Bombay High Court
Madhubala B Rao vs Jayashree Sharadchandra Gupte And 2 Ors on 26 March, 2025
Author: N.J.Jamadar
Bench: N.J.Jamadar
2025:BHC-OS:4812
ts 14 of 2001.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO.14 OF 2001
IN
TESTAMENTARY PETITION NO.1005 OF 2000
1. Smt. Tilottama Karsandas Toprani of
Mumbai, Hindu Inhabitant, Residing at
71, Dr. S.S.Rane Road, Parel (W),
Mumbai - 400 012. (Deleted)
2. Dr. Miss Madhubala B. Rao, of Mumbai,
Hindu Inhabitant, Residinga at 1,
Sukhniwas, 535-536, 17th Road, Khar (W),
Mumbai - 400 052.
3. Ms. Adnya Manohar Rao of Mumbai,
Hindu Inhabitant, Residing at Flat
No.C-2, Metropolitan C.H.S. Ltd.,
25, Pali Hill, Bandra, Mumbai - 400 050
All executrices named in the Last Will
and Testament of the deceased abovenamed.
4. Ajay Samant, a Hindu Inhabitant of
Mumbai, Residing at 538-A, V. Patel
Road, Khar (W),
Mumbai - 400 052.
5. Mrs. Neena Ketan Mehta,
A citizen of U.S.A., residing at
4077, Bolled Hereford Drive,
Santa Rosa, C.A. 95404 USA. ... Plaintiffs
versus
1. Jayashree Sharadchandra Gupte,
2. Rajan Sharadchandra Gupte
3. Sangita Ajit Karnik
All residing at 541, Laxmi Baug,
Block No.1, 17th Road, Khar (W),
Bombay - 400 052. ... Defendants
SSP 1/26
ts 14 of 2001.doc
Mr. Sunny Shah with Mr. Ashish Mehta, Ms. Seema Gupta i/by Ethos Legal
Alliance, for Plaintiffs.
Mrs. Harshali R. Gupte, for Defendants.
CORAM: N.J.JAMADAR, J.
RESERVED FOR JUDGMENT ON : 3RD OCTOBER 2024
PRONOUNCED ON : 26TH MARCH 2025
JUDGMENT :
1. This Suit is for grant of Probate of the last Will and Testament and Codicil to the property and credits of Pramila Manohar Gupte (deceased).
2. Manohar Gajanan Gupte, the husband of the Testatrix, predeceased her. Manohar Gupte had two brothers and a sister, namely Hemchandra and Sharadchandra, and Firoz S. Tipnis, respectively. The Defendants are the successor in interest of Shardchandra.
3. Late Manohar Gupte and the Testatrix had no issue out of the wedlock. The Testatrix had two sisters : Tilottama K. Toprani (deceased Plaintiff No.1) and Madhubala Rao - Plaintiff No.2. The Testatrix passed away on 3 July 2000. At the time of her death, she had a fixed place of abode at Flat No.1, Sukhniwas, 535-536, 17th Road, Khar (W), Mumbai. The Testatrix left behind the property within the Greater Mumbai and in the State of Maharashtra and elsewhere in India. Plaintiff Nos.1 and 2 and Adnya Rao - Plaintiff No.3 and the daughter of Plaintiff No.2, filed a Petition for grant of Probate being Petition No.1005 of 2000 asserting that the deceased left behind two writings. SSP 2/26
ts 14 of 2001.doc First, the will dated 9 July 1997 and the Codicil dated 15 May 2000. Plaintiffs were named as the Executors in the said Will. The Plaintiffs assert, the testamentary instruments have been duly and validly executed by the Testatrix and attested by the witnesses.
4. Under the Will, the Testatrix bequeathed the immovable property i.e. Flat No.1, Sukhniwas to Plaintiff Nos.1 and 2 in equal shares and the movables to the Plaintiffs as the residuary legatees, after making bequest in favour of her nieces and nephews. The Plaintiffs, thus, prayed for the grant of Probate.
