Bombay High Court
Chanchalben Chimanlal Patel And ... vs Ruxmani Ravindra Balotia on 4 July, 2025
Digitally
signed by
MEERA
2025:BHC-OS:9982
MEERA MAHESH 1/26 Ts-90-15.doc
MAHESH JADHAV
JADHAV Date:
2025.07.04
15:10:50
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 90 OF 2015
IN
TESTAMENTARY PETITION NO. 1489 OF 2014
Chanchalben Chimanlal Patel & Anr ...Plaintiffs
V/s.
Ruxmani Ravindra Balotia ...Defendants
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Mr. Denzil D'mello for Plaintiffs.
Ms. Kalpana R. Balotia, for Defendant.
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CORAM: ARIF S. DOCTOR J.
RESERVED ON: 16th APRIL 2025
PRONOUNCED ON: 4th JULY, 2025
JUDGEMENT
1. The Plaintiff in the present Testamentary Suit seeks probate of a will dated 6th May 2008 ("the said Will") stated to be the last Will and Testament of one Mr. Chimanlal Bavjibhai Patel ("the Testator").
2. Before adverting to the rival contentions, it is useful for context to set out the following facts :
i. At the time of his death, the Testator was stated to be residing in Flat No. 55 in building 'B' in Meghdoot Co-operative Housing Society Ltd. Shahaji Raje Meera Jadhav ::: Uploaded on - 04/07/2025 ::: Downloaded on - 12/07/2025 08:22:18 ::: 2/26 Ts-90-15.doc Marg, Koldongri, Andheri (East), Mumbai - 400 0069 ("the said Flat").
ii. The Testator passed away on 20 th January 2011, leaving behind, as his only legal heirs and next of kin, his wife, Mrs. Chanchalaben Chimanlal Patel ("the Wife of the Testator"), his son, Mr. Mahendra Chimanlal Patel ("the Plaintiff"), and his daughter, Mrs. Ruxmani R. Balotia ("the Defendant"). The said Will inter alia named the Plaintiff and the Wife of the Testator as the Executors. The said Will inter alia made the following bequests (i) the said Flat alongwith five fully paid up shares of Rupees 50/- each issued by the society to the Plaintiff,
(ii) the Testator's monthly pension amount and money in bank accounts to the Wife of the Testator, and (iii) the Public Provident Fund, where the Plaintiff had been nominated to operate the account, to the Wife of the Testator. iii. The Wife of the Testator and the Plaintiff, as named Executors, filed the captioned Testamentary Petition on 6th November 2014 seeking probate of the said Will. On 16th March, 2015, the Defendant filed a caveat opposing the grant of probate, inter alia, on the ground that (a) the said Will is forged and fabricated, (b) the said Will was executed under undue influence and (c) the said Will was fraudulent and executed under force and coercion exerted upon the Testator. During the pendency of these proceedings, the Wife of the Testator passed away on 28th January, 2019, and the Plaintiff became the sole Plaintiff to the present Suit.
iv. In view of the caveat, the Testamentary Petition was converted into the
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captioned Testamentary Suit and this Court vide an Order dated 8th June
2015, framed the following Issues :
"1. Whether the Plaintiff proves that the writing dated 6th May 2008 was duly and validly executed and attested in accordance with law as the last Will and Testament of the Testator, Chimanlal Bavjibhai Patel?
2. Whether the Plaintiff proves that at the time of the said alleged Will, the Testator was of sound and disposing state of mind, memory and understanding?
3. Whether the Defendant proves that the alleged Will is a forged and fabricated document?
4. Whether the Defendant proves that the alleged Will was obtained by undue influence and coercion?
5. What reliefs and what orders?"
3 The Plaintiff led the evidence of two witnesses, (i) Dahyalal Vallbhram Panchal ("PW1"), one of the attesting witnesses, and (ii) his own evidence, i.e., Mahendra Chimanlal Patel ("PW2"). The Defendant led her own evidence, i.e., Ruxmani Ravidra Balotia ("DW1").
