Bombay High Court
Sudheer Gopinath Dadarkar vs Mrs.Rita Mahesh Dadarkar on 5 May, 2025
Author: N. J. Jamadar
Bench: N. J. Jamadar
2025:BHC-OS:7537
TS-39-2011.DOC
Arun Sankpal
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 39 OF 2011
IN
TESTAMENTARY PETITION NO. 534 OF 2010
Sudheer Gopinath Dadarkar,
Hindu, Indian Inhabitant,
Residing at Dadarkarwadi, Chiku Wadi
Shimpoli Village, Behind Gulmohar
Society, Boriwali (West), Mumbai - 92
Son of the deceased and Sole Legatee and
Beneficiary.
Since Deceased
1. Shruta Sudheer Dadarkar,
Through C.A. Neel Dadarkar,
2. Neel Sudheer Dadarkar,
Having address at
Residing at Dadarkar Wadi
Chiku Wadi, Shimpoli Village,
Behind Gulmohar Society, ...Plaintiffs
Borivali (West),
Mumbai 400 092.
ARUN
RAMCHANDRA
SANKPAL
Versus
Digitally signed by
ARUN
RAMCHANDRA
SANKPAL
1) Rita Mahesh Dadarkar,
Date: 2025.05.05
21:28:11 +0530 Widow of Late Mahesh Gopinath
Dadarkar, Adult, Indian Inhabitant
2) Poornima Mahesh Dadarkar,
Adult, Indian Inhabitant
3) Apoorva Mahesh Dadarkar
Adult, Indian Inhabitant,
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4) Aditya Mahesh Dadarkar,
Adult, Indian Inhabitant,
All residing at B/303, Mugdha Apartment,
Satya Nagar, Borivali (West), ...Defendants
Mumbai - 400 092.
Mr. Rajesh Kachare, with Sonal Dabholkar, for the Plaintiff.
Mr. Aadil Parsurampuria, with Pragya, Ameya Khot & Darshana Vora,
i/b M/s Legal Vision, for the Defendants.
CORAM: N. J. JAMADAR, J.
JUDGMENT RESERVED ON : 20th DECEMBER 2024.
JUDGMENT PRONOUNCED ON : 5th MAY 2025.
JUDGMENT :
1. This is a Suit for grant of Letters of Administration annexed with the Will (P1) dated 7th December 2022, and registered with the Sub- Registrar of Assurances at Boriwali on 11 th December 2002 of Yesubai Gopinath Dadarkar, ("the testatrix").
2. The background facts can be stated, in brief, as under:
2.1 Gopinath Govind Dadarkar was the husband of the testatrix. Gopinath and the testatrix had four sons, namely, Jayant, Ramesh, Mahesh and Sudheer, the deceased Plaintiff, and a daughter, Shubhangi Alias Sujata Ramesh Raut. Gopinath predeceased the testatrix. Her two sons, Jayant and Ramesh, also predeceased the testatrix without leaving behind any testamentary instrument. Both died as bachelor.2/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 :::
TS-39-2011.DOC 2.2 Mahesh, the husband of Rita, Defendant No.1 and father of Apurva, Defendant No.2, Purnima, Defendant No.3 and Aditya, Defendant No.4, passed away on 8th August 2005.
2.3 The testatrix had initially executed a Will on 20th July 1989. By the purported Will dated 7th December 2002, the testatrix revoked the said earlier Will dated 20 th July 1989. The Will was executed before, and attested by, Ravindra Motiram Patil and Bhakti Bharat Thakur. Dr. Basant R. Jain had certified the sound and disposing state of mind of the testatrix vide certificate dated 7th December 2002.
2.4 Under the purported Will the testatrix bequeathed her entire property, as described in the Schedule I and II, to Sudheer, the deceased Plaintiff.
2.5 The testatrix passed away on 1st September 2009. Asserting that under the Will, the testatrix had not appointed any Executor and Sudheer was the sole legatee, Sudheer filed a Petition, being Petition No. 534 of 2010, for grant of Letters of Administration with the Will annexed to the property and credits of the testatrix. 2.6 Defendant Nos. 1 to 4, the wife and children of Mahesh, entered Caveats. The Defendants resisted the grant of Letters of Administration by filing Affidavits in Support of the Caveats. Rita Dadarkar, Defendant No.1, filed a comprehensive Affidavit. The 3/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC rest of the Defendants have adopted the resistance put forth by Defendant No.1.
2.7 At the outset, the Defendants contend that the properties which are bequeathed in the purported Will are the subject matter of Suit No. 3149 of 2008 instituted by the Defendants against Yesubai Dadarkar, the testatrix, and others, challenging the Deed of Dissolution of Partnership Firm between the predecessor-in-title of Defendant Nos. 1 to 4 herein, and the Defendant Nos. 1 to 5, in the said Suit. The Defendants have also claimed partition of the Suit properties.
2.8 In the said Suit, Defendant Nos. 1 to 4 contend, the Plaintiff herein has admitted the execution of the Will dated 20 th July 1989 whereby the testatrix had bequeathed her share in the joint family properties in favour of the predecessor-in-title of Defendant Nos. 1 to 4 herein and the Defendant Nos. 2 and 3 therein.
2.9 The Defendants have assailed the legality and validity of the purported Will, the due execution and attestation thereof and the testamentary capacity of the testatrix by raising a slew of defences:
2.9A The Defendants contend the purported Will dated 7 th December 2002 is ex-facie unnatural in as much as it seeks to 4/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC disinherit the blood relatives of the testatrix. The Defendant No.1 contends she is the daughter of the sister of the testatrix and the latter had always treated her with utmost love and affection. The purported Will, which seeks to disinherit the Defendants in contradistinction to the equitable disposition in the Will dated 20th June 1989, is suspicious, bogus and unnatural.
2.9B The Defendants contend the bequests under the purported Will dated 7th December 2002 are not the result of the testatrix's free will and mind. The testatrix was suffering from a debilitating illness over the past 10 years, which had adversely affected the mental faculties of the testatrix and in such a state, the testatrix at the behest of the Plaintiff, used to sign blank papers without understanding the nature, effect or purport thereof. Thus the testatrix was not in a sound and disposing state of mind, memory and understanding. The Defendants have also contested the factum of attestation of the Will by Mr. Ravindra Patil and Ms. Bhakti Thakur.
2.9C The Defendants further contend that the purported Will dated 7th December 2002 is surrounded by suspicious circumstances, which have not been adequately explained by the propounder. The very date of execution of the Will is shrouded in suspicion as the Will contains two dates. The first page shows 5/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC that the purported Will was allegedly made on 7 th December 2002. However, the execution clause shows that it was executed on 10th December 2002. Ex-facie the Will is illegal and invalid.
2.9D The signature of the testatrix on the purported Will dated 7th December 2002 does not appear to be the genuine signature of the testatrix as it is materially different from the signature on the Will dated 28th July 1989. The signature of the testatrix on the purported Will does not appear to be her usual signature.
2.9E The deceased Plaintiff-propounder of the Will has taken a prominent part in the execution of the purported Will.
2.9F Moreover, the purported Will surfaced for the first time in the Chamber Summons in the above-numbered Suit. No family member was aware of the execution of the purported Will dated 7th December 2002, prior to the death of the testatrix or even after her death. Nor the purported Will was read out loud to the relatives and family members of the deceased.
2.9G The testatrix was not familiar with English language. She could not read, and write in, English. The purported Will did not appear to have been translated or explained to the testatrix in vernacular.