5. Sharadchandra, brother of late Manohar Gupte, entered a caveat. In the affidavit in support of the caveat filed on behalf of Sharadchandra, predecessor in title of the Defendants, it was contended that the purported Will dated 9 July 1997 and the Codicil dated 15 March 2000 are not genuine writings executed by the Testatrix. Those two writings are got up, prepared and manufactured documents, in collusion and conspiracy, by the three alleged executors, who are themselves the beneficiaries under those writings with a view to grab the property of the Testatrix.
6. In the alternative, it was contended that the executors have used their undue influence and fraudulently obtained those writings without explaining the contents thereof to the Testatrix. To put in contest the disposing capacity of the Testatrix, it was contended that on account of the sickness, the SSP 3/26 ts 14 of 2001.doc deceased was in a mentally upset state of mind and was unable to understand the contents of those documents. The Caveator further contended that the Will was not natural and it suffered from various suspicious circumstances. The intrinsic evidence of the alleged Will rendered the Will unnatural.
7. Lastly, the dispositive power of the Testatrix was questioned by contending that the Testatrix was not absolute owner of the property which the Testatrix had sold to M/s. West Coast Pillars Pvt. Ltd., and out of the sale proceeds of which Flat No.1 Sukhniwas was acquired. Neither the Testatrix nor her husband Manohar Gupte, were the absolute owners of the property i.e. Plot No.544, Asha Bungalow, which was the ancestral property of Manohar and his siblings. Yet the said property was sold to finance acquisition of Flat No.1, Sukhniwas. The Caveator has, thus, instituted a suit bearing No.1812 of 1995. Thus, the Testatrix could not have bequeathed the property under the Will as she was not the absolute owner thereof.
8. In the wake of the aforesaid pleadings, the following issues were settled and I have recorded my findings against each of them for the reasons to follow :
Issues Findings
(i) Do the Plaintiffs prove that the documents dated 9 July 1997 and 15 May 2000 are the last Will and Testament and the first SSP 4/26 ts 14 of 2001.doc Codicil to the said Will of Smt. Pramila Gupte ? In the affirmative.
(ii) Do the Defendants prove that the said documents dated 9 July 1997 and 15 May 2000 are forged and fabricated documents ? In the negative.
(iii) Do the Defendants prove that the said Pramila Gupte executed the said documents dated 9 July 1997 and 15 May 2000 under undue influence and coercion exercised by the Plaintiffs as she was not in sound condition and disposing mind ? In the negative.
(iv) What Order ? As per final order.
REASONS
9. In order to substantiate the claim for grant of Probate, the Plaintiffs have examined three attesting witnesses, namely Netra A. Vijaykar (P.W.1), legal practitioner who purportedly attested both the Will and Codicil; Dr. S.M.Phanse (P.W.2), who claimed to be the family doctor of the Testatrix and purportedly attested the Codicil dated 15 May 2000; and Dr. S.R.Sathe (P.W.3), the then Dean of S.L.Raheja Hospital, who purportedly attested the Will dated 9 July 1997.
10. The Defendants did not lead any evidence in the rebuttal.
Admitted facts :
11. At the outset, it is necessary to note that there is not much dispute about the relationship between the parties. Plaintiff Nos.1 and 2 are the SSP 5/26 ts 14 of 2001.doc sisters of the Testatrix. Plaintiff No.3 is the daughter of Plaintiff No.2. The Defendants are the successors in interest of Sharadchandra, brother of late Manohar. There is also not much controversy about the fact that late Manohar Gupte had another brother, Hemchandra Gupte, and sister, Firoz Tipnis.
12. It is also imperative to note that, by and large, the paraties are not at issue over the fact that Flat No.1, Sukhniwas was purchased after the sale of the bungalow on Plot No.545, which allegedly devolved on late Manohar alone. Indisputably, late Sharadchandra had instituted a suit for partition of the said property being No.1812 of 1995, to which the other siblings and the transferee of the said property were impleaded as party Defendants. Eventually, after the trial, the said suit came to be dismissed by a judgment and order dated 27 February 2020. In the said suit, this Court, inter alia, returned a finding that the Plaintiff failed to establish that the suit property was the joint family property.
