Bombay High Court
Shernaz Farooukh Lawyer And Anr vs Manek Dara Sukhadwall And 6 Ors on 21 December, 2022
Author: N. J. Jamadar
Bench: N. J. Jamadar
ial-35020-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION (L) NO. 35020 OF 2022
VISHAL IN
SUBHASH
PAREKAR TESTAMENTARY SUIT NO.25 OF 2012
Digitally signed by WITH
VISHAL SUBHASH
PAREKAR
Date: 2022.12.21
APPLICATION (L) NO.38 OF 2019
16:05:59 +0530
WITH
INTERIM APPLICATION NO.1379 OF 2020
IN
TESTAMENTARY SUIT NO.29 OF 2012
IN
TESTAMENTARY PETITION NO.341 OF 2012
WITH
THIRD PARTY APPLICATION FOR CC (L) NO.347 OF 2018
Shernaz Faroukh Lawyer and Another ...Applicants
In the matter between
Manek Dara Sukhadwalla ...Plaintiff
vs.
Shernaz Faroukh Lawyer and Others ...Defendants
Mr. Darius Khambata, Senior Advocate a/w. Mr. Rahul Narichania
and Ms. Naira Jejeebhoy i/b. DSK Legal, for the Applicant in IAL No.
35020 of 2022.
Mr. Premlal Krishnan a/w. Mr. Rehmat Lokhandwala and Mr.
Prashant Bothre, for Respondent No. 1 in I.A.No. 35020 of 2022
and Plaintiff in T. Suit No. 25 of 2012.
Mr. Manish Bohra i/b. M/s. A.S. Khan & Associates, for Defendant
Nos. 4 and 5.
CORAM : N. J. JAMADAR, J.
RESERVED ON : DECEMBER 15, 2022
PRONOUNCED ON : DECEMBER 21, 2022
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ORDER :
1. The defendant Nos. 1 and 2/ original caveators have preferred this application seeking permission to amend the written statement / affidavit dated 24th February, 2012 filed in support of the caveat, in Testamentary Petition No. 5 of 2012 which has since been converted into Testamentary Suit No. 25 of 2012.
2. The plaintiff (petitioner in Testamentary Petition No. 5 of 2012) prayed for grant of probate of a Will dated 8th September, 2011 purported to be made by late Purvez Burjor Dalal (the deceased). In the said petition, the applicants/caveators, filed affidavit in opposition to the prayer of grant of probate. The applicants have also filed a Testamentary Petition No. 341 of 2012 propounding a Will of the deceased purportedly executed on 22 nd November, 2010. In view of the caveat filed by the plaintiff herein, in the said petition, it has also been converted into Testamentary Suit No. 29 of 2012. Both the suits are directed to be heard simultaneously.
3. By an order dated 30th September, 2022 the plaintiff(s), in each of the suits, were directed to file affidavits in lieu of examination in chief of each of the plaintiffs first witness, affidavit Vishal Parekar, P.A. ...2 ial-35020-2022.doc of documents and compilation of documents on or before 14th November, 2022.
4. On 10th November, 2022 the applicants/ defendants in Testamentary Suit No. 25 of 2012 have taken out this application contending inter alia that in adherence to Rule 402 of Bombay High Court (OS) Rules, the defendants/ caveators were required to file the affidavit in support of the caveat within 8 days from the date of the filing of caveat. At that stage, the defendants were not served with copies of the petition and even the purported Will executed by the deceased. It is only after the receipt of the copy of the Testamentary Petition and the purported Will, at a later date, the defendants 1 and 2 learned certain facts which bear upon the claim of the plaintiff for grant of probate.
5. The defendants 2 and 3 further contend only after this Court appointed Administrator in respect of the estate of the deceased, by order dated 24th December, 2013, and the subsequent orders, facts and documents were progressively revealed. The defendant Nos. 2 and 3 have referred to and relied upon various orders passed during the pendency of these suits and the consequences thereof in their estimation. The facts and documents which thus emerged, Vishal Parekar, P.A. ...3 ial-35020-2022.doc according to the defendants 1 and 2, furnish grounds to reject the claim for probate of the purported Will. The acts and conduct of the plaintiff, which those facts and documents bear out, engulf the alleged execution of the Will in profound suspicious circumstances, which the propounder is enjoined to explain. Thus, the proposed amendment is necessary for a just determination of the real question in controversy between the parties.