3. On these, amongst the other, grounds the Defendant Nos. 1 to 4 have prayed for dismissal of the Petition for Letters of Administration.6/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 :::
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4. In the wake of the aforesaid pleading, by an order dated 15 th September 2011 issues were settled. The word "intestate" in Issue No.1 appeared to be a typographical error. Thus Issue No.1 is recast by substituting the word "intestate" with the word "testate". The recast issues are reproduced below with my findings against each of them for the reasons to follow.
Issues Findings
1 Whether the Plaintiff proves that Mrs. In the negative.
Yesubai Gopinath Dadarkar died
testate leaving behind her last Will
and Testament dated 7/10th December
2002?
2 Whether the Plaintiff proves that the In the negative.
Will dated 7/12th December 2002 is
legal and valid and has been executed
in accordance with law?
3 Does the Defendant prove that the In the negative.
Will is shrouded in suspicious
circumstances and has not been
executed by the testator out of free
Will?
4 What order? Suit dismissed.
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REASONS:
5. As it may not be possible to appraise the evidence on Issue Nos. 1 and 3 in water tight compartments, it may be expedient to decide the Issue Nos. 1 and 3 by a common reasoning. I propose to do so. ISSUE NOS. 1 TO 4.
EVIDENCE:
6. In order to substantiate his case, the deceased Plaintiff-Sudheer (PW1) had examined himself,, Bhakti Thakur (PW2) and Ravindra Patil (PW3); the attesting witnesses, and Dr. Basant R Jain (PW4), who had certified the fitness of the testatrix. A number of documents were also tendered in evidence.
7. In the rebuttal, Rita Dadarkar (DW1) entered the witness-box. The Defendants have also tendered documents to bolster up their defence.
8. Bhakti Thakur (PW2) deposed that the testatrix was her paternal aunt. She often visited the testatrix at latter's residence. The testatrix used to treat Bhakti Thakur (PW2), like her daughter. In the first Affidavit in lieu of examination-in-chief, affirmed on 15 th December 2011, Bhakti (PW2) affirmed that the testatrix had informed her that 8/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC the testatrix had prepared a Will and requested her to attend the office of the Sub-Registrar at Bandra, to act as a witness.
9. Bhakti Thakur (PW2) claimed to have visited the Sub-Registrar's Office. Ravindra Patil (PW3), the second attesting witness, was present. She had known Ravindra Patil (PW3) as the latter was also her relative. Bhakti (PW2) testified to the fact that the Sub-Registrar read out the contents of the Will (P1) to the testatrix and the latter admitted the correctness thereof. Thereafter, the testatrix put her signature on the Will (P1) in her presence and that of Ravindra (PW3). The testatrix requested her and Ravindra (PW3) to put signature on the Will (P1) as witnesses. In the presence and as per the directions of the testatrix, she had put her name and address at the bottom of the Will (P1) and also put signature on the Will (P1), in the presence of Ravindra (PW3). Likewise, according to Bhakti (PW2), Ravindra (PW3) had also put his signature on the Will (P1) in her presence and that of the testatrix. Bhakti (PW2) identified her signature and that of the testatrix and Ravindra (PW3) on the Will (P1). At the time of the execution of the Will (P1), Bhakti (PW2) stated, the testatrix was physically and mentally fit.
10. In the Affidavit in lieu of examination-in-chief, affirmed on 23 rd December 2014, apart from affirming the execution and attestation of the Will (P1), Bhakti (PW2) deposed that on 10 th December 2002 she 9/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC had visited the residence of the testatrix, Ravindra (PW3) was present. In addition, Mr. Harishchandra Raul was also present thereat. Mr. Raul explained and interpreted the Will (P1) to the testatrix in Marathi. The testatrix put signature on the Will (P1). Thereafter, the testatrix requested her and Ravindra (PW3) to sign the Will (P1), as witnesses. Thereupon, she and Ravindra (PW3) had put signatures on the Will (P1) below their respective name and address. The testatrix requested her to visit the office of the Sub-Registrar Office at Bandra on the next day.
11. Bhakti (PW2) claimed to have visited the office of the Sub- Registrar on the next day. Apart from the testatrix, Mr. Raul and Ravindra (PW3) were present thereat. Bhakti (PW2) thereafter narrates the process of reading over the contents of the Will (P1), admission of the correctness thereof by the testatrix, execution by the testatrix and attestation by the witnesses. Bhatki (PW2) added that the Doctor's Certificate (Exhibit "P4/2") was annexed to the Will (P1) when she had attested the Will.
12. Ravindra (PW3) also claimed to be a relative of the testatrix. The latter treated him like her nephew. The testatrix had informed him that her Advocate had prepared a Will as per her instructions and requested him to act as a witness. When he gave consent, the testatrix asked him to attend the office of the Sub-Registrar at Bandra to act as witness to 10/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC the Will(P1). When he visited the said office, the testatrix was present thereat. Bhakti (PW2) came thereafter. The officer read out the contents of the Will to the testatrix and the latter admitted the correctness thereof.
13. Ravindra (PW3) was in unison with Bhakti (PW2) on the aspect of the execution of the Will(P1) by the testatrix and attestation thereof by him and Bhakti (PW2), at the direction and in the presence of the testatrix. Ravindra (PW3) also vouched for the physical and mental fitness of the testatrix at the time of the execution of the Will (P1).
14. Dr. Basant Jain (PW4) claimed to be a practicing Homeopath. He had known the testatrix as the latter was his patient for over 15 overs. The testatrix used to consult him over minor ailments. On 7 th December 2002, the testatrix had visited his dispensary for a routine check up. He found her in a fit condition. He examined her and found her parameters in order. Thereupon the testatrix handed him over the documents which she was carrying. Dr. Jain claimed to have enquired with the testatrix as to whether she understood the nature and contents of the said documents. After finding her to be in good health and sound and disposing state of mind, Dr. Jain claimed to have issued the Certificate (Exhibit "P4/2").
15. Dr Jain testified that the name and age of the testatrix as well as the date appearing in the first line of the Certificate (Exhibit "P4/2") 11/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC were in his handwriting. Dr. Jain further affirmed that he had put the date appearing in the first paragraph of the Will (P1) and the same is in his handwriting.
16. The deceased Plaintiff (PW1) and Rita (DW1), the Defendant No.1, have deposed in line with their respective contentions.
17. At the conclusion of the trial, I have heard Mr. Rajesh Kachare, the learned Counsel for the Plaintiffs, and Mr. Adil Parsurampuria, the learned Counsel fo the Defendants, at length. The parties have also tendered written submissions in elaboration of the submissions canvassed across the bar.
BROAD SUBMISSIONS:
18. Mr. Kachare, the learned Counsel for the Plaintiffs submitted that the Will(P1) in question has been proved in evidence in conformity with the provisions contained in Section 63 of the Indian Succession Act 1925 ("the Act of 1925") and Section 68 of the Indian Evidence Act 1872 ("the Act of 1872"), beyond the shadow of doubt. The Plaintiff has examined both the attesting witnesses who have testified to the due execution and attestation of the Will(P1). Dr. Basant Jain who had examined and certified the fitness of the testatrix has deposed about the sound and disposing state of mind of the testatrix. Nothing material could be elicited to cast doubt over the physical fitness and mental 12/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC alertness of the testatrix, at the time of the execution of the Will(P1). In any event, Mr. Kachare would urge, since the testatrix passed away after seven years of the execution of the Will(P1), the sound and disposing state of mind of testatrix can hardly be questioned.