Broad Submissions :
13. In the backdrop of the aforesaid rather uncontroverted facts, the submissions of the Counsel for the parties deserve to be briefly noted.
14. Mr. Shah, learned Counsel for the Plaintiffs, submitted that all the requirements of a valid execution and attestation of the Will have been duly proved. The Plaintiffs have examined all the three attesting witnesses. In the SSP 6/26 ts 14 of 2001.doc evidence of these witnesses, due execution and attestation of the Will and Codicil has been proved. Nothing material could be elicited in the cross- examination of these attesting witnesses. As regards the execution of the Will and Codicil, the Defendants have not categorically denied that the Will and Codicil do not bear the signature of the Testatrix. An evasive defence that the signature does not appear to be the usual signature of the Testatrix has been taken in the affidavit in support of the Caveat. Therefore, the Plaintiffs discharged the initial onus of proof of the Will and the Codicil.
15. In contrast, Mr. Shah would urge that, though the onus was on the Defendants to prove that the Will was allegedly obtained by the Plaintiffs by exercising undue influence and playing fraud on the Testatrix, the Defendants have not led any evidence.
16. Mr. Shah further submitted that the disposition under the Will and Codicil cannot be said to be unnatural. On the contrary, the material on record would indicate that the relations between the Testatrix and her in-laws were strained and Sharadchandra had instituted a suit for partition of the property i.e. Asha Bungalow, Plot No.545. In these circumstances, the bequest of the property by the Testatrix in favour of her sisters, who were residing with the Testatrix in Flat No.1, Sukhniwas, is consistent with the wishes of the Testatrix conditioned by the circumstances occasioned by Sharadchandra instituting the suit.
SSP 7/26
ts 14 of 2001.doc
17. Mr Shah strenuously urged that, the stand of late Sharadchandra that the Testatrix was not the absolute owner of the property bequeathed under the aforesaid testamentary instruments, indicates that the Defendants were, in effect, assailing the title of the Testatrix to the property which is beyond the remit of the jurisdiction of the testamentary Court. In fact, the said suit filed by late Sharadchandra seeking partition of the property bearing Plot No.545, Asha bungalow, came to be dismissed. In that view of the matter, according to Mr. Shah, there is no impediment in granting Probate.
18. The alleged suspicious circumstances sought to be portrayed by the Defendants fall in the realm of suspicion alone, without an iota of material to substantiate the same. As the Defendants chose not to lead any evidence, Issue Nos.3 and 4, which cast burden on the Defendants, cannot at all be said to have been proved. Resultantly, the Probate deserves to be granted.
19. To buttress the submission that once the propounder establishes the due execution and attestation of the Will and that the Testatrix was in a sound and disposing state of mind, the onus shifts on the objectors, Mr. Shah placed reliance on a decision of the Supreme Court in the case of Sridevi and Ors. V/s. Jayaraja Shetty and Ors.1. Reliance was also placed on a decision of the Supreme Court in the case of Surendra Pal and Ors. V/s. Dr. Mrs. Saraswati Arora and Anr.2.
1 (2005) 2 SCC 784 2 (1974) 2 SCC 600 SSP 8/26 ts 14 of 2001.doc
20. Per contra, Ms. Gupte, learned Counsel for the Defendants, forcefully resisted the prayer to grant Probate. Ms. Gupte submitted that the Testatrix had no power to bequeath Flat No.1, Sukhniwas as the said property was inherited by the Testatrix from her father in law. The Will was executed before the Testatrix's title to the property was crystalized.
21. On the aspect of the due execution and attestation of the Will, Ms. Gupte submitted that the executors who are also the principal beneficiaries under the Will, have prepared the documents to usurp the property of late Manohar Gupte. Netra A. Vijaykar (P.W.1) the alleged eye witness, was fully aware of the said suit instituted by Sharadchandra, yet there is not a whisper about the said proceedings in the alleged Will. There are serious discrepancies in the evidence of the three attesting witnesses as regards the execution and attestation of the Will. Ms. Gupte laid emphasis on the manner in which Dr. S.R.Sathe (P.W.3), the attesting witness, deposed.
