73 10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC admitted this failing (or failed) physical and mental condition simply because no such case was ever put to them. Their testimony could not have been discredited or impeached on the basis of their apparent failure to respond to this, simply because they were never afforded an opportunity to do so. This was the situation before the Division Bench of the Calcutta High Court, and it was in that context that it held that the 'case was required to be put' to the plaintiff's witnesses. But nothing in Carapiet v Derderian requires that cross-examining counsel must put to the witness a series of banal questions with inevitable denials that every single statement made by him is incorrect. The 'case' that is always required to be 'put' to the witness must be the affirmative one, i.e., the "essential and material case"
and the "important and crucial part", to use the words of the Calcutta High Court. For the rest, a general question is usually sufficient, and judicial time need not be wasted in suggesting to the witness that every statement in his pleading is 'false'.
52. The 'essential and material' case here is the one of the two attesting witnesses themselves and there was no question of 'putting it' to Shobhana. She had put it to herself and answered it, in her own Evidence Affidavit.
53. Mr Thacker's attempt to pull in Section 71 of the Evidence Act is also, I think, misdirected.
Section 71 -- Proof when attesting witness denies the execution Page 38 of 73 10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
54. Neither attesting witness 'denies' execution. To the contrary: they do admit execution. That execution does not conform to Section 63(c) of the Succession Act, and that is a very different thing, and it is insufficient to bring Section 71 of the Evidence Act into play. This is where the Plaintiffs' case completely collapses. So long as there is an attesting witness and he (or they) gives (or give) evidence, the evidence of another person present at the time is excluded and immaterial to the proof of the Will. If the evidence of the attesting witnesses does not comport to the rigour of Section 63(c), that is a consequence that the propounder must accept. It is only when the attesting witness denies execution -- when he says he never signed it, or that the signature on the document is not his -- that other evidence may be led. In this case, both attesting witnesses, far from denying execution, actually admit it; but they say the execution was not in the presence of the testator and this runs afoul of Section 63(c). That is not enough to bring Section 71 of the Evidence Act into play. None of the very many authorities cited by Mr Thacker deal with such a situation and they are, therefore, of no avail.81 I have, for instance, the gravest reservations about the universal applicability of the proposition in the manner Mr Thacker advances it, viz., that a Will must be always presumed to be valid.82 The principle posits that there are no suspicious circumstances 81 Janki Bhoir, supra; MB Ramesh, supra; Jaikarandas Agarwalla & Anr v Protpasing Agarwalla, AIR 1940 Cal 189 (refers to a mortgage deed, and not a Will).
82 Brahamdat Tewari v Chaudan Bibi, AIR 1916 Cal 374.Page 39 of 73
10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC surrounding the Will. Where there are, and these are demonstrated, the principle has no application.
55. The Supreme Court decision in Benga Behera & Anr v Braja Kishore Nanda & Ors,83 on the other hand, makes it clear that Section 71 operates only when an attesting witness (1) denies execution; (2) refuses to come forward; or (3) is otherwise unavailable. In that case, the testatrix put her left thumb impression after the attesting witness signed -- thus, execution was admitted, but what was admitted was improper execution, not in conformity with Section 63(c) of the Succession Act. In that situation, one very like the present one, the Supreme Court said Section 71 of the Evidence Act could not be invoked and evidence aliunde could not be permitted. The Benga Behera court also considered the decision of the Kerala High Court in Ittoop Varghese v Poulose & Ors,84 cited by Mr Thacker, and Janki Narayan Bhoir v Narayan Namdeo Kadam:85
24. He neither denies the execution nor has failed to recollect the execution of the Will. According to him, the testatrix had put her LTI only after he had put his signature.
25. Section 71 of the Act provides for one of the exceptions where it is not possible to strictly comply with the requirements of Section 68. Sections 69, 70 and Section 71 are exceptions to Section 68. Section 69 provides for proof of a document where no attesting witness is found. Section 70 provides for admission of execution by party to 83 (2007) 9 SCC 728.
84 AIR 1975 Ker 141.
85 (2003) 2 SCC 91.Page 40 of 73
10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC attested document. Section 71 deals with a situation where the attesting witness denies or does not recollect the execution of the document and only in that eventuality, the document's execution may be proved by other evidence.
26. As indicated hereinbefore, P.W.-9 does not deny the execution. His statement, thus, does not satisfy the requirements of Section 63(c) of the Succession Act. While appreciating evidence of a witness, we cannot go beyond the same and while doing so, we cannot raise a legal fiction that he must have done so only because the first respondent had cross-examined him on certain issues. By cross-examining one's own witness, the effect of his statement in examination-in- chief in a case of this nature cannot be ignored. Whether Section 71 of the Evidence Act was applicable in the facts of the present case must be found out upon reading his evidence in its entirety.
27. Strong reliance has been placed by learned Counsel on Ittoop Varghese v. Poulose and Ors. [AIR 1975 Ker 141]. The High Court in that case proceeded on the basis that Section 71 of the Act would be attracted when a witness deliberately and falsely denies that he had attested the Will and in a situation of that nature, the Court would be entitled to look into the totality of the circumstances so as to enable it to arrive at a conclusion on the question of attestation. In Ittoop Varghese case (supra), the witnesses categorically stated that they had not seen the testator signing and did not gather any personal acknowledgement from the testator on his signature in the Will and further that they did not sign in the presence of the testator. It was a case where the statement of the witnesses was found to be wholly false. It was found having regard to the fact situation obtaining therein and in particular having been found that the testator knew about the formalities for the due Page 41 of 73 10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC execution of a valid Will which was also corroborated by the endorsement made therein. The Kerala High Court, furthermore, reassured itself from the other evidence that the testator had expressed his desire to execute the Will and in fact wanted to assure himself that no quarrel should arise between his sons after his death regarding the Will or his signature and only for that purpose he got it registered. It was furthermore noticed that the Sub-Registrar who had registered the document, on his examination, affirmed that the document was read over to the testator and the testator acknowledged his signature in the Will and also signed in token of presenting the Will before the Sub-Registrar. The Sub-Registrar had also signed it as one of the witnesses. When a Sub-Registrar had signed the document as a witness and after that D.W. -5 had signed as an attesting witness upon execution of the document by the testator, according to the High Court the circumstances of the case were sufficient to come to the conclusion that there was proof of the due compliance of the formalities required by Section 63 of the Succession Act in that case .
