Bombay High Court
S. F. Rego vs Benjamin L Abraham on 10 October, 2017
Author: R.D.Dhanuka
Bench: R.D. Dhanuka
TS 75/02 in TP 787/01
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY & INTESTATE JURISDICTION
TESTAMENTARY SUIT NO.75/2002
IN
TESTAMENTARY PETITION NO.787/2001
1] Stanislaus F. Rego,
residing at Home Coming,
Waroda Road, Bandra,
Mumbai 400 050.
AND
2] Hasmukh B. Gandhi,
residing at Laburnum Road,
Gamdevi, Mumbai 400 026.
The Executors of the Last Will
and Treatment and Codicil of the
deceased Simha I. Talegawkar.
...Plaintiffs..
Versus
1] Mrs.Margaret Benjamin Abraham,
having her address at 1932,
Hazan Chem, St.Ramale, Israel.
2] Mrs.Miriam Benjamin Abraham,
having her address at Gustaff,
Gelferstreat, NR191518, Az
Almere Netherlands (Holland).
3] Mr.Hillel Benjamin Abraham,
having his address at J2/303/304
Jayraj Nagar, Manav Mandir Complex,
Ambadi Road, Vasai (W),
Dist.Thane.
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4] Mrs.Reena Benjamin Abraham,
having her address at 1932
Hazan Chem, St.Ramale, Israel.
5] Mr.Azriel Benjamin Abraham,
having his address at 53,
Nacha Zohar, Molden, Israel.
6] Mr.Israel Benjamin Abraham,
having his address at 32
Madison, St.Portsmouth,
NH 03801, USA.
7]
Mr.Shalom Benjamin Abraham,
having his address at 17/37
Harav David, Rechovot, Israel.
...Defendants...
.....
Shri Hiralal Thacker, Senior Advocate a/w Mr.Kirit Mody
a/w Ms.Urvi Patel i/by M/s M.M. Patel & Co. for
plaintiffs.
Shri Ramgopal S. Tripathi, Advocate for defendants.
.....
CORAM: R.D. DHANUKA, J.
JUDGMENT RESERVED ON 1st AUGUST, 2017
JUDGMENT PRONOUNCED ON 10th OCTOBER, 2017
JUDGMENT :
1] By Testamentary Petition No.787 of 2001 which is converted into Testamentary Suit No.75 of 2002, the plaintiff (original petitioner) seeks probate of alleged Will and Codicil both dated 26.4.1990 alleged to have been executed by Simha Issac Talegawkar, who died at ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:19 ::: TS 75/02 in TP 787/01
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Mumbai on 18.8.1996. Some of the relevant facts for the purpose of deciding this suit are as under:-
2] It is the case of the plaintiff that by an alleged Will and Testament dated 26.4.1990, Simha Issac Talegawkar (for the sake of convenience, the said Simha Isaac Talegawkar is referred as "the said deceased"), made a bequest in respect of Plot of land bearing No.312, First Road, Khar, Bombay-400052 together with building thereon including furniture, fixtures, and articles lying in the plot to his son Mr.Albert Talegawkar absolutely.
3] It is the case of the plaintiff that in the said Will, the said deceased directed the said Mr.Albert Talegawkar to give his three daughters i.e. Mrs.Daisy, Mrs.Rosy and Mrs.Annie and another son Mr.Benjamin a sum of Rs.1,00,000/- each within a period of two years from the death of the deceased, provided that such of her children as have migrated at the time of her death, will avail of the said legacy in India subject to the prevailing law. According to the said alleged Will, all ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:19 ::: TS 75/02 in TP 787/01
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of movables and personal jewellery of the said deceased had been already given away to the children. It is provided in said Will that the residue of her estate of whatsoever nature, was given to her son Mr.Albert Telegawkar absolutely. It is the case of the plaintiff that under the said Will and Testament dated 26.4.1990, the said deceased had appointed the plaintiff and Mr.Hasmukh B. Gandhi both Advocates by profession as her joint executors of the said Will.
4] The said deceased had three daughters and two sons. It was provided in the said alleged Will that her oldest daughter Mrs.Daisy was married to Mr.Sayed Dadarkar and she was staying in Mumbai. The second daughter was married to Mr.Gedaliah Solomon and had settled down in Israel with her family. The last daughter Mrs.Annie was married to Mr.Samuel Malekar and was in Mumbai. Her son Mr.Benjamin was working in the Customs Department in Mumbai and was living separately from her for last several years. It was further provided in the said alleged Will that except Mr.Benjamin's son Hillel, the other children and his wife had already ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:19 ::: TS 75/02 in TP 787/01
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migrated to Israel.
5] It is the case of the plaintiff that on 26.4.1990, the said deceased also executed a Codicil and modified the part of the Will dated 26.4.1990. According to the said alleged Codicil, the said deceased directed Mr.Albert Talegawkar to give Rs.1,50,000/- instead of Rs.1,00,000/- to her other children i.e. Mrs.Daisy, Mr.Benjamin, Mrs.Rosy and Mrs.Annie.
6] It is the case of the plaintiff that the said Will and the said Codicil both dated 26.4.1990 were duly witnessed by Dr.P.H.Udhas and also by plaintiff himself as attesting witnesses. On 18.8.1996, the said deceased expired living behind her five heirs and next-of-kin according to the Indian Succession Act, 1925 i.e. 1) Mrs.Daisy Sayed Dadarkar - relation daughter, 2) Mr.Benjamin - relation son, 3) Mrs.Rosy Gedaliah Soloman
- relation daughter, 4) Mr.Albert Issac Talegawkar - relation son and 5) Mrs.Annie Samuel Malekar - relation daughter. The husband of the said deceased predeceased her.
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7] On 11.10.2001, the plaintiff herein filed the Testamentary Petition No.787 of 2001, inter-alia, praying for Probate for alleged Will and Codicil both dated 26.4.1990. The plaintiff had also impleaded Mr.Hasmukh B. Gandhi as petitioner No.2 to the said Testamentary Petition. Alongwith Testamentary Petition, plaintiff filed an affidavit of oath dated 11.10.2001. The original petitioner No.2, Mr.Hasmukh B. Gandhi also filed affidavit of oath along with the Testamentary Petition. The citation was served upon all the legal heirs and next-of-kin of the said deceased by the plaintiff on 4.7. 2002. The plaintiff filed an affidavit of attesting witness in the Testamentary Petition subsequently. 8] Except Mr.Benjamin Abraham, one of the sons of the said deceased, no other legal heirs and next-of-kin filed any caveat and affidavit in support of caveat in the Testamentary Petition though served with the citations. In view of the caveat and affidavit in support of Mr.Benjamin Talegawkar, Testamentary Petition No.787 of 2001 was converted into Testamentary Suit No.75 ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:19 ::: TS 75/02 in TP 787/01
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of 2002.
9] In the affidavit in support of caveat dated 14.10.2002 filed by the said Mr.Benjamin Abraham, he alleged that the plaintiffs were the best friends of sole major portion beneficiary under the Will. It was alleged that the major portion beneficiary compelled the said deceased to sign the alleged Will without the said deceased exercising her own free-will or consent. It was alleged that the said alleged Will had been got signed from the said deceased without her knowledge of its contents and application of mind by her. Due to old age, the said deceased had not only been terribly weak physically, but also suffered mentally, loosing power and capacity of exercising her mind so as to freely and independently decide any vital matter. 10] It was alleged that the alleged signature of the deceased had been obtained at the time when the deceased was not in sound and disposing capacity. It was alleged in the said affidavit that the alleged Will might have been prepared by none other than the major portion ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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beneficiary under whose custody the said deceased was, with the help of close associates. It was alleged that the Doctor was a mute spectator of the same as he was the close friend of Mr.Abraham Issac Talegawkar. 11] It was alleged that the said deceased was a cancer patient and had virtually collapsed due to overnight death of her husband. The alleged Will was prepared under duress mode, may be of starvation or threat of survival and / or by coercion tactics used by the sole major portion beneficiary against his own mother. It is alleged that sole major beneficiary has suppressed the Will from his brother for several years after the death of the deceased. The Doctor, who signed the alleged Will, did not state anything about the health and mental condition of the deceased.
12] It was alleged that the said alleged Will was unnatural and caveator could not be excluded as an equal beneficiary under the said alleged Will. The said deceased had not exercised any disposing power of property in Schedule-I of the Petition. The deceased had ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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not mentioned her other properties, jewellery, bank accounts, pension account, furniture etc. It was alleged in the affidavit that the said deceased used to usually sign as "S.Issac" and not "S.I.Talegawkar" as signed in the suspicious document. It was alleged that the said Will seems to be manipulated. The caveator denied that the alleged Will had been properly attested or that the same was a genuine Will.
13] During the pendency of this Suit, the said Mr.Benjamin Issac Abraham expired on 7.8.2010. Upon his demise, his seven legal heirs have been brought on record as defendants. The caveator No.3, Mr.Hillel Benjamin Abraham filed an affidavit in support of his contention dated 3.8.2011 on behalf of himself and caveator Nos.1, 2, 4 & 7 as their constituted Attorney and disputed the said alleged Will and Codicil on almost similar grounds. He alleged that when his father Mr.Benjamin had visited the residence at Girija Bhavan, Khar i.e. at the place of Mr.Albert Talegawkar, his father found that the hands of the deceased were tied as she would scratch the forehead wound and was not in the proper state of mind and did not ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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recognize people and did not remember any person. It was alleged that the said deceased failed to recognize the father of the said Mr.Hillel or any of his children. 14] During the pendency of the Suit, Mr.Hasmukh Gandhi expired. Pursuant to the order passed by this Court, the name of Mr.Hasmukh Gandhi came to be deleted. 15] Following issues were framed by this Court :-
Sr.No. POINTS FINDINGS
1. Whether the petitioners prove due execution and attestation Yes of the subject will ?
2. Whether the subject will is legal and valid ? Yes
3. Whether the Defendant proves that the deceased signed the subject will without knowledge of the contents thereof or that the major portion No beneficiary compelled the deceased to sign the subject will ?
4. Whether the Defendant proves that the deceased was not of No sound and disposing capacity ?
5. Whether the Defendant proves that the Deceased had virtually collapsed due to the No alleged overnight death of her husband ?
6. Whether the Defendant proves ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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that the deceased executed the Will under duress or on No account of starvation or threat of survival ?
7. Whether the Defendant proves that the subject Will is No unnatural ?
8. Whether the Defendant proves that the deceased usually No signed as "S.Issac" and not as "S.I. Talegawkar ?
9. Whether the Petitioners are entitled for probate of the Yes last Will and Testament of the deceased, which is propounded in the Petition ?
10. What relief ? As per order.
16] Mr.Thacker, learned Senior Counsel for the plaintiffs submits that the said deceased had three daughters and two sons. Prior to the date of execution of the will and codicil dated 26.4.1990, the said deceased had also executed a will and codicil on 1.12.1987. He submits that under both the wills and the codicils, the bequests made by the said deceased were identical. Mr.S.F. Rego, who was one of the executors in the will dated 26.4.1990 was a sitting Judge of Bombay City Civil Court when the earlier will and codicil were executed by the said deceased. The said will and codicil ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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were not witnessed by any Advocate or the doctor. After retirement of the plaintiff Mr.S.F. Rego, the said deceased executed the said will dated 26.4.1990 and also the codicil on the same date.
17] Learned Senior Counsel invited my attention to the issues framed by this Court and would submit that out of nine issues, except issue nos.1,2 & 9, the onus to prove those issues was upon the defendants whereas the onus to prove upon the plaintiffs was only in respect of first three issues.
18] Insofar as issue nos.1,2 & 9 are concerned, the learned Senior Counsel invited my attention to the affidavit in support of the caveat filed by Mr.Benjamin L. Abraham, the original caveator and also the affidavit in support filed by Mr.Hillel Benjamin Abraham, which was filed after the demise of said Mr.Benjamin Abraham. He also invited my attention to the deposition of the plaintiff in the affidavit filed in lieu of examination- in-chief dated 28.4.2009. He submits that the plaintiff has deposed about the execution of will and codicil both ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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dated 26.4.1990 and also about the attestation thereof in accordance with law. He also deposed about the sound and disposing mind of the said deceased in his affidavit in lieu of examination-in-chief.