6. As the facts have dawned progressively, there is no delay in seeking the amendment in the written statement, contend the defendants 1 and 2. In case, it is construed that there is some delay, the defendants 1 and 2 pray for condonation thereof as well.
7. An affidavit in reply is filed on behalf of the plaintiff resisting the prayer for amendment of the written statement. The plaintiff asserts that the instant application suffers from the vice of delay and laches. It is stated to be malafide and mischievous in as much as it is filed with a view to derail the hearing of the suits. According to the plaintiff, the application has been preferred with a view to give a counter blast to the prosecution initiated against the applicants for committing forgery by setting up a false Will purported to be executed by the deceased. In any event, according to the plaintiff, the facts which are now sought to be brought on record by way of Vishal Parekar, P.A. ...4 ial-35020-2022.doc proposed amendment draw support and sustenance from the Administrator's report and the disclosures filed in Testamentary Suit No. 29 of 2012. If that is the case, there is no propriety in amending the written statement or seeking permission to file additional written statement as all the facts are already on the record of the Court.
8. The plaintiff further avers that suits No. 25 of 2012 and 29 of 2012 wherein rival Wills of the deceased are propounded stand on an equal footing. By the present application, the defendants 1 and 2 intend to indulge in phishing and roving inquiry into the alleged acts and conduct on the part of the plaintiff. The plaintiff asserts the proposed amendment would thus materially alter the nature of the defence and bring in issue facts which have no concern with the determination of the genuineness or otherwise of the Will propounded by the plaintiff. At best, according to the plaintiff, the facts sought to be pleaded by defendants 1 and 2, by way of proposed amendment, can be a subject matter of cross examination and not a matter of pleading. Contesting the averments in the application that the defendants /applicants are constrained to prefer this application as they were not equipped with the relevant material when the affidavit in support of the caveat was filed, the Vishal Parekar, P.A. ...5 ial-35020-2022.doc plaintiff has prayed for the rejection of the application.
9. An affidavit in rejoinder is filed on behalf of the defendants/ applicants controverting the contentions in the affidavit in reply.
10. I have heard Mr. Darius Khambata, learned Senior Advocate for the applicants and Mr. Premlal Krishnan, learned counsel for respondent No. 1. With the assistance of the learned counsel for the parties, I have perused the original pleadings, the averments in the instant application, the schedule of proposed amendment, affidavit in reply and rejoinder thereto.
11. Mr. Khambata, learned senior counsel, would urge that the circumstances in which the affidavit in support of the caveat was filed can not be lost sight of. Rule 402 of the Rules, 1980 enjoins the caveator to file affidavit in support of caveat within 8 days. Thereupon, under Rule 403, the said affidavit in support of the caveat is treated as the written statement. Laying emphasis on the fact that, at that stage, the applicants/defendants were not furnished copies of either the petition or the purported Will, and the relevant facts emerged, post the appointment of the Administrator and disclosures, Mr. Khambata would urge that proposed Vishal Parekar, P.A. ...6 ial-35020-2022.doc amendment is necessary for a just decision of the case.
12. Amplifying the submission, Mr. Khambata urged that the fundamental objection that the purported Will is not genuine and the testator was not in a sound state of mind and lacked disposing capacity have been raised in the affidavit in support of the caveat. By the proposed amendment, the defendants 1 and 2 profess to bring on record the facts, which otherwise form part of the record and are in the knowledge of the plaintiff. Therefore, the resistance to the proposed amendment on behalf of the defendants is wholly untenable.
13. Mr. Khambata further submitted that the instant application squarely satisfies the well recognized parameters for grant of amendment in the pleadings, especially in the written statement. The aspect of delay and laches sought to be urged on behalf of the plaintiff, according to Mr. Khambata, does not carry much substance as delay can not be the overriding criteria when the proposed amendment is necessary for determining the real question in controversy between the parties. It was further submitted that, in the facts of the case, since the application for amendment came to be preferred before filing of the affidavit in lieu of examination in chief the bar contained in the proviso to Order 6 Vishal Parekar, P.A. ...7 ial-35020-2022.doc Rule 17 would not come into play.
