Bangalore District Court
Mr.Vivek Y.Bhatt vs Mrs.Anjali Y.Bhatt on 13 March, 2020
IN THE COURT OF THE XIX ADDL. CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY: (CCH.18)
Dated this the 13th day of March, 2020.
Present
Present SRI.DINESH HEGDE, B.A.,LL.B.,
XIX ADDL. CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
O.S.NO.1680/2018
PLAINTIFF: Mr.Vivek Y.Bhatt,
s/o Yogesh V.Bhatt,
aged about 40 years,
r/at No.911, 9th Floor,
Esteem Classic Aparts,
Rajajiangar Industrial Suburb,
Bengaluru-560 022.
(By Sri.H.V.Harish, Advocate)
-VS-
DEFENDANTS: 1.Mrs.Anjali Y.Bhatt,
w/o Yogesh.V.Bhatt,
aged about 67 years,
r/at No.639, 9th Main,
2nd Cross, 3rd Block, 3rd Stage,
Basaveshwaranagar,
Bangalore-560 079.
2. Miss.Divya Y.Bhatt,
d/o Yogesh.V.Bhatt,
aged about 44 years,
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O.S.No.1680/2018
Flat No.B.TF-301, 3rd Floor,
Ramakrishnappa Road,
Cox Town,
Bengaluru-560 005.
3. Mrs.Shweta.V.Bhatt,
w/o Vivek.Y.Bhatt,
aged about 38 years.
4. Master.Vihaan.V.Bhatt,
s/o Vivek.Y.Bhatt,
aged about 9 years.
5. Kum.Rysha.V.Bhatt,
w/o Vivek.Y.Bhatt,
aged about 5 years.
Defendant No.4 & 5 since minors
are Rep.by Guardian/mother
Smt.Shweta.V.Bhatt.
Defendant 3 to 5 are
r/at No.911, 9th Floor,
Esteem Classic Aprts,
Rajajiangar Industrial Suburb,
Bengaluru-560 022.
6. Mr.Yatish.M.Bhatt,
s/o late Manoj.V.Bhatt,
aged about 38 years,
M/s.Yoshama & Co.(Pune) Pvt.Ltd.,
A-81, H-Block, MIDC, Pimpri,
Pune, Maharashtra State,
Pin:400118.
(D.1 & 2 - Sri.R.D.S., Advocate)
(D.3 to D.6 - By Sri.S.Suresh,
Advocate)
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O.S.No.1680/2018
Date of Institution of the suit : 2/3/2018
Nature of the Suit : Declaration
Date of commencement of recording
of evidence : 17/1/2018
Date on which the Judgment was
pronounced : 13/3/2020
Year/s Month/s Day/s
Total Duration : 02 00 11
(Dinesh Hegde)
XIX ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY.
JUDGMENT
Initially, plaintiff has filed P & SC.No.254/2017 praying for grant of Probate Certificate of the Will dtdL27/1/2017 in his favour. As per the Orders passed by this court in P & Sc.254/2017, it was converted in to Original Suit bearing No.1680/2018.
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O.S.No.1680/2018
2. The case of plaintiff in nutshell:-
The plaintiff's father Yogesh.V.Bhatt died on 13/2/2017 leaving behind him his wife Mrs.Anjali Y.Bhatt, the 1st defendant, Mr.Vivek Y.Bhatt, plaintiff herein, Miss.Divya Y.Bhatt the 2nd defendant. The plaintiff has married Mrs.Shweta V.Bhatt and they have 2 children i.e., Master Vihaan V.Bhatt and Kum.Rysha V.Bhatt who are minors.
3. The schedule properties "A to G" are the self- acquired movable and immovable properties of the deceased Yogesh.V.Bhatt, who in his lifetime had executed a Regd.Testament/Will dtd:27/1/2017 bequeathing the same in favour of his legal heirs as per his desire. It was his last Will. The testator has executed the Will in the presence of two attestors who signed the Will in the presence of the testator and testator signed the Will in the presence of attestors after understanding its contents. The testator was in good and sound disposing state of mind while executing and 5 O.S.No.1680/2018 signing the Will in the presence of attestors. The testator was fully aware of the contents of the Will and approved the same by signing the Will voluntarily. The said Will was executed during the life time of testator as per his wish and desire. The Will dtd:27/1/2017 was revealed by N.S.Raghuprasad who was very close to the father of the plaintiff who read the contents of the Will in the presence of defendants and other family members and gave each of them a photo copy of the same and has retained original with him. The said Will is acted upon after the death of the Testator.
4. The property bearing No.639 situated at 9th Main, 2nd Cross, 3rd Block, 3rd Stage, Basaveshwara Nagar, Bangalore, is the self-acquired property of the deceased Yogesh.V.Bhatt, purchased as per the Regd. Sale deed dtd:20/11/1992. As per the terms of the last wish of the testator of the said Will, the plaintiff shall be the absolute owner of schedule 'A' property coming to effect on the death of the testator. However, the respondent 6 O.S.No.1680/2018 No.1 is entitled to enjoy schedule 'A' property till her life time only by residing therein, without alienating or leasing or encumbering the same in any manner. The same shall be used for residential purpose only and not to be used for commercial or religious purposes by 1 st defendant. The 2nd defendant Miss.Divya Y.Bhatt shall not have any right, title what so ever over schedule 'A' property. The testator Yogesh V.Bhatt during his life was working with M/s.Yoshama and Company Pvt.Ltd., and has left behind provident fund which is described as 'B' schedule property and the same is bequeathed in favour of plaintiff herein as per Will dtd:27/1/2017. The schedule 'C' property being the Funds in Savings Bank Account and Fixed deposits in various Banks and the amounts therein standing in the name of the testator to be shared i.e., 20% in favour of 1 st defendant Smt.Anjali Y.Bhatt, 20% in favour of 2 nd defendant Miss.Divya Y.Bhatt, remaining balance 60% in favour of his grand- children equally i.e., Master Vihaan V.Bhatt and 7 O.S.No.1680/2018 Kum.Rysha V.Bhatt, the 4th and 5th defendants respectively. As they are minors, the same shall be operated by father/guardian for their welfare, education, health and their benefits only. The schedule 'D' property being the Gratuity amount standing in the name of the testator to be shared amongst the defendant No.1 to 3 as per the Will dtd:27/1/2017.
5. The testator Yogesh Vishwanath Bhatt possessed shares in M/s.Yoshama and Company Pvt.Ltd., Bangalore during his life time. The plaintiff herein has been working with the said company for over 15 years. The 3rd defendant Mrs.Shwetha.V.Bhatt is also actively involved in the said company. There is an overdraft of Rs.90,00,000/- forwarded by said company by ICICI Bank. There is also loan granted by Kotak Mahindra Bank to the tune of Rs.50,00,000/- in favour of the said company on the title deeds of the flat held by the plaintiff. On the aforesaid reasons mentioned in the Will dtd:27/1/2017, the testator has already transferred 8 O.S.No.1680/2018 shares of M/s.Yoshama & Co.,Pvt.Ltd., in favour of plaintiff herein and Smt.Shwetha V.Bhatt during his life time. Hence, plaintiff is not claiming any relief with respect to schedule 'E' property and the same is shown in the schedule only for the purpose of clarity. The said shares described above are already transferred in favour of plaintiff and 3rd defendant herein is more fully described as schedule 'E' property.
6. The schedule 'G' property being the shares/deposits of M/s.Yoshama and company (Pune) Pvt.Ltd., standing in the name of testator is bequeathed in favour of Mr.Yatish.M.Bhatt/ 6th defendant herein, the nephew of the testator as per his desire on performing the following:-
a) Clearing/closing the overdraft/cash credit limit forwarded to M/s.Yoshama and Company (Pune) Pvt.Ltd., based on the guarantee of M/s.Yoshama and Company Pvt.Ltd., Bangalore.
b) After the change of the name from M/s.Yoshama and Company (Pune) Pvt.Ltd., to any other name not involving the name "Hoshama".9
O.S.No.1680/2018
7. It is further averred in the plaint that the plaintiff being the son of 1st defendant is taking care of her along with all her needs including medical etc., apart from paying monthly allowance of Rs.20,000/- as per the will and wish of the testator Yogesh.V.Bhatt. The plaintiff owns immovable property bearing Flat No.BTF-301, Corporation No.2/9, on the 3 rd floor, Charles Campbell Road, Cox Town, Bangalore. The same is the self- acquired property of the plaintiff. The plaintiff has no objection to transfer the said property in favour of Mrs.Anjali.Y.Bhatt and Miss.Divya.Y.Bhatt, the 1st & 2nd defendants jointly as per the advice of his father Yogesh.V.Bhatt, the testator provided the defendants act as per the desire and intention of the Yogesh.V.Bhatt as per the Will dtd:27/1/2017.
8. In order to perform the desire and wishes of the testator in the said Will, the plaintiff requires a Probate, not only to pay taxes, but also to execute, perform and 10 O.S.No.1680/2018 manage the movable and immovable properties described in the various schedules in the aid Will, and in this suit. The testator last resided and died at Bangalore. The Will was executed at Bangalore, within the jurisdiction of this court. The original Will dtd:27/1/2017 is with N.S.Raghu Prasad, the attester and close confidante of the deceased testator Yogesh.V.Bhatt. Separate application is filed for producing the said Will before this court. Hence, plaintiff prays to grant Probate Certificate in his favour in accordance with the Will dtd:27/1/2017, registered in the office of the Sub- Registrar, Rajajinagar, Bangalore.
9. After service of suit summons, the defendant No.1 appeared through her counsel and filed her written statement by admitting the fact that plaintiff is also the propounder of the Will and his father Yogesh.V.Bhatt died on 13/2/2017 leaving behind him, his wife and defendant No.1 & 2. He has also admitted that plaintiff is married 11 O.S.No.1680/2018 to Mrs.Shweta.V.Bhatt and has 2 children Master Vihaan V.Bhatt and Kum.Rysha.V.Bhatt. He has contended that she along with her husband Yogesh.V.Bhatt the testator of the purported Will, had been residing at No.639, 9 th Main, 2nd Cross, 3rd Block, 3rd Stage, Basaveshwara Nagar, Bangalore, for the last 25 years and as the wife of the testator for 46 years, the 1 st defendant remained loyal and faithful until his death.