19. The due execution and attestation of the Will(P1) is further fortified by the registration of the Will(P1) before the Registrar of Assurances, who had also explained the contents of the Will(P1) to the testatrix. In the face of such overwhelming evidence, according to Mr. Kachare, the objections to the due execution and attestation of the Will(P1), or for that matter, the testamentary capacity of the testatrix, do not deserve any countenance.
20. Mr. Kachare would urge, the evidence on record unmistakably indicates that, Mahesh, the predecessor-in-title of Defendant Nos. 1 to 4, was not only estranged from the testatrix but the relationship between the testatrix and Mahesh had turned astray on account of vices to which Mahesh was given in to. Consequently, the main plank of defence of Defendant Nos. 1 to 4 that the disposition in the Will(P1) is unnatural, unfair and improbable, does not hold any ground.
21. Elaborating the aforesaid submissions, Mr. Kachare would urge that the testimony of Bhakti Thakur (PW2) and Ravindra Patil (PW3) establishes beyond cavil that testatrix had executed the Will(P1) with full knowledge and understanding of the nature and consequences of 13/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC the dispositions thereunder. Both the witnesses have consistently stated that they had seen the testatrix put her signature on the Will(P1) and thereafter signed the Will(P1) in the presence of the testatrix. Both were present before the Registrar of Assurance when the Will(P1) was registered.
22. Defendant Nos. 1 to 4, according to Mr. Kachare, have made an endeavour to draw mileage from the minor discrepancies in the date of the execution of the Will(P1). The time-lag between the execution of the Will(P1) and the date on which the witnesses were called upon to depose deserves to be taken into account. Inability to recollect the exact date, thus, does not detract materially from the veracity of the testimony of the attesting witnesses.
23. Mr. Kachare would urge the very fact that the testatrix passed away after seven years of the execution of the Will(P1) negates the bald contention of the Defendants that the testatrix was not in a sound and disposing state of mind. There is not a shred of material to lend support to the defence that testatrix was suffering from debilitating illness as alleged. At any rate, the testimony of Dr. Basant Jain could not be impeached. In addition, there is material to show that the testatrix had executed instruments contemporaneous with the execution of the Will(P1) and even thereafter. Mr. Kachare would urge, the very claim of the Defendants that the testatrix used to visit their residence which was 14/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC located on the third floor of a building (which had no lift) by climbing up the stairs, proves the physical and mental soundness of the testatrix.
24. Mr. Kachare would urge that the alleged suspicious circumstances are non-existent. The purported suspicious circumstances, according to Mr. Kachare, are not worthy enough to return a finding that the conscience of the Court is not satisfied. Reliance was placed on the judgments of the Supreme Court in the case of Indu Bala Bose & Ors Vs Manindra Chandra Bose & Anr1 and Vrindavanibai Sambhaji Mane Vs Ramchandra Vithal Ganeshkar & Ors.2
25. Mr. Kachare, further submitted that there is material to show that the testatrix was actively managing the affairs of the partnership firm. She had studied up to 7th standard. She was familiar with English language. She has executed documents in English. Therefore, the contention of the Defendants that testatrix had not known English is without substance.
26. Mr Kachare would urge that the alleged disinheritance of the blood relations especially that of Mahesh stands explained by the material on record. In the wake of disputes between Mahesh and testatrix, the former had addressed a communication to the bank to restrain the testatrix from operating bank account. The bank account was freezed. Defendant No.1 herself had admitted in the legal notice 1 (1982) 1 SCC 20.
2 (1995) 5 SCC 215.
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TS-39-2011.DOC dated 27th July 1995 that Mahesh was a heavy drinker. All these factors fortify the reasons which weighed with the testatrix to disinherit Mahesh.
27. To buttress the aforesaid submissions, Mr. Kachare placed reliance on the judgment of the Supreme Court in the cases of Dhanpat Vs Sheo Ram (Deceased) Through Legal Representatives & Ors, 3 Madhukar D. Shende Vs Tarabai Aba Shedage4 and Ramabai Padmakar Patil (Dead) Through LRs & Ors Vs Rukminibai Vishnu Vekhande & Ors.5
28. Mr. Kachare would further urge that since the Defendant Nos. 1 to 4 have alleged that the Plaintiff had got the purported Will(P1) executed by exercising coercion and undue influence, onus rests on the Defendants to establish the said fact. The Defendants have miserably failed to prove the said fact. To this end, reliance was placed on the judgment of the Supreme Court in the case of Savithri & Ors Vs Karthyayani Amma & Ors.6
29. Minor contradictions in the evidence of PW1 and PW2 or inability of the witnesses to recollect the exact dates, does not justify the discarding of the testimony of the attesting witnesses. To buttress this submission, Mr. Kachare placed reliance on the decision of the Supreme 3 (2020) 16 SCC 209.
4 (2002) 2 SCC 85.
5 (2003) 8 SCC 537.
6 (2007) 11 SCC 621.
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TS-39-2011.DOC Court in the cases of Durga Vs Anil Kumar7 and Pentakota Satyanarayana and Ors Vs Pentakota Seetharatnam & Ors.8
30. Mr. Adil Parsurampuria, the learned Counsel for Defendant Nos. 1 to 4 would urge that the Plaintiffs have miserably failed to prove that the purported Will(P1) was validly executed by the testatrix and attested by PW2 and PW3.
31. Mr. Parsurampuria urged with tenacity that the very execution of the Will(P1) itself, is shrouded in doubt. There are as many as three dates, first, 7th December 2002; on the first page of the Will(P1), second, 10th December 2002; on the second page of the Will(P1) and third, 11th December 2002; the date of Registration. The dates 7 th and 10th are inserted in the purported Will(P1) in English language. There are a number of admissions especially that of Sudheer (PW1) that the testatrix had not known English and could not read and write English. Thus, first and foremost, the very execution of the Will(P1) on a particular date cannot be said to have been established.
32. Mr. Parsurampuria would urge the examination of both attesting witnesses, in the case at hand, instead of advancing the case of the Plaintiff, erodes the Plaintiff's case. Taking the Court through the cross- examination of PW2 and PW3 and comparing and contrasting the same, Mr. Parsurampuria would urge that the testimony of PW2 and PW3 on 7 (2005) 11 SCC 189.
8 (2005) 8 SCC 67.
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TS-39-2011.DOC the aspect of execution and attestation of the Will(P1) is inconsistent to such an extent that one's testimony renders the other's testimony wholly unreliable.
33. Mr. parsurampuria would urge that after realizing that the material would show that the testatrix could not read, and write in, English, an endeavour was made to file an Additional Affidavit of the attesting witness to introduce a case that the contents of the Will(P1) were explained by Mr. Harishchandra Raul, whose presence was not deposed to earlier. Interestingly, Mr. Raul was not examined by the Plaintiff.
34. Mr. Parsurampuria would further urge that if the evidence of the attesting witnesses is read, it becomes evident that there is material variance not only in the testimony of these witnesses but also in the first Affidavit in lieu of examination-in-chief and the second Affidavit in lieu of examination-in-chief of Bhakti Thakur (PW2) as to the place where the purported Will(P1) was executed, the date on which the Will(P1) was executed, the presence of Mr. Raul and on the aspect as to whether Mr. Raul or any official in the office of the Registrar of Assurances, interpreted and explained the contents of the purported Will(P1) to the testatrix.
