Bombay High Court
Jivaji Framroze Tarachand (Since ... vs Mr.Minoo S. Mistry (Since Deceased on 25 September, 2014
Author: R. D. Dhanuka
Bench: R. D. Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
TESTAMENTARY SUIT NO. 85 OF 2005
IN
TESTAMENTARY PETITION NO. 604 OF 2005
1. Jivaji Framroze Tarachand (since deceased)
through his Lrs.
1 (a) Smt. Gool J. Tarachand
666, New Orient House,
Flat No.001,
Lady Jahangir Road,
Parsi Colony, Dadar,
Mumbai - 400 014.
1 (b) Kanaz J. Tarachand
666, New Orient House,
Flat No.001,
Lady Jahangir Road,
Parsi Colony, Dadar,
Mumbai - 400 014.
2. Khurshed N. Wadia
of Parsi Inhabitant, residing at 2512 Innis
Fail Lane, Clemmons, North Carolina
27012, U.S.A. ... Plaintiffs
Versus
Mr.Minoo S. Mistry (since deceased)
1(a) Mrs. Gool Minoo Mistry
1(b)Dr. Khorshed M. Mistry
1(c) Mrs. Beheroze Aziz Khalleli
1(d) Ms. Anahita Minoo Mistry
1(e) Ms. Sanober Minoo Mistry
All residing at 4-1045/2
King Koti Road, Boggelkunta,
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Hyderbad - 500 001.
Andhra Pradesh ... Defendant
Mr. Zubin Behramkamdin a/w Mr.Phiroz Colabawala a/w Ms.Ferzana
Behramkamdin a/w Ms. Bharti Bhansali i/by M/s. FZB & Associates for the
Plaintiff.
Mr. Snehal Shah a/w Ms. Deepti Panda a/w Mr.Avinash Joshi a/w Mr. Vipul
Bilve i/by M/s. Mulla & Mulla & Cragie for the defendants.
CORAM : R. D. DHANUKA, J.
Judgment reserved on : AUGUST 14, 2014
Judgment pronounced on : SEPTEMBER 25, 2014
JUDGMENT :
By the testamentary petition bearing No.604 of 2005 filed by Mr.Jivaji Framroze Tarachand and Khurshed Naval Wadia, they applied for probate of the alleged last Will and Testament dated 27th December, 2004 of Mr. Jimmy Keki Tarachand (hereinafter referred to as the said deceased). During the pendency of the testamentary petition, Mr. Jivaji Framroze Tarachand expired. The original caveator Mr. Minoo S. Mistry also expired. Legal heirs of the said original caveator were brought on record in place of the original caveator. In view of the caveat filed by the original caveator, the testamentary petition has been converted into testamentary suit (85 of 2005). Some of the relevant facts for the purpose of deciding this suit are as under :-
2. Mr. Jivaji F. Tarachand was paternal uncle of Mr. Jimmy Keki Tarachand.
Mr. Dinshaw S. Mistry and Mr. Minoo S.Mistry were maternal uncle of the said deceased Mr. Jimmy Keki Tarachand. Mr. Khurshed N. Wadia was son of the predeceased paternal uncle of the deceased Mr. Jimmy Keki Tarachand. Ms Parveen D. Prudhomme was daughter of the predeceased paternal uncle of the said ::: Downloaded on - 26/09/2014 23:49:13 ::: Kvm 3/83 TS85.05 Mr. Jimmy Keki Tarachand. The said Mr. Jimmy Keki Tarachand has alleged to have executed a Will at Mumbai on 27th December, 2004 and died on 15th March, 2005 at Mumbai. On 21st July, 2005 Mr. Jivaji F. Tarachand and Mr. Khurshed Naval Wadia claiming to be executors under the said Will filed the testamentary petition inter alia praying for probate of the alleged Will dated 27 th December, 2004.
3. In the testamentary petition it is alleged that the said deceased was ordinarily residing at Boggulkunta, Hyderabad. Names of the legal heirs of the said deceased are disclosed in paragraph 9 of the said petition. Alongwith the testamentary petition, the original petitioners filed affidavit dated 21 st July, 2005 of Mr. Homi Cavasji Pithawalla who was claiming to be one of the attesting witness to the alleged Will dated 27th December 2004 of the said deceased. Ms.Dolly S. Divecha who was also claiming to be one of the attesting witness filed affidavit dated 21 st July 2005 alongwith the said petition.
4. Upon service of citation Mr. Minoo S. Mistry the maternal uncle of the said deceased filed a caveat and affidavit in support on 25th November 2005. In the said affidavit the caveator alleged that the alleged Will was forged as it did not bear the signature of the deceased on each and every page. It is submitted in the affidavit that the witnesses in the said Will had stated on oath that the date of making of the Will in the last paragraph was put by the original petitioner No.1. The deceased should have initialled against the date of making of the said Will. However, no such initial of the deceased appear against the date of making of the said Will. It is also contended that at the start of the said Will the residential address of the deceased was that of Hyderabad whereas the witnesses in their oath revealed that the said Will was made and signed by everybody including the deceased at ::: Downloaded on - 26/09/2014 23:49:13 ::: Kvm 4/83 TS85.05 Mumbai. It is also alleged in the said affidavit that the said deceased was not keeping well since six months prior to his death and his mental as well as physical condition was far and satisfactory. It is alleged that the said deceased was forced to make the said alleged Will when he was not in a proper and mental state of mind to make a Will. The caveator alleged that the health of the said deceased kept on deteriorating and the said deceased had developed terminal cardio-respority arrest, morbid obesity and hyper tension and was required to be admitted in Raheja Hospital, Mumbai where he expired on 15 th March, 2005. The family of the deceased refused post-mortem though recommended by the hospital.
5. In view of the demise of the original caveator, his legal heirs were brought on record in place of the original caveator. The legal heirs of the original caveator filed further affidavit in support of caveat on 15th June, 2011. In the said affidavit it is contended that this court does not have territorial jurisdiction to try the testamentary petition since the said deceased was a permanent resident of Hyderabad and substantial properties of the said deceased are left behind at Hyderabad. It is alleged that the said deceased had left a Will dated 31 st August, 2000 and had appointed Ms. Kanaz J. Tarachand, defendant no.1(e) and Mehernoze D. Mistry and Sanober N. Mistry as executors and trustees of the said Will. It is alleged that under the said Will, the said deceased had directed the trustees to take charge of all his assets and shall invest the same in the manner they deem proper and fit and utilise the income earned thereon for the charitable purposes mentioned therein to perpetuate in memory of his late father and mother. In so far as his 1/4th share in the Flat No.001 on the ground floor in the building known as Orient House situate at Parsi Colony, Dadar is concerned, it is directed that in the event of the said deceased inherited his 1/4 th share then his trustees shall be entitled to deal with the same in the manner they deem fit and proper.
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6. In the additional affidavit it is alleged that the maternal side of the family of the said deceased has been totally overlooked inspite of the fact that the said deceased lived his entire life next-door to his maternal aunt and spent his entire childhood and grown up life in close companionship in the said maternal side of his family. It is alleged that the alleged Will is highly unnatural, improbable and same has been executed if at all, under suspicious circumstances surrounding it.
The alleged Will dated 27th December 2004 does not purport to bequeath any person of the estate towards charity at all. There was no change in the surrounding circumstances to justify the said change. It is alleged that the alleged Will was created for the purpose of usurping the property of the said deceased.
ig In the said affidavit the defendants also alleged about the mental and physical capacity of the said deceased to execute any such document and in the alternative pleaded undue influence and coercion. It is alleged that the said Will was not signed in presence of any medical practitioner and that the deceased was not in a sound mental state.
7. On 21st November 2008, Shri S. C. Dharmadhikari J., framed following issues which are answered in the later part of the judgment :-
Issues (1) Whether the plaintiff/petitioners prove that In the Negative the Will dated 27th December 2004 is valid ?
(2) Whether the defendant proves that the Will In the affirmative of Jimmy K. Tarachand dated 27th December 2004 is forged ?::: Downloaded on - 26/09/2014 23:49:13 :::
Kvm 6/83 TS85.05 (3) Whether the plaintiff proves that the earlier In the negative Will of Jimmy K. Tarachand dated 31st August 2000 is revoked by the deceased ?
(4) Whether the defendants prove that the In the affirmative deceased was forced to make the said Will dated 27th December, 2004 when he was not in a proper state of mind to make a Will ?
(5) What reliefs and order ? As per order
8.
On 16th June 2011 this court took on record the affidavit in lieu of examination-in-chief filed by Dolly S. Divecha affirmed on 4 th March, 2011 claiming to be one of the attesting witness to the alleged Will. By an order dated 16th June, 2011 passed by Smt. Roshan Dalvi, J., the plaintiff was granted leave to file affidavit of evidence to show the relationship between the said deceased and the plaintiff or any matters relating to the Will. Liberty was given to the plaintiff also to file the affidavit of any doctor to prove the medical records of the said deceased. In so far as 38 documents relied upon by the said witness is concerned, it is observed that most of the documents relate to the sale of the property by the deceased in his lifetime and were not required to be proved in answering the issues in the testamentary suit relating to the validity of the Will and were not relevant and thus not marked. This court marked copy of the alleged Will of the deceased dated 27th December 2004 as Exhibit-A for the sake of convenience. It was made clear that the cross examination of the attesting witness shall be recorded first. The plaintiff or any other plaintiffs shall be entitled to file any further affidavit or examination in chief including the doctor. If such affidavit was filed, the parties were granted liberty to place the suit on board for considering the admissibility of ::: Downloaded on - 26/09/2014 23:49:13 ::: Kvm 7/83 TS85.05 further documents. This court appointed a court commissioner for recording evidence in the suit.
9. The plaintiffs also examined Mr. Phiroz Amaria who filed his affidavit in lieu of examination dated 11th April, 2012. The defendants examined Dr. Putla Minoo Lentin as witness.
10. Learned counsel appearing for both the parties invited my attention to various documents on record, interim orders passed by this court from time to time and the pleadings and evidence in support of their respective case.
ig During the pendency of the proceedings, Mr Jivaji F. Tarachand, the original petitioner no.1 expired. The plaintiff filed consent affidavits of Gool Jivaji Tarachand and Kanaz Jivaji Tarachand claiming to be heirs of the deceased named in the petition for probate viz. Mr. Jivaji F. Tarachand giving their no objection for grant of the probate of the alleged Will of the said deceased without any further notice or reference to them in future and waived service of citation.
ISSUE NOS.1 TO 3.
11. Mr. Behramkamdin, learned counsel for the plaintiff referred to paragraph 3 of the affidavit in lieu of examination-in-chief of Ms. Dolly S. Divecha and submits that in her deposition, the said witness who was one of the attesting witness, has deposed about her visit to the residence of the said deceased, that she was present and had signed the said Will as an attesting witness to the alleged Will. The said witness has also deposed that the said deceased had signed the said Will in her presence and in the presence of Mr. Homi C. Pithawalla and Mr. Jivaji F. Tarachand who were also present at the same time. It is deposed that the said ::: Downloaded on - 26/09/2014 23:49:13 ::: Kvm 8/83 TS85.05 deceased signed the said Will completely of his own free Will. She has further deposed that after signing the said Will the said deceased thereafter added the date '27-12-2004' below his signature. She has stated that insertion of date '27 th' preceding the words 'day of December, 2004' in the last paragraph of the Will was in the handwriting of Mr. Jivaji F. Tarachand and the correction in the spelling of the words 'Bapaijis' and 'gifts' appearing on page 2 of the said last Will were also made by the said Jivaji Tarachand in his handwriting and were made at the request of the deceased and in his presence and in the presence of Homi Pithawalla and herself prior to the deceased signing his Will. The witness deposed in the said affidavit that she requested Mr. Jivaji Tarachand to write her name and her address below her signature and date as she did not wish to make any mistake on the original Will and at her request and with the consent of the said deceased and in her presence and in the presence of Mr. Homi Pithawalla, Mr. Jivaji Tarachand wrote her name and address below her signature and date. It is stated in the affidavit that by inadvertence in her affidavit of attesting witness dated 21 st July 2005 she had stated that the name and address had been written by her. The same was inadvertently done and the same needs to be corrected.
12. Learned counsel for both the parties invited my attention to the cross examination of the witness on this issue. In reply to question Nos. 99 to 101 when witness was asked in what connection her advocate had asked her questions for drafting her affidavit dated 21st July, 2005, the witness deposed that the advocate had asked her questions about the Will and whether the said Will was executed in her presence. The advocate had also asked whether the Will was signed in her presence. She told the advocate that Jimmy had signed the Will first, then Mr.Pithawalla signed and then the witness signed. She also put the date but the address part was written by Mr. Jivaji because her handwriting was little crooked.
::: Downloaded on - 26/09/2014 23:49:13 :::Kvm 9/83 TS85.05 The witness admitted that based on those answers given by her, affidavit dated 21 st July, 2005 was drafted by her advocate.
13. Learned counsel also invited my attention to the answers given by the witness in reply to question Nos.133 to 145 in the cross examination. In reply to Question no.133 the witness when asked whether she had told her advocate at the time of drafting the affidavit of 21 st July 2005, that she had read the Will, the witness answered in negative and deposed that the advocate did not ask her and therefore she did not tell her. She answered that the Jimmy had asked her to sign as a attesting witness as he was preparing a Will. He had told about such Will on 27th December 2004 or 2005 but she did not remember the year exactly. It is stated that the said Jimmy did not tell her as to who had made the said Will for him but had only asked her whether she would sign in the Will. The witness deposed that she had not signed any Will as an attesting witness for anybody else prior to Jimmy's Will. In reply to Question no.138 when asked as to who told her to write her address below her signature and date in the Will, the witness answered that she had told Jivaji to write the address because her handwriting was crooked. When witness was asked as to why she thought that it was necessary to write the address when all of them have to sign on the Will, the witness answered that because Mr. Pithawalla had written his address, she also thought that she must put her address.
14. In reply to question No. 140 when the witness was asked as to how many days prior to the attestation did Jimmy inform her that he had made a Will, the witness answered that Jimmy kept saying that he was going to make a Will and that whether she would sign the same as an attesting witness. When the witness asked Mr. Jimmy as to why he wanted to make a Will, though he was young, he told her that he was not keeping good health. In reply to Question No.141 the witness ::: Downloaded on - 26/09/2014 23:49:13 ::: Kvm 10/83 TS85.05 answered that the Jimmy told her that he was having heart problems and the doctors had told him to loose weight but he kept on eating and said that there was no point in loosing weight. In reply to Question No.145 the witness answered that the Will was executed on 27th December 2004. In rely to Question No. 161 the witness deposed that she went to sign the Will in the morning between 10.30 a.m. and 11 a.m. In reply to Question No.166, the witness answered that Mr Jimmy had not given any fix time to her to attend for attestation of the Will.
15. In reply to question No. 167 the witness admitted that it was her case that she was at Kanaz's house to attend the classes when Jimmy asked her to attest the will. Jimmy had asked her earlier that she would have to sign the will. In reply to question no. 169, witness answered that Mr. Pitahawalla had already come and was sitting there in the house of Kanaz for signing the will. Witness admitted that Mr. Pithawalla was sitting near Jimmy on the sofa in the same hall where the English classes were being conducted by Kanaz. Witness deposed that the classes were already over. Afterwards Mr. Pithawalla came, Jivaji and the witness was already there. The witness was sitting there since the class was over when Mr. Pithawalla came for signing the will. She waited since Jimmy had told her that she had to sign the will. She must have waited for about half an hour to forty five minutes before Mr. Pithawalla came to the house. Ms Kanaz had gone out with her students for some work. The witness admitted that it was her case that Jivaji Tarachand and Jimmy waited for about half an hour to forty five minutes before Mr. Pithawalla arrived at the house.
