Bombay High Court
Dinesh Ramchandra Sawant And Others vs Shivaji Ramchandra Sawant on 26 June, 2013
Author: D.Y.Chandrachud
Bench: D.Y.Chandrachud, S.C.Gupte
PNP 1/8 App29-26.6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.29 OF 2013
IN
TESTAMENTARY SUIT NO.48 OF 2004
IN
TESTAMENTARY PETITION NO.698 OF 2004
Dinesh Ramchandra Sawant and others ..Appellants.
versus
Shivaji Ramchandra Sawant ..Respondent.
.....
Mr. J.M. Chodankar i/b Mr. Harish R. Pawar for the Appellants.
Mr. Sanjiv A. Sawant for the Respondent.
.....
ig CORAM : DR.D.Y.CHANDRACHUD, AND
S.C.GUPTE, JJ.
26 June 2013.
ORAL JUDGMENT (PER DR. D.Y.CHANDRACHUD, J.) :
Admit. By consent of the learned counsel and at their request, the Appeal is taken up for hearing and final disposal.
2. The Appeal arises from a judgment of a Learned Single Judge in the testamentary jurisdiction by which probate has been granted in respect of an alleged will and testament of the deceased Ramchandra Marutirao Sawant.
3. Ramchandra Marutirao Sawant was married and besides his wife, his family consisted of seven children, five sons and two daughters. He is alleged to have executed a will on 22 February 2001. The testator died on 1 May 2002.
On the date of the execution of the will, the testator was eighty-two years of age and was suffering from squamous cell carcinoma of the tongue, He had suffered a hypertensive stroke in 1983 and had also undergone a surgery of the Pelvic bone. The will was propounded by the Respondent Shivaji, who was one of the five sons of the testator. In response to the Testamentary Petition, caveats were filed by the widow of the testator, Janakibai and by three of his other sons. The caveators denied that the alleged will had been executed by the deceased.
4. The following issues were drawn up :
::: Downloaded on - 27/08/2013 21:00:44 :::PNP 2/8 App29-26.6 "1. Whether the Plaintiff proves that the deceased Ramachandra M. Sawant executed his last Will dated 22nd January, 2001.
2. Whether the said Will is legal and valid.
3. What order and decree."
5. The Respondent who was the propounder of the will sought to prove the will by examining himself and a doctor (Dr. V.S. Kulkarni) and Harkisandas Mehta, both of whom were attesting witnesses. The Appellant was examined as one of the caveators.
6. The Learned Single Judge by a judgment dated 29 November 2012 held that the will is seen to be validly executed and directed the Prothonotary and Senior Master to issue a probate.
7. The principal submission in support of the Appeal is that since the Respondent who is the propounder has taken a leading part in the making of the will, the burden lay on him to remove all legitimate suspicions before the document can be accepted as the last will of the testator. In the present case, it has been submitted that the Respondent has failed to remove or explain all these legitimate suspicions. In particular, the following aspects were stressed upon:
(i) Admittedly the deceased was suffering from cancer of the tongue and had undergone a surgery of the Pelvic bone;
(ii) The deceased was eighty-two years of age at the time of the execution of the will and the evidence of the doctor indicates that he was suffering from serious medical ailments;
(iii) There are serious discrepancies in regard to the execution of the will both in regard to the signature and the place of execution. As regards the place of execution, the two attesting witnesses stated that the will was executed at the residence of the deceased testator, whereas the case of the Respondent in the affidavit filed in lieu of the examination-in-chief was that the will was executed in the office of the Collector where it was registered. Subsequently, the Respondent has contradicted himself in regard to the place of execution. As regards the signature, the evidence of one of the attesting witnesses is that the will has been executed by the testator in Marathi, whereas the signature of the deceased testator is in ::: Downloaded on - 27/08/2013 21:00:44 ::: PNP 3/8 App29-26.6 English;
(iv) The will has evidently been typed on the computer in Marathi. Though the Respondent was cross-examined specifically with reference to the circumstances in which the will was transcribed and as regards the instructions on the basis of which the will was transcribed, the evidence of the Respondent is evasive;
(v) The evidence of both the attesting witnesses contains several discrepancies and contradictions and it is evident that the execution of the will has not been duly proved;
(vi) The Respondent is an untrustworthy witness who has prevaricated on oath. Far from explaining the suspicious circumstances, the Respondent was evasive.
8. On the other hand, counsel appearing on behalf of the Respondent has submitted that :
(i) Though caveats were filed by the widow and three sons of the deceased testator, it was only the Appellant who had stepped into the witness box and opposed the grant of probate;
(ii) The evidence on the record particularly of the attesting witness who was a Doctor, was indicative of the fact that the testator was in a sound and disposing condition of mind;
(iii) The will seeks to bring about a balanced distribution of the property of the deceased testator; and
(iv) The Appellant in the course of his cross-examination has admitted that he has not been in possession of any documentary evidence to indicate that the deceased was not in a sound and disposing condition of mind.