Submissions on behalf of the Plaintiff 4 Mr D'mello, learned counsel for the Plaintiff, at the outset invited my attention to Section 63 of the Indian Succession Act, 1925 ("the Succession Act") and pointed out that, as per Section 63(c) of the Succession Act, a valid Will was one whose execution was attested by two or more attesting witnesses in accordance with the provisions of Section 63(c). He then pointed out that in Meera Jadhav ::: Uploaded on - 04/07/2025 ::: Downloaded on - 12/07/2025 08:22:19 ::: 4/26 Ts-90-15.doc the present case, the said Will had been attested by two attesting witnesses, namely Dahyalal Vallbhram Panchal (PW1) and Pyarelal Govind Teli.
5 He then submitted that while due execution of a Will required the same to be attested by two or more attesting witnesses, a Will was required to be proved in the manner provided under Section 68 1 of the Evidence Act, 1872 ("Evidence Act"), i.e., like any other document which in law was required to be attested. He then pointed out that Section 68 of the Evidence Act mandated any one of the attesting witnesses must be called to prove the execution of such a document if such witness was alive. Thus, he submitted that the Plaintiff, to prove due execution of the said Will, led the evidence of PW1, who was one of the attesting witnesses.
6 He then invited my attention to the Affidavit of Evidence ("AOE") and Further Examination-in-Chief of PW1 and pointed out that PW1 was an advocate and had deposed as follows:
i. Affidavit of Evidence:
"2. ....I say that I know the deceased since my childhood and the children of the deceased and I used to play together....
3. I say that on the 6th day of May, 2008, the Deceased, Chimanlal Bavjibhai Patel, Pyarelal Govind Teli, attesting witness no. 2 & this Deponent were together present at the residence of the deceased viz........& we did then & there see the Deceased set & subscribe his 1 68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it 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 evidence :
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
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signature at the foot of the Testamentary paper at page no. 5 in the English language and & character....
4. I say that thereupon, the Attesting Witness No. 2, Mr. Pyarelal Govind Teli and I, this deponent did at that request of the said deceased and in his presence and in the presence of each other all being at the same time set and subscribed our respective names, addresses, signatures and date in the English Language at the foot of the said Testamentary Paper at page No. 5 as witness thereto.
7. I say that at the time the deceased subscribed his signature "C Patel" to the said Will as aforesaid, he was of sound and disposing mind, memory and understanding and to the best my belief made and published the same of his free will and pleasure. "
ii. Examination in Chief "Q.1 What is the nature of this document?
Ans. Will executed by Chimanlal B. Patel.
Q.2 Can you tell us, whose signatures appear on page No.5 thereof?
Ans. First signature is of Chimanlal Patel. Second is my signature, and the third signature is of the attesting witness No.2, Pyarelal G. Teli."
Basis the above, he submitted that PW1 had clearly deposed to the fact that (i) he knew the Testator and the Plaintiff since his childhood; (ii) both the attesting witnesses, namely PW1 and Mr. Pyarelal Govind Teli were present at the house of the Testator and saw the Testator subscribing his signature to the said Will; (iii) both the attesting witnesses had subscribed their signatures as witnesses at the request of the Testator; and (iv) the Testator while executing said Will was of sound and disposing state of mind, Meera Jadhav ::: Uploaded on - 04/07/2025 ::: Downloaded on - 12/07/2025 08:22:19 ::: 6/26 Ts-90-15.doc memory and understanding and had executed the same of his own free will and pleasure.
7 Mr. D'mello then pointed out that the above evidence had remained unshaken in the cross-examination of PW1. In support of his contention, he invited my attention to the following questions and answers given thereto by PW1 in cross-examination:
"Q 18. I put it to you that late Mr. Chimalal Patel was paralyzed on the left side of his body and the right side of his body was working properly and he was very much able to put his signature?
Ans. I do not agree.
Q.19. With which hand did late Mr. Chimanlal Patel sign on the Will, left or right?
Ans. Right Q.20. Since there are initials on each page of the Will, is it correct to say that, the only one signature of the Testator on the Will was not done by the Testator himself but was forged by you and Mr. Mahendra Patel in conspiracy?
Ans. This is incorrect."