28. We may notice that this Court in Janki Narayan Bhoir v. Narayan Namdeo Kadam [(2003) 2 SCC 91] laid down the law on interpretation and application of Section 71 of the Act in the following terms:
11. Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68 of the Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling the attesting witnesses, though alive. This section provides that if an attesting witness denies or does not recollect the execution of the will, its execution may be proved by other evidence. Aid of Section 71 can be taken only when the attesting witnesses, Page 42 of 73 10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the execution of the same, for reasons best known, have not been summoned before the court. It is clear from the language of Section 71 that if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. However, in a case where an attesting witness examined fails to prove the due execution of will as required under Clause (c) of Section 63 of the Succession Act, it cannot be said that the will is proved as per Section 68 of the Evidence Act. It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of will can be proved by other evidence dispensing with the evidence of other attesting witnesses though available to be examined to prove the execution of the will....
(Emphasis added)
56. This is precisely what has happened in this case. The attesting witnesses (at least one of whose evidence was required to prove the Will), did both give evidence, and the evidence of both is mutually consistent. Both admit execution; that execution does not, however, meet the requirements of Section 63(c). This is not reason enough to bring to the fore Section 71 or to permit the evidence of Shobhana to be substituted for that of the attesting witnesses.Page 43 of 73
10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC
57. Given this material, Issue No. 1 must be answered in the negative. The due execution of the Will is not proved.
G. RE: ISSUE NO.2 -- UNDUE INFLUENCE,
FRAUD, UNCERTAINTY
58. The burden of proving this bundle of issues was on the Defendants. In their affidavits in support of the caveats, the Defendants relied on the Mr Makhija's repudiation of Shobhana's version of the execution of the Will, and therefore alleged fraud. In the second affidavits filed by Sangeeta and Babita86 and Kokila and Ratan,87 they said Sahadev was critically unwell and in no state to make a proper testamentary disposition. In both sets of subsequent affidavits, there is a clear allegation that Shobhana took advantage of Sahadev's condition, at a time when he was not in control of his mental faculties. She had, they said, 'complete control' over him.
59. Mr Thacker argued that, in their evidence affidavits both Sangeeta and Kokila travelled beyond their pleadings and gave evidence unsupported by pleadings, and therefore their evidence is worthless. I do not think this is at all correct. No party is ever required to plead his or her evidence. A litigant is only required to plead his case. The time for evidence is later. Now in the affidavits in support of the caveat we find specific pleadings of lack of health, want of the necessary testamentary capacity, and of Shobhana 86 Record, pp. 69-89.
87 Record, pp. 99-101.Page 44 of 73
10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC completely dominating Sahadev. We also find the necessary pleadings of fraud, undue influence and coercion and a specific pleading that the Will is uncertain. All this is stated: paragraph 4 of Babita's and Sangeeta's further affidavit contains these averments,88 and Kokila's/Ratan's affidavit says so too:89
4. In addition thereto we say that our brother, the said deceased was seriously ailing with chronic heart ailment for about six month prior to his said demise. In September 1987 he was operated in U S A, for angioplasty However, the stent inserted did not suit him and his condition deteriorated leading to his hospitalization at Lilavati Hospital in Dec 1997. We say that he was admitted for Triple Vessel Coronary Artery disease and poor liver function. He underwent an emergency bypass surgery in December 1997. However, he passed away on 5.1.1998. We say that during the last six months of his life his health was very frail and he was unable to do basic things without the help of people and as a result became very dependant on his wife, the Plaintiff. We say that his mind was weak and feeble and he had lost his mental faculties and confidence. We say that he was also very depressed and unsure of himself and very vulnerable. We say that it is during this period the Petitioner/Plaintiff No.1 purportedly obtained the signature of the said deceased was on the said Wi11 by exercising undue pressure and undue influence and coercion. Thus, in view of the said condition of the said deceased, the Petitioner/Plaintiff No.1 had taken complete control over him. We therefore say that the purported signature of the said deceased on the said Will has wrongfully and illegally been obtained by Shobhana Shah by 88 Record, p. 76.
89 Record, p. 100.Page 45 of 73
10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC exercising undue pressure, coercion and undue influence. Furthermore, the said purported signature has not been obtained in the presence of the so-called attesting witnesses.
60. This pleading is entirely sufficient and complete. All the essentials are stated. To say, as the Plaintiffs do, that particularization of fraud means pleading evidence is plainly incorrect. The essence of fraud is concealment. What a person alleging fraud may not do is simply to say there is fraud; he must set out the circumstances that lead him to believe there is fraud, to the extent that he is able to make these out or is aware of them. That is what these Defendants have done. None of them were in the house with Shobhana and Sahadev. But their evidence, especially that of Sangeeta, who was cross-examined on a Skype/video-conferencing link by consent while she was in the USA,90 shows that the bond between Sahadev and his elder daughter by his previous marriage remained strong. He confided in her. The Defendants have been able to depose to what they knew.