16. In reply to question No. 178 to 194 the witness deposed that she saw the will for the first time when she signed. When the witness was asked whether she has read the will, at that time witness answered in negative. It is deposed that Mr. ::: Downloaded on - 26/09/2014 23:49:13 ::: Kvm 11/83 TS85.05 Pithawalla had read the will and then he signed after which she signed the will. In reply to question no. 191 she answered that first Jimmy signed the will, then Mr. Pithawalla and then she signed the will. When witness was asked whether Jivaji signed the Will, the witness deposed that she did not mark whether Jivaji had signed the Will or not. He may have signed the will. Mr. Jivaji made some corrections on the date "27". He also made some corrections on the word "Bapaiji". Mr. Jivaji made the said corrections on the same day when Jimmy signed the Will. When witness was asked as to why Jivaji made the corrections, she answered that because Jimmy also could not write properly as he had some problem with his hand. She however did not ask Jimmy what was the problem. In reply to question no. 199, the witness when asked whether Jivaji made corrections after the will was signed by Jimmy, she answered in negative and further deposed that Jivaji read the Will first, made the corrections and then Jimmy signed the Will.
17. In reply to question no. 200, when witness was asked whether she or Mr. Pithawalla had asked Jimmy whether what was written in the Will was as per his desire, witness answered that Mr. Pithawalla had asked Jimmy and Jimmy said that it was as per his desire. In reply to question no. 201 when asked whether Mr. Pithawalla asked that question before or after Jivaji had made the corrections, the witness answered that Mr. Pithawalla had asked Jimmy that before Jivaji had made corrections.
18. In reply to question No. 202 when witness was asked whether she did not find it strange that if Jimmy could put his signature on the Will, he could not make two minor corrections or write the date "27" by himself, the witness answered that she did not think of this. Two small corrections were made and then signed by Jimmy. In reply to question No. 203, when witness was asked whether she now ::: Downloaded on - 26/09/2014 23:49:13 ::: Kvm 12/83 TS85.05 thinks that if a person could sign his will, he could have himself written the date "27" or made minor changes by his own hand, the witness answered that it may be, may be not. They were minor corrections.
19. In reply to question No.204 when the witness was shown the Will and in particular the execution clause and was asked to point out if Jimmy had written any date on that page of the Will, the witness answered that the date written below Jimmy's signature is the date written by Jimmy. In reply to question No. 205, when witness was asked whether it was correct that on that date Jimmy was capable of writing full date "27-12-2004" the witness answered in affirmative and said it was correct.
20. In reply to question No. 206, when witness was asked whether she or Mr. Pithawala suggested to Jimmy that he should at least put his initials against the corrections made and the date "27" which were made by Jivaji, the witness answered in negative and deposed that they did not think of it otherwise they would have told him. In reply to question no. 208 and 209, the witness answered that she had put the date below her signature because it was that day. She did not know any reason as to why Mr. Pithawalla did not put the date. Witness answered that since Jimmy had put the date she also put the date. In reply to question no. 216, when a suggestion was put to the witness that on 27 th December, 2004, Jimmy had a problem with his hand, the witness denied the said suggestion and deposed that Jimmy had no problem with his hand and he had signed the will.
21. Mr. Behramkamdin invited my attention to the cross examination of the witness Dr. Putla Minoo Lentin (DW-1) examined by the defendants. In reply to question No. 9 the witness admitted that her relationship with the defendants were ::: Downloaded on - 26/09/2014 23:49:13 ::: Kvm 13/83 TS85.05 very close and she was regularly in touch with the defendants. In reply to question No.24, the witness answered that approximately 25 to 30 Wills of the said witness must have attested. In reply to question No. 35 when the witness was asked as to who asked the witness to make the said affidavit of evidence, the witness answered that Dr. Sanobar had requested her about 2 to 3 months back. Her late brother in law Mr. Minoo Mistry had first asked saying that there was some other Will and that she would be required to give an affidavit. In reply to question No. 39 the witness answered, Dr. Sanobar had told her that another Will was made by Jimmy in December, 2004 and that they were going to continue that matter which was going on in Court. When witness was asked whether prior to Sanobar requesting her to make her affidavit of evidence, whether she was aware of the existence of the will dated 27th December, 2004, the witness answered in negative.
22. In reply to question No.43, witness answered that when Sanobar requested her to file the affidavit, she had told her that another will was given by Jimmy in December, 2004 and that was made and signed at Bombay attested by two witnesses. In reply to question no. 69 when witness was asked as to how often she would speak to the deceased, she answered that it was about once in 8 or 10 days, he used to visit her place. In reply to question No.87, the witness answered that the said deceased had not taken any prior appointment from her when he came to her residence on 31st August, 2000. The said deceased requested her to attest his Will and told her the contents of the Will though she did not ask him. He informed that he had given everything to charity. The witness did not read the said will and had no idea as to who drafted the said Will. In reply to question 105 the witness answered that the will dated 31st August, 2000 was signed by Jimmy in her presence. The witness denied the suggestion of the learned counsel that the witness and Dr. Reddy signed the Will after which the deceased had signed the ::: Downloaded on - 26/09/2014 23:49:13 ::: Kvm 14/83 TS85.05 Will.
23. Mr. Behramkamdin learned counsel after referring to various part of the deposition of the witness examined by both the parties, submits that the plaintiff has duly proved the proper execution and attestation of the Will. There was no proper pleading in so far as allegations of undue influence and coercion made by the defendants in the additional affidavit in support of caveat and such pleadings are totally vague and without particulars.
24. Mr. Behramkamdin learned counsel submits that the onus is on the caveator to prove that there was any undue influence on the deceased in execution of the alleged Will or there was any coercion on the deceased in execution of the Will or that any fraud was committed by the executors or beneficiaries in execution of the said Will. Learned counsel placed reliance on the judgment of the Supreme Court in the case of Shishirkumar Banerjee Vs. Subodhkumar Banerjee AIR 1964 SC 529 and in particular paragraph Nos. 4, 5 and 17 in support of this submission.
Learned counsel submits that the plaintiff has already discharged the onus on the issue of execution, attestation of the will and that the testator was of and disposing mind at he time of execution of the will. Reliance is placed on the judgment of Supreme Court in case of Savithri Vs. Karthyani Amma (2007) 11 SCC 621 and in particular paragraph 4, 5, 14, 15, 17, 18 and 22.
25. Learned counsel also placed reliance in judgment of Welachi Vs. Pakarren (2009) 1 SCC 95 and in particular paragraph 19 and would submit that a party alleging undue influence, fraud etc. must prove the same subject to just exceptions. Learned counsel also placed reliance on order 6 rule 2 and order 6 rule 4 of the Code of Civil Procedure, 1908 and would submit that material facts have to be ::: Downloaded on - 26/09/2014 23:49:13 ::: Kvm 15/83 TS85.05 pleaded with particulars which are missing in the affidavit in support of caveat filed by the defendants alleging undue influence, coercion and fraud. Mr. Behramkamdin also placed reliance on the judgment of Supreme Court in case of Surendra Pal Vs. Dr. Ms. Saraswati Arora (1974) 2 SCC 600 in support of the submission that undue influence would be a matter of proof on the particular facts of the case and no presumption can be drawn. Reliance is placed on paragraph 12 to 14 and 17 of the said judgment.
26. Mr. Shah learned counsel appearing for the defendants on the other hand submits that the plaintiff has failed to prove the attestation and execution of the Will. It is submitted that in any event only attestation and execution of the alleged Will is not sufficient for obtaining a probate in respect of such alleged Will. The propounder of the will has to prove that the testator had signed the Will of his own free Will, he had understood the nature of disposition and at the relevant time when the Will was made, he was of sound and disposing mind. It is submitted by the learned counsel that both the attesting witnesses were interested witness in the person who was deriving major part of the benefit in the estate of the said deceased i.e. Ms. Kanaz. It is submitted that the first attesting witness was student of Kanaz who was teaching her English. Second attesting witness was a friend of Kanaz. Father of Kanaz Mr. Jivaji Tarachand had played prominent part in execution of the alleged Will.
27. Learned counsel submits that the onus is on the propounder of the will to dispel the suspicious circumstances and to prove that the bequest was natural. The defendants have relied upon the first will of the said deceased to show that the second will would not exist. The deceased was not in the proper frame of mind. There was no bequest to the paternal side of the said deceased. In the first will, the ::: Downloaded on - 26/09/2014 23:49:13 ::: Kvm 16/83 TS85.05 deceased had bequeathed entire property to the charity. It is submitted that there is no dispute that the deceased was very ill when alleged will was made.
28. Mr. Shah, learned counsel placed reliance on rule 374 of the High Court (Original Side) Rules which provides that affidavit of one of the attesting witness has to be filed if available along with petition. It is submitted that the affidavit of first attesting witness would show that the affidavit in support of the second attesting witness in support of the petition is false. Learned counsel invited my attention to the affidavit of Mr. Homi C. Pithawalla dated 21 st July, 2005 filed along with the petition. In the said affidavit it is stated that the insertion of the date "27" preceding the words "day of December, 2004" in the last paragraph of the Will was in the handwriting of one Mr. Jivaji Tarachand who was also present at the time of execution of the original Will. It is further stated that the said Jivaji Tarachand also corrected the spelling of "Bapaijis" and "gifts" appearing on page 2 of the said Will. The addition of the date and the spelling corrections were done by the said Mr. Jivaji Tarachand at the request of the said deceased and in his presence and in presence of Dolly S. Divecha prior to the execution of the said Will by the said deceased and by the witnesses. It is submitted that Mr. Homi Pithawala did not put the date below his signature on the alleged Will since he was not present when the Will was executed. It is submitted that even this affidavit would indicate the substantial role played by Mr. Jivaji Tarachand who was father of the major beneficiary under the said alleged Will. It is submitted that during the life time of the said Jivaji Tarachand after filing of this petition, he was not examined as a witness.
29. Learned counsel invited my attention to paragraph 4 of the affidavit of Ms. Dolly S. Divecha dated 21st July, 2005 and would submit that the said alleged ::: Downloaded on - 26/09/2014 23:49:13 ::: Kvm 17/83 TS85.05 attesting witness in the said affidavit has alleged that the said deceased below his signature had added the date 27th December 2004. It is deposed in the said affidavit that the insertion of the date of "27" preceding the words "day of December, 2004" in the last paragraph of the Will was in the handwriting of Mr. Jivaji Tarachand who was also present at the time of execution of the original Will who also corrected the spelling of "Bapaijis" and "gifts" appearing on page 2 of the last will. Mr. Shah learned counsel invited my attention to paragraph 3 of the affidavit in lieu of examination in chief dated 4 th March, 2011 of Ms. Dolly S. Divecha and submits that she has deposed in the affidavit that on 27 th December, 2004 when she visited the residence of Tarachand's, the deceased was present and informed her that he wanted to make last Will in which he wanted to provide for his cousin Kanaz so that she would be protected. Other than that, the deceased did not inform her any other details of his will.
30. Mr. Shah learned counsel invited my attention to part of paragraph 3 in which it is deposed by the said Ms. Dolly Divecha that the signature "D.S. Divecha" and the date 27-12-2004 appearing thereunder was in her handwriting. However, she requested Mr. Jivaji Tarachand to write her name and address below her signature and the date, as she did not wish to make any mistake on the original Will. It is deposed that at her request and with the consent of Jimmy and in the presence of Mr. Homi Pithawalla, Mr. Jivaji wrote her name and address below her signature and date. It is alleged that by inadvertence in her affidavit of attesting witness dated 21st July, 2005, she had stated that the name and address had been written by her which was inadvertently done and the same needs to be corrected.
31. Mr. Shah learned counsel submits that in the affidavit filed by Mr. Homi ::: Downloaded on - 26/09/2014 23:49:13 ::: Kvm 18/83 TS85.05 Pithawalla he does not refer to the handwriting of Mr. Jivaji Tarachand about name and addresses of Dolly Divecha on the Will by Jivaji Tarachand though he was also claiming to be present at the same time. It is submitted that Mr. Homi Pithawalla did not file any affidavit of evidence pointing out his mistake in the affidavit dated 21st July, 2005 which was filed in support of the petition. Learned counsel submits that though the said Mr. Homi Pithawalla was available for quite some time after filing of this petition, the alleged executors examine him. The plaintiff has thus kept out the best evidence and thus this court shall draw adverse inference under section 114 of the Evidence Act, illustration (g). It is submitted that based on such affidavits filed in this proceedings, the plaintiff has not proved execution, attestation and testamentary capacity of the said deceased. Though Jivaji Tarachand was alive for quite some time after filing of this petition, he was not examined as a witness.
32. Mr. Shah learned counsel submits that in the said affidavit the witness has not stated that she had read the Will. Learned counsel invited my attention to the cross examination of this witness on this issue and in particular answer to question Nos.125 to 131 in which she has deposed that she had read the Will. In reply to question No.130 the witness read that 50% was to be given to Kanaz, 25% to Khurshed and something was to be given to a third person. She also read that the said deceased had sold the bungalow and a cupboard had to be given to Kanaz. In reply to question No.131 when witness was asked whether she read what she had stated in the earlier answer in the will or somebody else had told about it, witness deposed that she has read that when she signed the Will.
33. In reply to question No.178, the witness deposed that she saw the Will for the first time when she signed. In reply to question No. 180 when witness was ::: Downloaded on - 26/09/2014 23:49:13 ::: Kvm 19/83 TS85.05 asked whether she read the Will at that time, when she had signed the Will, the witness deposed in negative and said that Mr. Pithawalla had read the Will and then he signed, after which she signed the Will. In reply to question No. 196 when witness was asked why Jivaji made the correction, she answered that because Jimmy also could not write properly as he had some problem with his hand. It is submitted by the learned counsel that in the affidavit filed in the month of July, 2005 the witness did not mention about the alleged corrections made by Mr. Jivaji Tarachand or that she had read the will and after six years of execution of the said affidavit the witness has changed her story.
34. Mr. Shah learned counsel invited my attention to question Nos. 166 to 176 and would submit that witness has admitted that Jimmy had not given any fixed time to her for attesting the Will. The witness has answered that she was at Kanaz's house to attend the classes when Jimmy asked her to attest the Will. He had told her earlier that she would have to sign the Will. In reply to question No. 169 the witness answered that Mr. Pithawalla had already come and was sitting there. In reply to question no. 177, the witness however replied that it was her case that she, Mr. Jivaji Tarachand and Jimmy waited for about half an hour to forty five minutes before Mr. Pithawalla arrived at the house. Learned counsel submits that the answers given by the witness Ms. Dolly Divecha referred to aforesaid are inconsistent with the other answers given by the witness and also with the allegation made in affidavit dated 21st July, 2005. It is submitted that even deposition of this witness about presence and role of Mr. Pithawalla, is also totally inconsistent and contradictory.
35. Mr Shah learned counsel for the defendants submits that Ms Dolly Divecha did not know what transpired on the day of alleged execution of Will. It is ::: Downloaded on - 26/09/2014 23:49:13 ::: Kvm 20/83 TS85.05 submitted that answer given to question No.130 is inconsistent with her answer to question No.180. My attention is invited to answers of the said witness to question No.292 to 295. The witness when asked whether she had asked Jimmy what he was protecting Kanaz from, the witness answered that Jimmy thought that he would not leave for very long as he had heart problems and therefore wanted to make a Will. In that Will he wanted to give Kanaz 50%. This he had told her earlier and then called her on 27th December 2004 to sign the Will. In reply to question No.295 when witness was asked as to why she had stated that she was informed on 27/12/2004 that Jimmy was making his Will, she answered that she was told that the Will was already made, then on 27 th December 2004, it was read and then signed. Learned counsel submits that this part of the evidence is totally inconsistent with her deposition in paragraph 3 of her affidavit in lieu of examination-in-chief. It is submitted that the plaintiff has thus failed to prove the execution and attestation of the alleged Will.