10. The testator was a chronic liver patient and the disease progressed in March 2015, his kidneys failed, he was subjected to dialysis 3 days a week, and his health deteriorated rapidly. The testator was admitted in Aster Hospital, Hebbal from 12/12/2016 to 31/12/2016, during which he had to be placed in intensive care unit (ICU). He was once again admitted in the same hospital from 11/1/2017 to 31/12/2016, during which he had to be placed in the Critical Care Unit (CCU), and thereafter, was admitted in Columbia Asia Hospital from 3/2/2017 to 13/2/2017. In the midst, testator being treated for his 12 O.S.No.1680/2018 chronic illness and was in and out of hospital and was not mentally alert, the purported Will was registered on 27/1/2017. Each time on discharge from hospital, the propounder of the Will compelled the 1st defendant to take the testator to the propounder's residence for rest and recuperation. The 1st defendant continued to take care of the testator after his discharge from hospital as he was simply too weak and exhausted. The testator was not in a position to apply his mind to anything, he only wanted rest and was leaning on the 1 st defendant for comfort and at no point of time, did the testator mention to the 1st defendant that he was going to make and execute a Will on 27/1/2017. The testator was unable to do anything freely and independently and was not in a position to make dispositions of any kind under a Will and to have the same executed and registered.
11. On 27/1/2017 the day the Will was registered, the testator was staying in the propounder's house and was to go for the dialysis of the week, the propounder 13 O.S.No.1680/2018 informed him that the testator was extremely weak and that day's dialysis had to be postponed for the following day, and that he persuaded him not to go to his house. The date on which the Will was registered i.e., 27/1/2017 was the birthday of the 1st defendant and the testator did not have the consciousness that it was her birthday and did not wish her as he did throughout his married life. The 2nd defendant who visited the testator in the evening of 27/10/2017, found him very ill, weak and unable to talk. The propounder of the Will with oblique motive prevented the 1st defendant from meeting her husband, the testator on the day 27/1/2017. The propounder of the Will got the Will made, executed and registered clandestinely without the knowledge of the 1 st defendant wife and 2nd defendant daughter of the testator.
12. Defendant No.1 has further contended that in the purported Will, the testator has bequeathed a substantial portion, almost all of his estate to the 14 O.S.No.1680/2018 propounder, plaintiff herein leaving very little to his wife and his only daughter. The properties bequeathed to the propounder includes a residential house estimated at Rs.5,00,00,000/-, entire provident fund balance approximately Rs.35,00,000/- a share in the savings bank and fixed deposit account to the propounder's children estimated at Rs.15,00,000/-, gratuity to the propounder's wife at Rs.20,00,000/- and shares in M/s.Yoshama and Company Pvt.Ltd., already transferred to the propounder, deposits in the said company to the propounder and his wife of unknown value, other shares/mutual funds to the propounder of unknown value. In all the value of the estate bequeathed by the testator to the propounder of the Will is more than Rs.570,00,000/-. The testator has allowed his wife residential access to the house at Basaveshwaranagar, with no other rights over it, has directed the propounder to provide for her medical needs during her life time and to pay her a monthly allowance of Rs.20,000/- has 15 O.S.No.1680/2018 bequeathed 20% of bank balance in Savings and Fixed Deposit Accounts, her share estimated at Rs.4,00,000/- and Rs.1,00,000/- from the gratuity amount. In all, the value of the estate left for the 1 st defendant is approximately Rs.5,00,000/- only and a direction to pay monthly allowance and medical bills. The testator has advised the propounder to transfer the flat standing in the name of the propounder at Abdul Haffez Road (Ramakrishnappa Road), adjoining Charles Campbell Road, Cox Town, Bangalore and has bequeathed 20% from the Savings Bank and Fixed Deposit Accounts, her share estimated at Rs.4,00,000/- and Rs.2,00,000/- from the gratuity amount, in all the value of the estate left for the 2nd defendant is estimated at Rs.6,00,000/-. The testator has also bequeathed his shares held in M/s.Yoshama and Company(Pune) Pvt.Ltd., to his nephew Mr.Yataish M.Bhat.
13. The dispositions made by the testator bequeathing substantial portion of his estate to the propounder and 16 O.S.No.1680/2018 leaving a meager sum to the 1st defendant wife and the 2nd defendant daughter is unnatural and improbable and is not in consonance with the mind of the testator as known to the 1st defendant, wife of the testator for 46 years. Hence, prays to dismiss the suit of the plaintiff with exemplary costs.
14. The advocate for the 2nd defendant filed a Memo dtd:23/8/2017 by adopting the written statement filed by the 1st defendant herein.
15. The defendant No.3 to 6 filed their written statement by admitting the death of plaintiff's father Yogesh V.Bhatt demised on 13/2/2017 leaving behind him, his wife 1st defendant and daughter 2nd defendant. They also admits the relationship of plaintiff with defendant No.3 to 5 as his wife and children. They admitted that the schedule properties 'A' to "G" are the self-acquired movable and immovable properties of the deceased Yogesh.V.Bhatt, who in his life time had 17 O.S.No.1680/2018 executed a Regd.Testament/Will dtd:27/1/2017, registered in the office of the Sub-Registrar, Rajajinagar, Bengaluru, bequeathing the same in favour of his legal heirs as per his desire and also admit that it was his last Will. The testator executed the Will in the presence of the two attestors who signed the Will in the presence of the testator and testator signed the Will in the presence of attestors after understanding its contents. They further admit the averment of the plaint that the testator was in good and sound disposing state of mind while executing and signing the Will, in the presence of the attestors. They contended that the Will dtd:27/1/2017 was revealed by N.S.Raghuprasad who was very close to the father of the plaintiff who read contends of the Will in the presence of defendants and other family members and gave each of them a photo copy of the same and has retained original Will with him is true. It is a fact that the said Will is acted upon after the death of the testator.
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16. They contended that the property bearing No.639, situated at 9th Main, 2nd Cross, 3rd Block, 3rd Stage, Basaveshwara Nagar, Bangalore, is the self- acquired property of the deceased Yogesh.V.Bhatt, purchased as per the Regd. Sale deed dtd:20/11/1002 is true and correct. The further averments made in same para that as per the terms and last wish of the testator of the said Will, the plaintiff shall be the absolute owner of schedule 'A' property coming to effect on the death of the testator is true and correct. They also admit that however, the defendant No.1 is entitled to enjoy schedule 'A' property till her life time only by residing therein, without alienating or leasing or encumbering the same in any manner. The 2 nd defendant Miss.Divya Y.Bhatt shall not have any right, title what so ever over schedule 'A' property is true and correct. The testator Yogesh.V.Bhatt during his life was working with Yoshama and Company Pvt.Ltd., and has left behind provident fund, which is described as schedule 'B' property and the 19 O.S.No.1680/2018 same is bequeathed in favour of plaintiff herein as per Will dtd:27/1/2017 is true and correct. The further averments made in the same para that the schedule 'C' property being the funds in savings bank account and fixed deposits in various banks and the amounts therein standing in the name of the testator to be shared i.e., 20% in favour of 1st defendant, 20% in favour of 2 nd defendant, remaining balance 60% in favour of his grand-children equally I.e., 4th & 5th defendants respectively is true and correct. The further averments made in the same para that the schedule 'D' property being the Gratuity amount standing in the name of the testator to be shared amongst the defendant No.1 to 3 as per the Will dtd:27/1/2017 is true and correct.
17. They have further admitted that the testator Yogesh Vishwanath Bhatt possessed shares in M/s.Yoshama & Company Pvt.Ltd., Bangalore during his life time. The further averments made in same para that the plaintiff herein has been working with said 20 O.S.No.1680/2018 company for over 15 years. The further averments made in same para that the plaintiff is not claiming any relief with respect of schedule 'E' property and the same is shown in the schedule only for the purpose of clarity is true and correct. The further averments made in same para that the said shares described above and already transferred in favour of plaintiff and 3rd defendant is a fact. The shares/mutual funds held/invested by testator TTK Ltd., SBI, ICICI etc., and future acquisitions and transfers acquired by the testator if any, is also bequeathed in favour of plaintiff herein and 3rd defendant is true and correct.
18. The schedule "G" property being the shares/deposits of M/s.Yoshama and company (Pune) Pvt.Ltd., standing in the name of testator is bequeathed in favour of Mr.Yatish M.Bhatt/6th defendant herein, the nephew of the testator as per his desire on performing the following:-
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(a) Clearing/closing the overdraft/cash credit limit forwarded to M/s.Yoshama and Company (Pune) Pvt.Ltd., based on the guarantee of M/s.Yoshama and Company Pvt.Ltd., Bangalore.
(b) After the change of the name from M/s.Yoshama and Company (Pune) Pvt. Ltd., to any other name not involving the name "Yoshama" is true and correct.
19. They have further admitted that the plaintiff being son of 1st defendant is taking care of her along with all her needs including medical etc., apart form paying monthly allowance of Rs.20,000/- as per the will and wish of the testator Yogesh V.Bhatt and that the plaintiff owns immovable property bearing Flat No.BTF-301 Corporation No.2/9 on the 3rd floor, Charles Campbell Road, Cox Town, Bangalore is true and correct and the further averment made in same para that the same is self-acquired property of the plaintiff is true and correct.
20. In order to perform the desire and wishes of the Testator in the said Will, the plaintiff requires a Probate, not only to pay taxes, but also to execute, perform and 22 O.S.No.1680/2018 manage the movables and immovable properties described in the various schedules in the said Will, and in this plaint may be true and correct. In fact, these defendants also require the probate. These defendants state that the Will has been acted upon and they have no objections for the plaint to be allowed and the movable and immovable properties mentioned in the registered Will be distributed as per the wish of the testator. Hence, prays to decree the suit.
21. Plaintiff has filed Rejoinder to the written statement filed by the defendant No.1 & 2 by contending that the plaintiff asserts that he is not the propounder of the said Will and he was not aware of the execution of the said Will and its contents until it was brought forth by Mr.N.S.R.Prasad one of the witnesses to the said Will and custodian of the said Will and read out in the presence of all the family members and relatives including the defendant No.1 & 2. The 1 stdefendant 23 O.S.No.1680/2018 along with her husband Mr.Yogesh.V.Bhatt, the testator of the purported Will, had been residing at No.639, 9 th Main, 2nd Cross, 3rd Block, 3rd Stage, Basaveshwara Nagar, Bengaluru, for the last 25 years and as the wife of the testator for 46 years, the 1 st defendant remained loyal and faithful until his death as alleged is denied as false and the defendant No.1 & 2 be put to strict proof of the same. But, lot of differences was there between the testator and the 1st defendant and their marital life was not peaceful. It is also relevant to bring forth that the 2 nd defendant also had differences of opinion with the testator on many family issues.