35. An endeavour was made by Mr. Parsurampuria to draw home the point that the discrepancies in the date of the execution of the Will(P1) 18/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC and the fact that the testatrix was not knowing the English language in which the purported Will(P1) has been written, cumulatively, demolish the Plaintiff's case.
36. On the aspect of the disinheritance of Mahesh, Mr. Parsurampuria would submit that the explanation sought to be offered is unworthy of credence. The fact that Mahesh had addressed a communication to the bank regarding the operation of the bank account of the partnership firm was too insignificant to justify the disinheritance of Mahesh when in the Will(P1) dated 20th July 1989, the testatrix had made a bequest in favour of Mahesh. On the contrary, there is material to show that instruments were jointly executed by the testatrix, Mahesh and the Plaintiff. That itself negates the case that relations between the testatrix and Mahesh were so strained as to justify disinheritance of Mahesh.
37. Lastly, Mr. Parsurampuria would urge that the Plaintiff has singularly failed to discharge his burden to explain the suspicious circumstance. Reliance was placed by Mr Parsurampuria on the judgments of the Supreme Court in the cases of Jaswant Kaur Vs Amrit Kaur,9 Benga Behera & Ors Vs Braja Kishore Nanda & Ors, 10 Bhankumar 9 1997 1 SCC 369.
10 2007 9 SCC 728.
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TS-39-2011.DOC Vs Dashrath11 and Dhani Ram Vs Shiv Singh12 and a judgment of the Delhi High Court in the case of Kavita Kanwar Vs State, NCT of Delhi.13 PROOF OF WILL:
38. Section 63 of the Indian Succession Act, 1925, provides the manner in which the Will is to be executed. Clause (c) of Section 63 mandates the attestation of the Will by two or more witnesses; each of whom must have seen the Testator sign or received from the Testator a personal acknowledgment of the latter's signature on the Will; each of the two witnesses must himself sign the Will in the presence of the Testator. But it is not peremptory that, more than one witness should be present and attest the Will at the same time.
39. Section 63 of the Act, 1925 is required to be read with Section 68 of the Indian Evidence Act, which specifies the requirements for adducing evidence in proof of execution of a document which is required by law to be attested. Section 68 of the Evidence Act, in terms provides that if a document is required to be attested by law, it cannot be used as evidence unless one attesting witness has been called for proving the execution of the document if the attesting witness is alive.
Section 69 provides for the mode of proof of a document required to be attested where no attesting witness can be found. Section 71 provides 11 2010 SCC OnLine SHH 95.
12 Civil Appeal No. 8172 of 2009, decided on 6 th October 2023. 13 2014 SCC OnLine Del 3399.
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TS-39-2011.DOC that if the attesting witness denies or does not recollect the execution of the documents, its execution may be proved by other evidence.
40. Though the Will has to be proved like any other document, which is compulsorily required to be attested, yet the solemnity attached to the Will necessitates that the conscience of the Court that the writing propounded by the propounder is the last Will and Testament and it has been legally and validly executed and attested, must be satisfied.
41. By a catena of decisions the nature and standard of evidence required to prove the Will has been delineated. In the case of Jaswant kaur (Supra), on which a very strong reliance was placed by Mr. Parsurampuria, a three Judge Bench of the Supreme Court has crystalized the propositions which govern the proof of Will, as under :
"9. In cases where the execution of will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the Court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the Court that the will has duly executed by that testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will.
10. There is a long line of decisions bearing on the nature and standard of evidence required to 21/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v.B.N. Thirnmajamma & Others14 The Court, speaking through Gajendragadkar J., laid down in that case the following positions :--
1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the ease of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 63 of the Evidence Act, one attesting witness at least has .been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death o[ the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surround- ed by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the 14 AIR 1959 SC 443 22/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution' of the will may raise a doubt as to whether the testa- tor was acting of his 23/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
42. In the case of Sridevi and Ors. V/s. Jayaraja Shetty and Ors, 15 the onus on the propounder was concisely encapsulated as under :
"14. The propounder of the Will has to show that the Will was signed by the testator; that he was at the relevant time in sound disposing state of mind; that he understood the nature and effect of dispositions and had put his signatures to the testament of his own free will and that he had signed it in the presence of the two witnesses who attested in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged."
43. It would be contextually relevant to note that, in the case of Daulat Ram and Ors. V/s. Sodha and Ors.16, it was enunciated that the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the 15 (2005) 2 SCC 784 16 (2005) 1 SCC 40 24/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so.
44. In the case of Benga Behera (Supra) the Supreme Court observed that existence of suspicious circumstances itself may be held to be sufficient to arrive at a conclusion that execution of the Will has not been duly proved.
45. In the case of Shivakumar and Ors. V/s. Sharanabasappa and Ors.17, the Supreme Court after traversing through the relevant decisions summerised the principles. The principles enunciated in paragraph Nos.12.5 to 12.9 are instructive as regards the onus of proof on the propounder to dispel the suspicious circumstances, when a circumstance can be said to be suspicious and the illustrative cases which may stoke such suspicion and the satisfaction of judicial conscience of the Court. They read as under :
"12.5 If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion etc. in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the Testator and/or as to whether the Testator was acting of his own free will. In such eventuality, it is again a 17 (2021) 11 SCC 277 25/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC part of the initial onus of the propounder to remove all reasonable doubts in the matter.
12.6 A circumstance is "suspicious" when it is not normal or is 'not normally expected in a normal situation or is not expected of a normal person'. As put by this Court, the suspicious features must be 'real, germane and valid' and not merely the 'fantasy of the doubting mind.' 12.7 As to whether any particular feature or a set of features qualify as "suspicious" would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the Testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the Will by the beneficiary thereunder etc. are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the Testator and his signature coupled with the proof of attestation. 12.8 The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the Testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the Testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will?26/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 :::
TS-39-2011.DOC 12.9 In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will."
(emphasis supplied)
46. Kavita Kanwar Vs Pamela Mehta & Ors18 reiterates the afore- extracted principles in the case of Shivakumar (Supra).
47. A useful reference can also be made to a recent pronouncement of the Supreme Court in the case of Lilian Coelho And Ors Vs Myra Philomena Coalho,19 wherein the Supreme Court postulated that if a Will is found not validly executed, in other words invalid owing to the the failure to follow the prescribed procedures, then there would be no need to look into the question whether it is shrouded with suspicious circumstances. Even after the propounder is able to establish that the Will was executed in accordance with the law, that will only lead to the presumption that it is validly executed but that by itself is no reason to canvass the position that it would amount to a finding with respect to the genuineness of the same. In other words, even after holding that a Will is genuine, it is within the jurisdiction of the Court to hold that it is not worthy to act upon as being shrouded with suspicious circumstances 18 (2021) 11 SCC 209.
19 (2025) 2 SCC 633.
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TS-39-2011.DOC when the propounder failed to remove such suspicious circumstance to the satisfaction of the Court.
48. In the backdrop of the aforesaid exposition of law, reverting to the appreciation of the evidence adduced by the parties, it is imperative to first consider the material on record with regard to the due execution and attestation of the Will, being alive to the position in law that the finding as to the genuineness of the Will, is not be all or end all, and the conscience of the Court must be satisfied that the testatrix had signed the Will being aware of its contents and after understanding the nature and effect of the dispositions thereunder.
49. Of necessity, the order of evaluation would be; the due execution of the Will (P1) by the testatrix, the due attestation of the Will (P1) by Bhakti (PW2) and Ravindra (PW3), whether the testatrix was in a sound and disposing state of mind, did the testatrix understood the contents of the Will (P1) and the nature and effect of dispositions thereunder, are there any suspicious circumstance which surrounded the execution and attestation of the Will (P1) and, if so, whether the Plaintiff-propounder has succeeded in offering cogent and convincing explanation with regard to those circumstances.