61. Mr Thacker's reliance on Messrs Trojan & Co v RM NN Nagappa Chettiar91 is misplaced. The Supreme Court refused to confirm the view of the High Court because it found that the order in appeal granted a relief never sought, prayed for or pleaded. The observation that "It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the 90 Record, p. 310.
91 AIR 1953 SC 235;Page 46 of 73
10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC case pleaded that has to be found" has to be seen in that context, one that is immediately clear from the observations that follow:
Without an amendment of the plaint the court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case. The allegations on which the plaintiff claimed relief in respect of these shares are clear and emphatic. There was no suggestion made in the plaint or even when its amendment was sought at one stage that the plaintiff in the alternative was entitled to this amount on the ground of failure of consideration.
(Emphasis added) In our case, the pleading exists. It may not include the evidence, but that is not a rule of pleading at all. Similarly, Union of India v EID Parry (India) Ltd92 stands on a wholly different footing: in a suit for recovery of a railways' demurrage charge, the High Court in appeal struck down a rule as ultra vires. That was said to be beyond pleadings, and it was. Mr Thacker cited Kishor Kirtilal Mehta v Lilavati Kirtilal Mehta Medical Trust,93 for its observation "there cannot also be any doubt that no amount of evidence can be looked into on a plea never put forward". There can be no cavilling with that proposition, but it is not to be used to suggest that a party must plead his evidence, or that unless the evidence is found in the pleading, it cannot be led. Now Kishor Kirtilal Mehta came up against an order refusing to allow an amendment, striking out portions of the written statement of three defendants and striking 92 (2000) 2 SCC 223.
93 (2007) 10 SCC 21.Page 47 of 73
10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC out portions of the examination-in-chief. In that context, the Supreme Court said, in paragraphs 12 to 14:
12. Now coming to the question whether we should interfere and grant an interim order of stay of operation of the orders refusing the amendment of the plaint, striking out portions of the written statement of Defendants 11, 12 and 13 and striking out portions of the chief examination of the plaintiff from the affidavit tendered in that behalf, we see no reason to stay the operation of the order refusing the amendment of the plaint. Such order of stay would be meaningless since as of now there is no amendment of the plaint and an amendment would come into existence only if the High Court finds it a case where interference is called for in the light of the relevant arguments that may be raised before it. But, we think that the stay of operation of the orders striking out portions of the written statements of Defendant 11 and of Defendants 12 and 13 and part of the chief examination in the affidavit tendered by the plaintiff would be justified since in case the High Court were to accept the challenge to those orders of the trial court, it would mean that the witnesses will have to be recalled and questions put to them on those aspects now struck out to cover those aspects and this would inconvenience the trial. The consequence of granting a stay would only be that some irrelevant aspects are also covered in the examination of the witnesses. If the High Court were to dismiss the writ petitions, those portions can always be eschewed.
13. By and large, which part of the evidence is to be discarded as being outside the pleadings is something that the court considers when it discusses the evidence. There cannot also be any doubt that no amount of evidence can be looked into on a plea never put forward. (See Siddik Mohd. Shah v. Saran [AIR 1930 PC 57 (1)].) Page 48 of 73 10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC Therefore, at this stage, if the operation of those two orders are not stayed, it would mean that the examination of the witnesses will cover only that portion of the plea admitted to be put forward by Defendants 11 to 13 or in the plaint, and that would cause inconvenience to the trial which has been directed to be expedited by this Court. Merely because some more or not strictly necessary questions are also asked either in cross-examination or in chief examination, that cannot also prejudice the contesting defendants since they can always plead either that a part of the evidence has to be discarded as not being covered by the pleadings in the case, or that it is irrelevant.
14. We do not think that it is necessary at this stage to shut out any evidence. We clarify that what part of the pleadings and what part of the evidence have to be discarded, will have to be considered by the court in the light of the order that may be passed by the High Court and if that part of the evidence is covered by the pleadings that are directed to be struck out then, obviously, that part of the evidence will have to be ignored. So will be the fate of the evidence that might be tendered which is not covered by the pleadings in the plaint. Obviously, the question whether Defendants 11, 12 and 13 can enlarge the scope of the suit will also have to be considered both by the High Court while dealing with the issue and by the trial court when it deals with the suit finally. Suffice it to say that in order only to ensure that there is no possibility of a truncated trial, we stay the operation of the orders striking out portions of the written statement of Defendants 11, 12 and 13 and portions of the affidavit tendered in chief examination by the plaintiff. We make it clear that what part of the written statement of Defendant 11 and of Defendants 12 and 13 and what part of the evidence are to be ignored, are matters that will depend Page 49 of 73 10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC upon the decision to be rendered by the High Court in the matters pending before it and to be considered by the trial court when it finally disposes of the suit and if its order were to be upheld by the High Court, to be consistent with the order it has already passed.
(Emphasis added) Nothing in this extract supports Mr Thacker's submission. His case is not so much of an insufficient pleading, but of an insufficiency of evidence in the pleading. That is a very different thing, and it is never necessary or even appropriate. As we have seen, all the essential pleadings exist in the Affidavits in Support of the Caveats.