36. The learned counsel submits that Ms Dolly Divecha was not aware of anything about the execution of Will and was an interested witness. She did not know English. None of the affidavits filed by her were translated. There was no endorsement made in any of the affidavits that she was explained the contents of the said affidavits in Gujarati or Hindi. It is submitted that she claimed to be a student of the main beneficiary Ms Kanaz of the said Will. It is submitted that the witness has made several false and misleading statements in the affidavits as well as oral evidence and therefore the said witness was not a reliable witness as not telling the truth. It is submitted that there is serious doubt whether she had at all given any instructions to the advocate of the plaintiff to draft her affidavits and submits that the said witness had signed the affidavits at the behest of the beneficiary under the alleged Will. In support of these submissions, learned ::: Downloaded on - 26/09/2014 23:49:13 ::: Kvm 21/83 TS85.05 counsel invited my attention to various portions of the oral evidence recorded in these proceedings.
37. In reply to question Nos.1 and 2 the witness deposed that she had studied up to 8th standard in Gujarati medium at Bharatiya Vidyalay High School in Ahemadabad Gujrat. She joined the classes of Kanaz to learn English in or about year 2000. She had passed the 7th standard in or about 1957-58. In reply to question No.12 the witness denied the suggestion of the learned counsel for the defendants that up to 2002 she was not able to read or write or speak in the English language. She answered that she could read, write and speak a little of the English language. In reply to question No.14 the witness deposed that she had learnt to write in English small words, spellings things like that. She learned enough English to understand it.
38. When witness was asked whether she and her sisters ever exchanged letters with each other, the witness answered in affirmative and added that the same was in Gujarati because they also had a little knowledge of English. She was interested in learning English because Kanaz was residing next to her home and she and her husband came to know that Kanaz was taking classes of English In reply to question No.29 the witness replied that in the year 2002 there was only one batch consisting about 7 to 8 students. She went to attend the classes for about 3 to 4 years. In reply to question No.33 when witness was asked whether she learned grammer, spellings, the witness answered that a little bit. She answered that she learned to speak a little bit more in English. She however did not remember any of the student from her batch. She did not know whether Kanaz issued any certificate to any student at the end of any particular course.
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39. In reply to question No.36 when witness was asked whether she wanted certificate, the witness answered in negative and deposed that her English was still very poor. She was not able to speak very fluently. When witness was asked whether she was able to read English comfortably, she answered that she could read and understand English but not the difficult words or spellings. She was to look at the dictionary in that case. She was not comfortable with writing in English as she was making mistakes when writing in English. When witness was asked whether it would be correct to say that she could write her own address in English, in reply to question No.46, the witness answered in affirmative and added that she could but sometimes her handwriting becomes crooked then she would tell somebody else to write for her when it pertains to the Court matters.
40. The learned counsel invited my attention to some of the answers given by the said witness when was confronted with the legal words referred in her affidavit. When witness was asked whether she could tell the meaning of the word "acquainted", she answered in negative and added that it may mean "equally".
When witness was asked whether she knew the meaning of the word "subscribed" the witness answered in negative and added that she might have read the word but does not know the meaning. When witness was asked whether she knew the meaning of the words "Testamentary paper", the witness answered that it could be something with the Court but it could be something about "test". When witness was asked whether she knew the meaning of the word "execution" the witness answered in negative. When witness was asked whether she knew the meaning of word "doppler echo cardiography" the witness answered that it was something to do with echo cardiogram because she remembered that they had taken Jimmy to the doctor.
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41. Learned counsel submits that before the learned Court Commissioner when her evidence was recorded, a Gujarati translator was kept present all throughout and all the questions asked to the witness were translated to her in Gujarati from English. It is submitted that since none of the affidavits filed by her were translated to her in Gujarati and did not bear any such endorsement and the witness not having been familiar with English at all, it is clear that she filed affidavits without understanding the contents thereof and without knowing whether instructions alleged to have been given by her to the advocate to draft affidavits were carried out in the affidavits or not.
42. In reply to question to 52 when witness was asked who drafted affidavit in support of the petition dated 21/07/2005, the witness answered that the same was drafted by advocate Farzana on her instructions. She gave instructions in Gujarati and signed the said affidavit on instruction of the said advocate in her office. In reply to question No.59 when witness was asked when she went to give instructions whether anybody else accompanied her, she answered that she did not remember. Kanaz had shown her the office of the advocate. The witness and Kanaz came to the office of the advocate by taxi. In reply to question No.76 the witness deposed that she read the affidavit before signing it. She had read a little of it and understood it. Whatever she had instructed the advocate, it was written. She did not show the affidavit to anybody else before signing it. She had read it. When witness was asked as to how she knew what was written in the affidavit, whether it was as per her instructions, she answered that she read the affidavit herself. When witness was asked when she had read the affidavit, whether it was correct that she had understood it, the witness answered in affirmative and added that whatever instructions she had given were mentioned in the affidavit.
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43. In reply to question Nos.81 and 82 when the witness was asked whether the witness knew the meaning of the word "deponent" the witness answered that it was something to do with doctory and it was a medical term. When witness was asked whether she knew the meaning of phrase "disposing mind" the witness answered that it means that the mind was not proper or something like that, she did not know. In reply to question No.84 when witness was asked whether she was sure whether the affidavit dated 21st July 2005 contained exactly what she had instructed the advocate to be drafted, the witness answered "it may be". In reply to question No.87 when witness was asked whether she met advocate Farzana prior to making of the affidavit dated 21/07/2005, the witness answered that she did not remember.
44. In reply to question No.81A, whether it was correct she distinctly remembers that she had signed her affidavit in the office of the advocate, the witness answered in affirmative. When witness was asked how she knew that her affidavit was required, witness replied that she did not know. When witness was asked whether she knew what is a probate petition, she replied that she did not know. In reply to question to 86A the witness replied that the mother of Kanaz told her that the advocate had called and she was required to go to the advocate's office and that is how Kanaz dropped her to the advocate's office.
45. In reply to question No.223 the witness answered that she had not seen affidavit dated 21/07/2005 after executing the same and saw only in the proceedings before the learned Commissioner. In reply to question No.224 when witness was asked whether she knew whether Jivaji or Kanaz had seen her affidavit dated 21/07/2005 or the copy thereof after she executed the same, the witness answered that she did not know if Jivaji or Kanaz had seen her affidavit but Jimmy had seen her affidavit. In reply to question No.226 when witness was ::: Downloaded on - 26/09/2014 23:49:13 ::: Kvm 25/83 TS85.05 asked whether it was correct that when she signed affidavit dated 21/07/2005 she was accompanied by Jivaji Tarachand, the witness answered in affirmative and added that the said Mr Jivaji had come to Court.
46. In so far as affidavit dated 4 th March 2011 is concerned, in reply to question No.235 and 236, the said witness admitted that when she signed her affidavit of examination-in-chief dated 4th March 2011, mother of Kanaz had accompanied her. Advocate Farzana had asked the witness to sign the said affidavit. In reply to question No.243, when witness was asked whether she asked Mrs Goolamai mother of Kanaz to show her the second affidavit that she was required to sign, the witness answered in negative and added that she was made to sign the said affidavit. In reply to question No.244 the witness admitted that she saw the second affidavit for the first time when she signed it on 4 th March 2011. When witness was asked as to whether she had made advocate Farzana between 21 st July 2007 and 4th March 2011, the witness answered that for the affidavit she had made advocate Farzana three times during that period. Advocate Farzana had called Goolamai and then Goolamai and the witness went to meet advocate Farzana in Court. The witness admitted that she knew Kanaz and Jivaji was leaving in the same house with Kanaz and Goolamai. She met Jivaji also sometimes when she went for her English classes.
47. In reply to question to 262 when witness was asked whether she had read her affidavit dated 4th March 2011, before giving evidence, the witness replied that she had read it but very cursorily. When witness was asked when she did read the said affidavit before giving evidence, witness answered that she did not remember that but if she knew that she had to give evidence, she would have read it properly. Nobody informed her that she would be asked questions on her affidavit dated 4 th ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 26/83 TS85.05 March 2011. In reply to question No.283, when witness was asked whether it was correct that even before signing her affidavit dated 4th March 2011 she had not read her affidavit dated 21st July 2005, the witness answered that she did not remember.
She did not know the meaning of the word 'inadvertently'.
48. In reply to question Nos.92 to 96 the witness when asked whether her advocate had suggested that an Interpreter should be present, she answered that she did not know anything about it. The witness agreed to the suggestion of the learned counsel for the defendants that the witness did not make a request for an Interpreter and added that she had only informed the advocate that her English was not very good and that she understood Gujarati.
49. In reply to question Nos.97 to 104 the witness did not remember whether advocate Farzana had shown her any document when she gave instructions to the advocate. She was asked questions about the Will and whether the same was signed in her presence. She also told the advocate that she had put the date but the address part was written by Mr Jivaji because her handwriting was a little crooked. The witness admitted that the said affidavit dated 21/07/2005 was drafted based on the answers given by her in reply to question No.100. In reply to question No.103 the witness denied the suggestion put to her by the learned counsel for the defendants that the witness had not read the affidavit dated 21/07/2005 before signing it and answered that she had read the affidavit before signing it. In reply to question No.104 when witness was asked whether she found any mistake in the affidavit when she read it before signing it, the witness answered that she did not find any mistake in the said affidavit before signing the same. In reply to question No.346 the witness answered that she did not ask Goolamai to give her copy of the affidavit dated 04/03/2011 and added that she had read the xerox copy ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 27/83 TS85.05 of the affidavit. Though the affidavit was not signed in Court, witness in reply to question No.247 and 248 answered that the said affidavit was signed in Court.
50. In reply to question Nos.105 to 115, the witness answered that when she had joined the class in 2002, Jimmy use to visit the place regularly and there she first met him. Jimmy would stay at Kanaz's place and from there their friendship developed. Jimmy used to come to her house sometime in or about 2003-04. When witness was asked whether she and Jimmy were good friends, in reply to question No.108 she replied that Jimmy was like her son. In reply to question No.112 when witness was asked as to what was the occupation and profession of Jimmy, the witness answered that she did not know about the occupation or profession of Jimmy but he led a good life. He was fond of food and use to eat, drink and be happy. In reply to question No.115 when witness was asked what else she could tell about Jimmy, the witness answered that other than what she has deposed, nothing much except that they used to talk whenever he was there.
51. Mr Shah learned counsel for the defendants placed reliance on the Judgment of Supreme Court in case of H. Venkatchala Iyengar Vs. B. N. Thimmajamma and Ors. AIR 1959 SC 443 and would submit that the defendants having proved the existence of the earlier Will by which the said deceased has bequeathed his entire property to charity and Ms Kanaz was one of the executrix to the said Will, there was no change in circumstances between the execution of the first Will and the alleged Will in question by which the said deceased would have given substantial part of his properties to Kanaz, the defendants having alleged various suspicious circumstances in the affidavits in support of caveat, the executors who had propounded the alleged Will therefore had to prove the due and valid execution of the Will and that there were no suspicious circumstances surrounding the ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 28/83 TS85.05 execution of the Will. Such propounder must remove such suspicion from the mind of the Court by cogent and satisfactory evidence. It is submitted that Mr Jivaji Tarachand had played prominent part in bringing about the execution of the Will who was father of the main beneficiary under the alleged Will. Even wife of Mr Jivaji had played important role in getting the affidavit of Ms Dolly Divecha. It is submitted that the plaintiff has failed to dispel the suspicious circumstances and thus suit is liable to be dismissed on that ground alone. Reliance is placed on paragraphs 8 to 24, 27, 28 and 38 of the said Judgment.
52. Mr Shah learned counsel placed reliance on the Judgment of the Supreme Court in case of Janaki Narayan Bhoir Vs. Narayan Namdeo Kadam 2003 (2) SCC 1991 and would submit that under section 68 of the Evidence Act if one of the attesting witness examined does not satisfy the requirements of attestation of the Will and falls short of attestation of Will, propounder ought to have examined second attesting witness to supplement his evidence to make it complete in all respect failing which it would amount to deficiency in meeting the mandatory requirements of section 68 of the Evidence Act. Learned counsel submits that since Ms Dolly Divecha who was alleged to be one of the attesting witness had failed to prove the execution and attestation of the alleged Will, the plaintiff ought to have examined the second attesting witness in compliance with mandatory requirements under section 68. Reliance is placed on paragraphs 8 to 11 of the said judgment.
53. Mr. Shah learned counsel placed reliance on judgment of this court in case of Zarina R.Irani vs. Shapur Jawanmardi 2005 (1) Mah.L.J. 293 and would submit that the propounder of the Will has not only to prove the execution of the Will but also that the Will is not surrounded by any suspicious circumstances.
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54. Mr Shah learned counsel also placed reliance on the Judgment of this Court in case of Romeo A. D'Souza Vs. Edgar Havlo D'souza (R.D.Dhanuka, J.) dated 20/12/2013 in testamentary suit 41/06 in support of the submission that the issue of execution of the Will and testament has to be considered by considering the entire material on record and also the suspicious circumstances surrounding the making of the Will. Reliance is placed on paragraph 46 of the said judgment on this issue.
55. Mr. Shah learned counsel for the defendants submitted that plaintiff has not led any evidence to show that Mr. Pithawalla also committed any alleged error or that Mr. Pithawalla who was unwell and died. Plaintiffs also did not lead any evidence as to whether Mr. Jivaji Tarachand was unwell or died of cancer and thus could not be examined. Ms. Kanaz did not enter the witness box to say that Mr. Pithawalla and Mr. Jivaji were unwell and died and therefore, could not lead evidence. It is submitted that the learned counsel for the plaintiff cannot be allowed to urge that Ms. Dolly Divecha examined by the plaintiff was confused since the plaintiff never applied for re-examination of the said witness on any alleged confusion. He submitted that in the affidavit annexed to the testamentary suit handwriting of Mr. Jivaji on the will was alleged which was obviously not as per prescribed form No. 102. The plaintiff had mentioned much more in the said affidavit what was prescribed in form no. 102. It is submitted that such form prescribed under the rules is only a guide and even if there is factual incorrect information, same cannot be written in the form.
56. Mr. Shah learned counsel submits that Ms. Dolly Divecha who was examined as one of the attesting witness admittedly saw the second affidavit of examination in chief for the first time when she signed the said affidavit. The ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 30/83 TS85.05 affidavit was drafted by learned advocate and was admittedly not translated.
Assistance of interpreter of this court was admittedly not availed of when the affidavit was affirmed. Admittedly presence of the interpreter was required by the said witness to translate every question before the learned court commissioner at the time of recording oral evidence. The witness in his examination in chief or in cross examination, did not depose that her affidavits in lieu of examination in chief were translated to her by the learned advocate. It is submitted that the statement of Mr. Pithawalla in the affidavit in support of the petition contained various untrue allegations which cannot be ignored. He had deposed facts about somebody else.
57. Learned counsel submits that there was major discrepancy in the case of the witness examined by the plaintiff. The witness Ms. Dolly Divecha described four versions on what happened on the date of execution of the alleged Will. The second witness examined by the plaintiff was admittedly not present on the date of alleged execution of the Will. Mr. Shah learned counsel distinguished the judgment of supreme court reported in Madhukar Shende (supra) on the ground that the said judgment did not pertain to the testamentary proceedings. The suit was for declaration of title and possession of immovable property. The defendants in the said suit had denied the will and had claimed adverse possession.