50. On the aspect of the due execution of the Will (P1), the signature of the testatrix on the Will (P1), as such, was not put in serious contest by the Defendants. With regard to the signature of the testatrix on the 28/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC Will (P1), in the Affidavit in Support of the Caveat, the Defendants contended that the signature of the testatrix on the Will (P1) did not appear to be genuine if compared with the admitted signature on the Will dated 28th July 1989. The signature of the testatrix appeared to be doubtful and did not appear to be her usual signature.
51. Nothing material could be elicited, in the cross-examination of Sudheer (PW1), Bhakti (PW2) and Ravindra (PW3), to impeach their claim that the signature on the Will (P1) is that of the testatrix. Nor anything could be elicited to show that the testatrix used to sign either in a different language or fashion. Conversely, there are documents including the Will dated 28th July 1989, the execution of which is admitted by the Defendants, to show that the testatrix used to put signature on the documents in an identical fashion as the signature on the Will (P1). For instance, the supplemental Agreement dated 28 th August 2002 to which Defendant No.1 was also a witness, the testatrix appeared to have put identical signature. It is also necessary to note that the testatrix appeared before the Registrar and admitted the execution before the Registrar by putting identical signatures on Schedule I and Schedule II.
52. As regards the sound and disposing state of mind of the testatrix, Dr. Jain (PW4) has testified that on 7th December 2002, he had examined the testatrix and found her in good health and sound and 29/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC disposing state of mind. Though Dr. Jain (PW4) conceded that the Certificate (Exhibit "P4/1") was not issued on his letter head, and that he had signed the Certificate which was already prepared and presented to him as a part of the Will, yet, his testimony that the testatrix was then in a sound and disposing state of mind could not be impeached. It is also imperative to note that apart from the contentions of the Defendants that the testatrix was suffering from debilitating illness, nothing material could be brought on record to show that the testatrix was either sick or infirm at the time of the execution of the Will. The Court also cannot loose sight of the fact that the testatrix lived for about seven years after the execution of the Will (P1).
53. Reliance placed by Mr. Kachare on a decision of the Supreme Court in the case of Savithri (Supra) appears to be well-placed. In the said case, the Supreme Court, observed that the testator therein had lived for seven years after execution of the Will, which was registered. He could change his mind; he did not. The very fact that the testator did not take any step for cancellation of the Will is itself a factor which the Court may take into consideration for the purpose of upholding the same.
54. As noted above, an endeavour was made on behalf of the Defendants to demonstrate that the relations between the testatrix and the Defendants were cordial even after the demise of Mahesh. Rita 30/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC (DW1) affirmed that the testatrix used to frequently visit the house of the Defendants. During the course of the cross-examination, Rita (DW1) conceded that they were residing at B-3 on the third floor of Mugdha Apartment, Boriwali (West), and the said building had no lift facility. If it was the case that the testatrix used to visit the house of the Defendants at Boriwali by climbing up three stairs, the challenge to the physical fitness and mental alertness of the testatrix must fail.
55. The situation which thus emerges is that on the strength of the testimony of Bhakti (PW2) and Ravindra (PW3) coupled with the evidence of Dr. Jain and the attendant circumstances, an inference about the execution of the Will (P1) and the attestation thereof by Bhakti (PW2) and Ravindra (PW3) may be drawn. It could be urged that testimony of Bhakti (PW2) and Ravindra (PW3) is sufficient to establish the factum of due execution and attestation of the Will. Likewise, the sound and disposing state of mind of the testatrix, in the light of the time lag from the execution of the Will (P1) dated 7 th December 2002 and the death of the testatrix on 1 st September 2009, in absence of any material to show to the contrary, has also been proved. These factors, by themselves, are not sufficient to satisfy the conscience of the Court. If there are suspicious circumstances, it is trite, suspicion cannot be removed by mere proof of sound and disposing state of mind of the testatrix and her signature on the Will coupled with the proof of 31/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC attestation. If there are suspicious circumstances, the onus rests on the Propounder to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will.
56. This takes me to the crucial aspect; whether Bhakti (PW2) and Ravindra (PW3) witnessed the due execution of the Will (P1), in the sense that the testatrix knew and understood that what she was executing was a Will (P1) and also the contents thereof and dispositions thereunder. The thrust of the submissions on behalf of the Defendants was on the inconsistency in depositions of Bhakti (PW2) and Ravindra (PW3), and the improvement made by Bhakti (PW2) by filing a further Affidavit in lieu of examination-in-chief.
57. Mr. Parsurampuria would urge that if the first Affidavit in lieu of examination-in-chief dated 15th December 2011 and the second Affidavit dated 23rd December 2014, are perused, the stark improvement in the version of Bhakti (PW2) with regard to the execution and attestation of the Will (P1) becomes self-evident. In the first Affidavit, the place of execution of the Will was at the office of the Sub-Registrar at Bandra, the date on which the Bhakti (PW2) attested the will does not find mention nor there is a reference to the presence of Mr. Raul, who purportedly explained the contents of the Will to the testatrix.
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58. The second Affidavit in lieu of examination-in-chief purports to fix both the place and the date of the execution of the Will (P1) and the fact that Mr. Raul was present when the purported Will (P1) was supposedly executed and Mr. Raul read over and explained the contents of the Will (P1) to the testatrix. On the next date, the Will was purportedly registered at the office of the Sub-Registrar, Bandra.
59. Mr. Parsurampuria would urge, to fill in the lacuna in the Plaintiffs' case, which became evident after the cross-examination of Sudheer (PW1), namely, the deceased could not read or write English, in which language and character the Will (P1) has been drafted, Bhakti (PW2) filed a fresh Affidavit in lieu of examination-in-chief. There is no explanation for such material improvement in the two versions in the first and the second Affidavit in lieu of examination-in-chief.
60. In the case at hand, the suspicion principally surrounds around three factors. First, the date of the execution of the Will (P1). Second the place at which the Will (P1) was executed. Third, and most crucial, whether the testatrix knew and understood the contents of the Will (P1) and the dispositions thereunder.
DATE OF EXECUTION OF THE WILL (P1):
61. Evidently, there are two dates in the body of the Will (P1). In the first paragraph the date "7th" and month "Dec" are inserted in 33/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC handwriting. On the second page of the Will (P1), above the execution clause, the date "10th" and month "December" have been inserted in handwriting. Both the dates appear to have been inserted by two different writers and in different ink. The Will (P1) was apparently registered on 11th December 2002 with an endorsement that the Will was executed on 10th December 2002. Is there any material to resolve the discrepancy in the date of the execution of the Will (P1)?
62. Recourse to the evidence of Bhakti (PW2) and Ravindra (PW3) is indispensable. In the first Affidavit in lieu of examination-in-chief, Bhakti (PW2) did not depose to the date on which the Will (P1) was executed. Instead Bhakti (PW2) deposed that in one of her visits to the house of the testatrix, the latter had told her that the testatrix had prepared a Will and asked her to attend the office of the Sub-Registrar at Bandra to act as a witness. From the tenor of the evidence of Bhakti (PW2) in the Affidavit dated 15th December 2011, it becomes evident that the Will (P1) was executed and registered on one and the same day at the office of the Sub-Registrar at Bandra.