62. Sangeeta filed an Affidavit in lieu of Examination-in-Chief.94 She said that Sahadev assured her and Babita that even after his marriage to Shobhana nothing would change between him and his daughters.95 Shobhana, for some reason, concealed her pregnancy from Sangeeta and Babita, though other relatives knew of it. Shobhana began changing Sahadev's approach to life. She called Punit 'Mahavir' or prince (he was born on Mahavir Jayanti), and constantly reminded Sahadev that she had borne him a son, a subliminal taunt about his daughters from his first marriage. Sangeeta complained Shobhana was never a good mother to her and Babita, both then in their teens. She then said that Shobhana took control of Sahadev's life. She had her way in every aspect of it. Though Sahadev did not believe in astrologers and palm readers, Shobhana insisted on Sahadev entertaining a crystal ball reader, 94 Record, pp. 285-293.
95 Paragraph 2, p. 286.Page 50 of 73
10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC astrologers and palmists. Shobhana's brother too was wont to call on Sahadev when he was unwell and, according to Sangeeta, would use 'magic spells' to 'cure' him.96
63. In 1987, Sahadev told Sangeeta he wanted to buy a metal detector. This odd request was because of Shobhana's belief of buried treasure in the Kutch property and because she had a dream about it. Constantly, he asked Sangeeta to find a better quality metal detector, one that could identify gold and silver.97 This continued for the next two years till 1989.98 In that year, he was saddened and disappointed at having listened to Shobhana at all: they found nothing but scrap and stones in the Kutch property.
64. In September 1997, Sahadev visited Sangeeta in the US and then travelled to Milwaukee for an angioplasty. Shobhana and Sangeeta accompanied him. After the surgery, he came to Miami, where Sangeeta had made her home, and stayed with her. Shobhana never left Sahadev alone; so much so that Sangeeta was unable to converse with him in private.99 Sangeeta said Sahadev feared Shobhana. She gave him no space or privacy. He began calling Sangeeta discreetly when he could without Shobhana knowing about it. He was concerned, Sangeeta said, that Shobhana would not give any money or part of the estate to Sangeeta and Babita.100 Then Sangeeta said that Sahadev was wholly dependent on Shobhana for 96 Paragraph 7, p. 288.
97 Paragraph 8, p. 288.
98 Paragraph 9, p. 289.
99 Paragraph 11, p. 290.
100 Paragraph 12, p. 291.Page 51 of 73
10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC all his basic needs. Shobhana did not let anyone help him. Thus, Sangeeta said, Shobhana exercised undue influence, coercion and pressure and made him make such a Will in a mentally enfeebled condition, when he had not full possession of his mental faculties and the necessary confidence to know what he was doing.101
65. In cross-examination, Sangeeta maintained that her deposition in her Evidence Affidavit was to her personal knowledge and based on her telephone conversations with her father.102 Specifically, she said Sahadev told her he would provide for all three children (Sangeeta, Babita and Punit).103 In her further examination- in-chief she also added that after Sahadev returned to Mumbai after his heart surgery, he telephoned her daily. She also said that after returning to Mumbai after his final heart surgery in Mumbai, Sahadev could not manage his business alone,104 and attended irregularly.105 Very soon after Sahadev died, Shobhana tried to take over the Deepak Talkies cinema business.106 She also said that her marriage was without her father's approval, and for a few months after, he refused to speak with her, but resumed his telephone conversations thereafter.107 101 Paragraph 13, p. 292.
102 Qn. 5, p. 313, Qn. 11, p. 316, Qns. 15-16, p. 318. 103 Qn. 18, p. 319.
104 Qn. 36, p. 324.
105 Qn. 37, p. 324.
106 Qn. 17, pp. 318-319.
107 Qn. 22, p. 319.Page 52 of 73
10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC
66. In her Evidence Affidavit,108 Kokila (Defendant No.4, DW2), Sahadev's married sister, spoke more closely of the relationship between Sahadev and Shobhana and his relationships with other family members. She was, after all, unlike Sangeeta, very much in Mumbai. She said Shobhana started turning Sahadev against his siblings and family with false information. She seemed interested in ensuring that the Deepak Talkies business remained with Sahadev, Shobhana and Punit to the exclusion of all others.109 There were severe differences between Sahadev and Shobhana. His heart condition made him dependent on Shobhana, who took full advantage of the situation.110 Under her influence, he began visiting dargahs, something he never did before.111 It was always Sahadev's desire, Kokila said, to distribute his estate between his children and siblings, who were not very well off.112 Kokila herself was not allowed to meet Sahadev; Shobhana obstructed this.113 She adopted magic remedies. She ill treated his mother, Devkabai.114
67. Cross-examined on paragraph 11115 (that Sahadev desired to distribute his estate equally), Kokila said Sahadev told her this in the presence of Ratan (Defendant No.3), their brother Mangalbhai and their mother Devkabai.116 There was no further cross-examination 108 Record, pp. 328-329.
109 Paragraph 7, p. 326.
110 Paragraphs 8-9, p. 327.
111 Paragraph 10, p. 328.
112 Paragraph 11, p. 328.
113 Paragraph 12, p. 328.
114 Paragraph 14, p. 328.
115 The cross-examination was in Court, before me. 116 Qns. 44-45, p. 340.Page 53 of 73
10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC on this. She reaffirmed that Sahadev assured her of an equal distribution.117 When asked to dilate on how Shobhana ill-treated Sahadev's and Kokila's mother -- a question that ought never to have been placed in that fashion in cross-examination, in my view -- Kokila set out, in a remarkably lucid and fluid description, the many acts that prompted her deposition:
65. Q. (Paragraph 14 of the witness's evidence affidavit is translated and interpreted to the witness.) In this paragraph you have alleged that the Plaintiff mistreated your mother in various ways. Was any of this ever in your presence?
Ans. Yes. I had gone to visit my mother after my brother passed away. My mother lived till the age of 100. I saw that she was in a very bad condition and was lying in a bed soaked in her own urine. The Plaintiff would not give her sufficient food to eat, even though my mother generally ate very little. She was also given sleeping pills by the Plaintiff.