19] It is submitted by the learned Senior Counsel that inadvertently the plaintiffs filed the original will and codicil both dated 1.12.1987 with the Prothonotary and Senior Master instead of filing the will and codicil dated 26.4.1990. It is submitted that though the plaintiffs had referred to and relied upon the will and codicil both dated 26.4.1990, the original of the will and codicil both dated 1.12.1987 came to be filed. 20] Learned Senior Counsel invited my attention to the order dated 24.9.2013 passed by this Court in Chamber Summons No.42/2013 filed by the plaintiffs granting permission to the plaintiffs to file original of the will and codicil both dated 26.4.1990 as propounded by the plaintiffs with the Prothonotary and Senior Master within two weeks from the date of the said order. This Court also made it clear that original of the will and codicil ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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both dated 1.12.1987 already filed by the plaintiffs in the office of this Court shall continue to be in custody of the Prothonotary and Senior Master. It was also made clear that this Court had not expressed any views on the existence and authenticity of the will and codicil propounded by the plaintiffs and the said issue was kept open. The plaintiffs thereafter filed an additional affidavit in lieu of examination-in-chief on 17.12.2013. 21] The plaintiff was cross-examined by the learned counsel for the defendants. To buttress his argument that the plaintiffs had discharged the onus insofar as issue nos.1, 2 & 9 are concerned, the learned Senior Counsel invited my attention to various portions of the deposition made in the affidavits in lieu of examination- in-chief of the plaintiff and also the deposition made in the affidavit of the sister of the plaintiff Mrs.Daisy Dadarkar (PW2) and their cross-examination. 22] It is submitted by the learned Senior Counsel that the plaintiff had identified the signature of the said deceased testatrix on the will and codicil both ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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dated 26.4.1990 and also identified the signatures of the attesting witnesses. Insofar as will and codicil dated 26.4.1990 are concerned, those documents were drafted by the plaintiff himself on instructions of the said deceased testatrix. The plaintiff was also an attesting witness to those documents. The learned Senior Counsel submits that the defendants had cross-examined the plaintiff on execution and attestation of the said will and codicil both dated 26.4.1990 and also will and codicil dated 1.12.1987. He submits that by cross- examination of the plaintiff and PW2 by the defendants also, both the wills and codicils were proved beyond reasonable doubt.
23] It is submitted by the learned Senior Counsel that the plaintiff was asked by the learned counsel for the defendants that whether the plaintiff knew the contents of the will and codicil dated 26.4.1990 which question was answered in affirmative by the plaintiff. He deposed that he was draftsman of the said will and codicil both dated 26.4.1990. He was asked whether the drafts of the wills were prepared by the plaintiff alone ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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at the instance of the deceased, the witness answered in affirmative. The witness was asked as to when he had prepared the draft of the will and codicil, whether he had made any corrections in the draft or any correction was made in draft of the will and codicil, the plaintiff answered that no corrections were made in the will. 24] The plaintiff deposed that the instructions for preparing codicil were given separately after the will was shown. The witness was asked whether any corrections were suggested by the testatrix on reading the will, the plaintiff replied that the testatrix had suggested that the provisions for each child of her be increased by Rs.50,000/- and thus a codicil came to be prepared. The learned Senior Counsel invited my attention also to the answer of the plaintiff to question nos.38 to 59 to show that the defendants had not disputed the execution and contents of the will and codicil both dated 26.4.1990 as is apparent from the line of questions asked by the learned counsel for the defendants to the plaintiff. He submits that the defendants have also proved the execution and attestation of the will and codicil dated ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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26.4.1990 and also the earlier will and codicil both dated 1.12.1987.
25] The learned Senior Counsel for the plaintiff also invited my attention to the deposition of Mrs.Daisy Dadarkar who was one of the daughters of the said deceased and was examined as a witness by the plaintiff. He placed reliance on the deposition of the said witness in the affidavit in lieu of examination-in-chief and in particular paragraph nos.6 to 10 insofar as issue nos.1,2 & 9 are concerned. He also invited my attention to the cross-examination of the said witness by the learned counsel for the defendants and more particularly to her answers to question nos.10, 13, 14 and 17 to 24 and so far as issue nos.1,2 & 9 are concerned. He submits that the said witness also proved the due execution of the will and codicil both dated 26.4.1990 and also that the said deceased was of sound and disposing mind on the date of execution of the said will and codicil both dated 26.4.1990.
26] The learned Senior Counsel for the plaintiff ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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also invited my attention to the affidavit in lieu of examination-in-chief filed by the defendant no.3 i.e. Mr.Hillel Benjamin Abraham. He also invited my attention to the cross-examination of the said witness and more particularly to his answers to question nos.10, 12, 14, 22 to 26, 36, 38 and 39 to 50 and would submit that the defendant no.3 had never stayed with the said deceased at any point of time and could not identify the signature of the said deceased.
27] It is submitted that the defendant no.3 did enter the witness box as a grandson of the said deceased and had no personal knowledge about the subject matter of the proceedings filed by the plaintiffs. The said witness admitted that substantial part of his deposition was not as per his personal knowledge. His allegation of undue influence being alleged to have been exerted on the said deceased was not based on personal knowledge. It is submitted by the learned Senior Counsel that the defendant no.3 was duly given inspection of the original will and codicil. A notarized copy of the will and codicil both dated 26.4.1990 was also furnished by the ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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plaintiffs' Advocate to the defendants. In support of this submission, the learned Senior Counsel invited my attention to the correspondence exchanged between the parties through their respective Advocates. 28] Insofar as the allegations of fabrication and forgery made by the defendants in the affidavit in support of caveat and also in the affidavit in lieu of examination-in-chief is concerned, the learned Senior Counsel invited my attention to the answer given by the defendant no.3 in his cross-examination and more particularly to question no.42 and would submit that the witness had admitted that the said allegation was based on the information given to him by his deceased father. His father had alleged to have told that the signature of the deceased appearing on the will did not match with her signature in the account with the Bank of Maharashtra. He had also no personal knowledge of any duress or coercion under which the said deceased had signed the said will. He had also no personal knowledge of any threats of physically throwing out of the house, alleged to have been given by anybody.
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29] Insofar as issue nos.3 to 8 framed by this Court are concerned, it is submitted by the learned Senior Counsel that the onus to prove all these issues was expressly upon the defendants, which the defendants failed to discharge.
30] Insofar as issue no.7 i.e. whether the alleged will is unnatural or not, is concerned, it is submitted by the learned Senior Counsel that it was the choice of the testatrix to prefer to give her legacy to any of the family members or even to an outsider. The said deceased had three daughters and two sons. The said deceased had recorded justification or reasons in the will as to why the other legal heirs and next of kin of the deceased were given share in her will smaller than Mr.Albert Talegawkar. The original defendant Mr.Benjamin Abraham was admittedly living separately from the said deceased. He invited my attention to various clauses of the said will dated 26.4.1990 and also codicil and would submit that the said deceased had also provided for legacy in terms of money to all the remaining daughters or sons in ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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the sum of Rs.1,50,000/- each and had accordingly issued directions to Mr.Albert Talegawkar to make such payment to them.
31] It is submitted by the learned Senior Counsel that the original defendant had refused to accept the said amount though offered by the plaintiffs. In support of this submission, the learned Senior Counsel invited my attention to some of the correspondence on record. It is submitted that the other beneficiaries under the said will and codicil have been already paid the said amount. In support of this submission, he also invited my attention to the evidence of Mrs.Daisy Dadarkar (PW2) who admitted that all the other beneficiaries under the said will were already paid the said amount by Mr.Albert Talegawkar.
32] The learned Senior Counsel invited my attention to the documents and also the photographs which were marked as Exhibits D-1 to D-3 and would submit that the said deceased was present in the wedding reception of the defendant no.3 Mr.Hillel Benjamin Abraham. He submits ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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that the deceased had also given various gifts to the father of the defendant no.3 and also to the defendant no.3. The defendant no.3 was examined as a witness who admitted these facts in his cross-examination. It is, therefore, submitted that the said will and codicil both dated 26.4.1990 cannot be construed as an unnatural will and codicil, but were executed by the said deceased after fully understanding the contents thereof. 33] It is submitted by the learned Senior Counsel that the defendants did not lead any independent evidence to show that the said deceased was not of sound and disposing capacity on the date of execution of the will. He submits that the defendant no.3 himself had no personal knowledge of the sound and disposing capacity of the said deceased on the date of execution of the will and codicil both dated 26.4.1990. He also could not prove that the deceased had collapsed due to the alleged overnight death of her husband. It is submitted that the said deceased had expired after 12 years of the death of her husband and not overnight.
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34] Insofar as the issue as to whether the defendants had proved that the deceased usually signed as "S.Issac" and not as "S.Talegawkar" is concerned, it is submitted by the learned Senior Counsel that the defendant no.3 had not personally seen the said deceased signing any document and had no personal knowledge about her signature. The said defendant also was not present when the said will and codicil were signed by the said deceased. The defendant no.3 has thus failed to prove the said allegations made by him in his affidavit in support of caveat.
35] The learned Senior Counsel placed reliance on the judgment of this Court in case of Rusi Hormusji Pavri & another v. Roxana M. Buhariwala (2010 (4) Bom.C.R. 463) and in particular paragraph no.10 and would submit that even if the other legal heirs and next of kin were not given equal share in the immovable property of the said deceased, the said will and codicil cannot be a reason to overlook the validly proved will and codicil. He submits that this Court in the said judgment had considered the earlier wills and codicils, which also provided the same ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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pattern of distribution of the property. The learned Senior Counsel submits that there was no change in the bequests made by the said deceased in the earlier will and codicil except in the date, in the status of Mr.S.F. Rego as a retired Judge and in the age of the deceased. He submits that the defendants have not disputed and challenged the earlier will and codicil dated 1.12.1987 and thus the will and codicil both dated 26.4.1990 cannot be challenged being identical in terms insofar as bequests made by the said deceased are concerned. 36] The learned Senior Counsel for the plaintiffs placed reliance on the judgment of this Court in case of Madhuri Pukhraj Baldota v. Omkarlal Daulatrao Banwat & others (2016 (1) Bom.C.R. 154) and in particular paragraph nos.27 to 29 in support of his submissions, that the onus to prove that the deceased was of an unsound mind or having physical disability was on the defendants, which the defendants had failed to prove. He submits that except one of the sons i.e. Benjamin Abraham, the other legal heirs and next of kin of the said deceased had not opposed the grant of probate in ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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respect of the said will and codicil both dated 26.4.1990. He submits that the said testatrix was all throughout vigilant till her death and had even suggested corrections in the will after reading and understanding the contents thereof and accordingly a codicil was drafted on her instructions by the plaintiffs, which was duly executed and attested.
37] It is submitted by the learned Senior Counsel that though the will and codicil dated 1.12.1987 and 26.4.1990 are marked as Exhibits by this Court with a rider that marking of the documents would not mean that the defendants have accepted or admitted either their due execution or the correctness of their respective contents, it is submitted by the learned Senior Counsel that the witnesses examined by the plaintiffs have duly proved the execution and attestation of both these documents including the earlier will and codicil both dated 1.12.1987 in accordance with law. 38] Mr.Tripathi, learned counsel for the defendants, on the other hand, submits that the said deceased had ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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expired on 18.8.1996 whereas the testamentary petition filed by the plaintiffs was affirmed on 11.10.2001. The said testamentary petition was filed by the plaintiffs herein without filing affidavit of attesting witness alongwith testamentary petition. On that ground itself, the said testamentary petition, which is converted into testamentary suit, deserves to be dismissed. He invited my attention to paragraph no.11 alleging that Mrs.Daisy Dadarkar had requested the executors of the will to hold on the filing of the petition for probate and was pursuing Mr.Benjamin Abraham and Mr.Albert I. Talegawkar to avoid any contest so that the grant of probate would have been smooth and expeditious. He submits that there was no valid explanation given by the plaintiffs for delay in filing the testamentary petition. 39] The learned counsel for the defendants invited my attention to Clauses 4 and 5 of the alleged will dated 26.4.1990 and would submit that the substantial bequest under the said alleged will has been made in favour of Mr.Albert I. Talegawkar, one of the sons of the said deceased whereas the remaining legal heirs and next of ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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kin were given a paltry sum of Rs.1,50,000/-. He invited my attention to the docket of the will and codicil both dated 26.4.1990 showing the name of the plaintiff and Mr.Hasmukh Gandhi. He submits that the executors of the said alleged will and codicil were not aware of the true and correct facts.