22. The testator was a chronic liver patient and the disease progress in March 2015, his kidneys failed, he was subjected to dialysis 3 days a week, and his health deteriorated rapidly as alleged is denied as false and the defendant No.1 & 2 are put to strict proof of the same. The testator was admitted to Aster hospital, Hebbal from 12/12/2016 to 31/12/2016 during which he had to 24 O.S.No.1680/2018 be placed in intensive care unit (ICU) and he was again admitted in the same hospital from 11/1/2017 to 20/1/2017 during which he had to be placed in the Critical Care Unit (CCU), and thereafter was admitted to Columbia Asia Hospital from 3/2/2017 to 13/2/2017 as alleged is denied as false. In the midst of the testator being treated for his chronic illness and was in and out of hospital and was not mentally alert, the purported Will was registered on 27/1/2017 is denied as false. The plaintiff has denied that the testator was not in a position to apply his mind to anything, he only wanted rest and was leaning on the 1st defendant for comfort and at not point of time, did the testator mention to the 1st defendant that he was going to make and execute a Will on 27/1/2017 as false. Further, he has denied that the testator was unable to do anything freely and independently and was not in a position to make dispositions of any kind under a Will and to have the same executed and registered as false.
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23. The plaintiff asserts that the testator even though while undergoing treatment for liver and kidney diseases and dialysis, was hale and healthy and mentally alert and agile, responding to all instructions of the doctors and any communications between him and his relatives and capable of making decisions. It was the testator himself who wanted to stay at the residence of the plaintiff for want of change of atmosphere which was accepted by all the family members, and also a fact that Columbia Asia Hospital (Yeshwanthpur) was nearer to the residence of the plaintiff for any general emergency treatment that may be required at any point of time for the need of the testator. On 27/1/2017, the day the Will was registered, the testator was staying in the propounder's house and was to go for the third dialysis of the week, the propounder informed the 1 st defendant that the testator was extremely weak and that day's dialysis hd to be postponed for the following day and that he persuaded the 1st defendant not to go to his 26 O.S.No.1680/2018 house as alleged is denied as false. The plaintiff asserts that it was the testator, who did not want to have dialysis on the day the said Will was registered for the best reasons known to him. The testator being mentally agile and physically hale and healthy had instructed the plaintiff that he did not want to have dialysis on the said day and asked the plaintiff and the 3rd defendant to go to the office and carry out pending works as Mr.N.S.R.Prasad was with him and that the testator had some discussions to be carried out with the said Prasad. As such, the plaintiff and his wife had gone to the office on the instructions of the testator with the confidence that Mr.N.S.R.Prasad was with the testator. He has denied the fact that the date on which the Will was registered i.e., 27/1/2017 was the birthday of the 1 st defendant and the testator did not have the consciousness that it was her birthday and did not wish her as he did through his married life as false. The 2 nd defendant who visited the testator in the evening of 27 O.S.No.1680/2018 27/1/2017 found him very ill, weak and unable to talk and the propounder of the Will with oblique motive prevented the 1st defendant from meeting her husband, the testator on the said date is denied false.
24. The plaintiff asserts that he is not the propounder of the said Will and confidante of the testator brought forth the said Will and read out the same in the presence of the parties to this suit and also other relatives. He has denied that in the purported Will, the testator has bequeathed a substantial portion, almost all of his estate to the propounder, the plaintiff herein leaving very little to his wife and his only daughter. The plaintiff asserts that he is not the propounder of the Will and has nothing to do with the execution and registration of the Will and its dispositions. Moreover, the dispositions as disposed by the testator to the 1st and 2nd defendants is as per the desire of the testator and the plaintiff had no role whatsoever in the execution of the said Will and its disposition of the estate of the testator. 28
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25. The properties bequeathed to the propounder includes a residential house estimated at Rs.5,00,00,000/-, entire provident fund balance approximately Rs.35,00,000/-, a share in the savings Bank and fixed deposit of approximately Rs.35,00,000/-, a share in the savings bank and fixed deposit account to the propounder's children estimated at Rs.15,00,000/-, gratuity to the propounder's wife estimated at Rs.20,00,000/- and shares in M/s.Yoshama and Co.Pvt.Ltd., already transferred to the propounder, deposits in the said company to the propounder and his wife of unknown value and in all the value of the estate bequeathed by the testator to the propounder of the Will is more than Rs.5,70,00,000/- is denied as false and the defendant No.1 & 2 are put to strict proof of the same. However, the bequeathment and disposition in favour of the plaintiff is as per the desire and wish of the testator. It is pertinent to note that the 1 st and 2nd defendants have already received the credit of the 29 O.S.No.1680/2018 provident fund due to them respectively.
26. He has further denied that all the value of the estate left for the 1st defendant is appropriately Rs.5,00,000/- as alleged is false and the further averment that a direction to pay monthly allowance and medical bills is true and correct. The further averment that the testator has advised the propounder to transfer the flat standing in the name of the propounder at Abdul Haffez Road, adjoining Charles Campbell Road, Cox Town, Bangalore and has bequeathed 20% from the savings bank and fixed deposit accounts, her share estimated at Rs.4,00,000/- and Rs.2,00,000/- from the gratuity amount, may be true and the further averment that in all the value of the estate left for the 2 nd defendant is estimated at Rs.6,00,000/- as alleged is denied as false and the defendant No.1 and 2 are put to strict proof of the same. The plaintiff asserts that the value of the flat advised by the testator of the Will to be transferred in the joint names of the 1 st and 2nd 30 O.S.No.1680/2018 defendant is approximately worth Rupees One Crore. He has admitted that the testator has also bequeathed his shares held in M/s.Yoswhama and Co., (Pune) Pvt.Ltd., to his nephew Mr.Yatish M.Bhatt is true and correct and same is as per the recitals of the Will.
27. Plaintiff had nothing to do with the bequeathness and dispositions made by the testator as per his desire in the said Will. The further averments in the said statement of objections to the plaint which are not specifically traversed are denied as false and the defendant No.1 & 2 are put to strict proof of the same. The testator had executed the Will as per his desire, taking in to consideration of all facts, which were personally known to him. The defendant No.1 & 2 have denied the execution of Will only with an ulterior motive to disturb the intention/desire of the testator. There is no truth in their contentions. The written statement being contrary to the plaint averments and Will executed by the testator are liable to be discarded and prays to 31 O.S.No.1680/2018 allow his suit.
28. Based on the above pleadings, the following issues were framed:-
ISSUES
1. Whether the plaintiff proves that deceased Yogesh.B.Bhatt father of plaintiff executed his last Will dtd:27/1/2017 under a sound state of mental and physical health and bequeathed the schedule property in favour of plaintiff and defendants?
2. What order or decree?
29. On behalf of the plaintiff, attestors of the Will and plaintiff are examined as P.W.1 to 3 and marked Ex.P.1 to Ex.P.20. On behalf of the defendants, defendant No.1 & 2 and an expert witness by name Dr.Savio Pereira examined as D.W.1 to 3 respectively and marked Ex.D.1 to Ex.D.3 and also marked Ex.P.21 to Ex.P.26 in the cross-examination of D.W.1 & 2.
30. Heard the arguments of both sides and perused the records.
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31. My findings on the above issues are as follows :-
Issue No.1:- In the Affirmative; Issue No.2:- As per the final order for the following:-
REASONS
32. ISSUE No.1 :- It is the specific case of the plaintiff that he is the son of deceased Yogesh.V.Bhatt and during the life time of Yogesh.V.Bhatt, he executed a Regd.Will dtd:27/1/2017 by bequeathing the suit schedule properties in favour of plaintiff and defendants. Hence, he sought for Probate certificate.
33. Some of the admitted facts are that defendant No.1 is wife of Yogesh.V.Bhatt. Defendant No.2 is his daughter and plaintiff is the son. Defendant No.3 is the wife of plaintiff. Defendant No.4 & 5 are the minor children of the plaintiff and defendant No.3. It is admitted fact that Yogesh.V.Bhatt was the owner of the schedule properties. According to the plaintiff , during the life time of Yogesh.V.Bhatt, he executed a Regd.Will 33 O.S.No.1680/2018 dtd:27/1/2017 by bequeathing the suit schedule properties not only in favour of the plaintiff, but also in favour of the defendant No.1 to 5. The defendant No.1 & 2 being the wife and daughter of deceased Yogesh.V.Bhatt, contended that the testator was the chronic liver patient and he was not in a position to execute a Will and he was not in a mental capacity to execute Will. It is further contended by defendant No.1 & 2 that in the Will, the testator had bequeathed substantial portion almost all of his estates to the propounder leaving very little to his wife and daughter.
34. Since the defendant No.1 & 2 have disputed the Will said to have been executed by Yogesh.V.Bhatt, the burden of proving the due execution of the Will lies upon the plaintiff. To prove the execution of the Will, plaintiff has been examined as P.W.3. Ex.P.1 to Ex.P.26 are marked. The plaintiff has also examined two more witnesses as P.W.1 & 2. Both P.W.1 & 2 are the attestors to the Will dtd:27/1/2017.
34
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35. During the trial, the plaintiff has filed necessary application to summon the Sri.Arvind Kumar Neema as a witness. He has been summoned and examined as P.W.1. In his evidence, P.W.1 has stated that he knew the deceased Yogesh.V.Bhatt since 1995. On 27/1/2017 he called him and expressed his inclination to executed his last Will and he was asked to come to Sub-Registrar's office, Rajajinagar and showed him a drafted Will in which he was intending to convey his movable and immovable properties to his wife and children. Accordingly, he signed the Will. According to P.W.1, the deceased Yogesh.V.Bhatt was in sound state of mind and health and along with him, another person by name Mr.Prasad was present. A certified copy of the Will was produced and marked as Ex.P.1 subject to proof and objection raised by respondent. The signature of the witness is marked as Ex.P.1(a).