From the above answers, Mr. D'mello first pointed out that the Defendant had, in cross-examination, failed to in any manner discredit the testimony of PW1 in his examination in chief and secondly, that the Defendant had failed to put her case to PW1 in cross-examination. He thus submitted that the evidence of PW1 had not in any manner been controverted by the Defendant. Mr. D'mello, then in support of his contention that when a party fails to put its case in cross-examination to the Meera Jadhav ::: Uploaded on - 04/07/2025 ::: Downloaded on - 12/07/2025 08:22:19 ::: 7/26 Ts-90-15.doc witness, it must necessarily follow that the testimony given by such a witness was not disputed, placed reliance upon the judgement of the Calcutta High Court in the case of A.E.G. Carapeit vs. A.Y. Dederian 2 which inter alia held thus:
"The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material facts in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of his opponent's witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this , then he must be taken to accept the plaintiff's account in its entirety. Such failure leads to miscarriage of justice , first by springing surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated".
8 Mr. D'mello then submitted that the Defendant had in her AOE not deposed to the fact that the Testator was not in a sound and disposing state of mind, memory and understanding at the time of execution of the said Will. He thus submitted that the Defendant having failed to lead any 2 AIR 1961 Cal 359 Meera Jadhav ::: Uploaded on - 04/07/2025 ::: Downloaded on - 12/07/2025 08:22:19 ::: 8/26 Ts-90-15.doc evidence to support the contention that the Testator was not of sound and disposing state of mind, was estopped from raising any such contention.
9 Mr. D'mello then placed reliance upon the judgement of the Hon'ble Supreme Court in H. Venkatachala Iyengar vs. B.N. Thimmajamma and Others3 and pointed out that the Hon'ble Supreme Court had inter alia held as follows :
"Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Section 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of 3 AIR 1959 SC 443 Meera Jadhav ::: Uploaded on - 04/07/2025 ::: Downloaded on - 12/07/2025 08:22:19 ::: 9/26 Ts-90-15.doc wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."
10 He submitted that in the facts of the present case, the Plaintiff had clearly established due execution of the said Will and thus, Issues No. 1 and 2 were required to be answered in the affirmative. 11 Mr. D'mello then pointed out that the Defendant apart from alleging undue influence, had failed to, in any manner, substantiate this allegation. He thus submitted that the same remained the mere ipse dixit of the Defendant. He then also took pains to point out that though the Defendant in her Affidavit in Support of the Caveat had used the term 'undue influence', the AOE of the Defendant was absolutely silent on this aspect. He thus submitted that the Defendant had not so much as even attempted to substantiate this allegation of undue influence and hence was precluded from taking this contention to oppose the grant of probate.
12 Mr. D'mello took pains to point out that the Defendant had pleaded a false case and was thus disentitled to any relief on this ground alone. He pointed out that while it was the specific case of the Defendant in her Affidavit in Support of the Caveat that the Plaintiff had denied the Meera Jadhav ::: Uploaded on - 04/07/2025 ::: Downloaded on - 12/07/2025 08:22:19 ::: 10/26 Ts-90-15.doc Defendant access to the Testator and had never allowed the Defendant to talk to the Testator, the Defendant in cross-examination had not only admitted that she was meeting the Testator but was even talking to the Testator whenever he wished to do so. In support of this contention, he invited my attention to the following questions and answers given thereto in the cross-examination of DW1:
"Q.16. As per your answer to Question No. 14 somewhere in February, 2011 Mr. Mahendra Patel broke relations with you and did not allow you to meet your father. In your answer to question no.15 you have said that your father passed away on 20th January, 2011. If your father had passed away on 20 th January, 2011 how then did the Plaintiff No.2 i.e Mr. Mahendra Patel not allow you to meet your father in February, 2011?
Ans. I mean to say with in my answer to question no.14 that in February, 2011 I meant to say that they broke relations with all relatives. Till my father was alive everything was proper and my father never used to allow Mr. Mahendra Patel to act as per his whims and fancies. Before the death of my father Mr. Mahendra Patel did not used to allow me to meet my father. It is obvious that there is no question of him stopping me to meet my father after my father's death.