40] It is submitted that Mr.Albert I. Talegawkar, who was the major beneficiary under the said will and codicil, had actually participated in filing the said probate petition and also in preparation, execution and attestation of the said alleged will and codicil. He invited my attention to the oath affidavit dated 11.10.2001 filed by the plaintiff as well as by Mr.Hasmukh Gandhi and would submit that both these Advocates were the close associates of Mr.Albert I. Talegawkar who had played a prominent role in preparation, execution and attestation of the alleged will and codicil.
41] It is submitted by the learned counsel that the plaintiff had retired in the month of August, 1989. If ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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the plaintiff was already an executor in the alleged will and codicil dated 1.12.1987, there was no need to prepare another will and codicil on 26.4.1990 for giving the same bequests. He submits that the plaintiff has pleaded total ignorance about the alleged will and codicil dated 1.12.1987. He submits that the contents of the alleged will and codicil dated 1.12.1987 are identical to the contents of the will and codicil dated 26.4.1990 except the status of the plaintiff who had retired in the month of August, 1989, the age of the said deceased testatrix and the names of the witnesses.
42] Learned counsel invited my attention to some of the answers of the plaintiff in his cross-examination by the learned counsel for the defendants to the effect that the plaintiff had deposed that he was not at all aware of the execution, attestation and contents of the will and codicil both dated 1.12.1987. He submits that the plaintiff claimed to be a draftsman of the will and codicil dated 26.4.1990 and if he was not the draftsman of the will and codicil dated 1.12.1987 and had never seen such a will and codicil dated 1.12.1987, the ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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plaintiffs could not have drafted the will and codicil dated 26.4.1990 on identical terms.
43] It is submitted that various such suspicious circumstances are placed on record and proved by the defendants surrounding the alleged execution and attestation of the will and codicil dated 26.4.1990, which are not dispelled by the propounder of the will and codicil. He submits that the plaintiff has conspired with the major beneficiary under the said will and codicil i.e. Mr.Albert I. Talegawkar in fabrication of the said will and codicil dated 26.4.1990. The plaintiffs have adopted a very casual approach in the matter.
44] The learned counsel for the defendants invited my attention to the will and codicil dated 1.12.1987 and would submit that in the said two documents, the said deceased had alleged to have affixed her full signature, whereas in the will and codicil dated 26.4.1990, the said deceased had affixed her short signature, which itself creates a doubt and suspicion in execution of the will ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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and codicil dated 26.4.1990. He submits that the two witnesses to the said will and codicil dated 1.12.1987 have not been examined by the plaintiffs to prove the said will and codicil though both the attesting witnesses were available for examination. He submits that this Court thus shall draw an adverse inference against the plaintiffs.
45] It is submitted by the learned counsel for the defendants that the plaintiff was attached with Bhai Shankar Kanga and Girdharlal Company and had given the address of the said Solicitor Firm in all the correspondence in which the said Mr.Albert I. Talegawkar was a partner. He submits that various facilities were provided by the said Solicitor Firm to the plaintiffs for various purposes in this matter including the alleged drafting of the testamentary petition by the Clerk of the said Solicitor Firm. He submits that similarly Mr.Hasmukh Gandhi, who claimed to be a joint executor of will and codicil dated 26.4.1990 was an Advocate and was associated with the said Mr.Albert I. Talegawkar and the said Solicitor Firm - Bhai Shankar Kanga and Girdharlal ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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Company.
46] It is submitted that the plaintiff - S.F. Rego had also filed a proceeding for recovery of his pension in a Court through the said Solicitor Firm. He submits that the plaintiff has made various false and incorrect statements in these proceedings with a view to help the said Mr.Albert I. Talegawkar and had supported the said Mr.Albert I. Talegawkar in fabricating and forging the said will and codicil dated 26.4.1990 and thus this Court shall take an appropriate action against the plaintiff u/s 471 r/w Section 191 of the Indian Penal Code and shall direct the Registrar of this Court to file prosecution against the plaintiff. He submits that the plaintiff has created various documents for the benefit of said Mr.Albert I. Talegawkar.
47] It is submitted by the learned counsel for the defendants that though the said Mr.Hasmukh Gandhi expired on 14.5.2017 and was available on the date of recording of the oral evidence by the plaintiff before this Court in this proceeding, the plaintiff deliberately ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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did not examine the said Mr.Hasmukh Gandhi and thus an adverse inference shall be drawn by this Court against the plaintiffs and on that ground itself, this testamentary suit deserves to be dismissed. 48] Insofar as the deposit of the will and codicil both dated 26.4.1990 with the office of the Prothonotary and Senior Master by the plaintiff is concerned, it is submitted that the plaintiff has admitted that the said original will and codicil dated 26.4.1990 were handed over to the Clerk of M/s Bhai Shankar Kanga and Girdharlal Company. He submits that this fact itself shows that the office of Bhai Shankar Kanga and Girdharlal Company in which said Mr.Albert I. Talegawkar was a partner was involved at all the stages including the stage of filing and prosecuting the testamentary petition.
49] The learned counsel for the defendants submits that the quality of paper used for execution of the will and codicil dated 1.12.1987 looked better than the quality of paper used for the will and codicil dated ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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26.4.1990, which itself would indicate that the will and codicil dated 26.4.1990 is a forged and fabricated document. He submits that the credibility of the plaintiff, who was examined as the star witness has to be considered by this Court and in view of various false statements made by him to support the case of Mr.Albert I. Talegawkar, his evidence cannot be considered by this Court, he being not a reliable witness. He submits that both the documents are produced by the plaintiff from the custody of Mr.Albert I. Talegawkar. The learned counsel for the defendants submits that the plaintiffs also did not examine Dr.Udhas and also Mr.Balraj Verma and thus an adverse inference shall be drawn by this Court against the plaintiff.
50] On the issue as to whether the said will and codicil dated 26.4.1990 were unnatural or not, the learned counsel for the defendants submits that the testatrix herself had attended the wedding of Mr.Hillel Benjamin Abraham and had given gifts to him and his father, itself would indicate that the relations between the said deceased and the defendant no.3 and his father ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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were cordial and thus the said deceased could not have disinherited the said Mr.Benjamin Abraham or his son from distribution of the share in the building owned by the said deceased. He submits that the said will and codicil have to be construed as unnatural.
51] It is submitted by the learned counsel for the defendants that the defendants have produced evidence on record to show that the hands of the said testatrix were tied by said Mr.Albert I. Talegawkar admittedly which would show that there was coercion and physical assault by the said Mr.Albert I. Talegawkar upon the said deceased and had compelled the said deceased to execute will and codicil in favour of said Mr.Albert I. Talegawkar substantially in respect of the immovable property.
52] It is submitted by the learned counsel for the defendants that the plaintiff has not filed consent affidavit of the other legal heirs and next of kin of the said deceased alongwith the testamentary petition or even thereafter and thus it cannot be said that the other ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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legal heirs and next of kin of the said deceased are supporting the plaintiff.
53] It is submitted by the learned counsel for the defendants that if the said deceased had already executed the will and codicil dated 1.12.1987, the plaintiff would have given an advice to the said deceased not to execute the will and codicil again on 26.4.1990 for the same bequests. The plaintff could have filed a testamentary petition for seeking probate of the said will and codicil dated 1.12.1987. He submits that the plaintiff has performed the duty as a friend and has obliged Mr.Albert I. Talegawkar.
54] It is submitted by the learned counsel for the defendants that the plaintiff or the said Mr.Albert I. Talegawkar did not produce any receipts alleged to have been obtained by them from the other alleged beneficiaries under the said will and codicil dated 26.4.1990 acknowledging the receipt of the amount alleged to have been bequeathed by the said deceased. He submits that the said Albert I. Talegawkar was also not examined ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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by the plaintiff as their witness though various allegations were made by the defendants against him personally in the affidavit in support of the caveat. This Court thus shall draw an adverse inference against the plaintiffs.
55] Insofar as the evidence of Mrs.Daisy Dadarkr (PW2), relied upon by the plaintiffs, is concerned, it is submitted by the learned counsel for the defendants that the said Mrs.Daisy Dadarkar was one of the daughters of the said deceased. Her marriage was not approved by the parents. Her relations with the said deceased were not cordial for quite some time. He submits that the said witness had admitted in her evidence that the said deceased was admitted in Bombay Hospital and was operated for skin cancer in the year 1988. He submits that there are contradictions in the evidence of the said Mrs.Daisy Dadarkar about the execution and attestation of the will and codicil dated 26.4.1990 and in the evidence of the plaintiff in that regard and thus her evidence shall not be considered by this Court, she being not a reliable witness.
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56] It is submitted that the said witness did not produce any document to show that the said Mr.Benjamin Abraham was convicted for an offence alleged to have been committed by him. It is submitted by the learned counsel for the defendants that the will and codicil both could not have been executed on the same day and that itself clearly indicates that the said will and codicil both are surrounded by suspicious circumstances. The execution of the will and codicil both on the same day would not be possible in ordinary course. The plaintiff has failed to repel these surrounding circumstances to the satisfaction of this Court by leading cogent evidence. 57] The learned counsel for the defendants placed reliance on Section 59 of the Indian Succession Act, 1925 and in particular Explanation 4 and would submit that since the said deceased was suffering from illness, she was not in a state of mind to execute such will and codicil on 26.4.1990 and thus such a document cannot be accepted by this Court as proved u/s 63 of the Indian Succession Act, 1925. The said testatrix was not aware ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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of anything at all about execution of the said will and codicil dated 26.4.1990. If the said deceased would have remembered that she had already executed a will and codicil on 1.12.1987, she would not have executed another will and codicil for the same bequests. He submits that this fact itself would indicate that she was not of the sound and disposing mind and was not able to understand her acts. Such a will and codicil thus cannot be accepted as proved by this Court.
58] The learned counsel for the defendants placed reliance on Section 63(c) of the Indian Succession Act, 1925 and would submit that the plaintiff has failed to prove the execution and attestation of the will and codicil and thus the same cannot be probated by this Court.
59] The learned counsel for the defendants invited my attention to Clause 6 of the will dated 26.4.1990 and would submit that according to the said clause, if any beneficiary under the said will challenges the said will in any manner whatsoever, such a beneficiary would ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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forfeit his or her right and in that event, Mr.Albert I. Talegawkar would not be bound to make any payment to such a beneficiary. He submits that even if this Court comes to a conclusion that such a will was executed and attested in accordance with law, Clause 6 thereof, being a conditional bequest, the entire will has to be considered as void and thus no probate thereof can be granted by this Court.
60] Mr.Tripathi, learned counsel for the defendants placed reliance on the judgment of the Supreme Court in case of Surendra Pal and others v. Dr.(Mrs.) Saraswati Arora & another (1974) 2 SCC 600 and in particular paragraph no.7 and would submit that the propounder has to show that the will was signed by the testatrix, that he was at the relevant time in a sound and disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he had signed it in the presence of two witnesses, who attested it in his presence and in the presence of each other. He also relied upon the said judgment in support of his ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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submission that the plaintiff as well as said Mr.Albert I. Talegawkar, who had alleged to have taken prominent part in the execution of the will which conferred substantial benefit on the said Mr.Albert I. Talegawkar, in collusion with the plaintiff, the plaintiff was under
an obligation to dispel such surrounding suspicious circumstances, which he failed.
61] The learned counsel for the defendants placed reliance on the judgment of the Supreme Court in case of Kalyan Singh v. Smt.Chhoti and others (AIR 1990 SC 396) and in particular paragraph no.20 and would submit that the Court is not bound to grant probate only on the plaintiff's proving the execution and validity of the will by considering the evidence produced by the propounder, but in order to judge the credibility of witnesses and disengage the truth from falsehood, the Court is not confined only to their testimony and demeanor, but it would be open to the Court to consider the circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. The Court has to look into the surrounding ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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circumstances as well inherent probabilities of the case to reach a proper conclusion on the nature of evidence adduced by the party.