63. In the further Affidavit Bhakti (PW2) makes amends. Bhakti (PW2) asserts she had visited the residence of the testatrix on 10 th December 2002 and the Will (P1) was executed on that day in the presence of Ravindra (PW3) and Mr. Raul. Bhakti (PW2) further added that Mr. Raul had explained and interpreted the Will (P1) to the 34/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC testatrix in Marathi and thereafter testatrix had put signature on the Will and she and Ravindra (PW3) attested the same.
64. Indeed, there is material departure in the further Affidavit in lieu of examination-in-chief of Bhakti (PW2) from her initial version. First, a specific date of execution of the Will (P1), i.e., 10 th December 2002. Second, the place of execution of the Will (P1), i.e., the residence of the testatrix. Third, the reading over and explanation of the contents of the Will (P1) drafted in English language and character to the testatrix in Marathi by Mr. Raul.
65. Could Bhakti (PW2) offer a satisfactory explanation regarding departure from her earlier version?.
66. When confronted with the said aspect of the matter, Bhakti (PW2) replied that as all had happened a long time ago, and she had explained the incidents to the lawyer as she could recollect. It would be contextually relevant to note that this Court also gave an opportunity to Bhakti (PW2) to explain the patent contradictions in paragraphs 4 and 5 Bhakti's (PW2) first Affidavit and paragraph 5 of her further Affidavit dated 23rd December 2014. The Court questions and answers thereto deserve extraction:
84. To Court (Shown paragraphs 4 and 5 of the witness's affidavit dated 15th December 2011 and paragraph 5 of her further affidavit dated 23rd December 2014. The 35/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC contents of these two paragraphs are explained to the witness by the Official Interpreter and the Court Associate in Marathi. There is a material and patent contradiction in these two paragraphs as to the events of 10th/11th December 2002. In fairness to the witness, she must be afforded an opportunity to explain) You have been explained the differences in these paragraphs of these two affidavits. Which of these affidavits is correct?
Ans. The second affidavit is correct.
85. To Court How did you come to make such a mistake in your
first affidavit?
Ans. I cannot explain.
Witness volunteers: I have signed the document.
Some of the details I cannot readily recall after so many years.
67. Keeping in view the aforesaid explanation of Bhakti (PW2), the manner in which she fared in the cross-examination deserves to be appreciated. On the aspect of the date of visit to the office of the Sub- Registrar, (without showing the Will (P1) to the witness), Bhakti (PW2) asserted that she had visited the said office on 10th December 2002.
68. Bhakti (PW2) blamed her memory to state the year or month in which the testatrix had informed her that she wished to execute a Will 36/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC and the date on which the testatrix had prepared the Will (P1). To a pointed question whether testatrix had told her to attend the Sub- Registrar office on the vary day the testatrix had informed her that the Will was prepared, Bhakti (PW2) answered that, it was on a later date. Bhakti (PW2) stated she could not recollect that date (Question Nos. 33 and 34).
69. Ravindra (PW3), on his part, deposed in line with the first Affidavit in lieu of examination-in-chief of Bhakti (PW2). His testimony indicates that on the instructions of the testatrix he attended the office of the Sub-Registrar at Bandra and the Will (P1) was executed and registered thereat. Like Bhakti (PW2)'s initial version, Ravindra (PW3) does not disclose the date on which the Will (P1) was executed.
70. Ravindra (PW3) also blamed his memory to state as to when the testatrix had apprised him that she intended to execute a Will and had prepared the Will. Ravindra (PW3) expressed his inability to explain as to why two different dates were mentioned in the Will (P1) and who had written those two different dates on the Will (P1).
71. The evidence of both Bhakti (PW2) and Ravindra (PW3) on the aspect of the date of the execution of the Will (P1) is plainly unsatisfactory. In their Affidavit in lieu of examination-in-chief both the witnesses had not disclosed the date of execution of the Will. Nor during the course of their cross-examination they could state the precise 37/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC dates on which the testatrix has initially made known her intent to execute the Will, factum of preparation of the Will and the execution thereof.
72. The confusion regarding the date of the execution of the Will (P1) is further confounded by the testimony of Dr. Jain (PW4). Dr. Jain affirmed that he had put the date appearing in the first paragraph of the Will (P1). When called upon to explain the reason for putting a date on the Will (P1), when he was supposed to certify the fitness of the testatrix, Dr Jain attempted to wriggle out of the situation by asserting that he was not aware that he should not have put the date on the Will (P1). At the same time, Dr Jain expressed his inability to state as to who had written the date "10th December" on the second page of the Will (P1). It is not the case of Dr. Jain that when he had certified the fitness of the testatrix, the latter had already executed the Will (P1). If that be the case, the insertion of the date by Dr. Jain on the first page of the Will (P1), without filling in the date of execution of the Will, is inexplicable.
73. Mr. Kachare, the learned Counsel for the Plaintiff would urge that inability of the witnesses to state the date of execution and attestation of the Will after a long lapse of time, does not erode the evidentiary value of their testimony. Mr. Kachare placed reliance on the decision of the Supreme Court in the case of Indu Bala Bose (Supra) wherein the 38/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC Supreme Court in the context of the suspicious circumstances pressed into service, in that case, had observed that, it may be remembered that the witness were deposing 13 years after the execution of the Will. It will be difficult for any witness after such a long lapse of time to give the dates when the testator went to the house of his lawyer or when the draft was given by the lawyer to the testator or when the testator sent for the lawyer for correction of the draft.
74. It is true, where the witnesses are called upon to depose after years of the execution and attestation, it would be rather harsh to expect the witnesses to state the precise dates. However, where the testamentary instrument itself contains two different dates and the witnesses initially do not state the date of execution and attestation of the Will, the discrepancy cannot be explained away by submitting that the witnesses would not be in a position to state the exact dates after a number of years. In the facts of the case, this discrepancy in the date of the execution of the Will (P1), unless satisfactorily accounted for, throws a cloud of doubt over the very factum of execution and attestation of the Will (P1).
PLACE AT WHICH THE WILL WAS EXECUTED:
75. As is evident, if the Affidavits in lieu of examination-in-chief of Bhakti (PW2) and Ravindra (PW3) are appreciated, the witnesses were 39/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC in unison on the point that the Will (P1) was executed in the office of the Sub-Registrar at Bandra. There is no reference, even remotely to the execution of Will (P1) at a point of time anterior to the registration of the Will (P1). Both were in unison on the point that the testatrix asked them to attend the office of the Sub-Registrar at Bandra and the testatrix executed the Will (P1) in their presence at the said place and thereafter attested the Will (P1). It is interesting to note that though Bhakti (PW2) filed a further Affidavit in lieu of examination-in-chief and made a significant departure therein, as noted above, the testimony of Ravindra (PW3) remained intact. It does not seem that Ravindra (PW3) filed a further Affidavit adverting to the date and place of the execution of the Will (P1), like Bhakti (PW2). Nor the intrinsic evidence of the testamentary instrument (P1) gives any indication as to the place at which the Will (P1) was executed.
76. Apparently, there is a disconnect in the testimony of Bhakti (PW2) and Ravindra (PW3) as regards the place of execution of the Will (P1), though they both assert that they had attested the Will (P1) in the presence of the testatrix as well as in each other's presence. There is no evidence which resolves the discrepancy as to the place of execution of the Will (P1). It would be contextually relevant to note that despite an opportunity to explain the discrepancy as regards her versions in the 40/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC two Affidavits in lieu of examination-in-chief, Bhakti (PW2) could not furnish a satisfactory account.