14. To bolster up this submission, Mr. Khambata placed reliance on the judgments of the Supreme Court in the cases of 1) Life Insurance Corporation of India vs. Sanjeev Builders Private Limited and Another1; 2) Estralla Rubber vs. Dass Estate (P) Ltd. 2; 3) Baldev Singh and Others vs. Manohar Singh and Another 3; a Division Bench of this Court in the case of Mahadeo vs. Balaji and Others4; and an Order passed by the learned single Jude of this Court in Phonographic Performance Limited vs. Entertainment Network India Ltd. & Ors.5.
15. In opposition to this, Mr. Premlal Krishnan, the learned counsel for the respondent/plaintiff stoutly submitted that the instant application is actuated by an ill design to expand the scope of the instant suit. In testamentary proceeding, according to Mr. Krishnan, the Court is required to examine only the genuineness or otherwise of the Will. By the proposed amendment, the defendants 1 and 2 intend to bring on record the facts which have no relevance at all for the determination of the said pivotal question. 1 2022 SCC OnLine SC 1128 2 (2001) 8 Supreme Court Cases 97 3 (2006) 6 Supreme Court Cases 498 4 (2012) 5 Bom CR 777 5 CHS No.863/ 2012 in Suit No.1588/ 2007 Dt. 18-06-2014 Vishal Parekar, P.A. ...8 ial-35020-2022.doc
16. Mr. Krishnan further submitted that the affidavit in support of the caveat came to be filed 10 years ago. This time lag of 10 years cannot be said to be inconsequential or immaterial. According to him, it would be naive to be believe that all the facts which are now sought to be pleaded by way of amendment, came to the notice of the defendant Nos. 1 and 2 in the recent past. Administrator in respect of the estate of the deceased came to be appointed in the year 2013. If the foundation of the proposed amendment is the reports of the Administrator and the disclosure made therein, then the delay in preferring this application is fatal to the defendants 1 and 2, urged Mr. Krishnan.
17. Lastly, Mr. Krishnan, would urge that if it is the case of the defendants 1 and 2 that the facts now sought to be pleaded by way of amendment are already on record in the form of report of the Administrator and disclosures made, then there is no justification for seeking the amendment.
18. I have considered the rival submissions canvassed across the bar. Evidently, the question as to which of the two rival Wills propounder by the plaintiff and defendants 1 and 2 is the last Will and testament of the deceased, is at the hub of the controversy. In Vishal Parekar, P.A. ...9 ial-35020-2022.doc this view of the matter, it may be expedient to note the burden which rests on the profounder of a Will and the circumstances in which the onus oscillates where suspicious circumstances are brought on record. Undoubtedly, in a petition for probate the Testamentary Court is not required to delve into the aspect of title to the property. However, the inquiry cannot be constricted to mere proof of the execution of the Will. To find out whether the Will propounded by a party who seeks the probate is the last Will and testament, a host of factors become relevant. Existence or otherwise of the suspicious circumstances and explanation, if any, where suspicious circumstances do exist , are the matters which the Testamentary Court is enjoined to consider.
19. A useful reference in this context, can be made to a judgment of the Supreme Court in the case of Surendra Pal and Others vs. Dr. (Mrs.) Saraswati Arora and Another6 wherein the nature and extent of burden of proof on the propounder, the effect of suspicious circumstances and the onus to dispel the same were expounded, in the following words:
7] The propounder has to show that the Will was signed by the testator : that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the 6 (1974) 2 Supreme Court Cases 600 Vishal Parekar, P.A. ...10 ial-35020-2022.doc testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. once these elements are established, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the will are not the result of the testator's free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the will is accepted. Again in cases were the propounder has himself taken a prominent part in the execution of the will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the Court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain.