Q.20. Then do we take it that from the year 2000 until your father's death in the year 2011 your brother Mr. Mahendra Patel did not allow you to meet your father as alleged by you? Ans. I used to go to meet my father. I never meant that I was never allowed to meet my father until 2011. He didn't used to allow me to talk to my father.
Q.22. Then do we take it that Mr. Mahendra Patel did not prevent you from meeting your father?
Ans. Yes
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Q.27. I put it to you that your brother Mr. Mahendra Patel did not in any manner prevent you from meeting your father or talking to your father. Do you agree?
Ans. I do not agree.
Witness Volunteers:- Mr. Mahendra Patel used to always stop me from either meeting or talking with my father. But my father used to tell Mr. Mahendra Patel to call me and let me meet my father.
Q.28. Did you meet your father and talk to him during the period 2000 to 2011 at his residence at Meghdoot?
Ans. Whenever my father used to insist on meeting me despite resistance from my brother Mr. Mahendra Patel and whenever my father used to have quarrels with my brother Mr. Mahendra Patel, my brother used to come to my place to call me to meet my father, and at that time I used to go at my father's residence at Meghdoot and used to meet and talk to my father."
From the above answers, Mr. D'mello submitted that it was clear that the Defendant had sought to incorrectly portray a state of affairs that in fact never existed only to create prejudice. He submitted that on this ground alone, the Defendant was disentitled to any reliefs from this Court.
13 Mr. D'mello then invited my attention to the judgement of the Hon'ble Supreme Court in Subhas Chandr Das Mushib vs. Ganga Prasad Das Mushib and others.4 to submit that the undue influence can be proved only if the party who is stated to have asserted such undue 4 AIR I967 SC 878 Meera Jadhav ::: Uploaded on - 04/07/2025 ::: Downloaded on - 12/07/2025 08:22:19 ::: 12/26 Ts-90-15.doc influence was in a position to dominate the will of the other and had used such position to obtain an unfair advantage over the other party. In the facts of the present case, Mr D'mello submitted that firstly, the Defendant had neither shown that the Plaintiff held any real and apparent authority over the Testator and secondly, that such an assertion was belied by the answers given by the Defendant in cross-examination, which clearly indicated to the contrary.
14 Mr. D'mello then also placed reliance upon the judgement of this Court in Manilal Sunderji Doshi vs. Kamal Manialal Doshi and Others. 5 to submit that in order to prove undue influence, there must be positive proof of coercion overpowering the volition of the testator, and mere existence of a motive and/or opportunity to exercise undue influence was not sufficient proof of the undue influence. He submitted that the Defendant had not even attempted to establish such positive proof of coercion. Basis this, he submitted that Issue No. 4 would have to be answered in the negative.
15 Mr D'mello then pointed out that the Defendant had also failed to, in any manner, substantiate the allegation that the said Will was a forged and fabricated document and had not brought on record any material to substantiate this allegation. Conversely, he pointed out that PW1 had affirmatively answered in cross-examination, as follows:
5 3 AIR Bom R 354 Meera Jadhav ::: Uploaded on - 04/07/2025 ::: Downloaded on - 12/07/2025 08:22:19 ::: 13/26 Ts-90-15.doc "Q.16. I put it to you that as you have mentioned the date below the signature of the late Mr. Chimanlal Patel, you along with Mr. Mahendra Patel, have conspired and forged the signature of the Testator late Chimanlal Patel on the Will being Exhibit P-1.
Ans. This is incorrect.
Q.20. Since there are no initials on each page of the Will, is it correct to say that, the only one signature of the Testator himself but was forged by you and Mr. Mahendra Patel in conspiracy?
Ans: This is incorrect.
Q.21. Your have given the answers to the above questions as if you do not know the family of Mr. Mahendra Patel at all but the fact remains that you know Mr. Mahendra Patel and his family very well since childhood. Why did you not inform Mr. Mahendra Patel's sister i.e Mrs. Ruxmani Balotia about the present Will before or after late Mr. Chimanlal Patel's death?
Ans. I did not inform Mr. Mahendra Patel's sister about the present Will since I felt that it was not necessary to do so.