36. P.W.2 is the witness No.1 who claims to be an attestor to the Will. In his evidence, he has stated that 35 O.S.No.1680/2018 the deceased Yogesh.V.Bhatt was running a business of manufacturing springs in the name and style of "M/s.Yoshama & Company Pvt.Ltd.," Bangalore. During his life time, Yogesh.V.Bhatt had expressed in the month of December 2016, his desire to make a Will disposing his properties. On 27/1/2017 Yogesh.V.Bhatt called him and informed his intention to execute the Will. Accordingly, he was personally present when Yogesh.V.Bhatt executed the Will on 27/1/2017 and it was duly registered before the Sub-Registrar, Rajajianagar, Bangalore Urban. According to P.W.2, Yogesh.V.Bhatt was in sound and disposing state of mind at the time of execution of the Will. Before executing the Will, Yogesh.V.Bhatt read over the contents of the Will and feeling satisfied over the same, he executed a Will by affixing his signatures in his presence and in the presence of another witness Arvind Kumar. Then, both of them affixed their signatures in the Will. After execution of the Will, he went to office and he handed 36 O.S.No.1680/2018 over the registered original Will to him and also a old Will and directed him to keep the same in his custody and instructed him to reveal the same to his family members after his demise. Accordingly, both the Wills were in the custody of him and he produced both the Wills.
37. P.W.2 has further stated that in Yogesh.V.Bhatt died on 13/2/2017 in Columbia Asia Hospital, Yeshwanthapura, Bangalore. Thereafter, he informed all the relatives of deceased about the Will. He handed over the photo copy of the Will to all the beneficiaries of the Will and he took back the original Will dtd:27/1/2017 and 3/4/2013 to be kept in safe-custody with him. So, he has produced both the Wills dtd:27/1/2017 and 3/4/2013. Both the Wills are marked as Ex.P.2 & Ex.P.3. The signature of P.W.2 in the Ex.P.2 is marked as Ex.P.2(a). According to P.W.2, deceased Yogesh.V.Bhatt had canceled Will under Ex.P.3. According to P.W.2, the Ex.P.2 is the last Will of Yogesh.V.Bhatt. He identified 37 O.S.No.1680/2018 the signature of deceased Yogesh.V.Bhatt and marked as Ex.P.2(c) to (i).
38. P.W.3 is none other than the plaintiff in his evidence reiterated the facts stated in the plaint. According to P.W.3, under the Will marked at Ex.P.2, the testator has bequeathed the properties to all his legal representatives. During his examination-in-chief, he has produced Ex.P.4 to Ex.P.20.
39. Ex.P.4 is the loan application of Yoshama & Co., Pvt.Ltd., dtd:31/8/2016 reveal that a home loan was sanctioned subject to general and special terms of Ex.P.4 in which Mr.Vivek Bhatt who is the plaintiff herein stood as a guarantor and a sum of Rs.50 Lakhs was obtained as a loan. Ex.P.5 is the loan agreement of the M/s.Yoshama & Co., with Kotak Mahindra. Ex.P.6 is the copy of the demand draft for a sum of Rs.50 Lakhs reveal that a loan of Rs.50 Lakhs was sanctioned by the Kotak Mahindra Bank in favour of M/s.Yoshama & Co., 38 O.S.No.1680/2018 Pvt.Ltd. Ex.P.7 is a intimation letter dtd:21/3/2017 reveal that M/s.Yoshama and Co., Pvt.Ltd., submitted a renewal request to the ICICI Bank, Rajajinagara Branch for availing the facility loan of amount not exceeding Rs.9.00 mn for the purpose of production of springs.
40. Ex.P.8 is the copy of the letter extract produced by the plaintiff to show that he has periodically sent maintenance amount to Smt.Anjali Y.Bhatt who is the defendant No.1 herein by NEFT from February 2017 to July 2017. This statement is produced by the plaintiff to show that he has remitted the amount of maintenance at Rs.20,000/- per month in to the bank account of defendant No.1. Ex.P.9 is the statement relating to medical expenses reimbursed to the defendant No.1 by way of NEFT. Ex.P.10 is the statement of expenses towards provisions of defendant No.1 paid to M/s.Shivaram Provisional Stores by way of NEFT. Ex.P.11 is the statement prepared by the plaintiff relating to 39 O.S.No.1680/2018 expenses of cooking gas of defendant No.1. Ex.P.12 is the statement relating to repairs and maintenance of equipments used by respondent No.1 of the flat in which she is residing. Ex.P.13 is the statement prepared by the plaintiff relating to newspaper used, transferred to Karnataka Bank. These Ex.P.8 to 13 are marked subject to proof.
41. Ex.P.14 is the medical certificate issued by Dr.N.K.Anupama, Consultant Gastroenterologist reveal that Yogesh.V.Bhatt was being seen Aster CMI Hospital by the team of physicians and experts for Cirrhosis of liver. His last admission in the hospital was in January 2017 and he was discharged on 20th January 2017 wherein he was treated for infection and acute kidney injury. At the time of discharge, he was having normal Sensorium and there was no evidence of hepatic encephalopathy. Subsequently, he was brought for hemodialysis on 23rd, 25th and 28th January 2017 wherein, he was quite alert and coherent and there was 40 O.S.No.1680/2018 no signs of hepatic encephalopathy. This Ex.P.14 was issued on 6/11/2017 by Dr.N.K.Anupama and it was issued after nine months from the date of Will under Ex.P.2.
42. Ex.P.15 is the copy of the gratuity account statement of M/s.Yoshama Company reveal an amount of Rs.10,65,420/- is lying in the fund. Ex.P.16 is the copy of the cheque dtd:27/1/2017 said to have been signed by Yogesh V.Bhatt. This document was produced by the plaintiff to show that on the date of execution of Will under Ex.P.2 dtd:27/1/2017, Yogesh V.Bhatt issued a cheque in favour of one Mr.Venkatesh. According to the plaintiff, this document was produced to show that the testator of the Will not only executed the Will, but also issued a cheque on the same date to show the capacity of the deceased Yogesh.V.Bhatt to execute the Will. Based on these documents, the learned advocate appearing for the plaintiff contended that when the deceased Yogesh.V.Bhatt was capable of doing his 41 O.S.No.1680/2018 routine works, why cannot he execute the Will under Ex.P.2. Ex.P.17 is another copy of the bank cheque dtd:27/1/2017 reveal that same Yogesh.V.Bhatt issued another cheque in favour of one Mr.Krishnappa.
43. Ex.P.18 is the insurance policy standing in the name of insured Smt.Anjali Y.Bhatt who is none other than the defendant No.1 herein. According to plaintiff, he himself obtained the medical insurance policy in favour of his mother I.e, defendant No.1 for a sum of Rs.5 Lakhs for the period of 28/3/2017 to 27/3/2018.
44. Ex.P.19 is the death certificate of Yogesh.V.Bhatt reveal that he died on 13/2/2017 at No.639, 9 th Main, 3rd Stage, 3rd Block, Basaveshwara Nagara, Bangalore. However, there is no dispute regarding the death of Yogesh.V.Bhatt on 13/2/2017. This death certificate reveal that Yogesh V.Bhatt died after 17 days i.e., the Will was executed on 27/1/2017 and he died on 13/2/2017. Ex.P.20 is the khatha certificate with 42 O.S.No.1680/2018 respect of the house property having municipal No.639, 3rd Stage, 3rd Block, Basaveshwara Nagara, B'lore, ward No.19, Basaveshwara Nagara, i.e., the 'A' schedule property stands in the name of deceased Yogesh.V.Bhatt.
45. Ex.P.21 to Ex.P.26 are the documents confronted ot the defendant's witnesses and marked. Ex.P.21(a) to
(c) are the photographs and Ex.P.21(d) is the CD of deceased Yogesh.V.Bhatt reveal his image during his life time. Ex.P.22 to Ex.P.26 are the photographs reflects the family members of Yogesh.V.Bhatt and existence of M/s.Yoshama and Company Pvt.Ltd.
46. Ex.P.23 is medical records dtd:11/1/2017 issued by Dr.Naresh Bhat reveal the health conditions of Yogesh.V.Bhatt in which mobility is shown as independent, cognition is alert, purposeful moment, level of consciousness mentioned as alert and GCS score is 14 out of 15, respiration is normal, breath sound is normal and CVS found no abnormality. This medical 43 O.S.No.1680/2018 document was issued on 17/1/2017 whereas the Will under Ex.P.2 was said to have been executed on 27/1/2017.
47. The learned advocate appearing for plaintiff has contended that the deceased Yogesh.V.Bhatt was absolutely in a mental and physical condition to execute the Will and he has executed the Will by bequeathing his properties in favour of wife and children.
48. In support of his contention, he has relied upon the following:-
1. AIR 1951 SC 103 between "Gnambal Ammal v/s T.Raju Ayyar and others)
2. AIR 1959 SC 443 between "H.Venkatachala Iyengar v/s B.N.Thimmajamma and others".
3. AIR 1995 SC 1852 between "PPK Gopalan Nambiar v/s PPK Balakrishnan Nambiar and others".
4. 2006(13) SCC 433 between "Nirnajan Umeshchandra Joshi v/s Mrudula Jyothi Rao and others".44
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5. (2016)12 SCC 288 between "Muddasani Venkata Narasaiah (Dead by Lrs) v/s Muddasani Sarojana"
6. 2010(14) SCC 266 between "Gopal Swaroop v/s Krishna Murari Mangal and others".
7. 2010(1) SCC 83 between "Grasim Industries Ltd., and others v/s Agarwal Steel".
8. 1982(1) SCC 20 between "Smt.Indu Bala Bose and others v/s Manindra Chandra Bose and another".
9. 2001(5) SCC 363 between "Muninanjanppa and others v/s R.Manual and another".
10. 2007(1) SCC 546 between "Gurdev Kaur and others v/s Kaki and others"
49. Per contra, the learned advocate appearing for defendant No.1 & 2 contended that deceased Yogesh.V.Bhatt was not in sound disposing state of mind to execute the Will by bequeathing the properties. In support of his contentions, he has relied upon the following decisions:-45
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1. AIR 1959 Supreme Court 443 between "H.Venkatachala Iyengar v/s B.N.Thimmajamma and others".
2. AIR 1962 Supreme Court 567 between "Rani Purnima Debi and another v/s Kumar Khagendra Narayan Deb and another".
3. AIR 2018 Karnataka 100 between "Laxman V.Basavanni and another".
50. In AIR 1959 Supreme Court 443 between "Venkatachala Iyengar v/s B.N.Thimmajamma and others" it was held that "unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof the Wills, the court will starts on the same enquiry as in the case of the proof of 46 O.S.No.1680/2018 the documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of he dispositions and put his signatures to the document of his own free will. Ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law." Therefore, the burden of proof of execution of Will lies upon the propounder of the Will i.e., the plaintiff.