62] The learned counsel for the defendants placed reliance on the judgment of the Supreme Court in case of Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003) 2 SCC 91 and in particular paragraph nos.7 to 11 and would submit that the plaintiff having failed to prove the conditions set out in Section 63 of the Indian Succession Act, 1925 and u/s 68 of the Indian Evidence Act, this Court cannot grant probate in respect of the said will and codicil dated 26.4.1990. He submits that the plaintiff has not examined the second attesting witness to the will and codicil dated 26.4.1990 and the plaintiff having failed to prove the attestation and execution of the said will and codicil dated 26.4.1990, this Court cannot grant probate in respect of those two documents.
63] The learned counsel for the defendants placed reliance on the judgment of the Supreme Court in case of Jagdish Chand Sharma v. Narain Singh Saini (dead) through ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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L.Rs. & others (2015) 8 SCC 615 and in particular the paragraph nos.22, 22.2 and 22.3 of the said judgment in support of his submission that the plaintiff who was allegedly propounder of the said will and codicil and also claimed to be one of the attesting witnesses having failed to prove the execution and attestation of the said will and codicil dated 26.4.1990, this Court cannot grant probate in favour of the plaintiffs in respect of those documents.
64] The learned counsel for the defendants distinguished the judgments relied upon by the learned Senior Counsel for the plaintiff on the ground that the facts in the said judgments were totally different than the facts before this Court in this case. 65] Mr.Thacker, learned Senior Counsel for the plaintiff, in rejoinder, submits that the conspiracy alleged by the defendants across the bar has not been proved. The defendants have not challenged the will and codicil dated 1.12.1987, which were identical in terms insofar as bequests made therein are concerned and thus ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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the execution of the will and codicil on the same terms on 26.4.1990 cannot be considered as any conspiracy as canvassed by the learned counsel for the defendants across the bar. He submits that the order passed by this Court in the Chamber Summons allowing the plaintiffs to produce the will and codicil dated 26.4.1990 has not been impugned by the defendants by filing any appeal. Various findings recorded by this Court in the said order are subsisting and are binding on the defendants as well as the plaintiff. In support of this submission, the learned Senior Counsel reiterated his submissions based on the judgment of this Court in case of Rusi Hormusji Pavri & another (supra).
66] The learned Senior Counsel distinguished the judgment of the Supreme Court in case of Jagdish Chand Sharma (supra). He submits that the plaintiff had filed two affidavits in lieu of examination-in-chief and has identified the signature of the said deceased on the will and codicil dated 26.4.1990 and also identified the signatures of the attesting witnesses, which evidence remained uncontroverted in the cross-examination. He ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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also identified the signature of Dr.Udhas. 67] Insofar as the submissions made by the learned counsel for the defendants on the alleged surrounding suspicious circumstances in execution of will and codicil are concerned, it is submitted by the learned Senior Counsel that the said will and codicil dated 1.12.1987 were not attested by a lawyer or a doctor. The plaintiff
- S.F. Rego, who was a sitting Judge of the Bombay City Civil Court on the date of execution of the will and codicil dated 1.12.1987 retired. He submits that the defendants have not disputed the execution and attestation of the said will dated 1.12.1987. On the contrary, the defendant no.3 had asked various questions to the plaintiff in his cross-examination about the corrections, if any, made by the plaintiff and how. The plaintiff had deposed in his cross-examination, in response to such question, that the corrections were made on instructions of the said deceased, which she suggested after reading the said will dated 26.4.1990. 68] Insofar as the submission of the learned counsel ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:20 ::: TS 75/02 in TP 787/01
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for the defendants that Mr.Hasmukh Gandhi, Mr.Albert I. Talegawkar, Mr.Verma and Mr.Udhas were not examined as witnesses by the plaintiff and thus an adverse inference shall be drawn by this Court is concerned, it is submitted by the learned Senior Counsel that none of them were attesting witnesses to the will and codicil dated 26.4.1990 and were not required to be examined as witnesses.
69] Insofar as the submission of the learned counsel for the defendants that the said deceased was not in a position to understand anything about the alleged execution of will and codicil and was not familiar with the English language is concerned, the learned Senior Counsel invited my attention to the reply given by the plaintiff in his cross-examination to question no.38 in which the plaintiff answered that the said deceased had read the will and had suggested correction in the will and accordingly the said codicil was drafted by the plaintiffs and was executed by the said deceased. 70] Learned Senior Counsel also invited my attention ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:21 ::: TS 75/02 in TP 787/01
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to the affidavit in support of the caveat filed by the father of the defendant no.3 and also the affidavit of the defendant himself and in particular paragraph no.8(i) admitting that the said deceased was teaching in a school for 38 years and was educated. The plaintiff also admitted in the cross-examination that the said deceased had put her initials in the said will while putting a date thereon. The defendants did not lead any positive evidence to show that the said deceased was not in a position to understand about the execution, attestation and the contents of the said will and codicil. 71] Insofar as the submission of the learned counsel for the defendants that since the address of the plaintiff in the correspondence and other documents was c/o Bhai Shankar Kanga and Girdharlal Company and various assistance was provided to the plaintiff by the said Solicitor Firm in which Mr.Albert I. Talegawkar was a partner is concerned, it is submitted by the learned Senior Counsel that when the testamentary petition was filed, the said Mr.Albert I. Talegawkar was a junior Advocate with the said Solicitor Firm - M/s Bhai Shankar ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:21 ::: TS 75/02 in TP 787/01
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Kanga and Girdharlal Company and was using some facilities of the said firm. He submits that merely because services of the Clerk of the said Solicitor Firm were availed of or address of the said Firm was given by the plaintiff in some of the correspondence, no conclusion can be drawn that Mr.Albert I. Talegawkar had played any role in execution of the will and codicil. He submits that no such suggestion was given to the plaintiff in his cross-examination by the learned counsel for the defendants. He submits that the alleged participation of Mr.Albert I. Talegawkar in drafting, execution and attestation of the will and codicil is not proved by the defendants.
72] Insofar as the submission of the learned counsel for the defendants that the will and codicil were unnatural is concerned, it is submitted by the learned Senior Counsel that all the daughters and Mr.Benjamin Abraham were excluded from share in the immovable property and were given a sum of Rs.1,50,000/- in the said will read with codicil. None of the daughters have opposed grant of probate in favour of the plaintiff. No ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:21 ::: TS 75/02 in TP 787/01
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suspicious circumstances have been alleged by the defendants admittedly in respect of the will and codicil dated 1.123.1987. Since the will and codicil dated 1.12.1987 are identical to the will and codicil dated 26.4.1990, no suspicious surrounding circumstances thus can be alleged by the defendants in respect of the said will and codicil dated 26.4.1990. In any event, the said allegations are not proved by the defendants. It was not the case of the defendants that Mr.Albert I. Talegawkar was present at any stage of execution and attestation of the will and codicil or had influenced the testatrix of the will and codicil at the time of execution of the documents or at any other stage.
73] Insofar as the submission of the learned counsel for the defendants that the plaintiff did not produce any receipt of payment of the amounts to sisters as per directions of the testatrix in the will and codicil is concerned, it is submitted by the learned Senior Counsel that the implementation of the will or codicil, though could be done after grant of probate by this Court, the said Mr.Albert I. Talegawkar had paid the said amount to ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:21 ::: TS 75/02 in TP 787/01
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the three sisters and had also offered the amount of Rs.1,50,000/- to Mr.Benjamin Abraham, who refused to accept. He submits that this fact was, though not required to be proved, has been proved by the plaintiff by examining Mrs.Daisy Dadarkar (PW2) who admitted that all the sisters were already paid the said amount by Mr.Albert I. Talegawkar. He submits that in any event those receipts can be produced after probate is granted by this Court and even if those receipt are not produced by the plaintiff, that cannot be a ground not to grant probate though the plaintiff has proved the execution and attestation of the will and codicil and that the said testatrix was of sound and disposing capacity on the date of execution of will and codicil.
74] Insofar as the submission of the learned counsel for the defendants that the plaintiff has not produced the affidavit of consent of other sisters alongwith the testamentary petition or even thereafter is concerned, it is submitted by the learned Senior Counsel for the plaintiff that there is no requirement of filing consent affidavit of the legal heirs and next of kin alongwith ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:21 ::: TS 75/02 in TP 787/01
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testamentary petition or even thereafter. He submits that since all the legal heirs and next of kin disclosed in the testamentary petition, of which there is no dispute, were served with the citation and none of them except Mr.Benjamin Abraham had filed any caveat and affidavit in support, it is proved that there was no objection to the grant of probate by any of those legal heirs and next of kin.
75] Insofar as the submission of the learned counsel for the defendants that the plaintiff had not filed an affidavit of witness alongwith the testamentary petition is concerned, it is submitted by the learned Senior Counsel that when the office of this Court raised an objection about such affidavit of witness not having been filed alongwith testamentary petition, the plaintiff immediately filed an affidavit of attesting witness. He submits that this Court cannot refuse to grant probate in favour of the plaintiff on that ground.
76] Insofar as the submission of the learned counsel for the defendants that in paragraph no.6 in Clause 6 of ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:21 ::: TS 75/02 in TP 787/01
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the will, there was a condition imposed by the said testatrix to the effect that if any of the beneficiaries challenges to the said will, no benefit under the said will would be conferred upon him or her, being a conditional bequest and on that ground, the entire will has become void is concerned, it is submitted by the learned Senior Counsel that no such ground was raised by the defendants in the affidavit in support of caveat or by the father of the defendant no.3 in his affidavit in support of the caveat. He submits that in any event, the said Mr.Albert I. Talegawkar had offered the said amount of Rs.1,50,000/- to the father of the defendant no.3, who was one of the beneficiaries under the said will and the codicil, he had refused to accept the said averment admittedly. He submits that under Chapter XI of the Indian Succession Act, 1925, such bequeath cannot be considered as void. He submits that since no such issue was raised by the defendants in the affidavit in support of the caveat, this Court did not frame any such issue for consideration and thus no evidence was led by the plaintiff on that issue raised across the bar by the defendants.
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77] It is lastly submitted by the learned Senior Counsel that the learned counsel for the defendants has, during the course of arguments, made personal attack on the integrity and character of the plaintiff and has prayed for an order and direction against the Registrar of this Court to file prosecution u/s 471 of the Code of Criminal Procedure, 1973, read with Section 191 of the Indian Penal Code against him. He submits that each and every submission attacking the plaintiff personally on the integrity and character and seeking prosecution of the plaintiffs is totally baseless, without any supporting evidence and is made with ulterior motive. No such case is made out by the defendants against the plaintiff.
78] It is submitted that the defendants are not able to prove any of the allegations made by them in the affidavit in support of the caveat filed by the defendant no.3 nor in the affidavit in support of the caveat filed by his father and the objections raised in those affidavits are raised merely for the sake of raising it ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:21 ::: TS 75/02 in TP 787/01
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in order to delay outcome of the testamentary petition filed by the plaintiff. Those objections thus are deserved to be dismissed with exemplary costs and the plaintiff be granted probate in respect of the said will and codicil both dated 26.4.1990 expeditiously. REASONS AND CONCLUSIONS :
79] I shall first deal with the Issue Nos.1 and 2
together, which are interconnected. Both the parties have led oral as well as documentary evidence on these two Issues. The onus is on the propounder of the Will and Codicil to prove due execution and attestation thereof and as to whether the subject Will and Codicil are legal and valid. The plaintiff Mr.S.F.Rego, who was one of the executor appointed by the said deceased in the said Will and Testament dated 26.4.1990, was also one of the attesting witness to the said Will and Testament dated 26.4.1990. In his affidavit in lieu of examination-in-chief dated 28.4.2009, he deposed that on 26.4.1990, he was present with Dr.P.H.Udas at the house of the said deceased and had witnessed the signature of the said deceased and also were attesting witness at the same time.
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80] In his further affidavit dated 17.12.2013, the plaintiff identified his signature on the original Will and Codicil both dated 26.4.1990 and also the signature of testatrix on the said Will and Codicil and also the signature of Dr.P.H.Udas, who was another attesting witness to the documents. The plaintiff had also filed affidavit of attesting witness in the testamentary petition on 4.7.2002, showing the proof of execution and attestation of the Will and Codicil both dated 26.4.1990, by the said deceased and two attesting witnesses thereon. 81] A perusal of examination-in-chief of the plaintiff indicates that when the witness was asked about the original Will and Codicil dated 26.4.1990, the plaintiff answered that both the documents were handed over to the clerk of Bhaishankar Kanga and Giridharlal Solicitors for depositing the same with the Prothonotary and Sr.Master. It is pertinent to note that the plaintiff was shown the original Will dated 26.4.1990, and Codicil dated 26.4.1990 and was asked whether those two documents and the affidavit dated 1.10.2013 were ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:21 ::: TS 75/02 in TP 787/01
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bearing his signatures, the plaintiff identified his signatures on the original Will and Codicil both dated 26.4.1990, as an attesting witness.