Q.23. I put it you that you have forged the signature of the Testator on the Will and thereby you have committed forgery, cheating, criminal conspiracy and have given false and fabricated evidence in the Court.
Ans. I do not agree."
Basis the above, Mr. D'mello submitted that while the Defendant had not even attempted to substantiate the allegation of forgery by bringing on record any cogent material whatsoever, PW1 Meera Jadhav ::: Uploaded on - 04/07/2025 ::: Downloaded on - 12/07/2025 08:22:19 ::: 14/26 Ts-90-15.doc had specifically denied all the contentions qua the said Will in any manner being forged and/or fabricated.
16 Mr. D'mello then pointed out that the only basis on which the Defendant supported her contention that the signature on the said Will was not that of the Testator was because PW2 had, in cross-examination, admitted that the signature on the Power of Attorney ("POA") dated 5th March 2004 was that of the Testator and that the same was materially different from the signature stated to be of the Testator appearing on the said Will. He, however, took pains to point out that no questions were put to either PW1 and/or P.W. 2 in this regard.
17 He also pointed out that in cross-examination DW1 had not only denied that the allegations of forgery and fabrication were baseless but had also not submitted any documentary proof to support such a claim. In support of this contention, he invited my attention to the following questions and answers from cross-examination of DW1 "Q.31. I put it to you that your allegation at 2 places in paragraph 2 that the Will of the deceased is forged are totally false. What do you have to say?
Ans. It is not correct.
Q.40. I put it to you that you have falsely alleged that the Plaintiff No.2 and his wife have committed an act of forgery. What do you have to say?
Ans. I do not agree.
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Q.41. Do you have any documentary proof of the
allegation made by you that the Plaintiff No.2 and his wife committed an act of forgery?
Ans. I have already submitted the proof before this Court.
(Attention of witness is drawn to paragraph no. 7 of Affidavit of Evidence dated 2nd July, 2018.) Q.45. Do you have any documentary proof to substantiate your allegation in paragraph 7 that "they have forged the signature of my late father and committed forgery which is crime and punishable u/s. 463, 467, 468, 420, 202, 456 of Indian Penal Code, 1860"?
Ans. The documentary proof is submitted with the Police Station.
Witness Volunteers:- There are police complaints lodged with regards to attempts to suicide committed by my father twice which are lodged with Vile Parle Police Station and Rajkot Police Station.
Q.46. You have referred to police complaints alleged to have been in your answer to question no. 45 above. Can you tell us who lodged these complaints?
Ans: My father was admitted with The Sadanand Danait Hospital, Jeevan Vikas Kendra and the hospital had reported this to the police at Vile Parle. At Rajkot, my father was admitted with Virani Hospital also known as Gondhia Hospital at Kalava Road and they had reported this to the police.
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Q.47. I call upon you to produce copies of police complaints referred to in your answer to question no.46?
Ans. According to me, I cannot procure the copies of police complaints from either the Police Stations or the hospitals without their being any directions from the Court. I can produce the same only if appropriate directions are given by the Court to the Police Stations and the hospitals also.
Q.48. I put it to you that no such police complaints were filed. What do you have to say?
Ans. I do not agree."
Basis the above, Mr. D'mello submitted that the Defendant had, despite being called upon by the Plaintiff to produce the copies of the alleged police complaint, failed to produce the same before this Court. Basis this he submitted, that Defendants allegation that the Will was forged was totally unsubstantiated. He thus submitted that the Defendant, having failed to prove Issue No. 3, the same would have to be answered in the negative. 18 Thus, Mr. D'mello submitted that the Suit be decreed as prayed for and probate of the said Will be granted to the Plaintiff. Submissions on behalf of the Defendant.