51. No doubt, the registration of the Will is not compulsory. But, due attestation by the one or more witnesses is compulsory as contemplated under Section 68 of Indian Evidence Act. Admittedly, the Ex.P.2 is the registered Will.
52. In AIR 1962, SC 567 between "Rani Purnima Debi and another v/s Kumar Khagendra Narayan 47 O.S.No.1680/2018 Deb and another" relied by the learned advocate appearing for the defendant No.1 & 2, it was held that "if a Will has been registered, that is a circumstance which may, having regard to the circumstances proves 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 the 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 the 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 48 O.S.No.1680/2018 he was admitting the execution of the Will or did not satisfy himself in some other way 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 much value. Registration may take place without the executant really knowing what he was registering." [
53. In AIR 2018 KAR 100 between "Lakshman v/s Basavanni and another", it was held that "probate can be granted only to a executor appointed under Will either expressly or under implication. Once proceedings become contentious, it is not open for the court to proceed with matter in summary way and allow parties to prove in common form".
54. However, in the present suit, the petition filed by the petitioner under Section 246 of Indian Succession Act was converted in to a Civil Original Suit since the defendant No.1 & 2 have disputed the Will. 49
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55. In AIR 1991 SC 103 between "Gnambal Ammal v/s T.Raju Iyer and others" it was held that "cardinal maxim to be observed by courts in construing a Will is to endeavor to ascertain the intention of the testator. This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised. In construing the language of the Will, the courts are entitled and bound to bear in mind the other matters the merely in words used. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that would used the words in a particular sense and many other things which are often summed up in some what picturesque figure. The court is entitled to put itself in to the testator's arm chair. But, all these is solely as an aid to 50 O.S.No.1680/2018 arriving at a right construction of the Will, and to ascertain the meaning of its language when used by particular testator in that document, so soon as the construction is settled, the duty of the court is to carry out the intention as expressed and none other. The court is in no case justified in adding to testamentary dispositions. In all cases, it must loyally carry out the Will as properly construed and this duty is universal, and is true alike of Will of every nationality and every religion or rank of life. "
56. Therefore, I have straight away perused the Will said to have been executed by Yogesh.V.Bhatt. No doubt, the Will produced by D.W.1 at Ex.P.1 was marked with objections. However, the original Will was subsequently placed on record as Ex.P.2. The said Will was executed on 27/1/2017. It is pertinent to note that another Will dtd:3/4/2013 said to have been executed by Yogesh.V.Bhatt is also placed on record as Ex.P.3. The Ex.P.3 is the previous Will said to have been executed by 51 O.S.No.1680/2018 Yogesh.V.Bhatt. However, the Ex.P.2 is the last Will of Yogesh.V.Bhatt said to have been executed by him.
57. Before the last Will of Yogesh.V.Bhatt said to have been executed by him, it is necessary to go in to the contents of the previous Will said to have been executed by him. In the Ex.P.3, i.e., the previous Will, testator has stated that he is the owner of the properties mentioned in the Will and he bequeathed 'A' schedule property to only his son Vivek Yogesh Bhatt i.e., plaintiff. However, Smt.Anjali Yogesh Bhat has only right to live in the 'A' schedule property. His son i.e., plaintiff can construct 1st and 2nd floor and he can give it on rent and the rent income may be shared between Vivek Yogesh Bhat and his wife Anjali. From rent income, both his son and wife will look after the maintenance of house. The wife of the testator i.e., Amt.Anjali should not allow any paying guest with her and she is not having any right over the schedule 'A' property. The bank deposits 52 O.S.No.1680/2018 and LIC investments mentioned in the schedule shall be shared between the wife and children of the testator.
58. This Will referred under Ex.P.3 was canceled as per the last Will said to have been executed by Yogesh.V.Bhat marked at Ex.P.2. On perusal of the contents of the Will at Ex.P.2, the testator has stated in the Will that Smt.Anjali Y.Bhatt is his wife and residing at No.636, 9th Main, 2nd Cross, 3rd Block, 3rd Stage, Basaveshwara Nagara. He is in sound and clear disposing state of mind capable of understanding and in sound health and after due deliberation, he has executed his last Will and testamentary to come in to effect on his death. He has 2 children namely Miss.Divya.Y.Bhatt and Mr.Vivek.Y.Bhatt. His daughter is residing at Cox Town on her own and son Mr.Vivek.Y.Bhatt is married to Shweta.Y.Bhatt and living with 2 children Master.Vihaan V.Bhatt and Kuamri.Rysha.V.Bhatt who are the minor. He is the absolute owner of the properties mentioned in the 'A' 53 O.S.No.1680/2018 schedule property and he bequeathed the 'A' schedule property in favour of his son Mr.Vivek.Y.Bhatt as per his desire to come in to effect on his demise. His wife Mrs.Anjali Y.Bhatt shall enjoy the schedule 'A' property for her life residing in the property independently till her death and she shall have no right over the 'A' schedule property during her life time. She cannot alienate or rent away the property. This property shall be used as a residence and not to be used for commercial and for religious purpose by his wife. His daughter Miss.Divya.Y.Bhatt shall not have any right over the 'A' schedule property.
59. It is further stated in the Will that testator advised his son to transfer his absolute right, title and interest over his self-acquired property bearing Flat No.BTF 301, Corporation No.2/9 on the 3rd Floor, Charles Apartment situated at Abdul Hafeez Road, Cox Town, Bangalore in favour of daughter Miss.Divya.Y.Bhatt and wife Mrs.Anjali.Y.Bhatt. The testator's son Vivek.Y.Bhatt apart 54 O.S.No.1680/2018 from providing monthly allowance of Rs.20,000/- per month to Mrs.Anjali.Y.Bhatt, he shall take care of her medical needs during her life time.
60. In the said Will, the provident fund amount is bequeathed to Mr.Vivek.Y.Bhatt only described as 'B' schedule property. The funds in savings bank account and fixed deposits in various banks and the amounts therein shall be shared as under:-
a) 20% to his wife Mrs.Anjali.Y.Bhatt
b) 20% to his daughter Miss.Divya.Y.Bhatt
c) Balance 60% to his grand-children in equal proportion.
61. Out of the Gratuity amount held in his name, shall be shared as under:-
1) Rs.One Lakh to his wife Mrs.Anjali.Y.Bhatt
2) Rs.Two Lakhs to his daughter Miss.Divya.Y.Bhatt
3) Balance amount if any to his daughter-in-law Mrs.Shweta.V.Bhatt described as schedule' property.
62. The contents of the Will further reads that the testator possess shares in Mrs.Yashoma & Co., Pvt.Ltd., 55 O.S.No.1680/2018 and the same is already transferred to his son Vivek.Y.Bhatt and daughter-in-law Mrs.Shweta.V.Bhatt. His deposits/loan both secured and unsecured in M/s.Yashoma & Co., Pvt.Ltd., are bequeathed in favour of his son Vivek.Y.Bhatt and his daughter-in-law Mrs.Shweta.V.Bhatt equally. The liability of the M/s.Yashoma & Co., Pvt.Ltd., was also shifted to Vivek.Y.Bhatt. Other shares, mutual funds mentioned in 'F' schedule bequeathed and credited to the joint- account of Vivek.Y.Bhatt and daughter-in-law Mrs.Shweta.V.Bhatt. The shares, deposits in M/s.Yashoma & Co., Pvt.Ltd. Was bequeathed to his nephew Mr.Yathish.M.Bhatt. The Will also shows that the testator had executed a Will dtd:3/4/2013 registered on 3/4/2013 in the office of the Sub-Registrar, Rajajinagar, B'lore and the testator canceled the above said Will by his last Will.
63. On reading of the contents of the Will, it is clear that the natural course of succession is not deviated, 56 O.S.No.1680/2018 but, the testator being the absolute owner of the schedule properties has distributed his absolute properties in favour of his son, wife and daughter, daughter-in-law and grand-children. However, mere contents of Ex.P.2 is not the proof of execution of Will by the testator.
64. Under Section 64 of the Indian Evidence Act, 1872, the proof of documents must be proved by primary evidence. In case, the document is registered, then, except in the case of the Will, it is not necessary to call an attesting witness, unless the execution has been specifically denied by the person to whom it purports to have been executed.
65. Under Section 68 of the Indian Evidence Act, 1872, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for for the purpose of proving its execution, if there by an attesting witness alive and subject to process of the court and capable of giving 57 O.S.No.1680/2018 evidence. So, one of the requirement of due execution of the Will is its attestation by 2 or more witnesses which is mandatory. Section 68 speaks of as to how a document required by law to be attested can be proved. It flows from this Section that if there by any attesting witness alive, capable of giving evidence and subject to the process of the court, has to be necessarily examined before the document required by law to be attested can be used in evidence.
66. It is not the case of the plaintiff that attesting witnesses are not found. Therefore, it is bounden duty of the plaintiff to examine at least one of the attestor of the Will. On perusal of the records, the plaintiff has examined both the attestors as P.W.2 and 3. In the Ex.P.2 witnesses are mentioned as N.S.Raghu Prasad and Aravind Kumar Neema. P.W.3 is none other than Sri.N.S.Raghu Prasad and P.W.1 is the Arvind Kumar Neema. In their evidence, they have categorically 58 O.S.No.1680/2018 stated that execution of Will by Yogesh.V.Bhat. Their signatures in the Ex.P.2 is also marked as attestors.
67. In the cross-examination of P.W.1 who is one of the attestor of the disputed Will, has stated that deceased Yogesh.V.Bhat was engaged in business of manufacturing of springs run in the name and style of M/s.Yoshama & Co., Pvt.Ltd. He was suffering from kidney and liver problem and he visited when he was in the hospital. He visited the hospital to the deceased when he was admitted on two or three occasions and at that time he was able to talk. When he visited the hospital to meet the deceased, he saw wife of the deceased, daughter and brother's son. On 27/1/2017 the deceased must have signed the Ex.P.1 around 12 noon before Sub-Registrar's office of Rajajinagara. He reached the Sub-Registrar's office before deceased Yogesh.V.Bhatt could be present in Sub-Registrar's office. Deceased came in his car with his driver to the Sub- Registrar's office. Himself, another witness and driver 59 O.S.No.1680/2018 helped the deceased the climb the steps of the building to reach the 1st floor of the office by holding his hands. Except himself, another witness Prasad, driver and deceased, no other family members were present. After execution of Ex.P.1, they brought him to ground floor. Then, deceased left in his car. It is pertinent to note that Ex.P.1 is nothing but the certified copy of the Ex.P.2 the Will dtd:27/1/2017. So, the P.W.1 is the attestor of the Ex.P.2 (certified copy of Ex.P.1).