See H. Venkatachala Iyengar v. B. N. Thimmajamma & Ors, (1959) Supp 1 SCR 426;
and Rani Purnima Devi and Anr v. Kumar Khagendra Narayan Dev, (1962) 3 SCR 195. In the latter case this Court, after referring to the principles stated in the former case emphasised that where there are suspicious circumstances the onus will be on the propounder to explain them to the satisfaction of the Court before the will could be accepted as genuine; and where the caveator alleges undue influence, fraud and coercion the onus is on hi to prove the same. It has been further pointed out that the suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will which may be unnatural or unfair or improbable Vishal Parekar, P.A. ...11 ial-35020-2022.doc when considered in the light of the relevant circumstances. if the caveator does not discharge the burden which rests upon him in establishing the circumstances which show that the will had been obtained by fraud or undue influence a probate of the will must necessarily be granted if it is established that the testator had full testamentary capacity and had in fact executed it validly with a free will and mind.
20. In view of the aforesaid exposition of low Mr. Kirshnan may not be justified in canvassing a broad submission that facts which are now sought to be brought on record, which according to the defendants 1 and 2 create a web of suspicious circumstances, have the tendency to expand the scope of the instant suit.
21. At this juncture, it may be necessary to note as to whether the interdict contained in the proviso to Order 6 Rule 17 of the Code comes into play. If the interdict operates, the defendants 1 and 2 are required to demonstrate due diligence and justification for not seeking the amendment before the commencement of trial.
22. Mr. Khambata, learned senior counsel for defendants 1 and 2 would urge that the trial in the instant suit did not commence before the application for amendment came to be filed as the affidavits in lieu of examination in chief were tendered post filing of the instant application. To lend support to this submission, Mr. Vishal Parekar, P.A. ...12 ial-35020-2022.doc Khambata banked upon the pronouncement of a Division Bench of this Court in the case of Mahadeo (supra). In the said case, the Division Bench answered the reference to the effect that the trial in civil suit commences from the date of filing of affidavit in lieu of examination in chief of the witness and proviso to Order 6 Rule 17 of the Code would came into play only after the stage of affidavit in lieu of examination in chief.
23. The question as to when, for the purpose of the proviso to Order 6 Rule 17, the trial can be said to have commenced, arose for consideration in the case of Vidyabai and Others vs. Padmalatha and Another7. In the said case, the Supreme Court enunciated that the proviso to Order 6 Rule 17 is couched in a mandatory form. The Court's jurisdiction to allow the application for amendment is taken away unless the condition precedent therefor are satisfied, namely, it must come to a conclusion that inspite of due diligence the parties could not have raised the matter before the commencement of the trial. Analyzing the facts of the said case, the Supreme Court indicated the date when the trial can be said to have commenced as under:
11] From the order passed by the learned trial judge, it is evident that the respondents had not been able to fulfill the said precondition. The question, therefore, which arises for consideration is as to whether the trial had 7 (2009) 2 Supreme Court Cases 409 Vishal Parekar, P.A. ...13 ial-35020-2022.doc commenced or not. In our opinion, it did. The date on which the issues are framed is the date of first hearing. Provisions of the Code of Civil Procedure envisage taking of various steps at different stages of the proceeding. Filing of an affidavit in lieu of examination in chief of the witness, in our opinion, would amount to "commencement of proceeding".
(emphasis supplied)
24. The aforesaid pronouncement was followed by the Supreme Court in the case of Mohinder Kumar Mehra vs. Roop Rani Mehra and Others8. It was observed, inter alia, that after the issues are framed and case is fixed for hearing and the party having right to begin is to produce his evidence, the trial of suit commences. In the facts of the said case, which have a resemblance to the facts in the case at hand, the Supreme Court found that technically the trial commenced when the date was fixed for leading evidence by the plaintiff but actually the amendment application was filed before the evidence was led by the plaintiff. It was thus held that the bar contained in the proviso to Order 6 Rule 17 of the Code may not operate.
25. In the backdrop of the aforesaid exposition of law, reverting to the facts of the case, it becomes abundantly clear that pursuant to the directions of this Court, the plaintiff filed affidavit in lieu of examination in chief in the instant suit on 14th November, 2012.