22. Ms. Gupte further submitted that Dr. Phanse conceded that he had treated the Testatrix in the year 1995 for breast cancer. Co-relating the nature of illness, which the Testatrix was suffering from, to the fact that the Testatrix passed away under three months of the execution of the Codicil, Ms. Gupte made an endeavour to draw home the point that the Testatrix was not in a sound and disposing state of mind. In the face of these grave suspicious circumstances, according to Mr. Gupte, the Will cannot be said to have been SSP 9/26 ts 14 of 2001.doc validly and legally proved.
23. In order to lend support to these submissions, Ms. Gupte placed reliance on the judgment of the Supreme Court in the case of Murthy and Ors. V/s. C. Saradambal and Ors.3; a Division Bench judgment of the Calcutta High Court in the case of Smt. Krishna Bera and Ors. V/s. Sri Prabir Pramanik and Ors.4 and a judgment of Punjab and Haryana High Court in the case of Udmi and Ors. V/s. Birbal and Ors.5.
24. Ms. Gupte would assert that as the Plaintiffs miserably failed to prove the Will and Codicil, it was not necessary for the Defendants to venture into the witness box. Therefore, the Plaintiffs cannot be permitted to take any advantage of the fact that the Defendants did not adduce any evidence.
Issue No.1 :
25. Section 63 of the Indian Succession Act, 1925, provides the manner in which the Will is to be executed. Clause (c) of Section 63 mandates the attestation of the Will by two or more witnesses; each of whom must have seen the Testator sign or received from the Testator a personal acknowledgment of the latter's signature on the Will; each of the two witnesses must himself sign the Will in the presence of the Testator. But it is not peremptory that, more than one witness should be present and attest the Will at the same time. Section 63 of the Act, 1925 is required to be read with 3 Civil Appeal No.4270 of 2010 dated 10 Dec. 2021 4 2007 SC Online Cal 41 5 2015 SCC Online P&H 2479 SSP 10/26 ts 14 of 2001.doc Section 68 of the Indian Evidence Act, which specifies the requirements for adducing evidence in proof of execution of a document which is required by law to be attested. Section 68 of the Evidence Act, in terms provides that if a document is required to be attested by law, it cannot be used as evidence unless one attesting witness has been called for proving the execution of the document if the attesting witness is alive.
26. Though the Will has to be proved like any other document, which is compulsorily required to be attested, yet the solemnity attached to the Will necessitates that the conscience of the Court that the writing propounded by the propounder is the last Will and Testament and it has been legally and validly executed and attested, must be satisfied. In the case of Ved Mitra Verma V/s. Dharam Deo Verma6, the Supreme Court has laid emphasis on the element of satisfaction of the conscience of the Court.
27. By a catena of decisions the nature and standard of evidence required to prove the Will has been delineated. In the case of Jaswant kaur V/s. Amrit Kaur and Ors.7, a three Judge Bench of the Supreme Court has crystalized the propositions which govern the proof of Will, as under :
"10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v.B.N. Thirnmajamma & Others8 The 6 (2014) 15 SCC 578 7 (1977) 1 SCC 369 8 AIR 1959 SC 443 SSP 11/26 ts 14 of 2001.doc Court, speaking through Gajendragadkar J., laid down in that case the following positions :--
1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the ease of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 63 of the Evidence Act, one attesting witness at least has .been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death o[ the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. 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.
4. Cases in which the execution of the will is surround- ed 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 SSP 12/26 ts 14 of 2001.doc 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.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution' of the will may raise a doubt as to whether the testa- tor was acting of his own free will.
And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
28. In the case of Sridevi and Ors. V/s. Jayaraja Shetty and Ors. (supra), on which reliance was placed by Mr. Shah, the onus on the propounder was concisely encapsulated as under :
"14. The propounder of the Will has to show that the Will was signed by the testator; that he was at the relevant time in sound disposing state of mind; that he understood the nature and effect of SSP 13/26 ts 14 of 2001.doc dispositions and had put his signatures to the testament of his own free will and that he had signed it in the presence of the two witnesses who attested in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged."
