Bombay High Court
Vasant Gangaram Samarth vs Suresh Bhirwandekar, Mrs. Geetanjali ... on 25 June, 2025
2025:BHC-OS:9413
1 Judgement-TS 94-09.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO.94 OF 2009
IN
TESTAMENTARY PETITION NO.393 OF 2007
Mrs. Sitabai Gangaram Bhirvandekar ... Deceased
Shri Vasant Gangaram Samarth
of Mumbai, Hindu, Indian Inhabitant,
Age : 58 years, having permanent address at
Flat No.103, Shree Satguru Darshan Co-op. Hsg.
Society, Fitwala Road, Elphinston, Mumbai 400 013
and now residing temporarily at 1008, Manjunath
Complex, 2nd Floor, 3rd Block, Basaweshar Nagar,
Banglore - 560079, being sole legatee and beneficiary,
under the last Will And Testament of the Deceased ... Plaintiff
V/s.
MUGDHA 1. Mr. Suresh Bhirwandekar
MANOJ
PARANJAPE Age 53 years, residing at 13, Gopal Niwas, Hanuman
Digitally signed by
MUGDHA MANOJ
PARANJAPE Society Road, Behind D. N. C. School, Dombivli (East).
Date: 2025.06.25
18:34:20 +0530
2. Mrs. Geetanjali G. Chavan
Residing at Flat No.303/304 at Shree Complex,
Phase 2 Bldg. No.2, Third Floor, Adharwadi Jail Road,
Kalyan (West). ... Defendants
WITH
NOTICE OF MOTION NO.242 OF 2018
IN
TESTAMENTARY SUIT NO.94 OF 2009
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Ms. Hetal Pandya for the Plaintiff.
An Advocate for the Defendants (appearance is not given).
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CORAM : ARIF S. DOCTOR, J.
RESERVED ON : 08TH APRIL 2025
PRONOUNCED ON : 25TH JUNE 2025
JUDGEMENT :
1. The Suit 1.1 The Plaintiff in the captioned Suit has sought the grant of Letters of Administration of the estate of one Sitabai Gangaram Bhirwandekar ("the Deceased"), who passed away on 19th January 2005.
2. A Brief Background 2.1 The Deceased left behind as her only legal heir and next of kin, in accordance with the provisions of the Hindu Succession Act, 1956, three sons and one daughter, namely, Vasant Gangaram Samarth, i.e., the Plaintiff, Ramesh Gangaram Bhirawandekar, Suresh Gangaram Bhirwandekar, and Geentanjali Gopichand Chauhan. Suresh Bhirwandekar and Geetanjali Chavan are the Defendants to the Suit.
2.2. It is the Plaintiff's case that the Deceased left behind a writing dated 22nd August 2002 ("the said Will"), which the Plaintiff is propounding to Mugdha 2 of 14 ::: Uploaded on - 25/06/2025 ::: Downloaded on - 25/06/2025 22:38:18 ::: 3 Judgement-TS 94-09.doc be the last Will and Testament of the Deceased. The said Will is in Marathi and is attested by two witnesses, namely, Mr. Mahadeo Sitaram Vengurlekar and Mr. B. P. Mishra. The said Will is also registered before the Sub-Registrar of Assurances, Borivali-II, Bandra, Mumbai.
2.3 The Plaintiff filed the captioned Testamentary Petition seeking Letters of Administration of the estate of the Deceased based on the said Will, which was opposed by the Defendants, who are the son and daughter of the Deceased, respectively.
2.4 The Testamentary Petition was thus converted into the captioned Testamentary Suit, and the following Issues were framed for determination:
"a) Whether the last WILL and testament of the deceased Sitabai Gangaram Bhirwandekar dated 22/08/2002 was validly executed?
b) Whether the deceased was in a sound state of mind to execute the WILL on the date of execution.
c) What relief, if any, is the Plaintiff entitled to?"
3. The Plaintiff led his own evidence, i.e., Vasant G. Samarth (PW1), and the evidence of Mr. Mahadeo Sitaram Vengurlekar (PW2), one of the attesting witnesses to the said Will. The Defendants, despite the grant of ample opportunity, did not lead any evidence.
4. The Defendants did not cross-examine the Plaintiff's witnesses for over two years. In this context, it is necessary to note the following Orders Mugdha 3 of 14 ::: Uploaded on - 25/06/2025 ::: Downloaded on - 25/06/2025 22:38:18 ::: 4 Judgement-TS 94-09.doc passed by this Court :
i. The Order dated 17th July 2023, which recorded thus:
"1. Heard Mr. Mahadik, learned Advocate for Plaintiff and Mr. Shukla, learned Advocate for Defendant Nos. 1 and 2.