Witness volunteers:- As we are Jains, we do not take food after 5.00 p.m. Yet, whenever we went to visit our mother, Shobhana would tell us that our mother had started taking her meals even at night. Also, a servant had been kept for my mother since my mother was by then very old. Even though my mother was given a call bell to summon the servant, Shobhana 117 Qn. 63, p. 344.Page 54 of 73
10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC ordered the servant stay in the kitchen and not to respond to my mother's repeated call bells.
(The witness is visibly distraught narrating this. She broke down in court, to the point that Mr. Thakker, in fairness, asked her if she wished to stop the cross-
examination. The witness agreed to continue.)
66. Q. Did you, having seen all of this, take your mother to your own home?
Ans. I was not in a position to do so.
67. Q. Did any of your brothers or sisters offer to
take your mother to their homes?
Ans. My brother Mangalbhai did take her to his
house. However, after a few days,
Shobhana brought her back to her own
house.
68. Q. Is it correct that your brother permitted
Shobhana to take your mother back?
Ans. Yes.
69. Q. Did you not protest at that time on
account of what you claim now was
Shobhana's ill-treatment of your mother?
Ans. Even Mangalbhai was really not in a
position to be able to keep her for a long
time.
70. Q. Did none of your brothers or sisters have
Page 55 of 73
10 February 2017
::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:24 :::
Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC the capacity to look after your mother?
Ans. The others who had the means had by
then passed away.
71. Q. What about your sisters?
Ans. Two of my sisters had expired, one was
not in good health and the other lived in
Mahabaleshwar and could not possibly
take my mother there.
72. Q. Did your sisters have not any family in
Mumbai?
Ans. My sisters have children living in
Mumbai.
73. Q. Where did your brother Talakshibhai
stay?
Ans. He lived in Santacruz in Mumbai.
74. Q. Did he not take your mother to his house?
Ans. He could not because his wife has a kidney
problem and she would not have been able
to manage.
68. Kokila also confirmed that Shobhana's statements against Sahadev's family were within her hearing.118 Again somewhat ill- advisedly, she was pressed for details, and she provided them, with an illustration: Shobhana would tell Sahadev that she, Shobhana, 118 Qns. 83-88, pp. 356-357.Page 56 of 73
10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:25 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC had given his sisters Rs.5000 on raksha bandhan, when she had actually given only Rs.200. Sahadev would then confront his sisters with this. It was Shobhana who gave the envelope; Sahadev did not know how much it contained.119
69. Mr Thacker's invocation of Krishna Kumar Birla v Rajendra Singh Lodha & Ors120 is inappropriate and inapplicable. The finding that once a Will is found valid, further questions about the testator's motivations for casting the Will in a particular way are irrelevant has no conceivable application to the present case. The validity of the Will is, in fact, not established. The manner in which it is cast, the circumstances of its making and the surrounding circumstances are never factors to be ignored, nor can Krishna Kumar Birla be read to suggest any such thing. The law in this regard has been firmly settled since the Supreme Court's 1959 decision in H Venkatachala Iyengar v BN Thimmajamma,121 very much the locus classicus on testamentary disputes:
"19. However, there is one important feature which distinguishes will from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will 119 Qn. 89-91, pp. 357-358.
120 (2008) 4 SCC 300.
121 AIR 1959 SC 443.Page 57 of 73
10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:25 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC start on the same enquiry as in the case of proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. 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, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt a to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases, the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactory discharged, courts would be reluctant to Page 58 of 73 10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:25 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may, have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
(Emphasis added)
70. Krishna Kumar Birla does not disturb this position in law at all. In Ram Piari v Bhagwat & Ors,122 the Supreme Court said that a testator could freely give, even to a rank stranger. Yet, testamentary capacity must be established, viz., that the testator knew when he made his Will what property he was disposing and to whom. Prudence demands reasons for exclusion of others entitled. Want of reasons does not invalidate a Will, but it is a suspicious circumstance demanding explanation, for it gives no indication of the testator's mind sufficient to facilitate a judicial determination whether the dispositive act was or was not voluntary. A propounder's active involvement in the Will's making is a strong suspicious circumstance. All suspicious circumstances must be removed.123 The burden of proving the Will is always on its propounder, and it is he (or she) who must rid the Will of all 122 (1990) 3 SCC 364.
123 Benga Behera, supra.
Page 59 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:25 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC suspicion that can legitimately be said to surround it and the circumstances of its making.124
71. I believe Mr Behramkamdin and Mr Bharucha are correct in their exposition of the law and its application to this case. What is the picture that emerges of Sahadev Shah? Here was a man of some considerable means -- his repeated visits to the USA for surgery alone shows this -- , deeply involved in his cinema theatre business, and passionate about movies. He came from a large family: he was one of 11 siblings. Of them, he was the one who did well. The others had their avocations and businesses, but there is no evidence of any of these being large or flourishing. In Kokila's cross-examination, all manner of suggestions were put to her about the family's financial means in an attempt to show that all were well off: for instance, that Kokila's sister's, Bhanbai's, son Shashikant owned the Shemaroo Video Library at Nepean Sea Road, a suggestion she flatly refuted as wrong. No attempt was made to prove the correctness of the suggestion. I noted at the end of that cross-examination that many suggestions had been put to her, and that it was therefore for the Plaintiffs to establish their correctness. They never did. Some of their suggestions were misdirected. To suggest that because Kokila's brother-in-law owned the Regal Hotel in Mahabaleshwar, therefore the family was well-off seems to me to be stretching credulity. Many of these suggestions were no more than shots in the dark, and failed to hit the mark.