58. Mr. Shah learned counsel distinguished the judgment of the Supreme Court in case of Maheshkumar (supra) on the ground that the Supreme court was considering a suit for declaration of title, possession and recovery of rent. Reliance is placed on paragraph 39, 40,45 and 46 of the said judgment and would submit that evidence was corroborated even in cross examination in that matter. Mr. Shah learned counsel submits that there is no substance in the submission of learned counsel for plaintiff that affidavit filed in support of the petition or along ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 31/83 TS85.05 with petition cannot be considered by this court as evidence. It is submitted that Ms. Dolly Divecha was examined on both the affidavits and the defendants were entitled to point out the inconsistency and falsehood in the said affidavit of the year 2005. Mr. Shah learned counsel distinguished the judgment of the Supreme Court in the case of Ayaaub Khan Noorkhan Pathan Vs. State of Maharashtra 2013 (3) BCR 113. Reliance is placed on paragraph 11 of the said judgment.
59. It is submitted that requirement of section 63 of the Evidence Act are not satisfied. The evidence led by the plaintiff itself is unreliable, full of self- contradictions and inconsistencies. There were no initials of deceased on the corrections made on the alleged Will.
60. Mr. BehramKamdin learned counsel for the plaintiff in rejoinder submits that court has to read the evidence as a whole and not in piecemeal. Discrepancy in the evidence has to be construed in right context unless court comes to the conclusion that whole case has to be disbelieved. The court can not discard evidence on the basis of surmises and conjectures. Mr. BehramKamdin placed reliance on the treatise of Woodroff and Amir Ali on Law of Evidence, 18th Edition on this issue and would submit that it is duty of the court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood is glaring to destroy the confidence in the witness. Learned counsel submits that the witness Ms. Dolly Divecha in view of the confusion may have given certain answers which may be inconsistent but merely on the basis of answers given to few of such questions entire evidence cannot be discarded by the court. It is submitted that under section 165 of the Evidence Act, this court may ask questions to the witnesses even at this stage to find out the truth.
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61. On the issue of the will being unnatural the learned counsel submits that such issue has been raised by the caveators only in the additional affidavit in support of caveat much after completion of the pleadings. Merely because in the second will there is no bequest of charity, same cannot be considered as unnatural will. It is submitted that under the second will the entire property does not go to Kanaz. Only 50% share in the property is bequeathed in her favour and the remaining 50% is bequeathed in favour of other two parties. The deceased wanted to protect Kanaz. The deceased had ¼ th share received by him by Will of his aunt which share was bequeathed in favour of Kanaz. Kanaz had already 1/4th share in the said property at Dadar. It is submitted that the deceased in the second will had not said that Will of the year 2000 (first Will) was revoked. Mr. Behramkamdin placed reliance on the judgment of the Supreme Court in case of Rajeshkumar Vs. Vinodkumar (2012) 4 SCC 387 and in particulars paragraphs 46 to 49 on the issue of natural will raised by the defendants.
62. On the issue as to whether affidavit filed in the year 2005 can be considered as evidence at all, it is submitted that the affidavit of attesting witness is filed as per Form 102 under rule 374 (c) of the High Court (OS) Rules and such affidavit is filed along with probate petition. Once testamentary petition is converted into a suit, Code of Civil Procedure, 1908 applies. Affidavit in lieu of examination in chief filed under order 18 rule 4 only can be considered as evidence. Reliance is placed on section 3 of the Evidence Act and it is submitted that the statement made by the witness only would amount to evidence within the meaning of evidence under the said provisions and thus the said affidavit filed in the year 2005 cannot be treated as affidavit of evidence. It is submitted that in any event, the errors shown by the defendant in the affidavit are minor and inconsequential.
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63. On the issue whether Ms. Dolly Divecha was an interested witness or not, learned counsel placed reliance on the judgment of the Supreme Court in case of Aaayub Khan Pathan (supra) and more particularly paragraph 31 to 33 and 36. He submitted that Mr. Pithawalla was not alive and could not clarify or correct the mistake made in the affidavit of the year 2005. When the said Ms. Dolly Divecha came to know about the mistake in the affidavit of 2005, about the address, she corrected the said mistake in her affidavit of evidence which can be considered by this court. Such error in any event was a genuine error. He submitted that inaccuracy in the affidavit of Mr. Pithawalla was in any event not material.
64. Mr.Behramkamdin, learned counsel for the plaintiffs submits that the said deceased by executing the Will dated 27th December 2004 has already revoked all earlier Wills including Will dated 31st August 2000. The witnesses examined by the plaintiff have proved this fact. Mr.Shah learned counsel appearing for the defendants however submits that the defendants have proved the existence and contents of the Will dated 31st August 2000 whereas the plaintiff has failed to prove the alleged Will dated 27th December 2004. It is submitted that the Issue No.3 therefore shall be answered in negative.
REASONS AND CONCLUSION
65. In the case of Shashikumar Banerjee and Ors. Vs. Subodh Kumar Banerjee (supra), Supreme Court has held that the onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by the law is sufficient to discharge the onus. However, if there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. It ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 34/83 TS85.05 is held that even where there are no such pleas of undue influence, fraud and coercion, the propounder has to satisfy conscience of the Court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the conditions of the testator's mind in the will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications to show that testator's mind was not free. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might be cut off wholly or in part to near relations.
66. In case of Savithri and Ors. Vs. Karthyayani Amma & Ors. (supra), Supreme Court has held that the Court has to see as to whether the testator possessed mental capacity to understand the contents of the will and whether the same was free and/or voluntary. It is held that the if propounder proves that the will was signed by the testator and he, at the relevant time, was in sound disposing state of mind and understood the nature and effect of disposition, the onus stands discharged. It is held that the will like any other document is to be proved in terms of provisions of Succession Act and Evidence Act. The onus of proving the will is on the propounder. The execution of the will and the testamentary capacity of the testator must be established. If there exists suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court. It can be accepted as genuine. It is held that deprivation of a due share to the natural heirs itself is not a factor which would lead to the conclusion that there exists suspicious circumstances. It is held that the conscience of the Court must be satisfied that the will in question was not only executed and attested in the manner required under the Succession Act but it is found that the said will was the product of the free volition of the executant ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 35/83 TS85.05 who had voluntarily executed the same after knowing and understanding the contents of the will. Wherever there are suspicious circumstances, the obligation is cast on the propounder of the will to dispel the suspicious circumstance.
67. Supreme Court in the case of Bellachi (dead) by Lrs. Vs. Pakeeran, reported in (2009) 12 Supreme Court Cases 95 has held that a party alleging the undue influence, fraud, etc. must prove subject of course to just exceptions.
68. Supreme Court in case of Surendra Pal and Ors. Vs. Dr. (Mrs.) Saraswati Arora and Anr., reported in (1974) 2 Supreme Court Cases 600 has held that there are possibilities of fraud and fabrication, particularly in cases of old and feeble persons, that the Courts have to be very circumspect in dealing with them and scrutinize the surrounding circumstances very carefully.
69. Supreme Court in the case of H. Venkatachala Iyengar Vs. B.N. Thimmajamma (supra) has held that if there are presence of suspicious circumstances, it would naturally tend to make the initial onus very heavy and unless it is satisfactorily discharged, the Courts would be reluctant to treat the document as the last will of the testator. It is held that the propounder himself takes a prominent part in the execution of the will which confer on them substantial benefits and has received substantial benefit under it, that itself is treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicious circumstances by clear and satisfactory evidence.
::: Downloaded on - 26/09/2014 23:49:14 :::Kvm 36/83 TS85.05 Paragraphs 20 and 21, 22 and 39 of the said judgment in the case of H. Venkatachala Iyengar read thus.
"20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances;
or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 37/83 TS85.05 with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson , "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.
39. In this connection we would like to add that the learned trial judge appears to have misdirected himself in law inasmuch as he thought that the proof of the signature of the testatrix on the will raised a presumption that the will had been executed by her. In support of this view the learned judge has referred to the decision of ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 38/83 TS85.05 the Calcutta High Court in Surendra Nath Chatterji v. Jahnavi Charn Mukerji . In this case no doubt the Calcutta High Court has held that on the proof of the signature of the deceased or his acknowledgment that he has signed the will he will be presumed to have known the provisions of the instrument he has signed; but Mr. Justice B. B. Ghose, in his judgment, has also added that the said presumption is liable to be rebutted by proof of suspicious circumstances and that undoubtedly is the true legal position. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated. That inevitably would be a question of fact in each case. Unfortunately the learned trial judge did not properly asses the effect of suspicious circumstances in the present case to which we have already referred and that has introduced a serious infirmity in his final conclusion. Incidentally we may also refer to the fact that the appellant obtained a power of attorney from the testatrix on the same day; and that has given rise to the argument that the appellant was keen on taking possession and management of the properties under his control even before the death of the testatrix. There is also another circumstance which may be mentioned and that is that the Sub- Registrar, in whose presence the document was registered on the same day, has not been examined though he was alive at the date of the trial. On these facts then we are inclined to hold that the High Court was justified in reversing the finding of the trial court on the question of the due and valid execution of the will."
70. Supreme Court in case the of Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, reported in (2003) 2 Supreme Court Cases 91 has held that though Section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, Section 68 of the Succession Act provides that a document which is lawfully attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if the witness is alive and subject to the process of the Court and is capable of giving evidence. It is held that the one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there are due execution of the will. If the ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 39/83 TS85.05 attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the will by the other witness, Section 71 cannot be read so as to absolve a party of his obligation under Section 68 of the Evidence Act read with Section 63 of the Indian Evidence Act. It is held that if one witness fails to prove the execution of the will, the other witness is to be called for to supplement his evidence.
It is held by the Supreme Court that the best possible evidence should be placed before the Court for consideration which is one of the parameters of the Indian Evidence Act.
Para 8 to 11 of the said judgment of the Supreme Court read thus.
"8. To say will has been duly executed the requirement mentioned in Clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e., (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place form which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witnesses has to sign the Will in the presence of the testator.
9. It is thus clear that one of the requirements of due execution of will is its attestation by two or more witnesses which is mandatory.
10. Section 68 of the Evidence Act speaks of as to now a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested shall not be used as evidence until 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 an ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 40/83 TS85.05 evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by Clause (c) of Section 63 of the Succession Act. It is true that Section 68 of Evidence Act not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section
63. although Section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will. to put in other words, if one attesting witness can prove execution of the will in terms of Clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attention of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attention of the will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 41/83 TS85.05 attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.
11. Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68, Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling attesting witnesses, though alive. This section provides that if an attesting witness denies or does not recollect the execution of the will, its execution may be proved by other evidence. Aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the execution of the same, for the reasons best known, have not been summoned before the court. It is clear from the language of Section 71 that if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. However, in a case where an attesting witness examined fails to prove the due execution of will as required under Clause (c) of Section 63 of the Succession Act, it cannot be said that the Will is proved as per Section 68 of the Evidence Act. It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of will can be proved by other evidence dispensing with the evidence of other attesting witnesses though available to be examined to prove the execution of the will. Yet, another reason as to why other available attesting witnesses should be called when the one attesting witnesses examined fails to prove due execution of the will is to avert the claim of drawing adverse inference under Section 114 illustration (g) of Evidence Act. Placing the best possible evidence, in the given circumstances, before the Court for consideration, is one of the cardinal principles of Indian Evidence Act. Section 71 is permissive and an enabling Section permitting a party to lead other evidence in certain circumstances. But Section 68 is not merely on enabling Section. It lays down the necessary requirements, which the Court has to observe before ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 42/83 TS85.05 holding that a document is proved. Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility cannot be let down without any other means of proving due execution by "other evidence" as well. At the same time Section 71 cannot be read so as to absolve a party of his obligation under Section 68 read with Section 63 of the Act and liberally allow him, at his will or choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the court concerned and confer a premium upon his omission or lapse, to enable him to give a go bye to the mandate of law relating to proof of execution of a will.
12. Turning to the facts of the case on hand, it is evident that only one attesting witness Prabhakar Sinkar, examined in the case, did not prove the execution of the will inasmuch as he did not prove the attestation of the will by the other attesting witness Wagle who though available was not examined. The scribe examined in the case was not an attesting witness, which is clear from the evidence on record and as rightly conceded so by learned counsel for the respondent before us. Hence, it is unnecessary to go into the question whether the scribe in this case could or could not be an attesting witness. The evidence of Sinkar, the only attesting witness, does not satisfy the mandatory requirements of Section 68 of the Evidence Act. We are not in a position to accept the contention urged on behalf of the respondent that the evidence of other witness namely, that of the respondent and the scribe could be considered under Section 71 of the Evidence Act.
Section 71 has no application when the one attesting witness, who alone has been summoned, has failed to prove the execution of the will and other attesting witness though available has not been examined. When the document is not proved as mandatory required under Section 68 of the Evidence Act, the provision of Section 71 of the Evidence Act, which is permissive, and enabling in certain circumstances as discussed above does not help the respondent. In Vishnu Ramkrishna and Ors.v. Nathu Vithal and Ors. MANU/MH/0100/1948 : AIR1949 Bom266 , Chagla, C.J., speaking for the Division Bench in similar circumstances has stated that although Section 63 of the Succession Act requires that will has to be attested by two witnesses, Section 68 of the Evidence Act permits the execution of the will to be proved by only one attesting witness being ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 43/83 TS85.05 called. Where the attesting witness, who is called to prove the execution, is not in a position to prove the attestation of the will by the second witness, the evidence of the witness called falls short to the mandatory requirements of Section 68. Section 71 of the Evidence Act can only be requisitioned when the attesting witnesses who have been called failed to prove the execution of the will by reason of either denying their own signatures or denying the signature of the testator or having no recollection as to the execution of the document. This Section has no application when one attesting witness has failed to prove the execution of the will and other attesting witnesses were available who cold prove the execution if they were called."
71. Supreme Court in the case of Zarina R. Irani & Ors. Vs. Shapur Jawanardi and Ors. reported in 2005 (1) Mh. L.J. 293 has held that the Court has to consider the evidence led by the propounder of the will so as to satisfy the conscience of the Court that the will was executed by the Testator.
72. In the light of the aforesaid principles of law laid down by the Supreme Court on the issue of requirement of proof in case of a will, shifting of onus in case of suspicious circumstances, I shall now discuss on the evidence led by both parties and highlighted aforesaid on the issue whether execution and attestation of the will is proved, whether the testator was in sound and disposing state of mind at the time of execution of the will, whether there is suspicious circumstance in execution of will of the deceased testator and if so, whether the propounder of the Will has dispelled such suspicious circumstances.
73. Two persons are claiming to be executors of the alleged Will. One is Mr. Jivaji F. Tarachand, paternal uncle of the deceased, and the second is Mr. Khurshed Naval Wadia, cousin of the said deceased. The testamentary petition was filed by both these persons in the year 2005. The deceased had alleged to ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 44/83 TS85.05 have executed the will on 27th December, 2004. The said deceased expired on 15th March, 2005. According to the said alleged will, there were two attesting witnesses 1) Mr. Homi Cavasji Pithawala and 2) Ms. Dolly Soli Divecha. Both the alleged attesting witnesses filed two separate affidavits both dated 21 st July, 2005 which affidavits were annexed to the petition. The statement made in both the affidavits are exactly identical. Mr.Homi C. Pithawala however was not examined as a witness. None of the alleged executors of the alleged will were examined as witness. Mr. Jivaji F. Tarachand expired sometime in the year 2011. The proceedings were thereafter proceeded by Mr. Khurshed Wadia. Plaintiff did not enter the witness box. The plaintiff examined two witnesses. 1) Ms. Dolly S. Divecha and 2) Mr. Phiroz Amaria.
74. In the cross examination of Ms Dolly Divecha she admitted that she had passed 7th standard in or about 1957-58. She claimed to have learnt to write in English small words. Letters exchanged between her and her sisters were also in Gujarati. She admitted that she had learnt grammer spelling little bit. She did not remember any of the students from her bench who had attended English classes of Kanaz. She also did not know whether Kanaz has issued any certificate to any students at the end of any particular course. She did not want certificate of the alleged course from Kanaz because her English was still very poor. Witness admitted that she could read and understand English but not the difficult words and spellings and was not comfortable in writing in English. In reply to question No.46 the witness admitted that she could write her address in English. When the witness was asked the meaning of various words used by her in her affidavit such as 'acquainted', 'testamentary paper', 'disposing mind', 'deponent', etc. , the witness could not give correct meaning of such words.