29. It would be contextually relevant to note that, in the case of Daulat Ram and Ors. V/s. Sodha and Ors.9, it was enunciated that the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so.
30. In the light of the aforesaid position in law, reverting to the facts of the case, first and foremost, it is necessary to note that on the aspect of the signature of the Testator on the Will and the Codicil, Netra Vijaykar (P.W.1) 9 (2005) 1 SCC 40 SSP 14/26 ts 14 of 2001.doc and Dr. Phanse (P.W.2) have categorically asserted that the Testator had put her signature on the Will and the Codicil, respectively, in their presence. Netra Vijaykar (P.W.1) testified to the fact that on 9 July 1997, she had accompanied the Testator to S.L.Raheja Hospital, and in the presence of Dr. Sathe (P.W.3) and herself, the Testator executed the Will by initialing each page and putting her full signature on the execution clause of page 4 of the Will.
31. As regards the Codicil, Dr. Phanse (P.W.2) also deposed that on 15 March 2000, he had visited the residence of the Testator, where Netra Vijaykar (P.W.1) was present. The Testator had shown the Codicil to him. The Testator executed the Codicil in his presence and that of Netra Vijaykar (P.W.1) by initialing the first page and putting her full signature against the execution clause on the second page. Both the witnesses have stated that, thereafter they had put signatures in attestation of the Will and Codicil, respectively, in the presence of the Testator. Each of the witnesses has identified his/her own handwriting and signature as well as the signature and hand writing of the other attesting witness.
32. It is imperative to note that while disputing the signature of the Testatrix on the Will and the Codicil, the Defendants have made a bald statement that the signature on those writings does not appear to be the usual signature of the Testatrix. No effort whatsoever was made to indicate what was the usual SSP 15/26 ts 14 of 2001.doc signature of the Testatrix and how the signature of the testatrix on the Will and Codicil differs from such usual signature, either by eliciting admissions in the cross-examination or by adducing evidence. Nothing material could be elicited in the cross-examination of Netra Vijaykar (P.W.1) to discard her version on the aspect of execution and attestation.
33. It is of significance to note that the evidence of Dr. Phanse (P.W.2) went unchallenged. The Defendants declined to cross-examine Dr. Phanse (P.W.2). Thus, the untraversed testimony of Dr. Phanse (P.W.2) as regards the execution and attestation of the Codicil corroborates the version of Netra Vijaykar (P.W.1).
34. The thrust of the cross-examination of Netra Vijaykar (P.W.1) was with regard to the title dispute between late Sharadchandra and the Testatrix. Netra Vijaykar (P.W.1) was the Advocate of the Testatrix. However, the said evidence does not bear upon the due execution and attestation of the Will.
35. As noted above, the due execution and attestation of the Will was principally assailed on the basis of the manner in which Dr. Sathe (P.W.3) deposed before the Court. Taking the court through the evidence of Dr.Sathe, Ms. Gupte submitted that the due execution and attestation of the Will cannot be said to have been proved as Dr. Sathe categorically stated that he was not familiar with the signature of the Testatrix and cannot identify the signature of the Testatrix. He blamed his memory to state whether he had put signature on SSP 16/26 ts 14 of 2001.doc the Will in the presence of the Testatrix and Netra Vijaykar (P.W.1). He went on to admit that he had known the Testatrix through Dr. Rao, Plaintiff No.2, who was working in the Pathology Department of Raheja Hospital. He again blamed his memory to state as to whether the executor was his patient at any point of time. Lastly, Dr. Sathe claimed that he had merely signed the affidavit in lieu of examination in chief and had not scribed it. This evidence of Dr. Sathe, according to Ms. Gupte, completely demolishes the case of the Plaintiffs.