82] The witness also identified his signature on affidavit of oath dated 1.10.2013. He also deposed that the contents of the affidavit are true and correct. The witness was also shown the signatures on the original Will and Codicil. The witness also identified the signatures of the testatrix on the original Will and Codicil both dated 26.4.1990 and also deposed that Dr.P.H.Udas had signed the said documents as a witness alongwith the plaintiff in his presence. 83] It is pertinent to note that in the cross- examination of the plaintiff, he was asked whether he knew the contents of the Will and Codicil dated 26.4.1990, he answered the said question in affirmative and further stated that he was a draftsman. The said witness was further asked whether the draft and the Will were prepared by him alone at the instance of the plaintiff, the witness answered in the affirmative. The ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:21 ::: TS 75/02 in TP 787/01
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said witness replied in negative when he was asked as to whether prior to preparing the draft of the Will and Codicil dated 26.4.1990, any other draft of Will and Codicil were prepared.
84] In reply to question No.36, when the plaintiff was asked as to when he had prepared the draft of the Will and Codicil, had he made any corrections in draft of the Will and Codicil, the witness answered that no corrections were made. Instructions of preparing Codicil were given separately by the said testatrix after the Will was shown. The witness denied the suggestion of the learned counsel for the defendants that he had never prepared any draft of the Will and Codicil in this matter. The witness was asked whether he had made any corrections in the Will and Codicil, the witness answered in negative in so far as the Will is concerned. 85] The said witness further deposed that the Codicil was separately made on the instruction of the testatrix. The witness was asked about the nature of corrections suggested by the testatrix on reading the ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:21 ::: TS 75/02 in TP 787/01
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Will, the witness answered that the testatrix had suggested the provisions for each child of hers to be increased by Rs.50,000/- and thus Codicil came to be prepared.
86] The plaintiff was asked to inform the Court as to the time taken between preparation of Will and Codicil, but the plaintiff's answer was that the Will was prepared few days after taking instructions. Codicil was prepared on the same day of execution of the Will. He answered that no draft of the Will was typed. The witness was when asked as to whether he was aware of typed draft of Will and Codicil, the witness answered that the Will was in his handwriting and not typed. He was asked as to whether the drafts of Will and Codicil were prepared by him and handed over, the witness answered that the same were handed over to his assistant Mr.Balraj Verma after it is typed. In reply to question No.43, when the witness was asked as to who made the corrections in the final draft, he answered that so far as the Codicil is concerned, oral instructions were given by him to Mr.Balraj Verma as the figure of ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:21 ::: TS 75/02 in TP 787/01
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Rs.1,00,000/- to Rs.1,50,000/- was made in the Codicil. The witness denied the suggestion of the learned counsel for the defendants that the deceased was never instructed him to change the figure.
87] The witness deposed that he had come to know for the first time that he was appointed as an executor of the Will at the time of taking instructions. It is pertinent to note that the plaintiff was asked whether the deceased gave him instructions at the time of preparing draft that he was also appointed as an executor of the Will, the witness replied that he was requested to act as an executor by the said deceased at the time of taking instructions. He was asked whether the testatrix had informed him that she had already prepared the Will and Codicil in which he was one of the executor, the witness answered the said question in negative. 88] The witness was thereafter shown Will dated 1.12.1987, alongwith Codicil filed with affidavit of oath and was asked to compare the contents of the Will and Codicil dated 1.12.1987 with the contents of the Will ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:21 ::: TS 75/02 in TP 787/01
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dated 26.4.1990 and was asked whether the contents were the same, the Witness however, stated that he was not in a position to answer the question in the form of 'Yes' or 'No' regarding the contents of both the Will and the Codicil whether were the same.
89] The witness was shown the docket of the Will and Codicil dated 26.4.1990, and was asked to state whose name was written on the docket of the said documents. The witness answered that the said docket showed his name and the name of Mr.Hasmukh B.Gandhi, Advocate. The witness was asked as to why he allowed the name of Mr.Hasmukh B.Gandhi on the docket, if he had not prepared the draft of the said documents, the witness replied that he was one of the executor of the Will and therefore, the said witness allowed the name of Mr.Hasmukh B.Gandhi on the docket of Will and Codicil dated 26.4.1990. 90] The witness was asked whether it was correct to state that Mr.Hasmukh B.Gandhi was one of the executors along with plaintiff to the Will and Codicil dated 26.4.1990, the witness answered in the affirmative. The ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:21 ::: TS 75/02 in TP 787/01
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witness deposed that he was not an attesting witness to the Will dated 1.12.1987. Dr.P.H.Udas was also not an attesting witness to the said Will dated 1.12.1987. He deposed that though the Will dated 1.12.1987 came to his knowledge after filing of the probate petition in the year 2002, it was not necessary to file any separate petition for probate in respect of Will dated 1.12.1987, as the probate petition has to be filed in respect of the subsequent Will. He deposed that original of the Will dated 26.4.1990 was filed in the Court about one year ago, the same was handed over to him by managing clerk of Mr.Bhaishankar Kanga and Giridharial. He met Mr.Albert Talegawkar, who was beneficiary under the Will and Codicil dated 26.4.1990 after filing of the probate petition.
91] All the pleadings filed on his behalf and on behalf of Mr.Hasmukh Gandhi were drafted by the managing clerk of M/s.Bhaishankar Kanga and Giridharlal under his instructions. He deposed that he was not going to examine Mr.Hasmukh Gandhi as his witness or the managing clerk of M/s.Bhaishankar Kanga and Giridharlal as the ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:21 ::: TS 75/02 in TP 787/01
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said clerk was not available. The witness has also deposed that he has not examined Dr.Udas as his witness. The witness was asked whether he was informed that the deceased was a school teacher and had retired, the witness answered in affirmative.
92] In reply to question no.11 in cross-examination, the witness was asked whether it was correct that on page no.3 after paragraph no.6 of the Will dated 26.4.1990, the date was mentioned as 26.4.1990, whether there were initials of the said deceased, the witness answered the said question in affirmative. He also deposed that the date as 26.4.1990 was filled by the said deceased in her own handwriting. The deceased was an educated lady. He denied the suggestion of the learned counsel for the defendants that he was informed that he was appointed as an executor by the deceased in the Will and Codicil dated 26.4.1990, by Mr.Albert.
93] The said witness deposed that since he had drafted the Will and Codicil dated 26.4.1990, he knew that such documents existed. He had directed Mr.Albert ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:21 ::: TS 75/02 in TP 787/01
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Talegawkar to distribute to the legatees the amounts as directed in the Will read with Codicil both dated 26.4.1990. The witness denied the suggestion put by the learned counsel for the defendants that Will and Codicil dated 26.4.1990 were given to him by Mr.Albert Talegawkar for signature after the same was already signed by testator. The witness has also denied the suggestion that since there were no proper witnesses to the Will dated 1.12.1987, he had obliged Mr.Albert Talegawkar by attesting the Will and Codicil both dated 26.4.1990. 94] A perusal of the affidavit of evidence filed by Mrs.Daisy Dadarkar (PW-2) examined by the plaintiff indicates that she deposed that her father Isaac Abraham Talegawkar died on 9.7.1983 at Mumbai. The deceased testatrix died on 18.8.1996. During the life time of the father of plaintiff and the said witness and other children, and in the life time of the said deceased/testatrix, both the parents were living with Mr.Albert Talegawkar and his family on the 2 nd Floor of the building on Plot No.312 at Khar.
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95] In her affidavit in lieu of evidence, the PW-2 stated that in the get-together at the residence of one of the sisters Mrs.Annie, all the siblings of the said deceased including Mrs.Rosy, who had come from Israel, except Mr.Albert Talegawkar, were present after the said Will and Codicil were executed. In the said get- together, the said PW-2 along with the other family members were present had discussed about the said Will and Codicil. It is deposed that the said deceased at that time had told them that the property at Khar was given to Mr.Albert Talegawkar and that each of the other children were to get Rs.1,50,000/-. The copies of the Will and Codicil were given to the witness and to other siblings when all were present on Hashkaba day which was a obsequial ceremony.
96] The said Mrs.Daisy Dadarkar in her cross- examination denied that the said affidavit was filed by her on the suggestion of the plaintiff. She also denied that the said affidavit was drafted by Mr.Albert Talegawkar. She deposed that nobody had advised her to give evidence in the matter. However, as she felt that ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:21 ::: TS 75/02 in TP 787/01
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truth should come before this Court, she had filed her affidavit. Her parents did not approve her marriage since it was inter-caste marriage. She deposed that after the death of the father in the year 1983, Mr.Albert Talegawkar was staying with his wife and three children and also the said deceased mother.
97] The said witness was shown the original Will dated 1.12.1987, and Codicil dated 1.12.1987 and was asked to identify the signatures of the said deceased on both the documents. She identified the signature of the said deceased on both the documents and deposed that as far as she knew the signature, the signature on those documents was her usual signature. The witness was put a suggestion that the said deceased used to sign as "Issac Talegawkar", the witness answered that as far as she knew, her mother used to sign as "S.I.Talegawkar" and not as "Issac Talegawkar". She had seen the signature of the deceased as "S.I.Talegawkar".
98] The deceased used to give gift by cheques to her children on their birthday on which the said witness ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:21 ::: TS 75/02 in TP 787/01
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had seen her signature as "S.I.Talegawkar". The witness denied that Mr.Albert Talegawkar or his family were present at the time of execution of the Will or Codicil. In her cross-examination, she deposed that Mr.Benjamin Abraham, one of the son of the said deceased, had asked the said deceased as to why she prepared such Will and why most of the properties were given to Mr.Albert Talegawkar. The said deceased told him that what she felt proper, she had done in the Will.
99] The said deceased also told Mr.Benjamin that when her husband had expired, none of the sisters or said Mr.Benjamin had ever asked the deceased to come and stay to their house. It was only Mr.Albert Talegawkar and his wife who took her care after demise of husband of the said deceased in all sense. The said deceased also told Mr.Benjamin that whatever she felt proper, she had given to her children in her Will and it was for them to accept what was given. The said deceased also told Mr.Benjamin that neither any of the sisters nor Mr.Benjamin had ever come to clear her stool and urine and except, Mr.Albert Talegawkar, all the other siblings had only given her lip ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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service. She deposed that such conversation took place between sisters, Mr.Benjamin and mother after they all finished their lunch. The plaintiff used to frequently visit the house of the said deceased. The said witness deposed that she had not read the Will, however, she knew the contents whatever had informed to her by her mother. 100] Mr.Benjamin Abraham had initially filed affidavit in support of the caveat opposing the grant of probate on 14.10.2002. In his affidavit in support of caveat, he had alleged that the alleged Will had got signed by the deceased without her knowledge of its contents and application of mind by her. The major portion beneficiary had compelled the deceased to sign the alleged Will. The said Mr.Benjamin Abraham, however, expired during the pendency of this Testamentary Suit on 7.8.2010. Mr.Hillel Benjamin Abraham thereafter filed a separate affidavit in support of caveat on behalf of himself and other legal heirs and next-of-kin of the said Mr.Benjamin Abraham on 3.8.2011. In his affidavit in support of caveat also he alleged that the said Will had not been signed by the deceased and her signature was ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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forged and fabricated by Mr.Albert Talegawkar under collusion and connivance of plaintiff and Mr.Hasmukh B.Gandhi.