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75. It is not in dispute that none of the affidavits filed by the said witness Dolly Divecha were interpreted and/or translated to her in Gujarati. There was no endorsement made by the advocate on any of the affidavits that the contents of the said affidavits were explained to her in Gujarati. It was also not the case of the witness that she was explained the contents of those two affidavits before affirmation, by the advocate who had drafted such affidavits. It is also not in dispute that before the learned Court Commissioner, a translator was arranged by the plaintiff for translating each and every question asked to the witness from English to Gujarati. The witness admitted that such translator was present. Witness also admitted that she had given instructions in Gujarati and signed the affidavits on instructions of her advocate at her office.
76. In her cross examination, the said witness deposed that the affidavit dated 21/07/2005 was drafted by her advocate on her instructions given in Gujarati. She did not remember who accompanied her when she went to give instructions to the learned advocate for drafting the affidavit. Kanaz had shown her office of the advocate. When witness was asked whether she had read the said affidavit dated 21/07/2005, she answered that she had read a little of it and understood the contents of the said affidavit and added that whatever instructions she had given were mentioned in the affidavit. In reply to question No.84 when she was asked whether she was sure whether the affidavit dated 21/07/2005 contained exactly what she had instructed the learned advocate to draft the affidavit dated 21/07/2005, the witness answered " It may be". When witness was asked whether she had met the learned advocate prior to making of the affidavit dated 21/07/2005, she answered that she did not remember. When witness was asked as to how she knew that her affidavit was required, she replied that she did not remember. She did not know what the probate petition was. Kanaz had brought her to advocate's ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 46/83 TS85.05 office. The witness did not see the affidavit dated 21/07/2005 after executing the same and saw only in the proceedings before the learned Commissioner. In reply to question No.224 witness answered that she did not know if Jivaji or Kanaz had seen her affidavit dated 21/07/2005 but deposed that the deceased had seen her affidavit. It is not in dispute that the said affidavit dated 21/07/05 was filed after the death of the said deceased testator. The said deceased therefore could not have seen that affidavit as deposed by the said witness.
77. The cross examination of the said witness also indicates that she had admitted that mother of Kanaz had accompanied her when she signed her affidavit of examination-in-chief dated 04/03/2011. The learned advocate for the plaintiff had asked the said witness to sign the said affidavit. The witness admitted that she did not ask Mrs Goolamai, mother of Kanaz to show her the affidavit dated 4/03/2011 and admitted that she was made to sign the said affidavit. The witness also admitted that she saw the second affidavit for the first time when she signed it on 04/03/2011. When witness was asked whether she had read her affidavit dated 04/03/2011 before giving evidence, she replied that she had read it but very cursorily. Nobody informed her that she would be asked questions on her affidavit and if she knew that she had to give evidence, she would have read it properly. When witness was asked whether she read the affidavit dated 21/07/2005 before she signed the affidavit dated 04/03/2011, she answered that she did not remember. She did not know the meaning of the word 'inadvertently'. Witness also admitted that she had told her advocate that her English was not very good and that she understood Gujarati.
78. Witness admitted that she did not remember whether her advocate had shown her any documents when she gave instructions to the advocate. She had ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 47/83 TS85.05 told the advocate that she had put the date but the address part was written by Mr Jivaji Tarachand because her handwriting was a little crooked. When witness was asked whether she found any mistake in the affidavit dated 21/07/2005 when she read it before signing it, the witness answered that she did not find any mistake in the said affidavit before signing the same. The witness could not answer as to what was the occupation and profession of the said deceased but deposed that he was fond of food and use to eat, drink and be happy. Other than what she deposed, she could not give any other information about the deceased. The witness deposed that said deceased was like her son.
79. A perusal of the affidavit of the witness Dolly Divecha dated 21/07/2005 indicates that the same is identical to the contents of the affidavit of Mr H.D. Pithawalla. In reply to question No.133, this witness answered that she did not inform her advocate at the time of drafting affidavit dated 21/07/05 that she had read the Will. The learned advocate did not ask her and therefore she did not tell her. The deceased had asked her to sign as an attesting witness as he was preparing a Will. He had told her about such Will on 27/12/2004 or 2005 but she did not remember the year exactly. She has deposed that the said deceased did not tell her as to who had made Will for him but only asked her to sign in the Will. The witness deposed that the said deceased kept on saying that he was going to make a Will and that the witness would sign the same as an attesting witness.
80. When the witness asked the said deceased as to why he wanted to make a Will though he was young, the said deceased replied that he was not keeping good health and was having heart problem. The doctor had told him to loose weight but he kept on eating and said that there was no point in loosing weight. The said deceased had not given any fixed time to her to attend for attestation of the Will.
::: Downloaded on - 26/09/2014 23:49:14 :::Kvm 48/83 TS85.05 In reply to question No.169 the witness answered that Mr Pithawalla had already come and was sitting in the house of Kanaz for signing the Will. She must have waited for about an half an house or 45 minutes before Mr Pithawalla came to the house. The answers referred to aforesaid in my view, clearly show total inconsistency and contradiction in her cross examination with the deposition made in examination-in-chief.
81. In reply to question 178 to 194, the witness deposed that she had not read the Will but Mr Pithawalla had read the Will however, in reply to question No.125 to 131 the witness deposed that she had read the Will. The witness in her affidavit did not state that she had read the Will. In reply to question No.130 the witness answered that she had read the will stating that 50% of the property was to be given to Kanaz 25 % to Khurshed and something was given to a third person. When witness was asked whether she deposed in reply to question No.131 about the contents of Will, whether it was of her personal knowledge or whether somebody told her about it, the witness deposed that she had read it when she signed it. In reply to question 178 the witness deposed that she saw the Will for the first time when she signed it. In reply to question No.180 the witness deposed that she did not read the Will when she had signed the Will. A perusal of the aforesaid deposition clearly indicates that the witness has made various contradictory answers on the issue of execution and attestation of Will which would indicate that such a witness cannot be a reliable witness. In my view the evidence led by this witness does not inspire confidence.
82. In so far as issue of execution and attestation of the Will is concerned, in the cross examination of Ms Dolly Divecha, it is deposed by her that Mr Jivaji had made some correction on the date "27" and also made correction on the word ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 49/83 TS85.05 "Bapaiji" and "gifts". The witness deposed that such corrections were made by Mr Jivaji Tarachand because Jimmy could not write properly as he had some problem with his hand. The witness however did not ask him what was the problem. The witness admitted that Mr Jivaji read the Will first, made the corrections and then Jimmy signed the Will. In reply to question No.201 when witness was asked whether Mr H. D. Pithawalla had asked Jimmy whether the Will was as per his desire, the witness answered that Mr Pithawalla had asked Jimmy that question before Jimmy had made corrections. The witness did not find it strange that if Jimmy could put his sign on the Will, why he could not made two minor corrections or write the date "27" by himself. In reply to question No.203 when witness was asked whether she now feels if a person could sign his Will he could have inserted the date "27" or make minor changes by his own hand, the witness answered " It may be, may be not".
83. In reply to question No.204, when the witness was shown the Will and in particular the execution clause and was asked to point out if Jimmy had written any date on that page of the Will, the witness answered that the date written below Jimmy's signature was the date written by Jimmy himself. It is pertinent to note that in reply to question No.205 when witness was asked whether it was correct that on that date, Jimmy was capable of writing full date "27/12/2004", the witness answered in affirmative and said that it was correct. The witness admitted that she did not make such suggestion to Jimmy that he should at least put his signature against the corrections made by Jimmy and stated that they did not see and think of it otherwise they would have told Jimmy to put his initials. She answered that she did not know as to why Mr Pithawalla put the date. In reply to question No.216 when the suggestion was put to the witness that on 27/12/2004 Jimmy had a problem with his hand, the witness denied the said suggestion and deposed that he ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 50/83 TS85.05 had no problem with his hand and he had signed the Will. A perusal of paragraph 4 of the affidavit of Ms Dolly Divecha dated 21/07/2005 clearly indicates that the said witness in the said affidavit had alleged that the said deceased below his signature had added the date "27/12/2004". It is deposed in the said affidavit that the insertion of the date "27" preceding the words "day of December 2004" in the last paragraph of the Will was in the handwriting of Mr Jivaji Tarachand who was also present at the time of execution of the Will who had also corrected the spelling of "Bapaiji" and "gifts".
84. In paragraph 3 of the affidavit dated 4th March 2011 of Ms Dolly Divecha, she deposed that the signature "D.S.Divecha" and the date "27/12/2004" appeared thereon was in her handwriting. However, she had requested Mr Jivaji Tarachand to write her name and address below her signature and the date as she did not wish to make any mistake on the original Will. In the affidavit of 4 th March 2011, the witness alleged for the first time that by her inadvertence, in her affidavit of attesting witness dated 21st July 2005, she had stated that the name and address had been written by her and the same needs to be corrected. A perusal of the affidavit filed by Mr H. D. Pithawalla however, does not indicate that he had referred to the handwriting of Mr Jivaji Tarachand about name and address of Ms Dolly Divecha on the Will by Jivaji Tarachand though he was also claiming to be present at the same time. Mr H. D. Pithawalla however did not file any affidavit of evidence pointing out his mistake in her affidavit dated 21st July 2005. The contents of the affidavit of Mr H. D. Pithawalla and the affidavit of Ms Dolly Divecha were identical. It is not in dispute that Mr H. D. Pithawalla was available for quite some time after filing of the petition, however was not examined as witness.
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85. A perusal of cross examination of Ms Dolly Divecha clearly indicates that her evidence is full of contradictions and inconsistencies on execution and attestation of the Will with that what she has deposed in her examination-in-chief dated 4th March 2011 and in her affidavit of attesting witness dated 21/07/2005. It is also admitted by the said witness that as far as subsequent affidavit filed by her in the year 2011 is concerned, she had not read that affidavit carefully and she was made to sign that affidavit. It is thus clear that the said affidavit dated 4 th March 2011 filed by the said Ms Dolly Divecha was not based on her own instructions.
She did not know anything of the contents of the said affidavit. It is admitted by her that she was not aware that she was to answer any questions on that affidavit which she had signed. In my view, the said Ms Dolly Divecha who was one of the alleged attesting witness to the alleged Will, thus could not prove the execution and attestation of the alleged Will.
86. In my view, the Judgment of Supreme Court in case of Janaki Narayan Bhoir Vs. Narayan Namdeo Kadam (supra) would thus clearly apply to the facts of this case. In my view, since one of the alleged witness could not satisfy the requirement of attestation of Will, the plaintiff ought to have examined the second attesting witness for supplementing her evidence. The plaintiff is not absolved of his obligation under Section 63 of the Indian Succession Act read with Section 68 of Indian Evidence Act. It is held by Supreme Court that if one witness fails to prove the execution of the Will, the other witness is to be called for to supplement his evidence. It is held by the Supreme Court that when one attesting witness is examined and he fails to prove the attestation of the Will by examining the other witness, there will be defiance in mandatory requirement under Section 68 of the Indian Succession Act.
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87. A perusal of the cross examination of Ms Dolly Divecha indicates that on one hand it is deposed by her that the said deceased could write full date and on the other hand it is deposed that various corrections were made by Mr Jivaji Tarachand who was father of the main beneficiary under the alleged Will. There are several inconsistencies as pointed out aforesaid on the execution and attestation of the Will which are in my view, not minor inconsistencies but go to the root of the matter.
Cross examination of Ms Dolly Divecha also clearly indicates that on one hand, she has made an attempt to correct her alleged mistake in the affidavit of the year 2005 which she had claimed to have made inadvertently and on the other hand, she admitted that she had read that affidavit and did not find any mistake in the said affidavit. It is thus clear that the said witness was not aware of anything what she had signed. She was not even aware of the mistakes in the earlier affidavit and whether the same was sought to be corrected by her second affidavit. The cross examination is thus inconsistent with the deposition made in examination-in-chief which is very material in my view and cannot be ignored. Conscience of the court has to be satisfied that the testator had executed the Will which in my view is not satisfied at all.
88. In my view, since the said witness Ms Dolly Divecha was not familiar with even basic English as stated in her evidence and in view of the admitted fact that none of the affidavit filed by her was translated to her or interpreted by an officer of this Court or by her own advocate and the witness having answered in the cross examination that she was not familiar with several words used in the affidavit, it is clear that the said witness has not given any instructions to draft any of these affidavits and had filed such affidavits only to oblige the plaintiff and Ms Kanaz. In my view, these affidavits thus cannot be relied upon for the purpose of proving the execution and attestation of the alleged Will by the plaintiff. On the contrary, ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 53/83 TS85.05 the entire evidence led by Ms Dolly Divecha examined by the plaintiff would supports the case of the defendants.
89. Mr Behramkamdin, learned counsel appearing for the plaintiff placed reliance on the Judgment of Supreme Court in case of Ayaaubhan Noorkhan Pathan Vs. State of Maharashtra 2013 (3) BCR 113 in support of his submission that the affidavit of attesting witness filed by said Ms Dolly Divecha was not within the meaning of Section 3 of the Indian Evidence Act 1872. Reliance is placed on paragraphs 31 and 32 of the said Judgment which read thus :
31. Affidavit - whether evidence within the meaning of Section 3 of the Evidence Act, 1872:
It is a settled legal proposition that an affidavit is not evidence within the meaning of Section 3 of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Evidence Act').
Affidavits are therefore, not included within the purview of the definition of "evidence" as has been given in Section 3 of the Evidence Act, and the same can be used as "evidence" only if, for sufficient reasons, the Court passes an order under Order XIX of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'Code of Civil Procedure'). Thus, the filing of an affidavit of one's own statement, in one's own favour, cannot be regarded as sufficient evidence for any Court or Tribunal, on the basis of which it can come to a conclusion as regards a particular fact-situation. (Vide: Sudha Devi v. M.P. Narayanan and Ors. MANU/SC/0459/1988 : AIR 1988 SC 1381; and Range Forest Officer v. S.T. Hadimani MANU/SC/0115/2002 : AIR 2002 SC 1147).
32. While examining a case under the provisions of the Industrial Disputes Act, 1947, this Court, in M/s Bareilly Electricity Supply Co. Ltd. v. The Workmen and Ors. MANU/SC/0501/1971 : AIR 1972 SC 330, considered the application of Order XIX, Rules 1 and 2 Code of Civil Procedure, and observed as under:
But the application of principles of natural justice does not imply that what is not evidence, can be acted upon. On the other hand, what it means is that no material can be relied upon to establish a contested fact which are not spoken to by the persons who are competent to speak about them and are subject to cross-examination by the party against whom they are sought to be used. When a document is produced in a Court or a Tribunal, the question that naturally arises is: is it a genuine document, what are its contents and are the statements contained therein true...... If a letter or other document is produced to establish some fact which is relevant to the inquiry, the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact. This is both in accordance with the principles of natural justice as also according to the procedure under Order 19 of the Code and the Evidence Act, both of which incorporate the general principles.::: Downloaded on - 26/09/2014 23:49:14 :::
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90. Relying upon the aforesaid Judgment, learned counsel submits that once the testamentary petition is converted into a suit, provisions of Code of Civil Procedure 1908 and Indian Evidence Act 1872 would apply to civil proceedings.