36. Mr. Shah, learned Counsel for the Plaintiffs submitted that the fact that Dr. Sathe (P.W.3) was examined 15 years after he acted as an attesting witness, is required to be kept in view. In any event, the evidence of Netra Vijaykar (P.W.1) is sufficient to establish the factum of execution and attestation of the Will. At best, according to Mr. Shah, Dr. Sathe (P.W.3) can be said to have failed to recollect the execution of the document. In that event, as provided under Section 71 of the Indian Evidence Act, 1872, the execution may be proved by other evidence. Such evidence, in the instant case, according to Mr. Shah, has been provided by the testimony of Netra Vijaykar (P.W.1) which went unimpeached.
37. Upon appraisal of evidence, this Court finds that, there is no reason to discard the evidence of Netra Vijaykar (P.W.1). She was representing the Testatrix in the title dispute. In these circumstances, it was but natural for the SSP 17/26 ts 14 of 2001.doc Testatrix to avail services of Netra Vijaykar (P.W.1). In the cross-examination of Netra Vijaykar (P.W.1) nothing material could be extracted so as to doubt the due execution of the Will. In fact, in the further examination in chief, Netra Vijaykar (P.W.1) clarified that, in the Affidavit of Evidene, it was inadvertently stated that at the request of the Testatrix, she had filled in the date and month on page 4 of the Will. She had only filled in the date and month on the docket and the Testatrix had put the date and month on page No.4. This version of Netra Vijaykar (P.W.1) was not at all challenged during the course of her cross-examination. As noted above, the entire cross- examination was directed against the title dispute between the Testatrix and Sharadchandra and the purported role of Netra Vijaykar (P.W.1) therein.
38. In the aforesaid view of the matter, I am impelled to hold that the Plaintiffs have succeeded in establishing that the Will and the Codicil were signed by the Testatrix and those testamentary instruments were duly attested by the attesting witnesses.
39. On the aspect of sound and disposing state of mind of the Testatrix and that she understood the nature and effect of the disposition, the timeline deserves to be kept in view. The Will was executed on 9 July 1997. The Codicil came to be executed on 15 May 2000. The Testatrix passed away on 3 July 2000. Under the Codicil, the only change that the Testatrix made was with regard to the disposition of Flat No.1, Sukhniwas. Under the Will, the SSP 18/26 ts 14 of 2001.doc Executors were commanded to sell the said flat and utilise part of the net sale proceeds to purchase one 1BHK flat for and in the name of her sisters Tilottama and Madhubala and the balance would constitute the residuary estate. By the Codicil, the Testatrix desired that the said Flat be given to Tilottama and Madhubala absolutely as joint tenants in equal shares. The Testatrix referred to the fact that she had already constituted Plaintiff Nos.1 and 2 as the nominees in the record of the Society. In this view of the matter, the fact that the Testatrix passed away under 50 days of execution of the Codicil, may not lead to suspicion on account of change in the mode of disposition, as there was no substantial change in the fundamental nature of the disposition.
40. An endeavour was made by Ms. Gupte to urge that Dr. Phanse (P.W.2) stated that he had treated the Testatrix for breast cancer in the year 1995. Therefore, there was a strong suspicion that the Testatrix might not have been in a sound and disposing state of mind. This submission is required to be appreciated in the light of the fact that at the same breath, Dr. Phanse (P.W.2) stated that, at all times during his interaction with the Testatrix, he found her to be in a sound and disposing state of mind. On 15 March 2000 as well, the Testatrix was in a sound and disposing state of mind when she executed her Codicil. This testimony of Dr. Phanse (P.W.2) has gone unchallenged.
41. The Will was executed on 9 July 1997. The deceased passed away SSP 19/26 ts 14 of 2001.doc after three years of the execution of the Will. Indeed, the interval of time between the execution of the Codicil and the death of the Testatrix was less than 50 days. However, the nature of change in the bequest incorporated by way of Codicil cannot be lost sight of. Moreover, the evidence of Dr. Phanse (P.W.2) who categorically asserted that on the date of the execution of the Codicil and, at all the times he had interactions with the Testatrix, he found her mentally alert, seals the issue.