19 Ms. Balotia at the outset, submitted that the execution of the said Will was surrounded by suspicious circumstances and that the Plaintiff as Meera Jadhav ::: Uploaded on - 04/07/2025 ::: Downloaded on - 12/07/2025 08:22:19 ::: 17/26 Ts-90-15.doc propounder, had not been able to dispel the same. She pointed out that the suspicious circumstances surrounding the said Will were (i) that the Plaintiff had taken an active part in the making of the said Will, (ii) the Plaintiff was a major beneficiary under the Will and (iii) the Defendant, who was the daughter of the Testator, was not bequeathed anything under the said Will. She submitted that it was incumbent upon the Plaintiff to have dispelled these suspicious circumstances, which the Plaintiff had not done, and thus submitted that the Suit would have to be dismissed, and the estate of the Testator would have to devolve as per intestacy. In support of her contention that the onus lay upon the Plaintiff to dispel the suspicious circumstance, she placed reliance upon the following judgements, Jaswant Kaur vs Amrit Kaur & Others6, Seth Beni Chand (since dead) Now By L.Rs vs Smt. Kamla Kunwar and Others7, and Rani Purnima Devi and Another vs Jumar Jhagendra Narayan Dev and Another8.
20 Ms. Balotia then submitted that the fact that the signature on the said Will was not of the Testator was apparent from the answers given in cross- examination by PW2. She directed my attention to the following questions, viz;
"(Shown a certified copy of 15th March 2004 said to be Power of Attorney signed by the deceased in favour of the Plaintiff......) Q.9 Is this your signature on this documnet?
Ans. Yes.
6 AIR 1977 SC 74
7 AIR 1977 SC 63
8 AIR 1962 SC 567
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(The witness points to the signature just above and to the right of the printed words "before me".) Q. 10 Who has signed above your signature?
Ans. That is the signature of my father Chimanlal Patel. "
Basis the above, Ms. Balotia submitted that PW2 had admitted that the signature on the POA dated 15th March 2004 issued by the Testator in favour of the Plaintiff/PW2 was the signature of the Testator. She then pointed out that the signature on the said Will stated to be of the Testator was materially different from the signature on the POA and, on this basis, submitted that the said Will was forged. 21 Ms. Balotia then also pointed out that the Plaintiff had not brought on record any material to show that the signature on said Will was, in fact, of the Testator. She then submitted that once the Court was satisfied that the signature of the Testator on said Will was different from the one on the POA executed by the Testator, which was admitted by the Plaintiff/PW2, then it stood conclusively established that the signature on the said Will was a forged and fabricated signature. Basis this, she submitted Issue No. 3 would have to be answered in the affirmative, and Issues No. 1 and 2 would consequently have to be answered in the negative.
22 Ms. Balotia also pointed out that PW1 falsely contended that he had known the Testator since childhood, which she submitted became Meera Jadhav ::: Uploaded on - 04/07/2025 ::: Downloaded on - 12/07/2025 08:22:19 ::: 19/26 Ts-90-15.doc apparent from the answers given by PW1 in cross-examination. In support of her contention, she pointed out the following questions and answers given by PW1 in cross-examination :
"Q.17. Late Mr. Chimanlal Patel was suffering from paralysis in which side of his body?
Ans. I do not know.
Q.18. I put it to you that late Mr. Chimanlal Patel was paralyzed on the left side of his body and the right side of his body was working properly and he was very much able to put his signature.
Ans. I do not agree.
Q.19. With which hand did Late Mr. Chimanlal Patel sign on the Will, left of right?
Ans. Right "
23 Ms. Balotia then also submitted that despite the fact that there was a grave shadow of doubt upon the evidence of PW1, the Plaintiff had not even bothered to call the second attesting witness, namely Pyarelal G Teli, to give evidence to prove due execution of the said Will. She submitted that it was not the case of the Plaintiff that he was unable to produce the second attesting witness. She submitted that the Defendant had been informed by the Testator that he had not executed any Will during his lifetime and that he was ill-treated by the Plaintiff and his wife. She thus submitted that Issue No. 4 be answered in the positive.