93. Q. Is it true that Dharamshibhai had a medical store in Vikhroli?
124 K Laxmanan v Thekkayil Padmini & Ors, (2009) 1 SCC 354.
Page 60 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:25 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC Ans. Yes.
94. Q. Is it correct that he also had a four bedroom flat at Ghatkopar?
Ans. No. There were two Housing Board flats, each of one bedroom, hall and kitchen.
Dharamshibhai had four sons.
95. Q. Is it correct that three of his sons stayed separately?
Ans. That is incorrect. They all stayed together.
96. Q. Is it correct that Mangalbhai ran a Medical Store in Dharavi?
Ans. He was running it a long time ago. It is not true to say that he was running the store in 1998.
97. Q. Is it correct that at this time, i.e., 1998 Mangalbhai had a two bedroom flat at Worli?
Ans. Even that was a Housing Board
accommodation.
98. Q. Is it correct that your brother Talakshibhai was
then a practicing advocate?
Ans. No, by then he had stopped practice.
99. Q. Is it correct that Talakshibhai had a three
bedroom flat in Santacruz?
Ans. Yes, that is correct.
100. Q. Was your sister Mithabai alive when your
mother passed away?
Page 61 of 73
10 February 2017
::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:25 :::
Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC Ans. No. She died 40 years (earlier).
101. Q. Do her sons run Mahavir Saree stores in Matunga?
Ans. Yes.
102. Q. Do they have an ownership flat in
Matunga?
Ans. The two sons are separated. I do not know
in whose name the flat now stands.
103. Q. Is it correct that your sister Hansabai died
after your mother?
Ans. That is correct.
104. Q. Is it true that she too had a two bedroom flat at
Matunga?
Ans. No. That was a one bedroom flat.
105. Q. Is it true that she herself owned the whole of
Hotel Regal in Mahabaleshwar?
Ans. That is not true.
106. Q. Who owned the Hotel Regal in
Mahabaleshwar?
Ans. My brother-in-law.
107. Q. Is it true that your sister Bhanbai passed
away after your mother?
Ans. Yes.
108. Q. Is it correct that her son Shashikant runs
Page 62 of 73
10 February 2017
::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:25 :::
Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC the Shemaroo Video Library?
(Question is disallowed. Shemaroo is not owned by Shashikant. It needs to be specified what precisely is meant by the word "runs".)
109. Q. Is it correct that her son Shashikant owns the Shemaroo Video Library at Nepean Sea Road?
Ans. That is not correct. He has nothing at all to do with it.
110. Q. Is it correct that her son Shashikant owns the Shemaroo Video Library at Andheri?
(Question is disallowed.
It is not permissible to put questions in this fashion. The previous question was specific to an establishment at a given location. There was no ambiguity about it. The present question alters the basis entirely, without any foundation in pleadings or otherwise. This is a roving or fishing enquiry and unless some foundation is laid, it cannot be permitted.)
111. Q. Is it correct that your sister Ratanben and her husband owned a three bedroom flat in Vile Parle?
Ans. That is absolutely incorrect.
112. Q. I put it to you that though your siblings and
their families had good businesses and
residences, you have falsely deposed that they did not have the means to look after your mother. Do you agree?
Page 63 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:25 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC Ans. I disagree. None of them were in a position to look after my mother.
Continued after lunch recess.
Witness volunteers: I wish to correct what I said in reply to the question regarding my sister, Ratan's flat in Vile Parle. I had misunderstood the question. She and her family do not own such a flat today. At the time of my mother's death in 1998, they did own that flat in Vile Parle.
(Emphasis added)
72. The emphasized portions show clearly the manner in which suggestions were randomly put to Kokila with no attempt afterwards to establish their correctness. Indeed, the two or three questions about the witness's nephew and his connection with a video library make it clear that this was all guesswork. Talakshi Shah was a lawyer, no longer in practice. This might explain his initial inclusion as an executor, and, too, that he, of all the siblings except Sahadev, appeared to have a slightly larger residence. For the others, they were medium or small traders living in modest accommodation. There is nothing to indicate that they were well off, and Kokila's assertion that they were not was never countered by any rebuttal evidence. Earlier, she said too that Sahadev looked after his siblings and gave them money periodically; Shobhana reduced these amounts and exaggerated what had actually been given. There is no counter to this either.
Page 64 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:25 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC
73. Kokila was cross-examined in court. I observed her demeanour myself, and twice commented on it. The first time was when she described her mother's living condition. I have already set that out. The second was at the end of the cross-examination, when I observed that she had answered all questions directly, confidently and without hesitation in a most forthright fashion. Kokila seems to me to have been a most credible witness, not one in the least given to concealment or prevarication. Her evidence is not dislodged and I see no reason to disbelieve it.
74. So when Mr Behramkamdin and Mr Bharucha say there is no explanation at all for so complete an exclusion of a family to which Sahadev was demonstrably close, I believe they are correct. Even his own daughters by his previous marriage -- and Sangeeta's evidence of closeness to her father is also not dislodged -- were left with nothing but a paltry handout; and to his sisters and brothers, he is supposed to have left nothing at all. The attempt to show that Sahadev's siblings were sufficiently well off and needed nothing, as some sort of explanation for their exclusion, is not proved in the least. To the contrary, the cross-examination on this failed utterly, and it was never rebutted. I must note that though there is a pleading of such exclusion in the Affidavits in Support of the caveats, Shobhana herself led no cogent evidence of the financial well-being of Sahadev's brothers and sisters.