42. Reliance placed by Ms. Gupte on the judgments in the cases of Smt. Krishna Bera and Ors. V/s. Sri Prabir Pramanik and Ors.(supra), and Udmi and Ors. V/s. Birbal and Ors. (supra), does not advance the cause of the Defendants as those decisions were rendered in a completely different fact- situation.
43. With regard to the understanding the nature and effect of the disposition made by the Testatrix, it is evident that the Testatrix was embroiled in a litigation over the property and that conditioned her disposition. The Testatrix had no issue. The siblings of Manohar Gupte, her late husband, were questioning the exclusive title of Manohar Gupte and the Testatrix over the property. Plaintiff Nos.1 and 2, her sisters, were staying with the Testatrix. In such a situation, the bequest of the properties by the Testatrix to her blood relatives is both natural and understandable.
44. Reliance placed by Mr. Shah on the decision of the Supreme Court in SSP 20/26 ts 14 of 2001.doc the case of M.B.Ramesh (dead) by Lrs. V/s. K.M.Veeraje Urs (dead) and Ors.10 appears to be well found. The observations in paragraph 29 are material, and, hence, extracted below :
"29. The issue raised in the present matter was with respect to the due execution of the will, and what we find is that the same was decided by the trial Court, as well as by the first appellate Court on the basis of an erroneous interpretation of the evidence on record regarding the circumstances attendant to the execution of the will. The property mentioned in the will is admittedly ancestral property of Smt.Nagammanni. She had to face a litigation, initiated by her husband, to retain her title and possession over this property. Besides, she could get the amounts for her maintenance from her husband only after a court battle, and thereafter also she had to enter into a correspondence with the appellant to get those amounts from time to time. The appellant is her stepson whereas the respondents are sons of her cousin. She would definitely desire that her ancestral property protected by her in a litigation with her husband does not go to a stepson, but would rather go to the relatives on her side. We cannot ignore this context while examining the validity of the will." (emphasis supplied)
45. The aforesaid pronunciation appears to be on all four with the facts of the case at hand. This inference regarding the disposition being natural and stemming out of a predominant desire to give property to her sisters, is fortified by the decision in Suit No.1812 of 1995 whereby the challenge to the title of late Manohar and the Testatrix was negatived. 10 (2013) 7 SCC 490 SSP 21/26 ts 14 of 2001.doc
46. Ms. Gupte then urged that there are suspicious circumstances and the propounders have not offered cogent and convincing explanation. Resultantly, it cannot be said that the Will was duly executed by the Testatrix.
47. By the very nature of the things, whether there are suspicious circumstances which warrant the explanation from the propounder and whether a particular circumstance leads to nurturing of a suspicion, are the questions of facts peculiar to the given case. Though, the suspicious circumstance cannot be enumerated in a straight jacket, yet few broad features which may qualify as suspicious circumstances generally emerge in a majority of cases.
48. In the case of Bharpur Singh and Ors. V/s. Shamsher Singh 11, the Supreme Court enumerated the illustrative suspicious circumstances, as under :
"23. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will :
(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
(ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
(iv) The dispositions may not be appear to be the result of the testator's free will and mind.
11 (2009) 3 SCC 687 SSP 22/26 ts 14 of 2001.doc
(v) The propounder takes a prominent part in the execution of the will.
(vi) The testator used to sign blank papers.
(vii) The will did not see the light of the day for long.
(viii) Incorrect recitals of essential facts."
49. At the same time, the Court must be on guard against treating any and every circumstance as a suspicious circumstance. Mere allegation of existence of suspicious circumstance, without anything more, may not be a justifiable ground to discard a legitimately proved Will.
50. In the case of V. Prabhakara V/s. Basavaraj K. and Ors.12, the Supreme Court enunciated that the testamentary court is not a court of suspicion but that of conscience. It has to consider the relevant materials instead of adopting an ethical reasoning. A mere exclusion of either brother or sister per se would not create a suspicion unless it is surrounded by other circumstances creating an inference.