8 (2018) 2 Supreme Court Cases 132
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Before filing of the said affidavit on 10th November, 2022. the applicants/defendants 1 and 2 filed the instant application for amendment. This being the position, in my view, the interdict contained in the proviso to Order 6 Rule 17 may not operate in the case at hand.
26. This propels me to the justifiability of the proposed amendment. By a catena of decisions, it is now well neigh settled that two overarching principles govern an application for amendment of pleading. First, the Court should allow all amendments which are necessary to determine the real question in controversy between the parties. Second, the potentiality of prejudice to the opponent is also a factor which bears upon the decision. Under the broad umbrella of potentiality of prejudice, fall other factors like the amendment having the effect of depriving the opponent of the benefit of a legal right which has accrued to the opponent that the relief sought to be claimed by way of proposed amendment is barred by limitation or that the amendment has the effect of changing the very nature and character of the original case/ defence. It is equally well settled that prayer for amendment in the written statement is construed rather generously as the element of potentiality of prejudice is relatively less in case of amendment in the written statement than that of the plaint.
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27. All these principles were summarized by the Supreme Court in the recent pronouncement in the case of Life Insurance Corporation of India (supra). Paragraphs 25 and 26 read as under:-
25] The principles applicable to the amendments of the plaint are equally applicable to the amendments of the written statements. The courts are more generous in allowing the amendment of the written statement as question of prejudice is less likely to operate in that event. The defendant has a right to take alternative plea in defense which, however, is subject to an exception that by the proposed amendment other side should not be subjected to injustice and that any admission made in favor of the plaintiff is not withdrawn. All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defense taken. Inconsistent and contradictory allegations in negation to the admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings. The proposed amendment should not cause such prejudice to the other side which cannot be compensated by costs. No amendment should be allowed which amounts to or relates in defeating a legal right accruing to the opposite party on account of lapse of time. The delay in filing the application for amendment of the pleadings should be properly compensated by costs and error or mistake which, if not fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement. (See South Konkan Distilleries & Anr. v. Prabhakar Gajanan Naik & Ors., (2008) 14 SCC 632).
26] But undoubtedly, every case and every application for amendment has to be tested in the applicable facts and circumstances of the case. As the proposed amendment of the pleadings amounts to only a different or an additional Vishal Parekar, P.A. ...16 ial-35020-2022.doc approach to the same facts, this Court has repeatedly laid down the principle that such an amendment would be allowed even after the expiry of statutory period of limitation.
28. Re-adverting to the facts of the case, it is imperative to note that the substance of the resistance sought to be put forth on behalf of the plaintiff is that though the facts and documents sought to be pleaded by way of amendment, are germane to the question in controversy, yet since those facts and documents form part of the material which is otherwise brought on the record of the Court either in the form of Administrator's reports or disclosures, amendment is unwarranted.
29. I find it rather difficult to accede to aforesaid contention. The facts and documents proposed to be brought on record prima facie bear upon the circumstances which preceded, accompanied and followed the execution of the purported Will. They advert to, inter alia, the physical condition, the mental state of the testator, the manner in which the estate of the deceased was allegedly dealt with post his demise and the attendant conduct of the parties which, in turn, influence the decision on the genuineness or otherwise of the Will. From this stand point, the proposed amendment can be said to be in elaboration of the grounds raised by the applicants in the affidavit in support of the caveat.
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30. For the foregoing reasons, I am persuaded to hold that the proposed amendment is necessary for determining the real question in controversy between the parties.
31. Undoubtedly, the defendants 1 and 2 had known few of the facts now sought to be pleaded, much before, and could have sought the amendment at an earlier point of time. However the prejudice thereby likely to be caused to the plaintiff is not such that which cannot be compensated by costs. Hence, I am inclined to allow the application subject to payment of costs.
Hence, the following order.
ORDER 1] The application stands allowed subject to payment of costs of Rs. 25,000/- by the applicant/defendants 1 and 2 to the plaintiff within a period of three weeks. 2] Upon payment of costs, the applicant/defendants 1 and 2 are permitted to amend the written statement in accordance with the schedule appended to the application and serve copy thereof on the plaintiff within a period of three weeks thereafter.
(N. J. JAMADAR, J.)
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