The defendants thus could not consider the said affidavit of attesting witness filed in the year 2005 as evidence. Learned counsel submits that in any event, the affidavit of attesting witness was filed in Form-102 prescribed under Bombay High Court (O.S.) Rules and thus the plaintiff could not have made any changes in the said format prescribed by the Bombay High Court rules. It is submitted that in any event, there was no material inconsistencies or incorrect statement made in the said affidavit by Mr H. D. Pithawalla and by Ms Dolly Divecha and the same as per the prescribed format of Form-102 and over and above the same. Mr.Shah learned counsel for the defendants submitted that in any event even if such affidavit was required to be filed in any format prescribed, the plaintiff could not have made any false and incorrect statement in such affidavit. It is submitted that the said witness was cross examined by the defendants on both the affidavits. The defendants are thus entitled to point out the contradictions in both the affidavits with her cross examination.
91. In my view, Mr shah learned counsel appearing for defendants is right in his submission that even if an affidavit is required to be filed in particular format, even if the facts of a particular case do not match with the format prescribed and disclosure of such fact would lead to inconsistency with the format or would amount to false statement, party is still not bound to follow such format as it stands. In my view, a party cannot take shelter of such format and can make false and incorrect statement so as to comply with the format prescribed.
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92. In my view, the affidavits of Ms Dolly Divecha who was examined to prove the execution and attestation of the Will by the plaintiff also cannot be considered to prove the issue of execution and attestation of alleged Will also for the reason that the said Ms Dolly Divecha who claimed to be a student of Ms Kanaz and was learning English from her and was neighbour and was examined at the instance of plaintiff or obviously at the instance of Kanaz who was the main beneficiary under the said Will and was interested witness. Though she claimed to have attended tuition classes of Kanaz for quite some time, she did not obtain any certificate.
Though in her deposition, she had stated that the said deceased was like her son, she could not bring any material facts on record about the said deceased on record.
In my view, the said Ms Dolly Divecha was an interested witness and was examined with a view to oblige the said Ms Kanaz who was teaching her English for quite some time.
93. In my view, since the plaintiff did not examine Mr H. D. Pithawalla who could have pointed out the mistake if any in his own affidavit as well as affidavit of Ms Dolly Divecha and ought to have been examined as the second attesting witness in view of the fact that Ms.Dolly Divecha could not satisfy the extent of proof required for execution and attestation of the Will under Section 63 of the Indian Succession Act and Section 68 of Indian Evidence Act, the plaintiff having withheld the best evidence from this Court, adverse inference is required to be drawn against the plaintiff under illustration (g) of Section 114 of the Indian Evidence Act 1872 in this case which is drawn accordingly.
94. A perusal of the record indicates that Mr.Jivaji Tarachand who was father of Kanaz, the main beneficiary under the alleged Will had played prominent role in execution of the alleged Will. Even according to the affidavits of attesting ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 56/83 TS85.05 witnesses filed by the plaintiff and also the oral evidence led by the witnesses of the plaintiff clearly indicates that the said Mr.Jivaji Tarachand had made some corrections also in the Will and had put the date though the said Mr.Jivaji Tarachand himself was not attesting witness to the Will. In reply to Question No. 199 when Ms. Dolly Divecha was asked whether Jivaji made corrections after the Will was signed by Jimmy, she answered in negative and further deposed that Jivaji read the Will first, made the corrections and then Jimmy signed the Will. Mr.Pithawalla had asked the said deceased whether the Will was as per his desire.
Such question was asked by Mr.Pithawalla before Jivaji had made corrections. The corrections made by Mr.Jivaji was not initialled by the said deceased or by the attesting witnesses. Even after filing of the testamentary petition by the two alleged executors, perusal of record would clearly indicate that for examining the witnesses by the plaintiff, Mr.Jivaji Tarachand, his wife and Kanaz Tarachand had played prominent role. Ms.Kanaz Tarachand had also visited the office of the advocate alongwith Ms.Dolly Divecha at the time of drafting affidavit. Neither Jivaji Tarachand nor Kanaz Tarachand were examined as witnesses who could be the best witnesses to disclose the truth before the court. In my view in these circumstances adverse inference can be drawn against the plaintiff under illustration (g) of Section 114 of Indian Evidence Act, 1872 on this ground also.
95. The next question which arises for consideration of this court is whether alleged Will dated 27th December 2004 is forged and whether the earlier Will dated 31st August, 2000 was revoked by the said deceased. On the issue that the deceased had already left Will dated 31 st August 2000 which was not revoked by the said deceased, the defendants examined Dr.Putala Lentin who was one of the attesting witness to the said Will. She had been also treating the family of the said deceased including his grandparents, parents and his uncle Jivaji Tarachand's ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 57/83 TS85.05 family on their annual visits to Hyderabad from Delhi for common ailments. In her examination in chief she has deposed that the said deceased had executed the said Will dated 31st August 2000 and that the said Will had been prepared by the said deceased as per his wishes and instructions. The said witness thereafter signed the said Will as an attesting witness after the said deceased had subscribed his signature. In her cross examination the deposition made by the said witness was not shaken. Witness has deposed that Dr.Sanober had requested her about two to three months back whether she would file an affidavit. In the said Will, Kanaz was appointed as one of the executrix. In the affidavit in support of caveat the said Will was propounded by the defendants.
96. Based on the pleadings and affidavits in support of caveat, this court framed issues. Though the defendants have propounded the said Will, plaintiff did not choose to lead any evidence to prove that the said Will was revoked by the said deceased. The plaintiff ought to have examined Ms.Kanaz to prove that there was no such Will executed or that the said Will was revoked by the said deceased. In my view there is substance in the submission of Mr.Shah, learned counsel for the defendants that there was no change in circumstances for the said deceased to change his mind who had bequeathed his entire property to charity under the said Will dated 31st August 2000 by leaving nothing for the charity and giving his entire property to Kanaz and two others by the alleged second Will. The evidence recorded clearly indicates that the family of Jivaji Tarachand including Kanaz had played prominent role in execution of alleged Will of the said deceased for their own benefits. The said deceased was always under control of Mr.Jivaji Tarachand and his family.
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97. This court in case of Zarina R.Irani (supra) had held that propounder of the Will has not only to prove the execution of the Will but also that the Will is not surrounded by any suspicious circumstances. The court has to consider the entire material on record and to ascertain whether there were any suspicious circumstances surrounding the making of the Will. This court has taken this view also in case of Romeo A. D'Souza Vs. Edgar Havlo D'souza (supra).
98. A perusal of the evidence clearly indicates that the said deceased was not keeping good health and had expired within less than three months of the execution of the alleged Will. The witness Ms.Dolly Divecha examined by the plaintiff in her evidence has clearly admitted that the deceased himself had told her that he was suffering from heart problem and many other diseases. It is admitted by the said witness that the said deceased used to come to Mumbai for medical treatment and was advised repeatedly by the doctor to change his eating habits and to reduce his weight but the said deceased used to ignore such advise and would continue his old habits and did not reduce his weight. The said deceased was admittedly obese.
The witness examined by the defendants also have deposed that the said deceased was not keeping good health and was undergoing treatment. The defendants had already raised this issue in detail in both the affidavits in support of caveat. The defendants had also propounded a Will by which the deceased had bequeathed his entire property to charity.
99. In view of all these suspicious circumstances pleaded by the defendants in their two affidavits, in my view the onus was on he plaintiff to dispel such suspicious circumstances. Since the plaintiff has failed to dispel such suspicious circumstances, it is clear that the plaintiffs failed to prove the execution and attestation of the alleged Will. On overall consideration of evidence thus it is ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 59/83 TS85.05 obvious that the earlier Will dated 31 st August 2000 was not revoked by the said deceased and that the alleged Will dated 27th December 2004 is forged. Issue no.1 is accordingly answered in negative. Issue no.2 is answered in affirmative. Issue no.3 is answered in negative.
100. In so far as submission of Mr.BehramKamdin learned counsel that the alleged Will dated 27th December 2004 was not unnatural is concerned, it is not in dispute that substantial part of the property of the deceased is bequeathed in favour of Kanaz who was not given any share in the Will dated 31 st August 2000. Even if the said deceased wanted to change his mind and to revoke his Will dated 31 st August 2000, he would not have deprived the defendants that is from the maternal side. The plaintiff could not prove that the relations of the said deceased with the maternal side were not cordial. It would thus clearly indicate that the alleged Will of the said deceased giving entire property to Kanaz and two brothers would be an unnatural Will. In my view the Will dated 31 st August 2000 has not been revoked by the said deceased.
SUBMISSIONS OF THE LEARNED COUNSEL ON ISSUE NO.4 (4) Whether the defendants prove that the deceased was forced to make the said Will dated 27th December, 2004 when he was not in a proper state of mind to make a Will ?
101. Mr.Behramkamdin, learned counsel for the plaintiff on this issue placed reliance on the affidavit of Mr.Homi C.Pithawalla and of Dolly Soli Divecha both dated 21st July 2005 filed alongwith the testamentary petition. In paragraph 5 of the said affidavit it is stated that at the time the said deceased has subscribed his name and signature to the said Will, he was of sound and disposing mind memory ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 60/83 TS85.05 and understanding to the best of the belief of the deponent of the said two affidavits. It is stated that the said Will was made and published by the said deceased of his free will and pleasure.
102. Learned counsel invited my attention to the affidavit in support of the caveat dated 25th November 2005 filed by Mr.Minoo S.Mistry alleging that the deceased was not keeping well since six months prior to his death and his mental as well as physical condition was far from satisfactory. On 19 th December 2004 the said deceased had left from Hyderabad for Mumbai for getting medical treatment and was at Mumbai from 20th December 2004 till 10th January 2005. It is alleged that when Dr.Farookh had called up the deceased during that period, he was not able to speak to him and handed over the phone receiver to Kanaz. It is stated that the Kanaz told Dr.Farookh that the deceased used to sleep all the time and also used to weep frequently without any cause. It is stated that during the said period the alleged Will was made. It is further alleged that the said deceased was forced to make the said alleged Will dated 27th December 2004 when he was not in a proper mental state of mind to make a will.
103. In the said affidavit it is alleged that till 9 th March 2005 the health of the deceased kept on deteriorating and hence he had to be sent for medical treatment to Mumbai by flight immediately. On 14th March 2005 the deceased developed terminal cardio respority arrest, morbid obesity and hyper tension and was required to be admitted in Raheja Hospital where he expired on 15th March 2005 at around 6.45 a.m. The said Mr.Minoo S.Mistry however expired during the pendency of the testamentary petition. His legal heirs were brought on record.
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104. On 15th June 2011 the legal heirs of the said Mr.Minoo Mistry, the present defendants filed further affidavit in support of caveat. In paragraph 8 of the said affidavit it is alleged that the said deceased was unwell at Hyderabad and had phoned up his maternal cousin Mr.Mehernoze Mistry that he was leaving for Mumbai on 19th December 2004 for medical treatment. It is alleged that Dr.Farookh, maternal cousin of the deceased was also in Hyderabad on 24 th December 2004 and was surprised when called the said deceased to find that the voice of the deceased was quiet incoherent and he could not understand what the deceased was speaking and therefore he handed over the telephone to Mr.Mehernoze Mistry. Alongwith the said additional affidavit in support of caveat, the defendants annexed copy of the affidavit dated 14 th April 2006 of Dr.Farookh and affidavit of Mr.Mehernoze Mistry dated 31st January 2008 respectively.
It is alleged in the said additional affidavit that the said deceased did not have either the mental or physical capacity to execute any document much less a Will in the month of December 2004. It is alleged that even if the signature on the alleged Will was that of the deceased, the same had been executed under in undue influence and coercion. It is alleged that the amount of influence that original plaintiff no.1 had exercised over and upon the testator was evident from the fact that the bank account of Bank of India, Sultan Bazzar Branch, Hyderabad was opened in the month of February 2005 in the joint names of the original plaintiff no.1 and the said deceased. It is alleged that the deceased was not in a sound mental state and at the relevant time when the alleged Will was executed, the deceased lacked testamentary capacity.
105. The plaintiff examined Ms.Dolly S.Divecha and Mr.Phiroz Amaria. In her affidavit in lieu of examination in chief dated 4 th March 2011 Ms.Dolly Divecha ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 62/83 TS85.05 deposed that the said deceased was a jovial and fun loving person and was of sound and disposing mind memory and understanding at all times including at the time of execution of the Will and had published the same of his free will and pleasure. It is deposed that every time over the years that the deceased came to Mumbai and stayed with the Tarachand's, the said deceased would go for a general medical check up. The Tarachand's took the deceased to Dr.D.F.Daruwalla for his general checking. Dr.Daruwalla had requested the deceased to undergo several tests including 2D and colour and doppler echo test cardiography.
106. It is deposed that the said deceased insisted that the said witness Ms.Dolly Divecha should accompany him when that test was to be done. She has deposed that on 4th January 2005 she went alongwith the said deceased to Smt.S.R.Mehta, K.P.Cardiac Institute at King Circle when Dr.D.F.Daruwalla conducted the 2D and colour doppler echo test cardiography. Dr.Daruwalla thereafter called the witness separately and informed her that the condition of the deceased's heart was not good and he should be forced to loose weight as he was extremely obese. It is deposed by her that she communicated the information that Dr.Daruwalla had given her that the deceased should loose weight to the Tarachand's. In paragraph 5 of the affidavit it is deposed by the said witness that on her several visits to the house of Tarachand's she noticed that Mr.Tarachand had placed the deceased on a strict diet and would cook a special food for him. The deceased was however a fun loving person and extremely fond of food and would go outside to Cafe Coffee Day and other places to eat between meals. She used to accompany the deceased to Cafe Coffee Day at his request.
107. In para 6 of the affidavit it is deposed that the said deceased was in good health and spirits when he flew back to Hyderabad in the month of January 2005.
::: Downloaded on - 26/09/2014 23:49:14 :::Kvm 63/83 TS85.05 The witness alongwith Kanaz had accompanied the deceased to the airport to leave him for his flight to Hyderabad. In paragraph 7 of the affidavit the said witness deposed that in the month of March 2005 when the deceased returned to Mumbai, he appeared to have put on more weight instead of loosing weight as advised by the doctor. His feet were badly swollen and he was unable to wear his socks and shoes without assistance. It is deposed that the said deceased informed the witness during his visit in March that the Tarachand were concerned about his health and had taken him to Dr.Borashar who advised that he be hospitalised but he refused as he did not wished to be hospitalised. The said deceased even refused to listen to the advise of the witness. Tarachands kept a ward-boy to take care of him. When the deceased expired, the witness was at Pune and was informed by her husband that the deceased had been taken to hospital as it had become impossible to take care of him at home in view of his deteriorating health.
108. In cross examination of the said witness in reply to when witness was asked what did she mean by her statement that the said deceased led a good life, she answered that the said deceased was very fond of food and used to eat, drink and be happy. In reply to Question No.124 when witness was asked how often the said deceased came to Kanaz's house in a year, she answered that it was once or twice a year and each visit would be about one to two months. When witness was asked as to why the said deceased could not write properly, in reply to Question No. 197, the witness deposed that the said deceased had some problem with his hand. In reply to Question No. 296, the witness deposed that she would take care of health of the said deceased and told him to loose his weight that would make him feel better. She also took the deceased to Dr.Daruwalla, heart specialist.
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109. The witness deposed that though she told Jimmy not to eat sandwiches, burger and huge ice cream, he told her that let him eat all that and not to tell anybody at home. When witness was asked whether she knew about the specialization of Dr.Borashar, she answered that she did not know. She never met Dr.Borashar. In reply to Question No.304 the witness when asked whether Jimmy was suffering from sever diabetic, she answered that she did not know but she knew that he had a heart problem. She came to know about the heart problem for the first time when she had gone alongwith the deceased to Dr.Daruwalla. She did not ask the deceased prior to December 2004 whether he was taking medicines for his illness. No-one else had gone to Dr.Daruwalla except the said witness and the deceased. It is deposed that Dr.Daruwalla advised that the said deceased needed to loose weight and to reduce his food intake. Dr.Daruwalla mentioned that the said deceased had a heart problem and he would tell his family. Dr.Daruwalla told her that he would give a prescription and tell Jimmy's family. She did not know whether Dr.Daruwalla gave prescription at that time. In reply to Question No. 313 when witness was asked whether it was correct that on 27th December 204 Jimmy had been examined by any doctor prior to executing the Will, the witness answered that she did not know but on that day the deceased got her to sign the Will so she thought he should be ok. In reply to Question No. 316 the witness denied the suggestion of the counsel of the defendants that in or around 27 th December 2004 the said deceased was under heavy medication for his heart condition and deposed that his health was good till he went to Hyderabad.