75. Then there is the issue of the nature of the dispositions in the Will itself. Mr Behramkamdin argued that the Will is void for uncertainty, referencing Section 89 of the Indian Succession Act:
Page 65 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:25 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC
89. Will or bequest void for uncertainty.
A Will or bequest not expressive of any definite intention is void for uncertainty.
Illustration: If a testator says "I bequeath goods to A", or "I bequeath to A", or "I leave to A all the goods mentioned in the Schedule" and no Schedule is found, or "I bequeath 'money', 'wheat', 'oil'" or the like, without saying how much, this is void.
76. I believe Mr Behramkamdin and Mr Bharucha are correct in this submission. The Defendants specifically raised this plea in their respective Affidavits in Support of their Caveats.125 Sahadev's Will is demonstrably peculiar at least in that, other than the small monetary dispositions in clause 12, referred to previously, it makes no final bequest at all. Clause 11 directs payment of his business income to Shobhana for her maintenance during her lifetime and, after her, to Punit. What is to happen to his assets? To the two immovable properties? To the business itself? We are not told. Even as regards the Mumbai flat, there is only a right of residence and nothing further. There is also no residuary clause. Now, it simply cannot be that life interests -- such as they are -- follow the testamentary disposition, but all other devolutions of the property are to take place as on intestacy. This is precisely the situation of 'uncertainty' contemplated by Section 89, and the illustrations to that Section makes this clear.
125 Affidavit dated 27th July 2004 of Defendants Nos.1 and 2, pp. 63-68, paragraph 8 at p. 65; Further Affidavit dated 25th July 2006 of Defendants Nos. 1 and 2, pp. 69-82, paragraph 9 at p. 72; Affidavit dated 13th July 2005 of Defendants Nos. 3 and 4, pp. 93-98, paragraph 5 at p.
95. Page 66 of 73 10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:25 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC
77. In such a situation, no rule of benevolent construction126 could possibly apply. If the contents of a Will are found to be vague, despite its genuineness probate will be declined.127 In Devisingh & Ors v Smt Shailabai Raghuwanshi & Ors,128 a Division Bench of this court refused probate where it found the bequest of shares did not indicate the proportions or the final beneficiary. The Court held that where there exists facial ambiguity or deficiency in the Will, extrinsic evidence to determine the testamentary intent is inadmissible; and the Will cannot be held to be valid in part. It must invalidated as a whole.
78. Issue No.2 is answered in the affirmative.
H. RE: ISSUE NO.3 -- WHETHER THE DEFENDANTS PROVE THAT THE AMOUNTS THEY ACCEPTED FROM THE EXECUTORS WERE UNDER PROTEST AND WITHOUT PREJUDICE
79. Mr Thacker submitted that, having accepted their legacies and bequests, in full or in part, under the Will, Sangeeta and Babita cannot assail the Will. Their acceptance of these legacies was unconditional, he argued. He pointed to Babita's letter dated 2nd 126 EV Balakrishnan v Mahalakshmi Ammal and Anr, [1961] 3 SCR 974 : AIR 1961 SC 1128.
127 Gurswarup Joshi v Beena Sharma and Ors, (2006) 5 SCC 119. 128 1996 (2) Bom CR 183. See also, Chinubhai Bhikhabhai v Bai Manekbai, AIR 1932 Bom 451 : 1932 (34) Bom LR 609, where a Will was invalidated for uncertainty under this Section.
Page 67 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:25 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC April 1998,129 accepting the Will and demanding her legacy under it, and her subsequent letter of 17th September 1998,130 complaining about the delay in obtaining probate. It was only on 30th September 1998131 that Babita said for the first time she did not accept the Will. Sangeeta, for her part, wrote on 9th September 1998132 (in reply to the executors' letter of 7th September 1998133) saying she did not accept the correctness of the Will, but later, by her letter of 7th November 1998,134 took her legacy without condition. Mr Thacker rested his case at this. Now Sangeeta's letter of 9th September 1998 is specifically without prejudice to her rights and contentions. There is a detail of accounts that Sangeeta and Babita signed without prejudice to their contentions.135 To complete the picture, there is also an order of 4th July 2005 (RM Lodha J as he then was, and JP Devadhar J) directing Sangeeta and Babita to deposit Rs.10 lakhs with the Prothonotary & Senior Master, which they did on 25th August 2005.
80. Presumably, the Plaintiffs' case is based either on some fashioning of an argument of estoppel or on the doctrine of election under the Succession Act. I gathered Mr Thacker's submission to be that Sangeeta and Babita could not simultaneously take under the Will and also impeach it. The proposition is somewhat inaccurately 129 Ex P-1, p. 465.
130 Ex. P-3, p. 487.
131 Ex. P-4, pp. 488-489.
132 Ex. D-20, p. 843.
133 Ex. D-19, p. 842.
134 Ex. P-6, p.
135 Ex. D-21, p. 844.
Page 68 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:25 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC posed. If a legatee stands to receive a much larger share on intestacy, that is to say on the Will being disproved, then no question of election arises on account of his or her having demanded and received the smaller amount left as a legacy. In cross-examination, Shobhana agreed that but for the Will, Sangeeta and Babita would have received a much larger amount each.136
81. Section 180 of the Indian Succession Act deals with the doctrine of election:
180. CIRCUMSTANCES IN WHICH ELECTION TAKES PLACE Where a person, by his Will professes to dispose of something which he has no right to dispose of the person to whom the thing belongs shall elect either to confirm such disposition or to dissent from it and in the latter case he shall give up any benefits which may have been provided for him by the Will.