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24 After having heard Learned Counsel for the Plaintiff and the
Defendant, and having considered the evidence on record, I find as follows :
I. Issue 1: Whether the Plaintiff proves that the writing dated 6th May 2008 was duly and validly executed and attested in accordance with law as the last Will and Testament of the Testator, Chimanlal Bavjibhai Patel?
i. Section 63 of the Succession Act mandates that a valid Will must be attested by at least two attesting witnesses. In the present Petition, it is important to note that both attesting witnesses have filed a common Affidavit of Due Execution, which is annexed to the Plaint. However, it is established law that a Will can be proved in accordance with Section 68 of the Evidence Act by leading evidence of at least one of the attesting witnesses. The Plaintiff has thus led the evidence of PW1, who was one of the attesting witnesses to the said Will. PW1 has clearly deposed to the fact that he saw the Testator subscribing his signature to the said Will in the presence of both the attesting witnesses and that both the attesting witnesses subscribed their signatures at the Testator's request. PW1 also affirmed that the Testator was of sound mind at the time and that the Testator executed the said Will.
ii. Crucially, Mr D'Mello highlighted the fact that the evidence of PW1 (a) remained unshaken in cross-examination and (b) that the Defendant had failed to put her specific case (of forgery, undue influence, or unsound mind) to PW1 Meera Jadhav ::: Uploaded on - 04/07/2025 ::: Downloaded on - 12/07/2025 08:22:19 ::: 21/26 Ts-90-15.doc during cross-examination. Thus, as held by the Calcutta High Court in the case of A.E.G. Carapeit (supra), the evidence of PW1 would be undisputed.
iii. The only real contention of the Defendant was that the said Will was forged and the signature appearing thereon was not that of the Testator. This case was entirely premised on the basis that the signature appearing on the said Will was materially different from the Testator's signature, which appeared on a POA dated 15th March 2004 executed by the Testator in favour of the Plaintiff. However, neither PW1 nor the Plaintiff/PW2 were cross-examined on this aspect, and admittedly, no question was put to either PW1 or PW2 regarding the difference in signatures was even put to them. Thus, the evidence would suggest that both the signatures were of the Testator and not that one was not. It is also to be noted that the POA was executed in the year 2004 and the said Will in the year 2008, there is a four year gap between the two signatures.
iv. Though the Defendant has submitted that the execution of the said Will is suspect and that thus the Plaintiff ought to have called the second attesting witness, which only added to the suspicious circumstances in the present facts and from the evidence on record, I am unable to agree. While calling both witnesses is an ideal scenario to dispel any suspicious circumstance, Section 68 of the Evidence Act is clear and required the evidence of one attesting witness to be led. The Plaintiff has done so. Furthermore, the Defendant has not, through her evidence, made out any case to establish suspicious circumstances Meera Jadhav ::: Uploaded on - 04/07/2025 ::: Downloaded on - 12/07/2025 08:22:19 ::: 22/26 Ts-90-15.doc existed, apart from her mere ipse dixit. As already noted above, the Defendant has not even put such a case to either of the Plaintiff's witnesses in cross-
examination, nor was the evidence of PW1 in any manner shaken. Thus, in my view, the occasion to call the second attesting witness did not, in the facts of the present case, arise.
v. Hence, basis the above reasoning, Issue No. 1 would have to be answered in the affirmative and is accordingly so answered.
II. Issue 2: Whether the Plaintiff proves that at the time of the said alleged Will, the Testator was of sound and disposing state of mind, memory and understanding?
i. The Plaintiff through the evidence of PW1, has established that the Testator was of sound and disposing mind at the time of execution and had executed the said Will of his own free will and accord. Crucially, however, the Defendant, in her AOE, has not deposed to the Testator being of unsound mind, despite having taken such a plea in the caveat. Thus, such a plea is totally unsupported by any evidence on the part of the Defendant and thus would have to be nothing more than the Defendant's mere ipse dixit.
ii. Thus, given the evidence of PW1 and the failure of the Defendant to lead any evidence to support her allegation of unsound mind, the burden would shift to the Defendant once the Plaintiff had made out a prima facie case, as Meera Jadhav ::: Uploaded on - 04/07/2025 ::: Downloaded on - 12/07/2025 08:22:19 ::: 23/26 Ts-90-15.doc held by the Hon'ble Supreme Court in the case of H. Venkatachala Iyengar (supra).
iii. Thus, Issue No. 2 is answered in the affirmative.