101] The affidavit in lieu of examination-in- chief of Mr.Hillel B.Abraham contained the allegations made by him in affidavit in support of caveat. In his cross- examination, the said witness when was asked whether it was true to say that immediately after the marriage of his father Mr.Benjamin I.Talegawkar, he had separated from his parents, the witness answered that he had no personal knowledge of the same. However, he had told that his parents stayed with his father's parents for atleast two years following their marriage. The witness admitted that he and his father had taken inspection of original Will dated 26.4.1990. The witness was asked as to where he was living at the time of the death of the said deceased testatrix, he answered that he was staying at Income Tax Colony, Peddar Road. The said deceased was staying at Madhu Park, Khar at the time of her death. This witness was not present at the residence of the said deceased when she passed away. The witness admitted that ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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he was not present at the residence of the said deceased when she has executed the Will. He was also not present when the said deceased has executed the Codicil. 102] In reply to question No.35 when the witness was asked whether he had ever seen the said deceased signing any document, the witness answered in negative. In reply to question No.36, when he was asked whether he would be able to identify the signature of the deceased on any documents shown to him, he answered in negative and further deposed that it would not be possible. 103] In reply to question No.38, the witness was asked whether he was aware that the Will was attested by Dr.Udas, the witness answered that there are two Wills left by the said deceased. Dr.Udas had attested the Will that was made some time in the year 1990. When the witness shown the photocopy of the Will dated 26.4.1990 since the original was in safe custody and was asked whether the said Will he had referred to in his answer to question No.38, the witness answered in affirmative. ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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104] In reply to question No.42, when the witness was asked that since he was not present when the Will was executed, whether he had anything to support to his statement that the Will was forged and fabricated and was not genuine as stated by him in paragraph No.7(a) of the witness affidavit, witness answered that the said statement was based on what he had heard from his father. His father had told him that the signature of the said deceased appearing on the Will did not match with her signature in the Bank of Maharashtra where she held an account. The witness was asked whether he has any personal knowledge of the deceased having been threatened as alleged by him in paragraph No.7(e) of the affidavit for evidence and the witness answered that he had no personal knowledge.
105] In reply to question No.60, when the witness was asked as to whether he was present when Mr.Albert Talegawkar had alleged to have been threatened the said deceased to throw her out of the house, the witness answered in negative and further deposed that he was not present that time. The said witness could not produce ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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any record to show that Mr.Benjamin had paid the bills of Bombay Hospital when the said deceased was admitted there. He deposed that all the bills and receipts were with Mr.Albert Talegawkar. The witness admitted that he had never lived with his grandparents. In reply to question No.71 when he was asked whether he was aware whether the said deceased had made bequest of Rs.1,50,000/- to his father Mr.Benjamin and the sisters of his father and that his father has declined to accept it from the executors of the Will, he answered the said question in affirmative and further deposed that his father had declined to accept the said amount. He did not know about his sisters.
106] A perusal of the aforesaid documentary as well as oral evidence clearly indicates that the plaintiff and Ms. Daisy Dadarkar, who was examined as a witness by the plaintiff had identified the signatures of the said deceased on the Will and Codicil and also the attesting witnesses thereon and has proved the execution and attestation thereof as required in law and in particular under Section 63 of the Indian Succession Act, 1925. ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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107] A perusal of the cross-examination of the plaintiff and his witnesses by the defendants clearly indicates that the defendants have no disputed the existence, execution and attestation of the Will and Codicil both dated 26.4.1990 and also Will and Codicil both dated 1.12.1987. The plaintiff was asked repeatedly in his cross-examination by the learned counsel for the defendants about the existence, execution and attestation of Will and Codicil by asking various questions. The witness was also asked whether he had carried out any corrections in the Will and the Codicil. 108] In so far as only the evidence of Mr.Hillel Benjamin Abraham, who was examined by all the defendants is concerned, the evidence summarized aforesaid clearly indicates that he had never stayed with his grandparents. He had never seen the deceased affixing her signature on any document and clearly admitted that he would not be able to identify the signature of the said deceased. He was not present when the Will and Codicil were executed by the said deceased. The allegations of the forgery and ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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fabrication made by the said witness in his affidavit in lieu of examination-in-chief was based on hearsay information alleged to have been given to him by his deceased father Benjamin. The defendants did not lead any other independent evidence to show that the signatures of the said deceased on the Will and the Codicil were forged and fabricated.
109] Under Section 63 of the Indian Succession Act, 1925, the initial burden which is always on the propounder to prove due execution and attestation of the Will and about the sound and disposing state of mind of the testator has been proved by the plaintiff by leading cogent evidence. The case of the plaintiff is also proved by virtue of cross-examination of plaintiff and his witness by defendants in so far as valid execution of the Will and Codicil are concerned. The condition set out in Section 63 of the Indian Succession Act, 1925 are thus fully satisfied by the plaintiff. The evidence led by the plaintiff, who was not only one of the executor appointed by the said deceased, but also attesting witness, had entered in the witness box and his evidence ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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was remained un-controverted and was not shattered in the cross-examination. In my view, the plaintiff has also proved by leading cogent evidence that the subject Will was legal and valid. Accordingly, for the reasons recorded aforesaid, the Issue Nos.1 and 2 are answered in affirmative.
110] I shall now deal with Issue Nos.3, 4, 5, 6 and 8 together in view of there being a common evidence on these Issues and thus can be conveniently decided together. The onus to prove all these issues is on the defendants.
111] In so far as Issue Nos. 3 and 4 are concerned, a perusal of cross-examination of the plaintiff by the learned counsel for the defendant no.3 and more particularly, the answers to question No.36, 38, 43 and 44, clearly indicate that when the plaintiff was asked whether he had made any corrections in the Will or the Codicil, the witness answered that he had not made any corrections in the Will. However, the Codicil was separately prepared under the instruction of the ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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testatrix, who had after reading the Will had suggested the corrections. The witness was further asked about nature of the corrections suggested by the testatrix on reading the Will, the witness answered that the testatrix has suggested that the provisions for each child of hers be increased by Rs.50,000/- and accordingly the Codicil came to be prepared.
112] It is thus clearly established beyond reasonable doubt by the plaintiff and more particularly, by the deposition given in cross-examination that the said deceased had herself read the contents of the Will and had made suggestion after reading the contents of the Will to increase the amount provided in Will by Rs.50,000/- in favour of all the children of the said deceased. In my view, it is thus clear beyond reasonable doubt that the defendants have failed to prove that the deceased had signed the subject Will without knowledge of the contents thereof or that she was not of sound and disposing capacity on the date of execution of the said Will and Codicil.
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113] The question asked by the learned counsel for the defendants to the plaintiff itself would indicate that there was no dispute that the said deceased could read and understand the contents of the Will and could make a suggestion for corrections in the Will. There is thus no merit in the submission of the learned counsel for the defendants that deceased was not of sound and disposing capacity on the date of execution of Will. 114] In so far as reliance placed by learned counsel for the defendants on Section 59 of the Indian Succession Act, 1925 in particular explanation-4 in support of the submission that the said deceased could not make a will, in view of the said deceased suffering from illness or that she did not know what she was doing is concerned, a perusal of the evidence referred to above clearly indicates that the said deceased was clearly aware of what she was doing while executing the Will and Codicil. 115] In so far as her alleged sickness is concerned, the plaintiff in his affidavit in lieu of examination-in- chief dated 28.4.2009 had deposed that at the time of ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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execution and attestation of the said Will and Codicil, the said deceased was of sound and disposing capacity and memory and understanding and had published the said documents by free-will and pleasure. In his cross- examination, when the plaintiff was asked whether the deceased was suffering from skin cancer prior to 10 years of her death the witness answered that he was not aware that the said deceased was suffering from skin cancer prior to 10 years of death. She had suffered fracture 2-3 months prior to her death.
116] Mrs.Daisy Dadarkar (PW-2) was asked about the skin cancer of the said deceased, the said witness answered that the said deceased was suffering from skin cancer in the year 1998 and was operated by Dr.Shrikhande. She denied a suggestion of the learned counsel for the defendants that after demise of the father of the witness, the said deceased was not recognizing any person and had lost her balance. 117] A perusal of the cross-examination of Mr.Hillel Benjamin Abraham on this issue indicates that he has ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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admitted that he never stayed with the grant parents including the said deceased. In reply to question No.26 when he was asked whether he had any personal knowledge of any alleged undue influence been exerted by Mr.Albert Talegawkar on the said deceased, he answered in affirmative. He further volunteered that the said deceased had skin cancer, which made her constantly to scratch her face and body to relieve the itching sensation and would create wound in doing so, the plaintiff used to tie down her hands. When the witness was asked by the Court whether he would agree that it is possible that hands of the deceased had to be tied to prevent her from injuring herself by constant scratching, the witness answered in affirmative.
118] A perusal of the oral evidence laid by the parties on this issue clearly indicates that though the said deceased was suffering from skin cancer 10 years prior to the execution of the Will and Codicil, she was already treated and operated by the Doctors. The defendants have failed to prove before this Court by any cogent evidence that by virtue of the skin cancer, which ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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the deceased suffered 10 years prior to the execution of the Will and was though treated by the Doctors, had made her incapable of understanding what she was doing on the date of execution of the Will and Codicil or affected her mind and disposing capacity to execute such document. 119] Unless defendants would have proved by leading cogent evidence that by virtue of such skin cancer suffered by the said deceased 10 years prior to the execution of Will and the Codicil and the same would have affected her sound and disposing capacity to execute a Will and Codicil and her understanding as to what she was doing on the date of execution of Will and the Codicil, it cannot be said that the said deceased was incapable of making Will and Codicil under Section 59 of the Indian Succession Act, 1925. In my view, therefore, there is no merit in the submission of the learned counsel for the defendants on these Issues. Issue Nos.3 and 4 are accordingly answered in negative.
120] In so far as Issue No.5 is concerned, the onus to prove this Issue was on the defendants. It is ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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admitted by the defendant No.3 in his evidence that he was not present when his grandmother had expired. He admitted that when the grandmother passed away, he was living at Income Tax Colony, Peddar Road. The witness has not denied that the said deceased has died after more than 12 years of demise of her husband. There is no other cogent evidence led by the defendants in support of this allegation that the said deceased has virtually collapsed due to overnight death of her husband. Issue No.5 is accordingly answered in negative. 121] In so far as Issue No.6 is concerned, in his cross-examination and more particularly in reply to question No.43 the defendant no.3 admitted that though he had alleged in paragraph No.7 (a) & (e) of his affidavit in lieu of examination-in-chief that the said Will was signed under duress and by using coercive methods, he had nothing to substantiate it, he admitted that he had no personal knowledge of any duress or coercion under which the witness has signed the Will. He also admitted in reply to question No.44 that he had no personal knowledge that the deceased having been threatened as alleged by ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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him in paragraph No.7(e) of his affidavit in lieu of examination-in-chief. When the witness was asked as to whether he had any personal knowledge that his grandmother was starved by Mr.Albert Talegawkar, the witness answered that the said deceased talk in Marathi and when the witness had visited her atleast on 4-5 occasions, she had told him that Mr.Albert did not feed her. When he was asked whether he had offered to take the deceased with him to his house, he replied that though he had offered, she had refused to come. Mr.Albert Talegawkar informed him that she was given less solid food on Doctor's advice, but was given liquid food. 122] In my view, the defendants have thus failed to prove that the deceased had executed the will under duress or on account of starvation or threat of survival. The cross-examination of the witness of the defendants clearly proves contrary to what is alleged by the defendant on this Issue in the affidavit in lieu of examination-in-chief. The said Issue is accordingly answered in negative.
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123] In so far as Issue No.7 is concerned, i.e. as to whether the defendants prove that the subject Will is unnatural or not, a perusal of the evidence indicates that it is an admitted position that the parents were staying with the said Mr.Albert Talegawkar. The said deceased continue to stay with Mr.Albert Talegawkar after demise of her husband until her death. The said deceased died at the place of residence of Mr.Albert Talegawkar. The said deceased in her Will had recorded that during her husband's life time, the said deceased along with her husband were living with her son Mr.Albert Talegawkar in the flat, second floor of the building No.312, First road, Khar, Mumbai-400052. After the death of her husband, the said deceased continued to live with Mr.Albert Talegawkar who had taken good care of the said deceased with love and affection 124] In paragraph No.3 of the Will, the said deceased recorded that the said Mr.Benjamin, one of the son of the said deceased, was with the Customs Department in Mumbai and had been living separately from her for past several years. The other children and wife of Mr.Benjamin had ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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already migrated to Israel, except Mr.Hillel. In paragraph No.4 of the said Will, it was provided by her that the said Plot No.312 together with building was owned by her. The building was fully tenanted. She had let out two floors and terrace thereon and also the open place in the in the rear portion of said plot to Mr.Albert Talegawkar and was receiving rent from him in respect of that portion.