2. ..................
3. In pursuance of the order dated 20.06.2023, Mr. Mahadik learned Advocate for Plaintiff would submit that Plaintiff will be leading evidence of two witnesses namely Vasant Gangaram Samarth and Mahadeo Sitaram Vengurlekar. .....
4. Considering the above position, Mr. Shukla is directed to take cognizance of the same and inform the Court accordingly as to when he shall be available to cross-examine the Plaintiff's witnesses..... "
ii. The Order dated 26th February 2025, which recorded thus:
"4 ..... I have already noted by keeping back the matter that this court on 19th December 2024 granted defendant nos. 1 and 2 as and by way of indulgence an opportunity to appear and proceed with the cross-examination of plaintiff's witness. The order made clear that if none appeared on behalf of defendant nos. 1 and 2 on the next date, the court would be constrained to foreclose the right of defendants to cross-examine plaintiff's witness. On the second call, despite keeping the same back, none had appeared for defendant nos. 1 and 2. Hence the defendants' right to cross-examine the plaintiff's witness stand closed....."
iii. The Order dated 4th April 2025, which recorded thus:
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"1 Despite the last order which is conditional, today the learned
counsel for the defendants requests for one last opportunity stating that the defendants were the senior citizens and residing in Pune. She submits that after the last order, advocate for the defendants has not received any instructions from the defendants. It is for this purpose she seeks one more opportunity. She assures the court that if time is granted and she gets instructions from the defendants, the matter will be proceeded on the next date.
2 As and by way of last chance, stand over to 8th April 2025 at 2:30 p.m."
The record of this Court bears out that after this, the Defendants did not instruct the Advocates nor did they appear themselves in the Suit. It is in this backdrop that the Suit was taken up for final hearing. Submissions of behalf of the Plaintiff
5. Ms. Pandya, Learned Counsel appearing on behalf of the Plaintiff, at the outset pointed out that the said Will was attested by two attesting witnesses and was therefore in compliance with the provisions of Section 63(c) 1 of the Indian Succession Act, 1925 ( "Succession Act"). She additionally pointed out that the said Will was also duly registered before the office of the Sub- Registrar of Assurances, Borivali-II, Bandra, Mumbai, and hence there could be 1 63(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary .
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no manner of doubt that the said Will was a valid Will bereft of any suspicious circumstances and was executed by the Deceased by her own free will and accord.
6. Ms. Pandya, then in dealing with Issue (a), submitted that while a valid Will was required to be attested in the manner contemplated under Section 63(c) of the Succession Act, i.e., by two or more attesting witnesses, a Will had to be proved as per the provisions of Section 68 of the Indian Evidence Act, 1872 ("the Evidence Act"), like any other document which in law was required to be attested. She then, from Section 68 of the Evidence Act, pointed out that to prove a document which in law was required to be attested, the evidence of at least one of the attesting witnesses had to be led.
7. Ms. Pandya submitted that the Plaintiff had, in compliance with Section 68 of the Evidence Act, led the evidence of Mr. Mahadeo Vengurlekar (PW2), who had in his Affidavit of Evidence dated 30 th March 2022, deposed as follows:
"2. That on 22/08/2002, I was present together with B.P. Mishra at the time of execution of Will deed and we did then and there see the said deceased who set and subscribe her thumb impression at the foot of Testamentary paper in Marathi Language and character which is referred to the Petition herein and marked Exhibit "B" and declare and publish the same as and for her Last Will and Testament.
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3. That thereupon I this deponent and said B.P. Mishra did at the request of the said deceased and in her presence and in the presence of each other all being present at the same time set and subscribe our respective names and signature in Marathi Language at the foot of Testamentary Paper as witness thereto. "
Basis the above, Ms. Pandya submitted that PW2 had clearly deposed to the fact that (i) both Mr. B. P. Mishra and he were present at the time of the execution of the said Will, (ii) that the Deceased had executed her Will by affixing her thumb impression upon the same in the presence of both the attesting witnesses, and (iii) both the attesting witnesses had, at the request of the Deceased and in the presence of the Deceased and of each other set and subscribed their signatures at the foot of the said Will.
8. Ms. Pandya then placed reliance upon the judgement of the Hon'ble Supreme Court in the case of Meena Pradhan & Ors. vs. Kamla Pradhan & Anr.2 from which she pointed out that the Hon'ble Supreme Court had, in the context of deciding the validity and due execution of a will, held as follows:
"10. ....