110. Mr. Behramkamdin learned counsel for the plaintiff invited my attention to the affidavit in lieu of examination in chief dated 11 April, 2012 filed by Mr. Phiroz Amaria examined by the plaintiff. In paragraph 2 of the said affidavit, it is deposed that he had been a friend of Tarachand family since 1992-1993 and used to ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 65/83 TS85.05 regularly visit their residence at Dadar. The witness first met the deceased there.
The deceased was very friendly and fun loving person. It is deposed that he used to meet the said deceased not only at the residence of Tarachand's but also used to go out to hotels along with other friends. In or around 1993 he made a trip to Udwada with the said deceased, Kanaz Tarachand and common friends. He deposed that in the month of December, 2004 he last met the said deceased when he had visited Mumbai and was living with Tarachand's. The deceased and the witness would talk about the funny incidents at the office, jokes and would discuss about several topics including current issues and astrology. The witness advised him to first loose weight and then get married. In the month of March, 2005, the deceased called him and asked him to meet him at the residence of Tarachand's however, since the witness was busy with work he could not meet the said deceased. In paragraph 6 of the affidavit, it is deposed by the witness that through out the period he knew the deceased, he always found him to be of sound mind. The deceased was an extremely obese person, however used to do most of his things on his own including going to the bank etc which he would some time inform him when the witness used to visit him.
111. In cross examination of this witness he deposed that he was working as an internal auditor with Writer Corporation. He met Kanaz at one of the parties and got acquainted with her and through her he came to know her family. He came to know about these proceedings for probate few months ago through Kanaz. It is deposed that when he happened to talk to Kanaz on phone she did mention that she needed his help. It is deposed that Kanaz told him about the proceedings and asked if he could give an affidavit since he knew the deceased very well.
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112. In reply to question no. 18 and 19 the witness denied that Kanaz drafted his affidavit in lieu of examination in chief and brought it to him for his signature. He deposed that Kanaz called him at her lawyer's office and told her lawyer about what the witness knew and then affidavit was drafted which affidavit was approved by him. When witness was asked whether he inquired as to why the said affidavit of the witness was necessary, he answered in affirmative and added that he was briefed on what was expected of him i.e. with an idea to help Kanaz since he knew the deceased. When witness was asked whether he knew the deceased better than Kanaz, he answered in negative and added that not so much. When the witness was asked whether he asked Kanaz as to why she would need the affidavit from the witness, he replied that she told him that Jimmy's will had been contested for the reason that the opposite party was saying that Jimmy was of unsound mind but since the witness knew that it was not correct, he decided to help Kanaz by giving the evidence. He did not ask to peruse any of the documents filed in this proceedings to verify whether the ground of Jimmy's unsoundness of mind was taken. He added that he trusted Kanaz. The witness did not ask Kanaz whether she had given evidence as to the soundness or unsoundness of Jimmy's mind. When witness was asked as to how many occasions the witness did meet Jimmy, he answered that it would be one or two occasions if he could make it.
113. When witness was asked whether he would agree that Kanaz would be in a better position to give evidence about Jimmy's mind than the witness, he answered he would not say that but may be yes. He also knew him. In reply to question No. 29 when he was asked whether his interaction with Jimmy was confined to going to restaurants and social functions, the witness admitted the said suggestion. When witness was asked whether he knew of the medical problems that Jimmy had, he answered that not to a great extent but he was very obese. He had called the ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 67/83 TS85.05 witness in March, 2005 and told him that he was sick but witness could not meet him. He did not know to what extent he was sick. When witness was asked as to what was his ailment, the witness deposed that he did not know. The deceased told him that he was not feeling well but did not mention anything in particular. Witness deposed that when he asked Jimmy what he was suffering from, the deceased casually told him that he was not feeling well. The witness came to know of the Jimmy's hospitalization only after his death.
114. In reply to question no. 39, when witness was asked that except for his brief conversation on phone with Jimmy, in the month of March, 2005, he did not know of Jimmy's condition, witness answered in the affirmative and added that he had the least idea about his condition. He was a fun loving person and would not say something about his health. In reply to question no. 44 when witness was asked whether he would agree that he was not qualified to give any opinion on the soundness or otherwise of Jimmy's mental condition, he answered that to some extent he agreed because he was not a qualified doctor but from the interaction he had with Jimmy even in March, 2005, when he spoke to him he was joking with him and therefore, he could say that the said deceased was of a sound mind because he was talking rationally. He did not make any inquiry with Kanaz regarding the soundness or otherwise of Jimmy's mental condition as there was no point in inquiring with her because he knew it from the conversation Jimmy had with him. The witness did not ask Kanaz that Jimmy was on medication for his obesity. When witness was asked whether he was aware that certain medication may affect the mental state of a person, the witness answered that to his knowledge that would depend upon what doses the person was taking. It was a very general thing. The witness admitted that to some extent certain medications taken in certain doses may affect the mental faculties of a person. He did not inquire before filing ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 68/83 TS85.05 his affidavit with regard to the mental condition of Jimmy since Jimmy was sound and fine and very rational till the last conversation he had with him. Witness admitted that he did not make any such inquiry because according to him he did not find anything unusual with him.
115. In reply to question no. 58 when a suggestion was put to the said witness that he had given the dates of his interaction in December, 2004 and March, 2005 at the request and suggestion of Kanaz because certain incidents relevant and necessary for proving the case occurred during those periods, the witness accepted the said suggestion and added that when he discussed about the affidavit to be prepared, he very well remembered that in March, 2005, Jimmy came and called him and prior to that a few months ago i.e. December, 2004 Jimmy visited Mumbai and he could very well remember. Witness admitted that he came to know that Jimmy had made a will in 2004 from Kanaz at the time when he was making this affidavit. In reply to question no. 62 when suggestion was put to the witness that he was a mere casual acquaintance of Jimmy, the witness accepted the suggestion of the counsel for the defendants, however, added that the interaction even within few hours that they met, witness always found Jimmy very rational and of a sound mind. The witness deposed that he was giving evidence because he would like to stand for the truth that he knew.
116. Defendants examined Dr. Putla Minoo Lentin of Hyderabad as the only witness who filed her affidavit in lieu of examination in chief dated 6th December, 2012. The said witness is a doctor practicing as a physician internal medicine at Hyderabad. The said witness is younger sister of Gool and Gool Jivaji Tarachand's brother's sister in law. She deposed that she knew the deceased since birth and had been treating his family including his grand parents, parents and his uncle Jivaji ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 69/83 TS85.05 Tarachand's family on their annual visits to Hyderabad for healing of common ailments. The witness was also treating the deceased for common ailments. In the said affidavit the witness deposed that during her interaction with deceased at the professional as well as personal level, she found the deceased to be happy go lucky, witty, friendly and an extremely helpful person. The deceased visited the said witness a couple of times when the witness was posted in Warangal as a professor of medicine and physician from May, 1969 to July, 1975. The said witness was attesting witness to the first will dated 31st August, 2000 and had told him that the entire bequest was for charitable purpose in the memory of his parents.
117. In her cross examination the witness admitted that her residence was five minutes away from the residence of defendant 1A and her relations with defendants were very close. She used to be in regularly in touch with defendants. Dr. Sanober requested her to make the affidavit of evidence. First her brother in law Minoo Mistry had asked to make an affidavit. In reply to question no. 14, the witness admitted that prior to Sanober requesting her to make her affidavit of evidence she was not aware of the existence of the will dated 27th December, 2004 of the deceased.
118. In reply to question no. 82, the witness answered that the deceased had an allergic diathesis and he was allergic to ant bites, pollens and mostly it was a respiratory manifestation. He was also having mild hypertension for which the witness was giving him treatment prior to 1994. The witness deposed that in the year 1994, deceased had an attack of unstable angiana for which he was hospitalized at an institution and investigated thoroughly. In 1994, the witness suffered from unstable angiana for which the witness referred to him to an institution so that he could be investigated. In reply to question no. 88, the witness ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 70/83 TS85.05 deposed that Jimmy had requested her to attest his will on 31st August, 2000 and he told him the contents of the said will though the witness did not ask him. In reply to question no. 105, when witness was asked whether Jimmy had signed the said will and then brought to the residence of the witness, the witness denied the said suggestion and added that it was signed in her presence.
119. Mr Behramkamdin learned counsel for the plaintiff submits that though five defendants have filed caveats none of the caveators entered the witness box though additional affidavit in lieu of examination-in-chief was filed after demise of the original caveator. There is no deposition about the illness or sickness of the said deceased by any of the caveators or on the issue of alleged undue influence and/or coercion on the deceased in execution of the alleged Will. No evidence has been led on the issues raised by the defendants in affidavit in support of caveats. The deposition on the earlier Will made by examining Dr Putla M. Lentin is not relevant. Separate probate petition was not filed by the defendants who propounded the said Will. It is submitted that on the issue of the alleged unsound mind of the deceased neither there was any sufficient pleadings nor evidence. It is submitted that the onus was on the caveator to prove that there was undue influence, fraud or coercion in execution of Will. In support of this submission the learned counsel placed reliance on the Judgment of Supreme Court in case of Shashikumar Banerjee Vs. Subodhkumar Banerjee AIR 1964 SCC 529 and in particular paragraphs 4,5 and 17. In support of the same submission the learned counsel placed reliance on the Judgment of Supreme Court in case of Bellachi Vs. Pakeeram (2009) 12 SCC 95 and in particular paragraph 19 thereof. Learned counsel also placed reliance Order 6 Rule 4 of the Code of Civil Procedure 1908 and would submit that material facts have to be pleaded with particulars. Reliance is placed on the judgment of Supreme Court in case of Surendra Pal Vs. Dr (Ms) ::: Downloaded on - 26/09/2014 23:49:14 ::: Kvm 71/83 TS85.05 Sarasvati Arora (1974) 2 SCC 600 and in particular paragraph 12, 15 and 17.
120. Learned counsel for the plaintiff then submits that the initial onus is on the person alleging that the deceased was not of the sound mind at the time of execution of the alleged Will. Reliance is placed on the Judgment of Supreme Court in case of Madhukar Shende Vs. Tarabai Aba Shedge (2002) 2 SCC 85 and in particular paragraphs 6, 8 to 10 and 15. It is submitted by the learned counsel that the plaintiff had led initial evidence on the issue of soundness of mind of the deceased and burden is already discharged by the plaintiff. The defendants were required to lead evidence in support of such allegations which they have failed. It is submitted that though the caveators were residing close to the address of the deceased none of the caveators have examined themselves on this issue.
121. Learned counsel submits that along with affidavit of evidence of Mr Jivaji Tarachand, the said Mr Jivaji Tarachand had filed 38 documents on 14/01/2008 My attention is invited to the order passed by this Court on 16/06/2011 and it is submitted that this Court had only marked Will for the sake of convenience and did not mark the other documents. It is submitted that the observation made by this Court that the plaintiff was entitled to file affidavit of any doctor to prove the medical records is wrong. It is submitted that Mr Jivaji Tarachand expired in the year 2010 and since the another plaintiff had taken efforts to rely upon the documents and such documents were produced by the witness, no adverse inference can be drawn by this Court. In support of this submission learned counsel placed reliance on the Judgment of Mysore High Court in case of Kalappa Dyanappa Vs. Venkatesh alias Ramchandra Ganesh Padaki AIR 1962 Mysore 260 and in particular paragraph 7 thereof.
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122. Mr Behramkamdin learned counsel submits that every ailment is not sufficient to discard the Will on the ground of soundness of mind of the testator unless it is proved that such ailment had affected the soundness of mind of the testator on the date of the execution of Will. It is submitted that though two affidavits in support of caveats were filed, there was no allegation that the said deceased was suffering from any ailment which had affected the soundness of his mind. On the contrary, evidence led by the plaintiff of two witnesses proved that the ailment if any suffered by the said deceased was not such that it would have affected the soundness of his mind at the time of execution of the Will. Learned counsel placed reliance on the Judgment of this Court in case of Pushpa Jain Vs. Rakesh Jain (2007) 2 Bombay Cases Reporter 92 in support of the submission that obesity and heart ailment, if any, would not have affected the mind of the deceased at the time of execution of the Will.
123. Mr. Shah learned counsel for the defendants on the other hand submits that it is not in dispute that the said deceased was suffering from various diseases. The plaintiff alleged that Mr Jivaji Tarachand or Kanaz Tarachand who had alleged to have taken the said deceased for various medical tests or for hospitalization ought to have entered the witness box and produced medical records. Learned counsel placed reliance on the order passed by this Court on 16/06/2011 and submitted that though this Court had granted an opportunity to examine a doctor to prove the medical records on the issue of health and alleged unsoundness of mind and though the documents were not marked in exhibit by this Court, plaintiff did not examine any doctor including Dr Daruwalla who had alleged to have given medical treatment to the said deceased. Even Mr Jivaji Tarachand or Kanaz Tarachand were not examined as a witness. It is submitted that plaintiff had all the medical records and could have produced and proved the documents. Since the plaintiffs ::: Downloaded on - 26/09/2014 23:49:15 ::: Kvm 73/83 TS85.05 have suppressed and/or withheld the best evidence, an adverse inference shall be drawn by this Court under Section 114 Illustration (g) of the Evidence Act.
124. It is submitted by the learned counsel that in so far as the witness Mr Feroz Amaria examined by the plaintiff on the issue of sound mind is concerned, he was not a competent witness. He was not a doctor. The said deceased was suffering from various diseases and died within a period of three months of execution of a Will. Mr Shah placed reliance on the Judgment of this Court (R. D. Dhanuka, J) in T.S. Suit No.41 of 2006 in case of Romeo A. D'souza Vs. Edgar H. D'souza in support of the submission that a party carrying best evidence and not producing the same and would have produced, the same would be against such party and adverse inference has to be drawn against such party. Reliance is placed on paragraphs 55 to 63 of the said Judgment.
125. Mr Shah learned counsel distinguished the Judgment relied upon by Mr Behramkamdin and also the passage from the treatise on law of evidence by Woodroff and Amir Ali and would submit that the said passage relates to criminal matters and not a testamentary matter. The extent of proof required in case of a criminal case is different from what is required in a testamentary matter. It is submitted that mere production of alleged documents on soundness of mind issue without examining the witness, is of no relevance. Heavy onus was on the plaintiff to prove that the testator was of sound mind on the date of execution of a Will. It is submitted that even on availability of evidence on record, onus is not discharged by the plaintiff. Ms Dolly Divecha was not a competent witness on this issue. Mr Shah distinguished the Judgment of this Court in case of Pushpa Jain (supra) on the ground that in that matter both the attesting witnesses were examined. Mr Shah distinguished the Judgment of Mysore High Court on the ground that medical ::: Downloaded on - 26/09/2014 23:49:15 ::: Kvm 74/83 TS85.05 evidence was though available was not produced and proved by the plaintiff.
REASONS AND CONCLUSION ON ISSUE NO.4.
126. The plaintiff examined Mr.Homi C.Pithawalla and Ms.Dolly S.Divecha as witnesses. The defendants examined Dr.Putla Lentin. In the affidavits filed by the defendants and Mr.Minoo Mistry, it was alleged that the health of the said deceased was deteriorated and was sent for medical treatment from Hyderabad to Mumbai. The deceased had developed terminal cardio-respority arrest, morbid obesity and hyper tension and was required to be admitted into the Raheja Hospital. In both the affidavits various instances of such various disease were pleaded.