68. P.W.2 is another attestor of the Will. He produced a Will dtd:27/1/2017 said to have been executed by Yogesh.V..Bhatt. According to P.W.2, after execution of the Will, the testator directed him to keep the same in his custody and instructed him to reveal the same to his family members. The Will he produced is marked as Ex.P.2. The said Will is said to have been executed by the testator marked at Ex.P.2. The signature of the P.W.2 as an attestor is marked as Ex.P.2(a). He also produced the previous Will dtd:3/4/2013 executed before the Sub- 60
O.S.No.1680/2018 Registrar, Rajajinagara which was in his custody since the day of handing over to him. The said Will is marked as Ex.P.3. According to P.W.2, the Ex.P.3 was canceled by deceased and Ex.P.2 was executed by him. P.W.2 has further stated that Ex.P.2 is the last Will executed by deceased Yogesh.V.Bhat. He also identified the signature of the testators marked as Ex.P.2(c) to (i).
69. In the cross-examination of P.W.2, he has stated that deceased was not attending his company from 2017. The deceased was suffering from kidney and liver problems and he used to visit hospital for kidney dialysis atleast once in month. The deceased was frequently hospitalized in the month of December 2016, January, February 2017. For some time, in these 3 months, he used to be kept in ICU observation, but not for longer period, only for 2-3 days. P.W.2 was frequently visiting in Columbia Asia Hospital and the deceased was normally attended by his brother, brother's children, nephew, deceased wife and children. He has further stated that 61 O.S.No.1680/2018 son of the deceased is his Boss in the company. Ex.P.2 Will was signed by deceased in presence of Sub- Registrar. He denied the suggestion in order to protect his service under plaintiff, he is deposing falsely.
70. Except the fact that P.W.2 is working under the plaintiff 's company , nothing is brought on record to show that P.W.1 & 2 are falsely created attestors to Ex.P.2. The evidence of P.W.1 & 2 clearly establishes that the testator Yogesh.V..Bhatt went to the Sub- Registrar of Rajajinagar on 27/1/2017 and the Will is came to be executed before the Sub-Registrar. So, the plaintiff has established the execution of Ex.P.2 by the deceased Yogesh.V.Bhatt.
71. The next question is to be satisfied by the plaintiff that whether the Ex.P.2 Will that was executed by Yogesh.V.Bhatt was on his own will and wishes and without any force. It is for the plaintiff to establish that the testator was in good and disposing state of mind and 62 O.S.No.1680/2018 he was capable of executing the Will.
72. To prove the above facts, the plaintiff himself has been examined as P.W.3. In his evidence by way of affidavit, he has stated that schedule 'A' to 'G' properties are the self-acquired movable and immovable properties of his father Yogesh.V.Bhatt who is in his life time has executed the Regd.Will dtd: 27/1/2017 duly registered before the Sub-Registrar, Rajajinagar, bequeathing the same in favour of his legal heirs as per his desire. It was his last Will and the testator was in good and disposing state of mind as on the date of the execution of the Will. He has further stated that as per the will and wishes of the testator Yogesh.V.Bhatt, any immovable property bearing flat No.BTF-301, Corporation No.2/9, on the 3 rd floor, Charles Campbell Road, Cox Town, Bangalore that was belongs to the plaintiff and it is his self-acquired property and he has no objections to transfer the said property in favour of Mrs.Anjali Y.Bhatt and Miss.Divya.Y.Bhatt i.e., the defendant No.1 & 2 as per the 63 O.S.No.1680/2018 intention of the testator mentioned in Ex.P.2.
73. In his cross-examination, he has stated that his father was admitted to hospital from December 2016 to February 2017, but not regularly, but, frequently he was admitted and consulted by doctors in hospital. The testator was suffering from kidney and liver problem. The doctors advised him to take rest because of his illness. But, he has denied that due to the illness, the testator has lost his mental capacity to understand the worldly affairs. A question was posed to P.W.3 that on 27/1/2017 the deceased was supposed to go for kidney dialysis. But, the witness answered that he was supposed to go for dialysis, but he did not go. The deceased father was residing in his house on 27/1/2017.
74. On perusal of the cross-examination of P.W.3, nothing is brought on record to show that except the deceased was suffering from kidney and liver disease, the testator was not in good and sound disposing state of mind and he was not capable of executing the Will. 64
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75. To rebut the evidence adduced by the plaintiff , defendant No.1 & 2 have stepped in to the witness box and examined as D.W.1 & 2. They also examined a witenss as D.W.3. It is pertinent to note that defendant No.1 filed detailed written statement with prayer to dismiss the suit of the plaintiff. The defendant No.2 filed a memo adopting the written statement filed by the defendant No.1. However, the defendant No.3 to 6 filed statement with the prayer to allow the petition. The said defendant No.3 to 5 are none other than the wife and children of the plaintiff.
76. D.W.1 is the wife of deceased Yogesh.V.Bhatt and in her evidence by way of affidavit reiterated the facts stated in her written statement. According to her, her husband was a chronic liver patient and his kidneys failed and he was subjected to dialysis 3 days a week. He was admitted to Aster Hospital, Hebbal and he was treated in the critical care unit from 11/1/2017 to 65 O.S.No.1680/2018 20/1/2017 and again admitted in Columbia Asia hospital from 3/2/2017 to 13/2/2017. He was not mentally alert. The Will dtd:27/1/2017 propounded by her son was registered. The deceased was not in a position to apply his mind to anything and he was unable to do anything freely and independently and he was not in a position to make dispositions of any kind of Will. On the date of registration of the Will, her husband was staying at the son's house. She has further stated that her son got the Will made executed and registered clandestinely without her presence and her daughter's knowledge. She has further stated that the Will executed by her husband bequeathing a substantial portion of his estate to her son and leaving very little to her and her daughter and the dispositions made by her husband is unnatural.
77. On perusal of the evidence of D.W.1, it is clear that she admits the execution of Will by her husband, but she denies that he was not in a position to make Will 66 O.S.No.1680/2018 and dispositions made by him under the Will by bequeathing substantial property in favour of the plaintiff is unnatural.
78. D.W.2 is none other than the own daughter of deceased Yogesh.V.Bhatt who is also the defendant No.2 herein, in her evidence, she has reiterated what ever evidence adduced by her mother D.W.1. She has relied upon 3 documents marked at Ex.D.1 to Ex.D.3. Ex.D.1 is the medical records of deceased Yogesh.V.Bhatt pertaining to CMI Hospital, B'lore reveal that MRI Abdomen plan study to report of Yogesh.V.Bhatt dtd:12/2/2016. The observations made in Ex.D.1 reveal that liver was shrunken in size etc. The kidneys are normal in size, shape, outlines and signal intensity. The impression is mentioned as cirrhosis of liver. No obvious spoken lesions detected on plain study. He was discharged from the hospital with advice with salt restriction, specific medicine and monitor sugar at home and to reveal in dialysis unit.
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79. Ex.D.2 is the medical records of deceased Yogesh.V.Bhatt pertaining to Columbia Asia Hospital, B'lore reveal that on 11/3/2015 he was diagnosed in Columbia Asia Hospital and his progress note is mentioned in Ex.D.2. On perusal of both Ex.D.1 & Ex.D.2, it is clear that Yogesh.V.Bhatt was suffering from liver cerosis and kidney problems. It also reveal that he died on 13/2/2017 at Columbia Asia Hospital at the age of 73. He was admitted on 3/2/2017 with the history of hepatic encephalopathy had bacterial peritonitis, sepsis. The family opted for DE-escalation of care. The patient deteriorated and expired in the ward on 13/2/2017 at 3 p.m. Ex.D.3 and Ex.D.3(a) are the photo and the CD that shows that the plaintiff and defendant No.2 & 3 are found with Yogesh.V.Bhatt in the hospital.
80. On perusal of the above documentary evidence reveal that deceased Yogesh.V.Bhatt had been hospitalized for his ailment and he died on 13/2/2017. 68
O.S.No.1680/2018 When such being the fact, whether he executed the Will with sound disposing state of mind has to be proved by the plaintiff.
81. It is pertinent to note that the advocate for defendant No.2 filed an application under Section 45 of the Indian Evidence Act to refer all the medical records produced by the hospital as per the orders in I.A.No.2 & 3, to the Medical Expert Dr.Savio Pereira, Medico Legal Expert, Teachers colony, Venkatapura, Koramangala, to give his opinion and to submit his report as to whether Hepatic Encephalopathy i.e., loss of brain function is a necessary symptom of Cirrhosis of liver. However, the learned advocate appearing for the 2nd defendant filed Memo not pressing the said application and accordingly, the said application has came to be dismissed as not pressed.
82. However, he filed I.A.No.5 under Order 16 Rule 2 & 3 of CPC r/w Section 45 of the Indian Evidence Act numbered as I.A.No.5. This application was filed to 69 O.S.No.1680/2018 summon very same Dr.Savio Pereira who give his evidence as an expert in the field of medical science for proper appreciation and adjudication of the case. In the said application, the 2nd defendant has stated that her father was unable to do anything freely and independently and he was not in a position to make disposition of any kind of Will. She has further stated that Ex.P.14 and in the other documents at Ex.D.1 & Ex.D.2, the terms Hepatic Encephalopathy that are related to the liver and a disease in which the functioning of the brain was affected by some agents or conditions. Therefore, the witness mentioned in the said application was necessary to be examined. This court after hearing both the sides, observed that the explanation of medical terminology by an expert is necessary for just disposal of the case. Accordingly, the said application was came to be allowed.
83. It is pertinent to note that the witness summons was issued to Dr.Savio Pereira who stepped in to the 70 O.S.No.1680/2018 witness box and explained the medical terminologies. However, he appeared before the court along with the list with the certain documents for which the learned advocate appearing for the plaintiff has opposed. This court after hearing both the sides held that witness is summoned to give evidence only to the extent of medical terminology produced by the defendant and this court not directed the witness to bring the documents nor such prayer was made by the defendant No.2 in the application therein. Therefore, documents produced by the witness are rejected and not taken on record.