10.1 The court has to consider two aspects: firstly, that the will is executed by the testator, and secondly, that it was the last will executed by him; 10.2 It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied. 10.3 A will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the will or it shall be signed 2 2023 (9) SCC 734 Mugdha 7 of 14 ::: Uploaded on - 25/06/2025 ::: Downloaded on - 25/06/2025 22:38:18 ::: 8 Judgement-TS 94-09.doc by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a will;
(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;
(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures;
(d) Each of the attesting witnesses shall sign the will in the presence of the testator, however, the presence of all witnesses at the same time is not required.
10.4. For the purpose of proving the execution of the will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;
10.5. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator;
10.6. If one attesting witness can prove the execution of the will, the examination of other attesting witnesses can be dispensed with;....."
Placing reliance on the above, she submitted that in the facts of the present case, the Plaintiff had, through the evidence of PW2 proved due execution of the said Will. She additionally pointed out that the Defendants had neither led any evidence nor had cross-examined the Plaintiff's witnesses. She also pointed out that the said Will was duly registered and thus there could be no manner of doubt that the Plaintiff had proved due execution of the said Will as per Section 63(c) of the Succession Act.
9. Ms. Pandya then pointed out that the burden of proving Issue (b) Mugdha 8 of 14 ::: Uploaded on - 25/06/2025 ::: Downloaded on - 25/06/2025 22:38:18 ::: 9 Judgement-TS 94-09.doc lay entirely upon the Defendants. She submitted that given the said Will was a duly registered Will and the fact that the Defendants had not only failed to lead any evidence but had also failed to cross-examine the Plaintiff's witness, this Issue would also have to be answered in the affirmative. She thus submitted that both Issues (a) and (b) must necessarily be answered in the affirmative.
10. Ms. Pandya then also pointed out that the allegations of undue influence and forgery made by the Defendants were entirely baseless and unsupported by any evidence. Ms. Pandya placed reliance upon the judgement of the Hon'ble Supreme Court in the case of Thangam and Anr. vs. Navamani Ammal 3 to submit that mere allegations of the testator's ill health or the exclusion of certain legal heirs were not, ipso facto, suspicious circumstances or sufficient to render a Will invalid. She pointed out from the said judgement that such allegations were required to be substantiated by credible evidence, which the Defendants had not only failed to do but not even attempted to do. She thus submitted that the Defendants had failed to discharge the burden of proof as required under Section 104 of the Bhartiya Sakshya Adhiniyam 2023.
11. She also placed reliance upon the judgement of the Hon'ble Supreme Court in the case of Derek A C Lobo and Others vs. Ulric M A Lobo (Dead) by LRs and Others4 and pointed out that the Hon'ble Supreme Court had 3 (2024) 4 SCC 247 4 2023 SCC OnLine SC 1893 Mugdha 9 of 14 ::: Uploaded on - 25/06/2025 ::: Downloaded on - 25/06/2025 22:38:18 ::: 10 Judgement-TS 94-09.doc inter alia held that the onus to dispel any suspicious circumstances would shift upon the propounder of a will only if the Defendant had been able to prima facie successfully establish the existence of suspicious circumstances. She submitted that in the facts of the present case, since the Plaintiff had proved due execution of the said Will and the Defendants had not even remotely been able to prima facie show that any suspicious circumstances in fact existed, the question of the Plaintiff having to dispel the same did not arise.
12. Additionally, Ms. Pandya very fairly submitted that PW2 had passed away on the 23rd of December 2024. The Defendants had over a year to initiate cross-examination but failed to do so during the lifetime of PW2. In view of this, she placed reliance upon the judgement of the Hon'ble Supreme Court in the case of Ashutosh Samanta (D) by Lrs. and Others vs. Sm. Ranjan Bala Dasi & Ors5 to submit that when an attesting witness has died or cannot be found, the propounder of the Will may prove the Will under Section 69 of the Evidence Act. In this case, she submitted that the Plaintiff had also filed his Affidavit of Evidence and, in accordance with Section 69 of the Evidence Act, had deposed as follows:
"3. ....The will is executed in the presence of myself, witness Mahadev S. Vengurlekar and B. P. Mishra. My mother was illiterate. Contents of the will were read over and explain to her in Marathi. She put her thumb impression on each page of the Will in my presence. Witness Mahadev S. Vengurlekar and B. P Mishra put their signature on will in my presence...."