III. Issue 3: Whether the Defendant proves that the alleged Will is a forged and fabricated document?
i. The entire basis of alleging that the signature of the Deceased on the said Will was forged was because PW2 had admitted that the signature appearing on the POA dated 15th March 2004 was that of the Testator. This signature on a visual comparison is slightly different from the one appearing on the said Will. However, as already noted above, in dealing with Issue No. 1, neither PW1 nor PW2 were cross-examined on this aspect, and admittedly, no question was put to either PW1 or PW2 regarding the difference in signatures. Also, there is a gap of four years between the time of execution of the POA and the said Will. Thus, from the evidence on record, while both signatures do differ, the evidence reads that both are of the Testator, given the lack of any cross-examination.
ii. Crucially, the Defendant has not independently sought to lead any evidence of a handwriting expert in an attempt to establish that the signature on the said Will was not that of the Testator. Also, equally, when the Defendant was cross-examined regarding having any documentary proof to substantiate her allegations of fraud or forgery, the Defendant attempted to evade the Meera Jadhav ::: Uploaded on - 04/07/2025 ::: Downloaded on - 12/07/2025 08:22:19 ::: 24/26 Ts-90-15.doc question and was further unable to produce copies of any police complaints filed in respect of fraud or forgery committed by the Plaintiff and the Wife of the Testator, or otherwise, as allegedly filed, despite being called upon to produce such a police complaint.
iii. The burden to prove forgery lies squarely upon the Defendant. While a discrepancy in signatures can raise suspicion, it is not, by itself, conclusive proof of forgery without expert analysis. The Defendant has failed to provide any concrete evidence (like a handwriting expert's report or validated police complaints) to substantiate the allegation of forgery. Conversely, the attesting witness has directly denied the accusation. Allegations of criminal conduct like forgery require a higher standard of proof, which the Defendant has clearly not met.
iv. Thus, Issue No. 3 is answered in the negative.
IV. Issue 4: Whether the Defendant proves that the alleged Will was obtained by undue influence and coercion?
i. The basis of alleging undue influence is that, according to the Defendant the Plaintiff had taken an active role in the preparation of the said Will and was also a major beneficiary under the said Will. It is the case of the Defendant that the Testator had informed her that he had not executed any Will and was ill-treated by the Plaintiff. However, again, the Defendant's AOE was absolutely silent on this aspect, despite such contention having been raised in the caveat.
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ii. Furthermore, the record in fact bears out that the Defendant has pleaded
a false case in her caveat since it has been specifically contended by her that she was denied access to the Testator in his lifetime, whereas in cross- examination, the Defendant has admitted to meeting and talking to the Testator during his lifetime. Infact in cross-examination, the Defendant volunteered the statements that the Testator "never used to allow Mr. Mahendra Patel to act as per his whims and fancies" and further that the Testator "used to tell Mr. Mahendra Patel to call me and let me meet my father"
infact suggests the Testator had his own volition and was not under the control of the Plaintiff.
iii. Also, it is well settled, as held in the case of Subhas Chandr Das Mushib (supra)and Manilal Sunderji Doshi (supra), that undue influence requires positive proof of coercion dominating the Testator's will, not just motive or opportunity. Thus, the burden of proving undue influence lay upon the Defendant. However, given the fact that the Defendant's AOE is entirely silent on this aspect and her contradictions in her cross-examination regarding access to the Testator. While the Plaintiff being a major beneficiary and having an active role can be suspicious circumstances, they are not, by themselves, conclusive proof of undue influence without further evidence of coercion overpowering the Testator's free will. The Defendant has failed to provide positive proof of such coercion.
iv. Hence, for the aforesaid reasons, Issue 4 is answered in the negative.
Meera Jadhav ::: Uploaded on - 04/07/2025 ::: Downloaded on - 12/07/2025 08:22:19 ::: 26/26 Ts-90-15.doc 25 Hence, for the aforesaid reasons, I pass the following Order : i. The Suit is decreed as prayed for. ii. No Costs. (ARIF S. DOCTOR,J.) Meera Jadhav ::: Uploaded on - 04/07/2025 ::: Downloaded on - 12/07/2025 08:22:19 :::