9. The rival submissions now fall for consideration. We have with the assistance of the Learned Counsel perused the pleadings, and evidence and the record.
10. The propounder of a will has to show (i) That the will was signed by the testator; (ii) That at the relevant time the testator was in a sound and disposing state of mind; (iii) That he understood the nature and effect of the disposition and had put his signatures to the testament of his own free will; and (iv) That he had ::: Downloaded on - 27/08/2013 21:00:44 ::: PNP 4/8 App29-26.6 signed the will in the presence of the two witnesses who attested it in his presence and in the presence of each other. (Sridevi v. Jayaraja Shetty 1). Once these elements are established, the onus which rests on the propounder is discharged. The underlying principles which must guide the determination of the Court particularly having regard to the requirements of Section 63 of the Succession Act have been summarised in the judgment of the Supreme Court in Jaswant Kaur v. Amrit Kaur2. The Supreme Court has held that "Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will." 3 However, cases in which the execution of the will is surrounded by suspicious circumstances have been held to stand on a different footing. These principles have been followed by the Supreme Court in a more recent judgment in M. B. Ramesh v. K.M. Veeraje Urs4. The principles enunciated by the Supreme Court in the decision in Jaswant Kaur (supra) include the following :
"Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator."
Where there are suspicious circumstances attendant upon the execution of a will the initial onus on the propounder is heavier. The ultimate test is that of the satisfaction of the judicial conscience, because when the Court is called upon to decide as to whether the instrument that has been produced is the last will of the testator, the Court has to be satisfied fully that the will was validly executed.
1 2005 AIR (SC) 780.
2 AIR 1977 SC 74, 3 at paragraph 18.
4 2013(3) ALL MR 963. (SC.)
::: Downloaded on - 27/08/2013 21:00:44 :::
PNP 5/8 App29-26.6
11. The Respondent who is the propounder of the alleged will of the deceased testator dated 22 February 2001 filed an affidavit in lieu of the examination-in-chief dated 1 January 2010 stating that the will was executed by the testator at the office of the Collector of Bombay and that he was personally present with the testator and the two attesting witnesses at the office of the Collector. The witness stated that the two attesting witnesses were Dr. V.S. Kulkarni, who was a family doctor and Harkisandas Mehta, who was a friend of his father for decades. When the evidence was recorded before the Commissioner, the Respondent sought to prove his earlier affidavit in lieu of the examination-in-chief. However, as regards the place of the execution of the will, the Respondent contradicted himself by stating that the will was executed at the residence of his father. The witness stated that on that very day he had accompanied his father and the two attesting witnesses to the Old Customs House at Fort for the purposes of registration. Both the attesting witnesses stated that the will was executed at the residence of the testator. Both the attesting witnesses stated that they had seen the testator subscribe his name at the foot of the testamentary paper in Marathi. The will has not been signed by the testator in Marathi, but in English and this aspect was drawn to the attention of Dr. Kulkarni in the course of his cross-examination. In response to Question 42, Dr. Kulkarni admitted that the signature of the testator was in English and not in Marathi (as he has stated in his examination-in-chief). Though the contradictions in regard to the place of execution and the signature of the testator may not be conclusive in themselves, they are certainly circumstances which have to be borne in mind. At the least, they would constitute suspicious circumstances in respect of which the initial onus lay on the Respondent to tender an explanation. Both these aspects do not find any discussion in the judgment of the Learned Single Judge.
12. Now it is in this background that it would be necessary for the Court to consider the evidence and to determine as to whether there were indeed suspicious circumstances attendant upon the execution of the will. If that be so, the issue which has to be determined is as to whether the Respondent as the propounder of the will had fully explained those suspicious circumstances. Admittedly, the deceased testator was suffering from cancer of the tongue, something which has been noted in the findings of the Learned Single Judge.
::: Downloaded on - 27/08/2013 21:00:44 :::PNP 6/8 App29-26.6 P.W. 3 Dr. V.S. Kulkarni stated in the course of his cross-examination that (i) The deceased was to his knowledge detected with tongue cancer 5; (ii) The general health of the deceased, when he was last examined in March 2002 was poor and he was suffering from anorexia (loss of appetite), pain while swallowing and speech disturbance; (iii) The testator had been taken to the Tata Memorial Hospital for treatment; and (iv) The testator had undergone surgery for the Pelvic joint.