125] The rent from other tenant is negligible and hardly sufficient to meet the property taxes and maintenance of the property. In the said Will, the said deceased provided for a bequest for the said land and building including furniture, fixtures and articles lying in the said plot for Mr.Albert Talegawkar absolutely. She had requested bequest of Rs.1,00,000/- to be paid to the other son and daughters within two years of her death on the condition that such of his children as have migrated at the time of her death will avail of said legacy in India and subject to prevailing law. She directed Mr.Albert Talegawkar to distribute the said legacy. She further provided that all her moveables and ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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personal jewellery she had already given in her life time to her children. She made a bequest in respect of residue of her estate in favour of Mr.Albert Talegawkar. 126] The evidence led by the plaintiff and more particularly Mrs.Daisy Dadarkar (PW-2) and also evidence of Mr.Hillel Benjamin Abraham, proves that the said deceased had attended the reception of the marriage of Mr.Hillel Benjamin Abraham and she also gave various gifts to Mr.Hillel Benjamin Abraham and also to the said witness in her life time. The said Mr.Benjamin and the said witness never stayed with the said deceased or took her care at any point of time.
127] The said Mrs.Daisy Dadarkar in her cross- examination admitted that the said deceased had told her that what she felt proper, she had done in the Will. She had told Mr.Benjamin Abraham that when the father expired, none of the sisters and the said Mr.Benjamin had ever asked her to come and stay with them in their house. It was only Mr.Albert and his wife, who took her care after demise of her husband. The said witness also ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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proved in her cross-examination that the said deceased had told Mr.Benjamin that neither any of the sisters nor Mr.Benjamin had ever come to clear her stool and urine and all of them, except Mr.Albert Talegawkar, had only given her lip service.
128] In my view, the aforesaid evidence led by the parties clearly proves that in these circumstances, Mr.Albert Talegawkar, who had all throughout taken care of the parents including the said deceased and more particularly after demise of the husband of the said deceased till the death of the said deceased and also in view of the fact that the said building was tenanted and portion thereof was let-out in favour of Mr.Albert Talegawkar by the said deceased, bequest in respect of plot on land bearing No.312 together with building including furniture, fixtures and articles lying in the plot in favour of Mr.Albert Talegawkar exclusively, cannot be construed as a unnatural Will. 129] Be that as it may the said deceased has already provided for a legacy of Rs.1,50,000/- in favour of other ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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four legal heirs of the said deceased. It was for the said deceased to decide in her life time as to in whose favour the property could not have been bequeathed and for what reasons. With the aforesaid evidence in hand, in my view, it cannot be held that the Will and Codicil executed by the said deceased could be considered as unnatural as canvassed by the defendants. 130] In so far as submission of the learned counsel for the defendants that the said deceased had attended the reception of the marriage of Mr.Hillel Benjamin Abraham and had given gifts to the said witness and his father, and thus the said deceased would not have disinherited the said Mr.Benjamin Abraham or his children from the share in the property concerned, in my view, there is no merit in the submission of the learned counsel for the defendants in this regard. If the said deceased had considered the fact that her care was taken by Mr.Albert Talegawkar during her life time exclusively with love and affection, whereas the other children of the said deceased did not take her care, more particularly, after demise of her husband, it cannot be ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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said that the other legal heirs of the said deceased not having been provided with any share in the immovable property, can be a factor to be considered to hold that the said Will and Codicil of the said deceased were unnatural. The said Issue No.7 is accordingly answered in negative.
131] In so far as Issue No.8 as to whether the defendants prove that the deceased usually sign as "S.Issac" and not as "S.I.Talegawkar" is concerned, it is an admitted position that the said Mr.Hillel Benjamin Abraham in his evidence had admitted that he had never seen the said deceased signing any document and it was impossible for him to identify the signature of the deceased. In my view, the defendants have failed to prove the usual signature of the said deceased. Be that as it may, the witnesses examined by the plaintiff have proved the usual signature of the said deceased. 132] Mrs.Daisy Dadarkar also in her cross-examination and more particularly in reply to question Nos.13 and 14 has admitted that her mother used to sign as ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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"S.I.Talegawkar" and not as "Issac Talegawkar". She had seen her signature as "S.I.Talegawkar". The said deceased used to give gift by cheques to children of the said witness on their birthday on which she had seen her signature as "S.I.Talegawkar". In my view, the defendants have thus failed to prove that the deceased usually sign as "Issac Talegawkar" and not as "S.I.Talegawkar".
133] The witness Mr.Hellel Benjamin Abraham in cross- examination also answered in reply to question No.34 that he had never seen any person forging his grandmother's signature on any document. In reply to question No.36, he admitted that he would not be able to identify her signature on any document shown to him and that would be impossible. In reply to question No.42 when he was asked about anything to support his allegation that the will was forged and fabricated and not genuine, he deposed that the basis of his statement was what he had heard from his father. The Issue No.8 is accordingly answered in the negative.
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134] In so far as the submission of the learned counsel for the defendants that the said Mrs.Daisy Dadarkar could not produce any document to show that Mr.Benjamin Abraham was convicted for an offence is concerned, in my view the said allegation will not have any bearing on the issue that the said deceased had executed the said Will or Codicil. I do not find any contravention in the evidence of the plaintiff on the issue of execution and attestation of the Will and Codicil. I am not inclined to accept the submission of the learned counsel for the defendants that said Mrs.Daisy Dadarkar was not a reliable witness and thus her evidence cannot be considered by this Court. On the contrary, in view of the cross-examination of the said witness by the learned counsel for the defendants, various averements made by the plaintiff are proved and the allegations made by the defendants were disproved. 135] In so far as Section 63(c) of the Indian Succession Act, 1925 relied upon by the learned counsel of the defendants in support of the submission that the attestation of the Will is not proved by the plaintiff is concerned, in my view, there is no merit in the ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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submission of the learned counsel. The execution and attestation of the Will and the Codicil dated 26.4.1990 is not only proved by leading cogent evidence by the plaintiff and by PW-2, but the same is also proved beyond reasonable doubt in view of the cross-examination of those two witnesses by the learned counsel for the defendants.
136] In so far as the Judgment of the Supreme Court in case of Janki Narayan Bhoir (supra) relied upon by Mr.Tripathi, learned counsel for the defendants in support of his submission that the Will and Codicil are not proved as per requirement of proof under Section 63 of the Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act, 1872, is concerned, the proposition of law laid down by the Supreme Court in the said Judgment holding that the person propounding the Will has to prove that the Will was duly and validly executed and the attestation was also made properly as required by clause (c) of Section 63 of the Indian Succession Act, 1925. The Supreme Court in the said Judgment has held that atleast one attesting witness has ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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to be called for proving due execution of the Will. The examination of the other attesting witness can be dispensed with.
137] In my view, the plaintiff, who had proved beyond reasonable doubt that he was one of the attesting witness to the Will and Codicil, has proved the due execution of the Will and attestation thereof in accordance with the provisions of law. The examination of the two attesting witnesses by the plaintiff was dispensed with and was not necessary. In my view, merely because second attesting witness i.e. Dr.P.H.Udas was not examined by the plaintiff, it cannot be said that the attestation of the Will was not duly proved in accordance with requirement of Section 63 of the Indian Succession Act, 1925 r/w Section 68 of the Indian Evidence Act, 1872. 138] The Judgment of Supreme Court in case of Jagdish Chand Sharma (supra) also would not assist the case of the defendants. The principles of law laid down by the Supreme Court in the said Judgment on the essential of a valid execution and attestation of the Will being ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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mandatory in nature, is not in dispute.
139] In so far as the Judgment of Supreme Court in the case of Surendra Pal (supra) and others relied by Mr.Tripathi, learned counsel for the defendants is concerned, it is held by the Supreme Court that the propounder has to show that the Will was signed by the testator, that he was at the relevant time in a sound and disposing state of mind, that he had understood the nature and effect of the dispositions, that he had put his signature to the testament of his own free will and that he had signed it in the presence of two witnesses, who attested it in his presence and in the presence of each other. It is held that once these elements are established, the onus which rest on the propounder is discharged.
140] It is held that there may be cases in which the execution of the Will itself is surrounded by suspicious circumstances, such as whether the signature is doubtful, who had attested in her presence and in the presence of each other, the dispositions made by the deceased in the ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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Will and Codicil do not appear to be unnatural, improbable and unfair. Mr.Albert Talegawkar, who had taken care of the said deceased exclusively all throughout, was given share in the plot of land and building standing thereon, whereas the other legal heirs and next-of-kin, who had not taken care of the deceased, but were still given monetary bequest of Rs.1,50,000/- each. In my view, all the principles laid down by the Supreme Court in the case of Surendra Pal (supra) were satisfied by the plaintiff in this case. The said Judgment would assist the case of the plaintiff and not the defendants.
141] In so far as the submission of the learned counsel for the defendants that the said deceased was not aware of the execution of the earlier Will and Codicil dated 1.12.1987 or that if the earlier Will and Codicil dated 1.12.1987 were already executed by the said deceased, the second Will and Codicil dated 26.4.1990 could not have been executed for the said bequest and the same creates suspicious circumstances is concerned, a perusal of the evidence clearly indicates that the ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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defendants have not disputed the existence, execution and attestation of the Will and Codicil dated 1.12.1987. It is also not in dispute that while the said Will and Codicil dated 1.12.1987 were executed, Mr.S.F.Rego, the plaintiff herein was a sitting Judge of Bombay City Civil Court. When the second Will and Codicil were executed by the said deceased, Mr.S.F.Rego had already retired as a Judge.
142] It is not disputed by the defendants that the bequest in the earlier set of Will and Codicil dated 1.12.1987 and in the Will and Codicil both dated 26.4.1990 were identical. This Court in the case of Rusi Hormusji Pavri & another (supra) has considered similar facts and has held that where admittedly there were earlier Wills and Codicils of 1995, which also provided same pattern of distribution of the property, it would indicate that the deceased had wish and desire to bequeath the property in favour of the petitioners and the exclusion of others was intended since long. It is further held that exclusion of others by itself cannot be a reason to overlook to validly proved Will. ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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143] In my view, the defendants having not challenged the execution and attestation of Will and Codicil dated 1.12.1987, could not challenge the execution and attestation of the Will and Codicil dated 26.4.1990, which even according to the defendants provide for the similar bequests thereby giving the immovable property exclusively to Mr.Albert Talegawkar and giving monetary legacy to the other legal heirs and next-of-kin. The mind of the said deceased was thus consistent and continued between 1.12.1987 to 26.4.1990. It is not in dispute that by subsequent Will, the earlier Will and Codicil executed on 1.12.1987 are revoked by the said deceased.
144] In my view, in these circumstances, the arguments of the learned counsel for the defendants that the execution of Will and Codicil dated 26.4.1990 is surrounded by suspicious circumstances cannot be accepted. Admittedly, the plaintiff has not applied for probate of the earlier Will and Codicil both dated 1.12.1987 and thus, no inference as sought to be ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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canvassed for the learned counsel for the defendants, can be drawn against the plaintiff. The Judgment of this Court in the case of Rusi Hormusji Pavri & another (supra) will squarely apply to the facts of this case and assist the case of the plaintiff. I am respectfully bound by the said Judgment.
145] In so far as the submission of the learned counsel for the defendants that the plaintiff ought to have given an advice to the said deceased that the said deceased have already been executed the similar Will and Codicil on 1.12.1987 and thus there was no requirement to execute the Will and Codicil on 26.4.1990 for providing similar bequest is concerned, the plaintiff in his evidence has clearly deposed including in the cross- examination that he was not aware of the execution of the Will and Codicil dated 1.12.1987 nor was he informed at any point of time about Will and Codicil dated 1.12.1987 by the said deceased.