51. Ms. Gupte, learned Counsel for the Defendants placed a very strong reliance on the decision in the case of Murthy and Ors. V/s. C. Saradambal and Ors.(supra), to draw home the point that the suspicious circumstances which are raised in the instant case found favour with the Supreme Court in the said Case.
52. I find it difficult to accede to this submission. Such an analogy cannot 12 (2022) 1 SCC 115 SSP 23/26 ts 14 of 2001.doc be readily drawn. It is trite, presence of one additional fact or absence of one fact makes a world of difference in the final determination, and, therefore, a judgment in one case cannot be readily imported to another case without properly appreciating the fact-situation in the context of which the said judgment was rendered. A decision is, therefore, said to be an authority for what it actually decides and not for what logically flows therefrom.
53. In the case at hand, Ms. Gupte made an endeavour to urge that the absence of place at which the Will and Codicil were executed, absence of the certificate of fitness issued by the treating doctor or any other medical officer, the death of the Testatrix under 50 days of the execution of the Codicil, reluctance of Dr. Sathe (P.W.3) to support the case of the propounder and the inconsistencies in the version of the prosecution witnesses, create grave suspicion about the validity of the Will.
54. I am unable to persuade myself to agree with the aforesaid submissions of Ms. Gupte. As regards the place of execution of the Will and the Codicil, the witnesses have categorically stated the place where the Will and Codicil were executed. The absence of certificate of fitness, in the circumstances of the case, does not detract materially from the genuineness of the Will and the Codicil. Both the instruments were attested by the legal practitioner and the medical officers. Dr. Phanse (P.W.2) categorically stated that he was the family doctor of the Testatrix. She was in a sound and SSP 24/26 ts 14 of 2001.doc disposing state of mind at the time of the execution of the Codicil. The testimony of Dr. Phanse (P.W.2) went untraversed. The Testatrix passed away after more than three years of the execution of the Will. The testimony of Dr. Phanse (P.W.2) dispels any doubt about the state of mind of the Testatrix on the date of the execution of the Codicil. Thus, mere short interval of time between the execution of the Codicil and the death of the Testatrix does not constitute a suspicious circumstance.
55. The reluctance of Dr. Sathe (P.W.3) to support the execution and attestation of the Will, is essentially in the nature of failure to recollect the execution. As there is other evidence which proves due execution and attestation of the Will, the said fact pales in significance. This Court does not find such inconsistency in the evidence of attesting witnesses as to jettison away the Will.
56. In the totality of circumstances, this Court does not find that there are such suspicious circumstances which render it unsafe to place implicit reliance on the Will as the last Will of the Testatrix. I am, therefore, inclined to answer issue No.1 in the affirmative.
Issue Nos.2 and 3 :
57. The onus to prove that the Will and Codicil are forged and fabricated and the Testatrix had executed the said Will and Codicil under the undue influence and coercion exercised by the Plaintiffs lay on the Defendants. The SSP 25/26 ts 14 of 2001.doc said onus has not been discharged by the Defendants either by eliciting material in the cross-examination of the Plaintiffs' witnesses or by adducing evidence aliunde. Therefore, these issues are required to be answered in the negative.
58. The conspectus of aforesaid discussion and findings on Issue Nos.1 to 3, especially in the context of strained relations between the Testatrix, on the one part, and the siblings of her late husband Manohar, on the other part, evidenced by the institution of Suit No.1812 of 1995 for partition by late Sharadchandra against the Testatrix and others, lead to an irresistable inference that the Testatrix had executed the Will and Codicil out of her own volition and driven by a desire to protect the property by bequeathing the same to her blood relatives. I am, therefore, inclined to grant Probate.
59. Hence, the following order :
ORDER
(i) The suit stands decreed with costs.
(ii) Probate be granted to Plaintiff Nos.2 and 3 having its effect throughout India.
(iii) Decree be drawn up accordingly.
( N.J.JAMADAR, J. ) SSP 26/26 Signed by: S.S.Phadke Designation: PS To Honourable Judge Date: 26/03/2025 17:54:54