13. The Respondent as the propounder of the will was cross examined at length on the medical condition of the testator. In response to this line of cross examination, the Respondent stated that (i) It is not true that his father had suffered throat cancer and that his tongue had been affected in 2001 6; (ii) That he did not remember that his father was admitted to the Tata Memorial Hospital for the treatment of cancer of the left base of the tongue with nodal metastasis for which he was advised surgery 7; (iii) That he did not remember that his father had undergone surgery as advised by the doctor 8. The fact that the testator was suffering from cancer is an admitted position. The evidence of P.W. 3 Dr. Kulkarni indicates the poor state of health of the deceased testator who was suffering from advanced cancer, at the age of eighty-two. Far from explaining the circumstances which are now a matter of admitted fact, the Respondent prevaricated on the medical condition of his father and the treatment which had been administered to him. His answers were evasive and he feigned to be ignorant of facts of which he had knowledge.
14. The next important aspect which has a bearing on the circumstances attendant on the will is that the will has been typed on the computer. The will had been prepared and drawn up when the testator signed it. This was drawn to the attention of the Respondent who admitted that the will had been so typed on a computer9. The witness was asked as to whether it was written by hand before being transcribed to which he answered by stating that he was not aware. The witness stated that he was not aware of whether the will was not directly dictated on the computer. The witness therefore had an abundant opportunity to explain 5 Question 15.
6 Answer to Question 103.
7 Answer to Question 104.
8 Answer to Question 105.
9 Answer to Question 113.
::: Downloaded on - 27/08/2013 21:00:44 :::PNP 7/8 App29-26.6 on whose instructions the will had been transcribed, whether instructions for the transcription of the will had been furnished by the testator and whether the testator had given instructions in regard to the provisions of the will. The Respondent, however, studiously chose not to tender any cogent explanation and once again showed his unawareness as to any of these attendant circumstances. Having due regard to the fact that the testator was of the age of eighty-two, was suffering from a serious condition of tongue cancer, it was the bounden obligation of the Respondent to explain circumstances pertaining to the manner in which the will was scribed, the instructions, if any, that were furnished by the deceased testator and other circumstances attendant on the alleged execution of the will. Significantly, the medical papers of the Tata Memorial Hospital which were produced in evidence indicate that the Respondent was shown to be the relative who had accompanied the deceased as an outpatient on 1 June 2001. The second attesting witness P.W.2 Harkisandas Mehta stated that he had been acquainted with the deceased for about fifteen years. He deposed in the course of his cross examination that the testator had requested him that "he had some work" and that he should come and meet him at his residence. At the residence of the testator, the testator was present with his son Shivaji, the Respondent. Though P.W. 2 stated that he was acquainted with the deceased for a period of fifteen years( and according to the Respondent in his evidence he was a fast friend of the deceased) P.W. 2 stated that he had no knowledge of the fact that the deceased was suffering from cancer of the tongue or that he had undergone surgery for the Pelvic bone.
15. Having regard to the evidence on the record, it is evident that there are several suspicious circumstances attendant upon the execution of the will which have not been explained by the Respondent. These include (i) The extremely serious condition of health of the deceased who was suffering from throat cancer and had multiple ailments; (ii) The deceased was eighty-two years of age and besides suffering from cancer had also undergone surgery of the Pelvic joint; (iii) The discrepancies in regard to the place at which the alleged will was executed by the deceased; (iv) The absence of any explanation in regard to who had transcribed the will which was typed on the computer and whether and if so, when the deceased had furnished instructions, if any for the transcription of the will; and (v) The contradictions in regard to the language in which the signature ::: Downloaded on - 27/08/2013 21:00:44 ::: PNP 8/8 App29-26.6 has been executed. The evidence of the propounder of the will is evasive. The Respondent has evidently chosen not to tender any explanation at all in regard to the suspicious circumstances attendant upon the execution of the will.
Though the Respondent as the son of the testator would be cognisant of the health of the testator, he has feigned ignorance. He has not explained the suspicious circumstances attendant on the alleged execution of the will.
16. The Learned Single Judge, with respect, failed to take note of the several suspicious circumstances surrounding the execution of the will. The Learned Single Judge has overlooked the fundamental principle that it was for the propounder of a will to explain all the suspicious circumstances surrounding the execution of a will. The Respondent evidently failed to do so. The Learned Single Judge has observed in the course of the judgment that the will is a typewritten document in Marathi and the evidence has not shown as to how the will was typewritten or prepared. The Learned Single Judge held that this would not make any difference since once the deceased got prepared the will, he could execute it in accordance with Section 63 of the Succession Act. The finding of the Learned Single Judge that the cross examination on that procedure has not shown any discrepancy is clearly erroneous. There were several material, contradictions and discrepancies noted above and the failure of the Respondent to explain them and the other suspicious circumstances must weigh against the Respondent as the propounder of the will.
17. For these reasons, we have come to the conclusion that the Appeal will have to be allowed. The Appeal is accordingly allowed by setting aside the judgment and order of the Learned Single Judge dated 29 November 2012. The Testamentary Suit shall, in the circumstances, stand dismissed.
There shall be no order as to costs.
(Dr. D.Y.Chandrachud, J.) (S.C. Gupte, J.) ::: Downloaded on - 27/08/2013 21:00:44 :::