82. I fail to see how this doctrine has any application at all to the case at hand. The doctrine only applies when there is a purported bequest of property that does not belong to him. The person to whom it does belong must also be, separately, a legatee of some other property. The true owner must choose, that is to say, elect between receiving the legacy (and thus accepting the disposition of his property to another) or dissent from it, preferring to continue with his own property and not accepting the separate bequest made 136 Cross-examination of PW1, paragraph 16, p. 130.
Page 69 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:25 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC to him. The illustrations to Section 187, which speak of a 'deemed election', make this clear:
Section 187 -- When acceptance of benefit given by Will constitutes election to take under Will Acceptance of a benefit given by a Will constitutes an election by the legatee to take under the Will, if he had knowledge of his right to elect and of those circumstances which would influence the judgment of a reasonable man in making an election, or if he waives inquiry into the circumstances.
Illustrations
(i) A is owner of an estate called Sultanpur Khurd, and has a life interest in another estate called Sultanpur Buzurg to which upon his death his son B Will be absolutely entitled. The Will of A gives the estate of Sultanpur Khurd to B and the estate of Sultanpur Buzurg to C. B, in ignorance of his own right to the estate of Sultanpur Buzurg, allows C to take possession of it, and enters into possession of the estate of Sultanpur Khurd. B has not confirmed the bequest of Sultanpur Buzurg to C.
(ii) B, the eldest son of A, is the possessor of an estate called Sultanpur. A bequeaths Sultanpur to C and to B the residue of A's property. B having been informed by A's executors that the residue Will amount to 5,000 rupees, allows C to take possession of Sultanpur. He afterwards discovers that the residue does not amount to more than 500 rupees. B has not confirmed the bequest of the estate of Sultanpur to C. Page 70 of 73 10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:25 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC
83. The foundational doctrine is the principle against approbation and reprobation. Generally stated, a person may not simultaneously seek benefit under a document and repudiate or renounce it. This is a species of estoppel -- an estoppel by conduct -- and it is, therefore, both a rule of evidence and a rule in equity. In evidence, both the acceptance and repudiation must be shown to be clear and unequivocal. There cannot be slightest shred of doubt about either.
The benefit must also be shown to be one such that but for the document the recipient would not have received it. Once this is established, as a matter of equity, the person receiving the benefit (one only available under the document and not otherwise) cannot repudiate or renounce the document itself. This stands to reason. Crucial to this is the establishing in evidence that the benefit is such that but for the document, the person taking under the document would not have received it at all, or, at any rate, would have received much less. Once it is shown that the benefit is not of this type, viz., that the person receiving it would have done so anyway even without the document, or would have received a much larger amount without the document, then no question of approbation and reprobation can be said to arise. Consider three examples:
(a) A testator's niece, not otherwise in the line of succession, is bequeathed a large sum of money. On intestacy, she would receive nothing. She cannot both receive the legacy and impugn the document that makes the bequest.
(b) A testator's daughter is entitled to 50% of her father's estate on intestacy. She is bequeathed 25%. She can Page 71 of 73 10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:25 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC accept the 25% and yet maintain a challenge to her father's Will.
(c) A testator's daughter is entitled to 50% of her father's estate on intestacy. She is bequeathed 90%. She cannot take the 90% and yet maintain a challenge to the Will (indeed, to do so would be self-defeating and illogical).
84. Now Shobhana herself admits, as we have seen, that on intestacy, i.e., but for Sahadev's Will, Sangeeta and Babita would have received a much larger share than Rs.5 lakhs each. The estate was worth considerably more, and about this there is no doubt. Sahadev was survived by his mother, widow, and three children. On intestacy, each would have taken a one-fifth share in his estate; if we exclude the mother (as Sangeeta and Babita say), each gets one- fourth. That fractional share far exceeds the Rs.5 lakhs left to Sangeeta and Babita each, and which they took.
85. In any case, for any of this to be of consequence, the Will must be shown to be valid in the first place. If the Will is not proved, this issue is academic. The Will cannot be proved in its solemn form on account of some action or inaction on the part of Sangeeta and Babita. Apart from anything else, at best that might foreclose them; it does not shut out the challenge from Kokila and Ratan. In any event, it is no substitute for proving the due execution of the Will, removing all suspicious circumstances and establishing testamentary capacity.
86. The third issue is answered in the affirmative.
Page 72 of 7310 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:25 ::: Shobhana Sahadev Shah & Ors v Sangeeta Porbanderwala & Ors TS-30-2004-SHAH-V-PORBANDERWALA.DOC I. CONCLUSIONS AND ORDER
87. All three issues are answered against the Plaintiffs. The due execution of the Will is not proved. A telephonic confirmation by the testator is insufficient compliance with the mandate of the statute. The requirement is that the attesting witness must sign in the presence of the testator, and that means within his and their eyesight and in his and their physical presence. It is not possible to disbelieve the attesting witnesses' testimonies, which are at complete variance with the version propounded by the 1st Plaintiff. I also find that there is insufficient proof of testamentary capacity from the Plaintiffs, and, on the other, there is sufficient doubt created by the Defendants as to the lack of it. This has never been fully explained by the Plaintiffs. As to the third issue, no estoppel or bar attaches to the 1st and 2nd Defendants on account of their having received amounts purportedly under the Will: apart from being without prejudice, these receipts were far less than what they would have received on intestacy.
88. The suit and petition are dismissed. There will be no order as to costs.
89. I do apologize to the parties for the much delayed rendering this judgment -- I offer no excuses -- and I thank them deeply for their forbearance.
(G.S. PATEL, J.) Page 73 of 73 10 February 2017 ::: Uploaded on - 20/02/2017 ::: Downloaded on - 27/08/2017 16:15:25 :::