5 AIR 2023 SC 1422 Mugdha 10 of 14 ::: Uploaded on - 25/06/2025 ::: Downloaded on - 25/06/2025 22:38:18 ::: 11 Judgement-TS 94-09.doc Basis the above, Ms. Pandya submitted that the Plaintiff had also, independent of PW2, proved due execution of the said Will however, the Defendants had also chosen not to cross-examine the Plaintiff, and thus the evidence of the Plaintiff, like that of PW2, had gone uncontroverted. Reasons and Findings:
13. After hearing Ms. Pandya and considering the evidence upon which reliance has been placed, I find as follows :
A. The Plaintiff has, in order to prove due execution of the said Will, relied upon the evidence of Mr. Mahadeo Vengurlekar i.e., PW2, who was one of the attesting witnesses to the said Will. Mahadeo Vengurlekar, in his Affidavit of Evidence, categorically deposed to the fact that (i) both he and Mr. B. P. Mishra, the second attesting witness, were present at the time of the execution of the said Will by the Deceased; (ii) the Deceased had affixed her thumb impression on the said Will in the presence of both the attesting witnesses; and that (iii) both attesting witnesses, at the request of the Deceased and in her presence and in the presence of each other, had subscribed their respective signatures as witnesses. Thus, there can be no manner of doubt that the Plaintiff has, based on the Mugdha 11 of 14 ::: Uploaded on - 25/06/2025 ::: Downloaded on - 25/06/2025 22:38:18 :::
12 Judgement-TS 94-09.doc evidence of Mahadeo Vengurlekar, discharged the preliminary burden cast upon the Plaintiff to prove execution of the said Will. B. Crucially, the Defendants have, despite ample opportunity, chosen
(i) not to file any evidence in the matter and (ii) also chosen not to cross-examine either of the Plaintiff's witnesses. The Defendants had over a year to cross-examine Mahedeo Vengurlekar before he passed away on 23rd December 2024, as is evident from the record. Equally, the Defendants had ample opportunity to cross- examine the Plaintiff but also chose not to do so. Thus, the evidence of the Plaintiff has gone entirely uncontroverted. Apart from failing to lead evidence and cross-examine the Plaintiff's witnesses, the Defendants have also abandoned the Suit, as is also clear from the record of this Court.
C. Also, it cannot be lost sight of that the said Will is a registered will.
While there is no doubt that this factor alone would not be enough to conclude that the said Will was a valid will, the facts of the present case would be a relevant factor in support of the genuineness of the said Will. This is more so because the Defendants have not even made out a prima facie of the existence of any suspicious circumstances surrounding the Will's execution. Hence, the allegation of suspicious circumstances remains the mere Mugdha 12 of 14 ::: Uploaded on - 25/06/2025 ::: Downloaded on - 25/06/2025 22:38:18 ::: 13 Judgement-TS 94-09.doc ipse dixit of the Defendants and nothing more. In this context, reliance by the Plaintiff on the judgements of the Hon'ble Supreme Court in the case of Thangam and Anr and Derek A C Lobo and Others is entirely apposite to the facts of the present case. D. The Defendants' conduct in the present case leaves no manner of doubt that the Defendants have filed their Caveat and Affidavit in support only to delay the grant of Letters of Administration in favour of the Plaintiff and nothing else. The conduct of the Defendants thus is plainly malafide and must thus be met with an Order of costs. There is a duty cast upon the Courts to discourage Parties from prolonging litigation by imposing costs, using it as a tool to (i) prevent abuse of the law (ii) protect the Plaintiff from being deprived of their rights and (iii) discourage frivolous litigation, as held by the Hon'ble Supreme Court in the case of Salem Advocate Bar Association vs. Union of India 6, this Court in the case of Charu Kishor Mehta vs Prakash Patel7 and by the Hon'ble Supreme Court in the case of Padmawati vs Harijan Sewak Sangh8.
6 AIR 2005 SCC 3353
7 2022 SCC OnLine SC 1962
8 2010 SCC OnLine SC 379
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14. Hence, for the aforesaid reasons, I pass the following Order:
ORDER I. Issues 'a' and 'b' are answered in the affirmative.
II. The Suit is decreed as prayed for.
III. For the reasons set out in (E) above, the Defendants are also directed
to pay costs of Rs.2,50,000/- (Rupees Two Lakhs Fifty Thousand Only) to the Plaintiff.
IV. In view of disposal of the Suit, nothing survives in Notice of Motion No.242 of 2018 and the same is disposed of accordingly.
(ARIF S. DOCTOR, J.)
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