84. The said Dr.Savio Pereira is examined as D.W.3. His examination-in-chief was prepared by way of affidavit and in the affidavit, he has stated that not only the meaning of Hepatic Encephalopathy, but stated that the patient should have been referred to Gastroenterologist to the Specialist Psychiatry doctors. According to him, Yogesh.V.Bhatt suffered from legal disability and did not have the testamentary capacity 71 O.S.No.1680/2018 to make a Will.
85. No doubt, D.W.3 is a M.B.B.S.,M.S., General Surgeon. However, this court is not expected from him to depose that Yogesh.V.Bhatt was suffered from legal disability and he was not summoned by this court to give evidence to that effect. On the other hand, he was expected to explain the medical terminologies mentioned in Ex.P.14 and Ex.D.1 & 2. Therefore, examination-in-chief of D.W.3 itself shows that he is an interested witness and without direction, he produced the documents that was returned as there was no such order to produce them.
86. Be it as it may. Admittedly, D.W.3 Dr. Savio Pereira is not a medical officer who treated the deceased Yogesh.V.Bhatt. Therefore, he had no personal occasion to examine and evaluate the physical condition of the Yogesh.V.Bhatt. However, in his cross-examination, he has stated that he is a private medical practitioner and 72 O.S.No.1680/2018 visiting hospitals. He never provided his services to Columbia Asia Hospital or Aster CMI Hospital where the deceased Yogesh.V.Bhatt had been hospitalized. He cannot express as to whether both the 2 hospitals are 2 of the best hospitals in Bangalore. He was not received the witness summons, but he was informed by defendant No.2 to come to the court. He has drafted his examination-in-chief based on the records which are in the Court file. He has further stated that defendants provided the certified copies of those documents to him. He has further stated that he did not consult the Medical Officers who treated deceased Yogesh.V.Bhatt. He voluntarily stated that consultation is not necessary to give his opinion. He has also stated that he has not seen the deceased Yogesh.V.Bhatt and he never treated him. He has admitted that medical condition and capacity of each patient differs to one another. He has further stated that a person suffering from Hepatic Encephalopathy can manage the affairs of the company 73 O.S.No.1680/2018 till his death. He has further stated that a person suffering from liver Cirrhosis can sign bank cheques. He has denied the suggestion that testator was capable of taking independent decisions.
87. On perusal of the evidence of D.W.3 instead of explaining the medical terminology, he gave different evidence which was not expected from an independent medical officer who was summoned by court for assistance.
88. On perusal of the cross-examination of D.W.1, who is the wife of Yogesh.V.Bhatt, she has stated that during the life time of Yogesh.V.Bhatt, he was maintaining and looking after her expenses. She has stated that plaintiff is transferring maintenance to her bank account particularly, last month, he has transferred Rs.20,000/-. After the death of her husband, the plaintiff is maintaining all the maintenance expenses relating to the schedule property like security charges, water bills etc. Apart from paying monthly expenses, plaintiff is 74 O.S.No.1680/2018 attending her domestic grocery expenses.
89. She has further stated that after coming to know of Ex.P.2, immediately, she did not take legal action to set-aside the Will. But, she called the family members for meeting. The signature of Yogesh.V.Bhatt was confronted to her that was found in the Will at Ex.P.2. She has admitted that some of them resemble the signature of her husband and photo shown in the registered will is her husband's photo. She has further stated a sum of Rs.8,98,000/- in the company P.F. was credited in to her personal account and another sum of Rs.1,00,000/- was credited in to the bank account of her daughter. She has further admitted that some immovable properties standing in her name situated at Kinnigodi of Mangalore is standing in her name, but it was conveyed by her mother. She has further stated that an amount is invested in fixed deposits around Rs.15 Lakhs to Rs.20 Lakhs. She has further stated that by birth she belongs to Roman Catholic community and 75 O.S.No.1680/2018 till today she practice and profess Christian Religion and practices. Her husband late Yogesh.V.Bhatt was belonging to Hindu Brahmin Community. She has denied the suggestion that before the death of her husband, some religious ideological differences arose between herself and her husband. She has further stated that defendant No.2 is residing in an independent house at Cox Town. After the death of her husband, the contents of the Will was read over by Mr.Raghupathy in the presence of plaintiff, herself, her daughter and family members. A copy of Ex.P.2 & Ex.P.3 were handed over to her, plaintiff and the defendant No.2.
90. D.W.2 in her cross-examination stated that her father Yogesh.V.Bhatt was independent in thinking, hard working, disciplined and industrious in business. She is staying alone and she is not working. She is a M.A. Post Graduate in Sociology and completed course in Public Relations. Earlier, she worked in various multi national companies and now she is not in any private sectors 76 O.S.No.1680/2018 and she is associated with charitable works. She is residing in a house situated at Cox Town till today in a flat provided by her father. She has further stated that the sale deed of the said flat situated at Cox Town is standing in the name of plaintiff Vivek Y.Bhatt who is none other than her brother. She did asked her deceased father to convey the flat in her name by way of transfer somewhere in November 2017. In this regard, her father did not take any steps except asking her to pay the house tax. The flat in which she is residing must have purchased in the month of May 2013. She orally asked her father to transfer the flat in to her name by holding several discussions. But, she has denied that differences arose between herself and her father relating to transfer of flat. She has further stated that her father was suffering from liver complications. Her father was signing cheques pertaining to the business transactions of the company. She admitted the suggestion that her father issued a cheque for Rs.3 lakhs 77 O.S.No.1680/2018 to her, but she do not remember the year in which it was issued. She has admitted the photo of her father found in the Will at Ex.P.3. She has also admitted the signature of her father in the Will. She has further stated that on 31/1/2017 she took her father to Columbia Asia Hospital in a car and immediately, after arrival of plaintiff to the hospital, she left the hospital leaving her father in the custody of plaintiff. She has admitted that her father was treated as an out patient on 31/1/2017. But, she has denied that her father executed the Will in sound state of mind.
91. On perusal of the Will dtd:27/1/2017 the testator has bequeathed 'A' schedule property to the plaintiff Mr.Vivek.Y.Bhatt. He has also bequeathed schedule 'B' property in favour of plaintiff Vivek.Y.Bhatt. The testator has bequeathed schedule 'C' property in favour of Mrs.Anjali.Y.Bhatt, Miss.Divya.Y.Bhatt, Master.Vihaan. V.Bhat and Kumari.Rysha.V.Bhatt i.e., in favour of defendant No.1 , 2, 4 & 5. He has bequeathed schedule 78 O.S.No.1680/2018 'D' property in favour of Mrs.Anjali.Y.Bhatt, Miss.Divya.Y.Bhatt and Mrs.Shweta V.Bhatt, i.e., defendant No.1 to 3. He also bequeathed schedule 'E' property in favour of Vivek.Y.Bhatt and Mrs.Shweta.V.Bhatt i.e., plaintiff the defendant No.3. He has bequeathed schedule 'F' property in favour of Mr.Vivek.V.Bhatt and Mrs.Shweta.V.Bhatt i.e., plaintiff and defendant No.3 . He also bequeathed 'G' schedule property in favour of Mr.Yathish.M.Bhatt who is the defendant No.6. On perusal of Ex.P.2, the plaintiff is not only the beneficiary, but the defendants are also beneficiaries.
92. In AIR 1995 SC 1852 between "PPK Gopalan Nambiar v/s PPK Balakrishnan Nambiar and others" it was held that "discrepancy in evidence of attestor would not vitiate validity of the registered Will which was duly endorsed by Registrar. Whole of estate given to son in exclusion of daughter not itself sufficient to generate suspicion. Will executed and registered 8 79 O.S.No.1680/2018 years prior to death of a testator. No evidence or statement made regarding invalidity of Will in pleadings. Nothing was stated with regard to alleged pressures brought on executor of Will. Suspicion raised regarding validity of Will is without any basis. Property covered under Will stand excluded from partition."
93. In ILR 2008 KAR 2115 between Sri.J.T.Surappa and another v/s Sri.Satchidhanandendra Saraswathi Swamiji Public Charitable Trust and others" the Hon'ble High Court of Karnataka held that "a careful path in the enquiry to be conducted with regard to Will. The path consists of 5 steps "Pancha Padi". The path of enquiry and steps to be traversed are as under:-
1. Whether the Will bears the signature or mark of the testator and is duly attested by two witnesses and whether any attesting witness is examined to prove the Will?
2. Whether the natural heirs have been disinherited ? If so, what is the reason?80
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3. Whether the testator was in a sound state of mind at the time of executing the Will?
4. Whether any suspicious circumstances exist surrounding the execution of the Will?
5. Whether the Will has been executed in accordance with Section 63 of the Indian Succession Act, 1925 r/w Section 68 of the Indian Evidence Act?
94. Regarding the Point No.1 mentioned above, admittedly Ex.P.2 Will bears the signature of the testator Yogesh.V.Bhatt and it has been attested by 2 witnesses by name N.S.Raghuprasad and Arvind Kumar Neema. Both the attesting witnesses have been examined as P.W.1 & 2 and they have categorically stated the execution of the Will by Yogesh.V.Bhatt. So, the plaintiff has proved the above point No.1.
95. Regarding Point No.2 is concerned, the plaintiff is the son of deceased Yogesh.V.Bhatt. Defendant No.1 is the wife, defendant No.2 is his daughter, defendant No.3 81 O.S.No.1680/2018 is the wife of plaintiff, defendant No.4 & 5 are the grand- children of deceased Yogesh.V.Bhatt and defendant No.6 is the relative. Evidence on record reveal that deceased Yogesh.V.Bhatt was Hindu by religion. His wife defendant No.1 is Christian by religion. During the life time of Yogesh.V.Bhatt, the relationship between his family members was cordial. Dispute arose between plaintiff and defendant No.1 & 2 only after the demise of Yogesh.V.Bhatt. Admittedly, the plaintiff and defendant No.1 & 2 are the Class-I heirs of deceased Yogesh.V.Bhatt. So, the testator has not disinherited the natural heirs by executing Will. He executed Will not in favour of any third person, but in favour of his own legal heirs. Therefore, the above point No.2 is also in favour of the plaintiff.