WHETHER THE TESTATRIX KNEW THE CONTENTS OF THE WILL (P1):
77. The place at which the Will (P1) was executed also significantly bears upon the knowledge of the testatrix as to the contents of the Will (P1) and the dispositions thereunder.
78. The Will (P1) is in English language and character. In the Will (P1), there is an endorsement, "SIGNED by he above named Testatrix after the same has first read over explained and interpreted to her in Marathi in our Presence at the same time and both of us have in the presence and under the directions of the Testatrix Signed our names hereunder as attesting witnesses."
79. The aforesaid endorsement implies that the testatrix did not know English and the contents of the Will (P1) were read over and explained and interpreted to the testatrix in Marathi, in the presence of the attesting witnesses, Bhakti (PW2) and Ravindra (PW3). Who read over, explained and interpreted the Will (P1) to the testatrix in Marathi?
80. Before exploring an answer to the aforesaid question which bears upon the satisfaction of the pivotal aspect as to whether the testatrix fully knew and understood the contents of the Will and nature and 41/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC effect of the dispositions thereunder, it may be appropriate to note the evidence as regards the situation in life of the testatrix.
81. At this juncture, the testimony of Sudheer (PW1), the propounder, assumes critical salience. Sudheer (PW1) conceded in the cross-examination that the testatrix had studied up to the 7 th standard in Marathi medium. She used to write and communicate in Marathi. Apart from Marathi, she understood Hindi. Sudheer (PW1) candidly admitted that the testatrix could not read, or write in, English. Probed further Sudheer's reply was as under:
Q. 19 Would it be correct to say that your mother did not understand anything if it was read out to her in English language?
And: Yes.
Witness volunteers: She did not understand the English language but she could understand what was being read out to her.
Q. 20 If she was able to understand what was being read out to her, why was it necessary to explain the contents of the correspondence, etc. to her again in Marathi language?
Ans: She could not understand fully what were the contents of the letter, but she could understand the meaning.
82. The aforesaid evidence is required to be appreciated in the light of the fact that the Will (P1) contains a clear and unequivocal endorsement that the contents of the Will were read over, explained and 42/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC interpreted to the testatrix in Marathi. It thus become abundantly clear that the testatrix could not have read and understood the contents of the Will (P1), on her own, unless they were read over and explained to her in the language she understood, i.e., Marathi.
83. Mr. Kachare attempted to salvage the position by canvassing a submission that the testatrix was a partner in a partnership firm which entered into transactions in relation to real estate development. The testatrix had executed a number of documents along with the Plaintiff and deceased Mahesh. Even the Will dated 20 th July 1989, which the Defendants do not dispute, was executed in English language and character. Therefore, according to Mr. Kachare, the contention that the testatrix did not understand English is devoid of any substance. To this end Mr. Kachare invited the attention of the Court to the Will dated 20 th July 1989, the supplemental Agreement dated 28 th August 2002 referred to above, to which Rita (DW1) was an attesting witness, the registered Power of Attorney dated 19 th March 1999 (Exhibit "P5") executed by the testatrix in favour of the Plaintiff and the Deed of Dissolution of Partnership dated 4th May 1995, which is the subject matter of challenge in the Suit instituted by the Defendants, being Suit No. 3149 of 2008, against the testatrix and others. All of these documents are in English and have been executed by the testatrix in Marathi. Therefore, according to Mr. Kachare, the challenges which the 43/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC testatrix allegedly faced, on account of not being conversant with English, were also associated with those documents and, yet, the Defendants rely upon few of those documents, especially the Will dated 20th July 1989.
84. I am unable to persuade myself to accede to the aforesaid submission of Mr. Kachare. The submission looses sight of the peculiar nature of the testamentary instrument and the duty of the testamentary Court to satisfy its conscience that the testatrix fully knew and understood the contents of the Will and the nature and effect of the dispositions thereunder. The knowledge about the contents of the particular testamentary instrument sought to be imputed to the testatrix on the basis of the previous instruments inter-vivos or testamentary, does not merit acceptance. Not only the instruments but also the situations stand on different footings. It would be a fallacious to draw an inference that since the testatrix was a party to earlier instruments executed in English, the testatrix also knew the contents of the Will (P1) though she did not know and understand English
85. At this stage, the departure in the version of Bhakti (PW2) becomes significant. The identity of the person who allegedly read over and explained the contents of the Will (P1) to the testatrix in Marathi was disclosed in the further Affidavit of Bhakti (PW2), filed on 23 rd December 2014. The cross-examination of Sudheer (PW1), during the 44/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC course of which the aforesaid admissions regarding inability of the testatrix to read or write English were elicited, was recorded on 13 th August 2014. The omission to name Mr. Raul, the person who read over and explained the contents of the Will (P1) in the Affidavit of Bhakti (PW2) dated 15th December 2011, therefore, cannot be said to be immaterial or inconsequential. The improvement as regards date of the execution of the Will (P1) and the persons in whose presence the Will (P1) was executed, especially the introduction of the character of Mr. Raul, as the person who explained and interpreted the Will (P1), deserves appreciation in the aforesaid backdrop.
86. Interestingly, Ravindra (PW3) did not depose to either the presence of Mr. Raul when the testatrix executed the Will or the fact that Mr. Raul had read over and explained the contents of the Will (P1) to the testatrix. On the contrary, Ravindra (PW3) stated that on the date he claimed to have visited the house of the testatrix to witness the execution of the Will (P1), his sister Mrs. Laila Sudheer Dadarkar, the wife of Sudheer (PW1) was present.
87. It is not the case that the attesting witness Bhakit (PW2) and Ravindra (PW3) attested the execution of the Will (P1) at different points of time. Both were firm on the point that the testatrix executed the Will in their presence and they attested the Will in each other's presence. It is also imperative to note that neither Bhakti (PW2) nor 45/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC Ravindra (PW3) claimed to have read over and explained the contents of the Will (P1) to the testatrix.
88. The situation which thus emerges is that save and except a stark improvement in the version of Bhakti (PW2) that Mr. Raul read over and explained the contents of the Will (P1), there is no contemporaneous material to demonstrate that Mr Raul was present at the time of the execution of the Will (P1) and he had read over and explained the Will (P1) to the testatrix. Thus, there is substance in the submission of Mr. Parsurampuria that Mr. Raul was brought in the frame to tide over the difficulty in proving the Will on account of the admissions in the cross-examination of Sudheer (PW1).
89. Mr. Kachare, the learned Counsel for the Plaintiff, submitted that there is unimpeachable evidence of the registration of the Will, on 11 th December 2002. Both the attesting witnesses have categorically stated that the Registrar had read over the contents of the Will (P1) to the testatrix. She had admitted the correctness thereof and thereafter the Will (P1) came to be executed and attested.
90. The aforesaid version of the attesting witness does not find support in the intrinsic evidence of the Will (P1). There is no endorsement that the Registrar had read over, explained and interpreted the contents of the Will to the testatrix. Nor the concerned official from the Sub-Registrar's office was examined to substantiate the said claim. 46/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 :::
TS-39-2011.DOC In the absence of such evidence, it would be a matter of surmise and conjecture that the Registrar might have read over, explained and interpreted the contents of the Will (P1) to the testatrix.
91. The registration of the Will (P1) may give rise to the presumption that the particulars contained in the endorsement of the registration were regularly performed and duly recorded. But where there is material to show that the testatrix did not know and understand the language in which the Will (P1) is written, in the absence of positive evidence that the contents of the Will (P1) were read over and explained to the testatrix, mere registration of the Will (P1) cannot be pressed into service as the proof of the fact that the testatrix knew and understood the contents of the Will.