127. Even in the evidence led by both the witnesses of the plaintiff, it is categorically admitted that the said deceased was suffering from various diseases and was not following the doctor's advice. He was obesed, suffering from heart ailments and many other diseases. The initial onus in my view was on the plaintiff to prove that the said deceased was of sound and disposing mind at the time of execution of the Will. It is claimed by the plaintiff that the family of Jivaji Tarachand including Kanaz Tarachand used to help the said deceased for medical treatment from time to time. The said deceased was also taken to Smt.S.R.Mehta, C.P.Cardiac Institute at King Circle when Dr.D.F.Daruwala conducted the 2D and colour and doppler echo test cardiography. Ms.Dolly Divecha in her evidence deposed that the said doctor Mr.Daruwalla had called her separately and informed that the condition of the heart of the said deceased was not good and he should be forced to loose weight as he was extremely obese. The deceased was however a fun loving person and extremely fond of food, would go outside to Cafe Coffee Day and other places to eat between meals. The said witness also used to accompany him many times at his request. The said deceased refused to listen to ::: Downloaded on - 26/09/2014 23:49:15 ::: Kvm 75/83 TS85.05 the advice of the witness. The witness deposed that though she had told the said deceased not to eat sandwiches, burger and huge ice cream, he told her that let him do all that and not to tell anybody at home. The witness did not ask any time prior to December 2004 whether he was taking any medicines for his illness. No-one had gone to Dr.Daruwalla except the said witness and the deceased. It is deposed that Dr.Daruwalla told her that he would give a prescription and tell Jimy's family but she did not know whether Dr.Daruwalla gave any prescription at that time.
128. In so far as evidence of Mr.Firoze Amaria examined by the plaintiff is concerned, the said witness was working as an internal auditor with Writer corporation. He was acquainted with Ms.Kanaz. Kanaz has told him about the proceedings and asked if he could give an affidavit since he knew the deceased very well. The said witness admitted that he was briefed on what was expected on Will i.e. with an idea to help Kanaz since he knew the said deceased Jimmy. He deposed that he did not know the said deceased so much what Kanaz knew him.
The witness did not ask to peruse any documents filed in the proceedings to verify whether the ground of unsoundness of mind of Jimmy was taken by the defendants.
129. Supreme Court in case of Madhukar D.Shende vs.Tarabai Aba Shadage (2002) 2 SCC 85 has held that the onus is on the propounded of the will to establish the competence of the testator to make the Will at the time when it was executed. It is held that the onus has to be discharged by the propounder by adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by the law. The contestant opposing the Will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court ::: Downloaded on - 26/09/2014 23:49:15 ::: Kvm 76/83 TS85.05 affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same.
130. In my view Mr.Shah learned counsel appearing for the defendants is right in his submissions that the initial onus was on the plaintiff who had propounded the alleged Will to prove that the testator was competent to make the Will at the time when it was executed and was of sound and disposing mind at the time of execution of such Will. The family of Jivaji Tarachand who claimed to have taken the said deceased for various treatments ought to have been examined by the plaintiff to bring the truth on record about the condition of the health and about the sound disposing mind of the deceased. Though this court had granted an opportunity to the plaintiff to examine the doctor to produce the medical records, plaintiff did not bother to examine any witness to prove medical records including Dr.Daruwalla who had alleged to have treated the said deceased and had found that he was suffering from number of diseases. Though the plaintiff relied upon some of the medical records alleged to be of the said deceased, did not prove the existence and contents thereof inspite of an opportunity granted by this court. In my view the plaintiff had has thus not discharged the initial onus itself on the issue of testamentary capacity and soundness of mind of the deceased at the time of execution of Will.
131. Mr.BehramKamdin learned counsel for the plaintiff placed reliance on the judgment of Mysore High Court in case of Kalappa Dyannappa vs. Venkatesh Alias Ramchandra Ganesh Padaki AIR 1962 Mysore 260 and would submit that since the plaintiff had produced the medical evidence however the same was not exhibited by the court, no adverse inference can be drawn by this court. Para 7 of the said judgment is relied upon which reads thus :-
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7. After the close of the evidence as well as the arguments in the suit, the plaintiff appears to have produced a document said to be a deed of partition to support his case that all the properties in suit were joint family properties. The trial Court, however, declined to receive the document in evidence because the same was produced at a very late stage in the proceedings. At the same time, it rejected the argument on behalf of the contesting defendants that an adverse inference should be drawn against the plaintiff for the non-production of any document in support of his case. Though this point has been reiterated in the grounds of appeal, the learned counsel for the appellants did not press it with any seriousness. We think, the learned counsel is right in not pressing this contention because the plaintiff having made an attempt to produce this important document cannot be said to have suppressed it so as to support an adverse inference against him.
Further, it is not obligatory on the Court to draw any such inference on the Court to draw any such inference if there is other evidence on the basis of which it could come to a decision on the question at issue.
132. A perusal of the said judgment clearly indicates that in the said judgment it is held that it is not obligatory on the court to draw any inference if there is other evidence on the basis of which it could come to a decision on the question at issue. In my view this court had at the initial stage itself when the first witness of the plaintiff had tendered documents had granted liberty to the plaintiff to examine a witness including doctor to prove the medical records, plaintiff neither examined any members of Mr.Jivaji Tarachand family nor examined any doctor to prove the existence and contents of the medical record.
133. In my view merely by filing of the documents which are disputed by the defendants without proving the existence and contents thereof by leading oral ::: Downloaded on - 26/09/2014 23:49:15 ::: Kvm 78/83 TS85.05 evidence, such documents cannot be construed or read in evidence. The Mysore High Court was considering a case where the plaintiff had produced a document at very late stage in the proceedings and was thus rejected by the trial court. In my view since there is no other evidence on the basis of which this court can come to the conclusion that the said deceased had testamentary capacity and was of sound and disposing mind at the time of execution of the Will, adverse inference under illustration (g) of Section 114 of the Indian Evidence Act has to be drawn against the plaintiff.
134. I am not inclined to accept the submission of the learned counsel for the plaintiff that the order passed by this court on 16th June, 2011 granting leave to file affidavit to prove medical records was a wrong order. The plaintiff did not give any explanation as to why any member of the Tarachand family was not examined on this issue or as to why Dr.Daruwalla or any other doctor who had treated the said deceased was not examined. I am not inclined to accept the submission of Mr.BehramKamdin learned counsel that there were no allegations in any of the affidavit in support of the caveat that the said deceased was suffering from any ailment which had affected the soundness of his mind. In so far as judgment of this court in case of Pushpa Jain vs.Rakesh Jain (supra) relied upon by Mr.BehramKandin is concerned, a perusal of said judgment indicates that the propounder of the Will had examined a doctor who had deposed that she had examined the deceased testator and had found that she was physically fit and of sound mind, memory and understanding. The said doctor was a family doctor of the said deceased for a long period of time. In the facts of that case, after considering the oral evidence of he doctor this court held that there were no suspicious circumstances. The said judgment is clearly distinguishable with the facts of this case.
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135. This court in case of Romeo A.D'Souza vs. Edgar Havlock D'souza decided on 20th December, 2013 in Testamentary Suit No.41 of 2006 has considered a situation where there was no dispute by the plaintiff that the deceased was not keeping good health. The witness examined by the plaintiff herself had deposed that the said deceased was suffering from various diseases. In the said judgment it is held that since the plaintiff ought to have produced the medical records and could have examined the witnesses to demonstrate that the decease was not suffering from paralytic stroke and elphantitis prior to the date of execution of the Will and had withheld such evidence for consideration of this court which if would have been produced, it would have been unfavourable to the plaintiff and thus adverse inference against the plaintiff for not producing the medical records has been drawn by this court under illustration (g) of Section 114 of Indian Evidence Act, 1972. Paragraphs 55 to 59 and 63 of the said judgment read thus :-
55. It is not in dispute that the relations between the plaintiff and the deceased were cordial. The defendant was staying at Canada and hardly visited the said deceased. It is not the case of the plaintiff that relations of the said deceased with the daughter were not cordial. It is not in dispute that the said deceased was suffering from paralytic stroke and elphantitis. It was the case of the plaintiff that the said deceased suffered from such diseases after execution of Will and not earlier. No doubt, defendant could not depose much on this issue about the sickness of the said deceased as he was not in India for almost entire period. The question then arises is that whether plaintiff has proved the due execution of the Will and that the said deceased was keeping good health and was of sound and disposing state of mind at the time of execution of Will. Admittedly the said deceased was 81 years old when the Will was alleged to have been executed. Plaintiff has not disputed that the said deceased was not keeping good health. It was the case of the plaintiff in the evidence before this Court that the plaintiff used to carry the said deceased for medical treatment. Most of the medical bills were incurred by the plaintiff himself. Plaintiff ::: Downloaded on - 26/09/2014 23:49:15 ::: Kvm 80/83 TS85.05 has also admitted that he had access of all the files of the said deceased before and after her death. Plaintiff however, could not prove the medical records though he claimed to have access of all medical records of the said deceased. It was one of the relevant fact which in my view which ought to have been proved by the plaintiff that the said deceased was suffering from paralytic stroke and elphantitis after execution of the alleged Will. The plaintiff was the best person to place these facts on record before the Court by leading appropriate evidence.
56. Some of the cash vouchers/bills produced by the plaintiff could not be proved by the plaintiff and were accordingly not marked in evidence. It was the case of the plaintiff that the bank account was jointly in the name of the wife of the plaintiff and the said deceased. In cross examination of the plaintiff, he has admitted that when the said deceased was suffering from paralytic stroke, she was not operating the bank account. When plaintiff was asked, since when the said deceased was not operating the bank account, plaintiff did not give any clear reply and avoided the question.
In my view, if according to plaintiff, the account was jointly operated by the said deceased with the wife of the plaintiff, plaintiff ought to have examined his wife and/or staff of the concerned bank to prove the last date of operation of the bank account by the said deceased. It is urged by the defendant that the said deceased was not in a position to affix her signature. In these circumstances, in my view, the plaintiff failed to bring the best evidence on record and failed to prove that the said deceased got paralytic stroke and elphantitis after execution of alleged Will and was operating the bank account by affixing her signature.
57. Under Section 114(g) of the Evidence Act 1872, it is provided that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case for that evidence which could be and is not produced would, if produced, be unfavourable to the person withholds it. In my view, since the plaintiff who ought to have produced the medical records and could have examined the bank officer or wife of the plaintiff to demonstrate that ::: Downloaded on - 26/09/2014 23:49:15 ::: Kvm 81/83 TS85.05 the deceased was not suffering from paralytic stroke and elphantitis prior to the date of execution of the Will, has deliberately not produced and has withheld such evidence for consideration of this Court which if would have been produced, it would have been unfavourable to the plaintiff. I am therefore drawing adverse inference against the plaintiff for not producing the medical records, bills and not examining the wife of the plaintiff and the bank officer that the said deceased was suffering from paralytic stroke and elphantitis prior to execution of Will and could not have executed the alleged Will. I am of the view that the said deceased was not keeping good health and was not of sound and disposing mind. I am not inclined to accept the submission of learned senior counsel Mr Shah that after so many years, it was not necessary to examine the officer of the bank to prove that the account was duly operated by the said deceased before the date of execution of Will.
58. In my view, the plaintiff has played active role in getting the Will of the said deceased drafted. Plaintiff was a major beneficiary under such alleged Will. I am not inclined to accept the submission of Mr Shah learned senior counsel that though plaintiff had visited the office of the advocate, plaintiff was not aware of the contents of the Will. Plaintiff and his family members were admittedly staying with the said deceased. Plaintiff did not contact the advocate who alleged to have drafted the alleged Will. Plaintiff did not bother to furnish copy of the alleged Will to the defendant. The said deceased died on 10th January 1987 whereas testamentary petition has been filed only in the year 1991. Plaintiff has not explained the gross delay in filing testamentary petition. Defendant who was also one of the sons of the said deceased and Mrs Sylvia, daughter of the deceased could not have been disinherited in the Will of the deceased in ordinary course.
59. Dr R'Dcosta was not a family doctor and was a Veterinary doctor . His alleged signature on the Will itself is not proved. In ordinary course, no party would have taken the signature of an outsider and that also a Veterinary doctor and whose whereabouts are not known. Admittedly other alleged attesting witness was brother-in-law of the plaintiff. Such brother-in-law was though staying permanently at Pune, his address is shown that of Bombay in the alleged Will. The ::: Downloaded on - 26/09/2014 23:49:15 ::: Kvm 82/83 TS85.05 oral evidence of the plaintiff and said witness does not inspire confidence considering the conduct of the plaintiff and even otherwise.
63. Issue Nos.1 and 2 are accordingly answered in negative. It is proved that the Will & Testament of the said deceased is a forged document and is fabricated. Issue No.3 is accordingly answered in affirmative. In so far as Issue Nos.4 and 5 are concerned, though the initial onus was on the defendant to prove that the said deceased was suffering from paralytic stroke for five years prior to her death, in my view, since the plaintiff and his family members were staying with the said deceased and their relations with the said deceased were cordial and the plaintiff had alleged to have taken the said deceased to the hospital for medical treatment, plaintiff ought to have produced the medical records and ought to have examined the wife of the plaintiff and bank officer to prove the said material fact. Plaintiff having withheld the relevant evidence from this Court though plaintiff had an opportunity to produce the said evidence, this Court has drawn adverse inference against the plaintiff for withholding such evidence under Section 114(g) of the Evidence Act and the issues are answered accordingly. Defendant has proved that the last Will & Testament dated 26th May 1986 was not valid and Issue No.6 is accordingly answered in affirmative.
136. In my view the said judgment would apply to the facts of this case. In so far as passage from treatise on law of evidence by 'Woodroff and Amir Ali' relied upon by the plaintiff is concerned, a perusal of the said passage indicates that the same has discussed about criminal matters and not a testamentary matter. In my view the said passage does not assist the plaintiff in any manner whatsoever. In my view neither Ms.Dolly Divecha nor Mr.Phiroz Amaria were competent witness in so far as issue no.4 is concerned. The evidence of those two witnesses led by the plaintiff therefore does not prove the case of the plaintiff that the said deceased was having testamentary capacity to execute the Will and was of sound and disposing mind at the time of execution of the alleged Will. In case of Savithri and others (supra) ::: Downloaded on - 26/09/2014 23:49:15 ::: Kvm 83/83 TS85.05 Supreme Court has held that the propounder of the Will has not only to prove the fact that the Will was signed by the testator but also has to prove that at the relevant time the testator was in sound disposing state of mind and understood the nature and effect of dispossession and only then it could be said that the onus stood discharged by the propounder of the Will. The said judgment applies to the facts of this case.
137. In so far as submission of Mr.BehramKamdin that the defendants having alleged that the said deceased was not of sound and disposing mind at the time of execution of the alleged Will and since not having led any oral evidence in support of such plea, defendants have thus not discharged the onus cast on them is concerned, in my view since the initial onus was on the plaintiff to prove that the said deceased had testamentary capacity and was of sound and disposing mind at the time of execution of Will which onus the plaintiff failed to discharge, the onus was not shifted to the defendants to prove otherwise. On consideration of the overall evidence led by both parties I am of the view that the defendants have proved that the deceased was forced to make the alleged Will dated 27 th December 2004 when he was not in a proper state of mind to make a Will. Issue no.4 is accordingly answered in affirmative. There is no merit in the submission of Mr.Shah learned counsel for the defendants that this court has territorial jurisdiction. Some of the properties of the deceased are situated at Mumbai.
138. In the result, the testamentary suit No.85 of 2005 is dismissed. There shall be no order as to costs.
[R.D. DHANUKA, J.] ::: Downloaded on - 26/09/2014 23:49:15 :::