96. The Point No.3 is concerned whether the testator was in sound state of mind at the time of executing the Will is the crucial point since the defendant No.1 & 2 82 O.S.No.1680/2018 have raised the doubt on the sound state of mind of the testator. On perusal of the evidence of D.W.3, who is the medical witness has stated that the cause of death of Yogesh.V.Bhat was Hepatic Encephalopathy and it is a very serious condition due to liver failure where the testamentary capacity impaired without a doubt as per medical literature. His evidence has been assailed by cross-examination wherein he has stated that he is not aware of the fact that a person suffering from Hepatic Encephalopathy can manage the affairs of a company till his death. He also admitted that a person suffering from liver cirrhosis can sign cheques.
97. As per the Webster dictionary, the meaning of medical term Hepatic Encephalopathy is "a condition that may cause loss of consciousness and coma. It is usually result of advanced liver disease also called Hepatic Coma." The word used is may cause loss of consciousness. Therefore, it is clear that it may not be also in each and every cases cause unconsciousness. 83
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98. On perusal of Ex.D.2 medical records of Columbia Asia Hospital, the cause of death of Yogesh.V.Bhatt on 13/2/2017 is mentioned in Sepisis with Mutiorgan dyfunction failure Hepatic Encephalopathy, spontaneous bacterial peritonitis liver cirrhosis end stage renal disease, hyper tension. The medical report dtd:31/1/2017 reveal that Atria are normal, Asymmetrical Septal Hypertrophy, no regional wall motion abnormality is seen, LVEF - 60%, Mitral, Tricuspid, Aortic and Pulmonary valves are normal. Inter Atrial Septum and Inter Ventricular Septum are intact. Aorta and Pulmonary Arteries are normal. No clot/Vegitation, Effusion. Normal LV filling pressure, mild Tricuspid Regurgitation, Estimated Pasp 35 mmHG. So, the impression is shown as Normal LV Systolic Function. This report was issued by Dr.Karthik Vasudevan, M.D., D.M.(cardio), FICC, FSCIA, Consultant Cardiologist who treated the Yogesh.V.Bhatt. Admittedly, the disputed 84 O.S.No.1680/2018 Will is dtd:27/1/2017 and this report was issued on 31/1/2017. This document itself shows that the deceased was not in a condition as alleged by the defendant No.1 & 2. Moreover, the Ex.P.16 & 17 are the cheques dtd:27/1/2017 that was also signed by Yogesh.V.Bhatt. On perusal of the signature of the testator in Ex.P.2 Will as well as in both the cheques marked at Ex.P.16 & 17 are precise. No unconscious person can sign in such a manner. More over, he went to the Sub-Registrar's office and it was duly registered before the Sub-Registrar and his photo is also affixed in the Regd.Will. Therefore, the contention of the defendant No.1 & 2 that the testator was not in a sound state of mind at the time of executing the Will is without any basis.
99. Regarding point No.4 is concerned whether any suspicious circumstances exist surrounding the execution of the Will is concerned, the testator executed the Will in the presence of 2 attestors and they attested 85 O.S.No.1680/2018 the Will executed by the attestors and the testator went to the Sub-Registrar's office may be with the help of others. But, he himself tendered the document for registration and it has been duly registered. Moreover, the defendant No.1 & 2 do not dispute the registration of the Will and they admitted that the signature might be the signature of Yogesh.V.Bhatt signed in the Will. When such being the evidence on record, absolutely, there is no evidence to show that Will was executed in suspicious circumstances exist surrounding the execution of the Will.
100. Regarding point No.5 in the above decision is concerned, whether the Will has been executed in accordance with Section 63 of the Indian Succession Act, 1925 r/w Section 68 of the Evidence Act. Under Section 63(c) of the Indian Succession Act, the Will shall be attested 2 or more witnesses. Each of whom has seen the testator signed or affixed his mark to the Will or has seen some other person signed the Will in the presence 86 O.S.No.1680/2018 and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark or 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.
101. So, in order to prove the execution of the Will, it is absolutely necessary that the testator must have signed the Will in the presence of attestors or the testator must have personally acknowledged the signatures in the presence of attestors.
102. Under Section 68 of the Indian Evidence Act, 1872, if a document required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there by any attesting witness alive and subject to process of the court and capable of giving 87 O.S.No.1680/2018 evidence.
103. The evidence on record clearly establishes that the plaintiff has examined both the attestors of the Will and they have categorically stated each of them has seen the testator signed the will in the presence and as per the directions of the testator. The evidence on record also reveal that testator has also puts his signatures in the presence of attestors. So, the plaintiff has complied the requirements of Section 63 of Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act. Therefore, the plaintiff has proved the due execution of the Will dtd:27/1/2017 executed by the testator Yogesh.V.Bhatt.
104. Under Section 2(f) of Indian Succession Act, 1925, Probate means a copy of the Will certified under the seal of the court of competent jurisdiction with the grant of administration to the estate of the testator. Both the plaintiff and defendant No.1 to 5 are residing 88 O.S.No.1680/2018 within the jurisdiction of this court. The suit schedule properties that are mentioned in the Will is also situated within the jurisdiction of this court. Deceased Yogesh.V.Bhatt was also residing within the jurisdiction of this court as on the date of his last breath. Therefore, this court has got jurisdiction to grant the probate in favour of the plaintiff.
105. For the above reasons, the plaintiff has proved that Yogesh.V.Bhatt had executed his last Will dtd:27/1/2017 under a sound state of mental and physical health and bequeathed the schedule properties in favour of the plaintiff and defendants. Hence, the plaintiff is entitled for Probate Certificate in his favour in terms of the Registered Will dtd:27/1/2017. Hence, I answer Issue No.1 in the Affirmative.
106. ISSUE No.2:- In view of my finding on Issue No.1, I pass the following:-
89
O.S.No.1680/2018 ORDER Suit of the plaintiff is decreed with costs.
Petition filed by the petitioner/ plaintiff under Section 276 of the Indian Succession Act is allowed.
Issue Probate of the Will as contemplated in Schedule VI under Section 289 of the Indian Succession Act in favour of the plaintiff on the basis of the last Will dtd:27/1/2017 executed by deceased Yogesh.V.Bhatt in respect of immovable and movable properties mentioned in Schedule "A' to schedule "G" of deceased Yogesh.V.Bhatt bequeathed under Ex.P.2 - Will.
Draw decree accordingly.
(Dictated to the Judgment Writer, transcribed and computerized by her, corrected by me in computer and then pronounced by me in the open Court on this the 13 th day of March, 2020.) (Dinesh Hegde) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.90
O.S.No.1680/2018 ANNEXURE I. List of witnesses examined on behalf of :
(a) Plaintiff's side :
P.W.1 - Arvind Kumar Neema P.W.2 - N.S.Raghu Prasad P.W.3 - Vivek Y.Bhatt
(b) Defendants' side : -
D.W.1 - Anjali.Y.Bhatt D.W.2 - Divya.Y.Bhatt D.W.3 - Dr.Savio Pereira II. List of documents exhibited on behalf of :
(a) Plaintiff's side :
Ex.P.1 Certified copy of the Will
dtd:3/4/2013
Ex.P.1(a) Signature of P.W.2
Ex.P.2 Original Will dtd:27/1/2017
Ex.P.2(a) to (i) Signatures
Ex.P.3 Original Will dtd:3/4/2013
Ex.P.4 Loan application of Yoshama
Company dtd:31/8/2016
Ex.P.5 Loan agreement of Yoshama
Company dtd:26/10/2014
with Kotak Mahindra
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Ex.P.6 Copy of demand draft/pay
order dtd:14/9/2016
Ex.P.7 Intimation letter
dtd:21/3/2017
Ex.P.8 True copy of monthly
maintenance of Anjali.Y.Bhat
Ex.P.9 Statement relating to medical
expenses reimbursed to
respondent/ defendant No.1
Ex.P.10 Expenses towards provisions of defendant No.1 to Shivaram Provisional Stores Ex.P.11 Statement relating to expenses of cooking gas of defendant No.1 Ex.P.12 Statement relating to repairs and maintenance of equipments used by defendant No.1 Ex.P.13 Statement relating to newspaper used transferred to Karnataka Bank Ex.P.14 Medical Certificate of Yogesh.B.Bhatt Ex.P.15 Gratuity account statement of Yoshama Company Ex.P.16 Attested copy of cheque dtd:27/1/2017 signed by Yogesh.V.Bhatt 92 O.S.No.1680/2018 Ex.P.17 Another attested copy of cheque dtd:27/1/2017 signed by Yogesh.V.Bhatt Ex.P.18 Insurance policy of defendant No.1 Mrs.Anjali Y.Bhatt Ex.P.19 Death certificate of Yogesh.V.Bhatt Ex.P.20 Khatha extract dtd:21/4/2016 Ex.P.21, Photos Ex.P.21(a) to (c), Ex.P.22 Ex.P.21(d) CD (Ex.P.21, P.21(a) to (d) are marked in the cross-
examination of D.W.1)
Ex.P.23 Details of treatment given by
deceased in Aster CMI
Hospital
Ex.P.24 to Photo
(Ex.P.23 to Ex.P.26 are
Ex.P.26 marked in the cross-
examination of D.W.2)
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(b) Defendants' side : -
Ex.D.1 Medical records of deceased
Yogesh Bhatt pertaining to
Aster CMI Hospital, B'lore.
Ex.D.2 Medical records of deceased
Yogesh Bhatt pertaining to
Columbia Asia Hospital,
B'lore.
Ex.D.3 Photograph
Ex.D.3(a) DVD
(Dinesh Hegde)
XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.
GVU/-94
O.S.No.1680/2018 13/3/2013 P - HHV D.1 & D.2 - RDS D.3 to D.6 - SS For Judgment Judgment pronounced in open court vide separate detailed judgment with the following operative portion:-
ORDER Suit of the plaintiff is decreed with costs.
Petition filed by the petitioner/ plaintiff under Section 276 of the Indian Succession Act is allowed.
Issue Probate of the Will as contemplated in Schedule VI under Section 289 of the Indian Succession Act in favour of the plaintiff on the basis of the last Will dtd:27/1/2017 executed by deceased Yogesh.V.Bhatt in respect of immovable and movable properties mentioned in Schedule "A' to schedule "G" of deceased Yogesh.V.Bhatt bequeathed under Ex.P.2 - Will.
Draw decree accordingly.
(Dinesh Hegde) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.