92. In the case of Pentakota Satyanarayana (Supra), on which reliance was placed by Mr. Kachare, the Supreme Court observed, inter alia, as under:
"24. ........ It is true that registration of the Will does not dispense with the need of proving, execution and attestation of a document which is required by law to be proved in the manner as provided in Section 68 of the Evidence Act. The Registrar has made the following particulars on Ex.B-9 which was admitted to registration, namely, the date, hour and place of presentation of document for registration, the signature of the person admitting the execution of the Will and the signature of the identifying witnesses. The document also contains the signatures of the attesting witnesses 47/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC and the scribe. Such particulars are required to be endorsed by the Registrar along with his signature and date of document. A presumption by a reference to Section 114 of the Evidence Act shall arise to the effect that particulars contained in the endorsement of registration were regularly and duly performed and are correctly recorded. In our opinion, the burden of proof to prove the Will has been duly and satisfactorily discharged by the appellants. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. In such circumstances, the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same."
(emphasis supplied)
93. The registration of the Will may be one of the circumstances which may lend credence to the case of the propounder. However, it is well neigh settled that registration of the Will does not dispense with the proof of due execution and attestation of the Will.
94. A useful reference, in this context, can be made to a decision of the Supreme Court in the case of Rani Purnima Debi and another vs. Kumar Khagendra Narayan Deb and another, 20 wherein the Supreme Court enunciated the law as under:
20 AIR 1962 SC 567.48/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 :::
TS-39-2011.DOC "23. There is no doubt that if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the will) that the testator knew that it was a will the execution of which he was admitting, the fact that the will Was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering. Law reports are full of cases in which registered wills have not been acted upon: (see, for example, Vellasaway Sarvai v. L. Sivaraman Servai, (ILR 8 Rng 179: (AIR 1930 PC 24), Surendra Nath v. Jnanendra Nath (AIR 1932 Cal 574) and Girji Datt Singh v. Gangotri Datt Singh (S) (AIR 1955 SC 346). Therefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a will; though the fact that there has been registration would be an important circumstance in favour of the will being 49/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC genuine if the evidence as to registration establishes that the testator admitted the execution of the will after knowing that it was a will the execution of which he was admitting."
(emphasis supplied)
95. On the aforesaid touchstone if the evidence in the case at hand is appreciated, it would be rather difficult to draw an inference that the registration of the Will in question establishes that the testatrix admitted the execution of the Will after knowing the nature and contents of the Will (P1) and the nature and effect of the dispositions therein.
96. Mr. Kachare, the learned Counsel for the Plaintiff would urge that the aforesaid aspects are required to be considered as a whole in the context of the strained relations between the parties. Amplifying the submission, Mr. Kachare would urge, Mahesh was given in to the voice of drinking liquor. Mahesh was instrumental in freezing of the joint account No. SB 18756 maintained with Janseva Sahakari Bank Ltd of the testatrix. Sudheer (PW1) deposed to the fact that Mahesh objected to the philanthropical work of the testatrix. Therefore, the testatrix disinherited Mahesh. Moreover, there is evidence to indicate that the Defendants did not attend the funeral of the testatrix. In the intervening period the Defendants have instituted a Suit bearing Suit No. 3149 of 2008 against the testatrix and others. Thus the challenge to the Will 50/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC (P1) on the ground that the disposition thereunder is unnatural and unfair is without any substance.
97. In the case of Ramabai Padmakar Patil (Supra) on which reliance was placed by Mr. Kachare, it was enunciated that a Will is executed to alter the mode of succession and by the very nature of the things it is bound to result in either reducing or depriving the share of a natural heir. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that the natural heirs have either been excluded or a lesser share has been given to them by itself, without anything more, cannot be held to be a suspicious circumstance, especially in a case where the bequest has been made in favour of an offspring.
98. There can be no duality of opinion on the point that mere exclusion of the natural heirs or giving of a relatively lessor share to one heir qua another, by itself, is not a suspicious circumstance, especially when the bequest has been made in favour of an offspring. A useful reference in this context can be made to the decision of the Supreme Court in the case of Uma Devi Nambiar & Ors Vs T.C. Sidhan (Dead) 21 wherein the Supreme Court enunciated the law as under:
21 (2004) 2 SCC 321.51/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 :::
TS-39-2011.DOC " Will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstances especially in a case where the bequest has been made in favour of an offspring. As held in P.P.K. Gopalan Nambiar V P.P.K. Balakrishnan Nambiar and Ors (AIR 1995 SC 1852) it is the duty of the propounder of the Will to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubting mind. It has been held that if the propounder succeeds in removing the suspicious circumstance, the Court has to give effect to the Will, even if the Will might be unnatural in the sense that it has cut off wholly or in part near relations. (See Puspavati and Ors. v. Chandraja Kadamba and Ors. (AIR 1972 SC 2492). In Ravindra Nath Mukherjee And Anr V Panchanan Banerjee (Dead) by LRs and Ors (1995 (4) SCC
459), it was observed that the circumstance of deprivation of natural heirs should not raise any suspicion because the whole idea behind execution of the Will is to interfere with the normal line of succession and so, natural heirs would be debarred in every case of Will. Of course, it may be that in some cases they are fully debarred and in some cases partly.
99. This position in law would not, however, advance the case of the Plaintiff. Had the Plaintiff succeed in establishing that the testatrix executed the Will (P1), after fully understanding the contents thereof 52/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC and the nature and effect of disposition thereunder, and the challenge to the legality and validity of the Will (P1) was restricted to unnatural and unfair dispositions thereunder, the evidence of strained relations between the parties would have furnished a justification for the exclusion of Mahesh from the bequest. However, where the propounder fails to satisfy that the testatrix knew and understood the contents of the Will (P1) and the dispositions thereunder, the strained relations of the testatrix with the heirs, who have been excluded from the estate, cannot be pressed into service in the proof of the Will (P1), as such.
100. It is also imperative to note that the the Suit was instituted by the Defendants after the demise of Mahesh. At that stage, it appeared a wedge was already driven. However, the Will (P1) was executed in the year 2002 much before the death of Mahesh.
101. The upshot of the aforesaid consideration is that as a testamentary Court, this Court has to satisfy its conscience that the testatrix had fully knew and understood the contents of the Will (P1) and the nature and effect of the dispositions therein.
102. In the face of clear evidence to show that the testatrix could not read, or write in, English and, conversely, the absence of positive evidence to show that the contents of the Will (P1) were explained to the testatrix, it would be hazardous to record a satisfaction that the testatrix fully knew and understood the contents of the Will. The 53/54 ::: Uploaded on - 05/05/2025 ::: Downloaded on - 05/05/2025 22:31:25 ::: TS-39-2011.DOC evidence on record does not induce the necessary assurance that the contents of the Will (P1) were read over and explained to the testatrix in Marathi and she knew and understood the contents of the Will (P1) and the nature and effects of the dispositions thereunder.
103. I am, therefore, inclined to answer Issue Nos.1 and 2 in the negative and Issue No.3 in the affirmative.
104. Resultantly, the Suit deserves to be dismissed.
105. Hence the following order:
: O R D E R :
(i) The Suit, and consequently, the
Petition, stand dismissed.
(ii) In the circumstances of the case, the
parties shall bear their respective costs.
(iii) Decree be drawn accordingly.
[N. J. JAMADAR, J.]
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