146] In my view, the plaintiff thus, even otherwise could not have given any such advice to the said ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:22 ::: TS 75/02 in TP 787/01
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deceased. It was for the said deceased to decide about execution of any number of Wills or Codicils. The last of such Will and Codicil would prevail and would revoke all earlier Wills and Codicils. No blame on the plaintiff for allegedly not giving such advice to the said deceased can be attributed. Be that as it may, no suspicious surrounding circumstances can be inferred in this case due to execution of Will and Codicil dated 26.4.1990 by the said deceased in these circumstances. 147] If the said deceased had another Will and Codicil in view of the fact that Mr.S.F.Rego had retired from judicial service or due to any other reasons, no conclusion be drawn by this Court that the second Will and Codicil were surrounded by any suspicious circumstances. In my view, there is no merit in the submission of the learned counsel for the defendants that though such alleged suspicious surrounding circumstances exist, the plaintiff has failed to dispel such alleged surrounding suspicious circumstances. 148] In so far as the submission of the learned ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:23 ::: TS 75/02 in TP 787/01
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counsel for the defendants that the testamentary petition was filed without affidavit of attesting witness is concerned, no sooner an office objection was raised by the office of this Court, the plaintiff filed an affidavit of the attesting witnesses in the proceedings. No prejudice therefore, was caused to the defendants of any nature whatsoever. I am not inclined to dismiss the testamentary petition or the testamentary suit on this ground.
149] In so far as the submission on the Issue of delay raised by the learned counsel for the defendants is concerned, the plaintiff has averred in the testamentary petition and more particularly in paragraph No.11 that each of daughters of the deceased had confirmed that they did not have doubt or objection about the said Will and Codicil and had no objection to the grant being made. Mrs.Daisy S.Dadarkar, the eldest sister, however, had requested the executor to hold on filing of the petition or probate and she being a senior member amongst the family, was pursuing Mr.Benjamin Abraham to avoid any contest so that grant of probate would have been smooth ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:23 ::: TS 75/02 in TP 787/01
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and expeditious.
150] However, she was unable to persuade Mr.Benjamin Abraham and thereafter, the executors decided to file testamentary petition. The petitioners accordingly prayed that the delay in filing the petition in these circumstances be condoned. Though, the said daughter, Mrs.Daisy Dadarkar was examined as a witness by the plaintiff and the defendants though had cross-examined her, no such suggestion was put to her confronting the said statement made in paragraph No.11 of the testamentary petition. In my view, the delay is sufficiently explained by the plaintiff, which remained un-controverted.
151] In so far as the submission of the learned counsel for the defendants that plaintiff had not filed the original Will dated 26.4.1990 with the Prothonotary and Sr.Master of this Court is concerned, this Court has already permitted the plaintiff to file the said original Will and Codicil by a detailed order passed on 24.9.2013 in the Chamber Summons No.42 of 2013 by keeping the issue ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:23 ::: TS 75/02 in TP 787/01
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of existence and authenticity of the Will and Codicil open.
152] In so far as reliance placed by the learned counsel for the defendants on the order passed by this Court on 25.11.2014 while exhibiting the Will and Codicil both dated 26.4.1990 as exhibit P-5 and P-6 respectively with a clarification that merely because the Will and Codicil now marked in evidence, it does not mean that the defendants have admitted the said documents and the order passed by this Court on 31.7.2017 thereby exhibiting the Will and Codicil both dated 1.12.1987 are marked as P-7 and P-8 respectively with mere clarification and that those documents cannot be considered as proved merely on marking of those exhibits is concerned, there is no dispute that merely because the documents are marked as exhibits, proof thereof is not dispensed with.
153] However, in the facts of this case, the plaintiff has examined witness and has laid cogent evidence to prove the execution and attestation for the ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:23 ::: TS 75/02 in TP 787/01
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said documents. The defendants have not disputed the execution and attestation of the Will and Codicil dated 1.12.1987. In my view, after perusing the entire evidence on record, the plaintiff has proved the execution and due attestation of all the four documents. There is thus no merit in the submission made by the learned counsel for the defendants.
154] In so far as the submission of the learned counsel for the defendants that the plaintiff had not examined Dr.P.H.Udas, Mr.Balraj Verma or Mr.Hasmukh Gandhi and thus adverse inference has to be drawn by this Court is concerned, in so far as examination of Mr.Hasmukh Gandhi is concerned, he was also one of the executors of the Will and Codicil. The plaintiff was not required to examine both the executors of the Will and Codicil to prove the execution and attestation of the Will. The examination of one of the executor, who was one of the propounder, was sufficient to prove the execution and attestation of the Will. No adverse inference thus can be drawn against the plaintiff by not examining Mr.Hasmukh Gandhi. It is not in dispute that ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:23 ::: TS 75/02 in TP 787/01
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Mr.Hasmukh Gandhi was already impleaded as plaintiff No.3 in the testamentary petition and continued to be on record till his death recently.
155] In so far as examination of Dr.P.H.Udas is concerned, he was also one of the attesting witness alongwith the plaintiff. The plaintiff had examined himself as a witness. He was not required to examine Dr.P.H.Udas also for the purpose of proving the execution and attestation of the Will and Codicil. In so far as examination of Mr.Balraj Verma is concerned, since the defendants themselves while cross-examining the plaintiff had accepted the position that the said Will and Codicil were drafted by the plaintiff by asking several questions to the plaintiff, the examination of Mr.Balraj Verma by plaintiff was not necessary. The plaintiff was not required to multiply witnesses for proving the same facts. No adverse inference thus can be drawn against the plaintiff for not examining Dr.Udas, Mr.Balraj Verma and Mr.Hasmukh Gandhi.
156] In so far as the submission of the learned ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:23 ::: TS 75/02 in TP 787/01
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counsel for the defendants that the plaintiff and Mr.Hasmukh Gandhi were close associates of Mr.Albert Talegawkar and were colluding with him or that the plaintiff and Mr.Albert Talegaonkar had played prominent role in execution and attestation of the Will and Codicil and on that ground itself, such Will and Codicil cannot be accepted as proved by this Court is concerned, the plaintiff in his cross-examination has denied that the plaintiff knew Mr.Hasmukh B.Gandhi at Bar and thereafter in the office of Mr.Bhaishankar Kanga and Giridharlal Solicitors. He denied that Mr.Hasmukh Gandhi was working with the said Solicitors.
157] The plaintiff admitted that Mr.Albert Talegawkar was the partner in Mr.Bhaishankar Kanga and Giridharlal Solicitors, but had retired from the said Firm. Plaintiff denied that he was ever associated with the said Firm Mr.Bhaishankar Kanga and Giridharlal since December, 1977. He also denied that he was a close friend of Mr.Albert Talegawkar. He was only well acquainted with him as he was the junior associate of the Firm. He had visited the residence of Mr.Albert ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:23 ::: TS 75/02 in TP 787/01
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Talegawkar on certain occasions i.e. condolence meeting on the demise of his father and mother. He had visited the house in connection with execution of the Will. 158] In so far as the services of the clerk of Mr. Mr.Bhaishankar Kanga and Giridharlal provided for the purpose of drafting the probate petition or that the address of the said Firm was mentioned in the correspondence exchanged by the plaintiff is concerned, that would not indicate that the said Mr.Albert Talegawkar or the office of Mr.Bhaishankar Kanga and Giridharlal had played any prominent role or otherwise in the execution of the Will and Codicil. The defendants failed to prove these allegations by leading any cogent evidence that the said Mr.Albert Talegawkar had played any prominent role in execution of the Will and Codicil of the said deceased.
159] Merely because in the correspondence, the address of Mr.Bhaishankar Kanga and Giridharlal was mentioned by the plaintiff, that cannot conclude that Mr.Albert Talegawkar had played any prominent role in ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:23 ::: TS 75/02 in TP 787/01
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drafting the Will or Codicil. Merely because at some point of time, the plaintiff had filed one of the proceedings through Mr.Bhaishankar Kanga and Giridharlal, that would also not conclusively prove that the plaintiff had colluded with Mr.Albert Talegawkar in drafting the Will and Codicil dated 26.4.1990 or that he had played any part to favour Mr.Albert Talegawkar. 160] In so far as the submission of the learned counsel for the defendants that the quality of paper used in the Will and Codicil dated 1.12.1987 was better or new is concerned, the defendants have not disputed or challenged the Will and Codicil dated 1.12.1987. The defendants did not make any suggestion to the plaintiff to this effect in the cross-examination or did not lead any independent evidence to prove this allegation. 161] I am not inclined to accept the submission of the learned counsel for the defendants that the Will and Codicil was found in the custody of Mr.Albert Talegawkar. In so far as examination of Mr.Albert Talegawkar as a witness is concerned, the plaintiff had discharged the ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:23 ::: TS 75/02 in TP 787/01
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burden of proof in respect of the issues, for which burden was on him. The plaintiff was not required to examine the beneficiary under the Will for the purpose of proving the execution and attestation of the Will and Codicil.
162] In so far as Judgment of Supreme Court reported in AIR 1990 SC, 396 relied upon by Mr.Tripathi, learned counsel for the defendants, there is no dispute about proposition of law laid down by the Supreme Court in the said Judgment.
163] In so far as the submission of the learned counsel for the defendants that this Court shall take appropriate action against the plaintiff for allegedly colluding with Mr.Albert Talegawkar, for making false statement on oath or a prosecution shall be filed under Section 471 of the Criminal Procedure Code r/w Section 191 of the Indian Penal Code against the plaintiff is concerned, in my view no such case is made out by the defendants. During the course of his argument, the learned counsel for the defendants made various comments ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:23 ::: TS 75/02 in TP 787/01
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against the plaintiff, which in my view, were not only unwarranted, incorrect, but were irresponsible and were intentionally made to disrepute and malign his reputation.
164] In so far as the submission of the learned counsel for the defendants that the plaintiff has not produced proof of legacy distributed by Mr.Albert Talegawkar is concerned, a perusal of record, more particularly, evidence of Mrs.Daisy Dadarkar, it is clear that the amount directed to be paid by the said deceased testatrix were already paid by the said Mr.Albert Talegawkar except Mr.Benjamin Abraham. The defendant No.3 in his evidence stated that such amount was offered to his father Mr.Benjamin Abraham but he had refused. Be it as may, the stage of implementation of the Will and Codicil arise only after those Wills and Codicils are probated by this Court and on that ground probate of such proved Will and Codicil cannot be refused. 165] In so far as the last submission of the learned counsel for the defendants that in Clause 6 of the Will ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:23 ::: TS 75/02 in TP 787/01
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dated 26.4.1990 there was a conditional bequest made by the said deceased is concerned, a perusal of the clause 6 of the Will indicates that the testator had provided that if any of the beneficiary challenges the Will in any manner whatsoever, then such child or children will forfeit whatever she had given to him/her or them under such Will. Mr.Albert Talegawkar had offered the bequest amount in favour of Mr.Benjamin Abraham, who refused to accept it.
166] A plain reading of clause 6 does not indicate that the condition if any imposed by the said deceased testatrix in the Will can make the entire Will void. There is thus no merit in the submission of the learned counsel for the defendants. A reference to Section 126 of the Indian Succession Act, 1925 would be relevant. Under Section 126 of the Indian Succession Act, a bequest upon impossible condition is void. The condition imposed under clause 6 in the Will was not impossible condition and thus the same cannot be declared as void under Section 126 or 127 of the Indian Succession Act, 1925. ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:23 ::: TS 75/02 in TP 787/01
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167] In so far Issue No.9 is concerned, for the reasons recorded aforesaid, the plaintiff has proved that he is entitled to the grant of probate in respect of the Will and Codicil dated 26.4.1990 executed by the said deceased Late Simha Issac Talegawkar. The said Issue accordingly is answered in the affirmative. I therefore, pass the following order:-
ORDER (I) Testamentary Suit No.75 of 2002 is decreed as prayed. Office is directed to issue probate in favour of the plaintiff for the Will and Codicil dated 26.4.1990 executed by Late Simha Issac Talegawkar, having effect throughout the State of Maharashtra, expeditiously.
(II) Suit is decreed with costs.
(III) The office is directed to act on the
authenticated copy of this order.
(R.D.Dhanuka, J)
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At this stage, Mr.Thacker, learned Senior Counsel for the plaintiff states that his client will not apply for enforcement of the judgment and order passed by this Court today for a period of four weeks. The statement is accepted. In view of the statement made by the learned Senior Counsel for the plaintiff, I am not inclined to consider the application made by the learned counsel for the defendants for stay of operation of this judgment and order.
(R.D. Dhanuka, J.) ::: Uploaded on - 11/10/2017 ::: Downloaded on - 12/10/2017 01:41:23 :::