Bombay High Court
Suresh Hemmady vs Dinesh Pandurang Bellare - Caveator / on 10 June, 2013
Author: Roshan Dalvi
Bench: Roshan Dalvi
jsn 1 TS No.16_2007
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
TESTAMENTARY SUIT NO.16 OF 2007
IN
TESTAMENTARY PETITION NO.475 OF 2003
Suresh Hemmady - Petitioner / Plaintiff
V/s.
Dinesh Pandurang Bellare - Caveator / Defendant
Mr. H. Mansukhani, Adv. a/w. Mr. A.B. Shrikhande, Adv. for the
Petitioner / Plaintiff.
Mr. Shyam Kapadia, Adv. a/w. Mr. B.G. Saraf, Adv. for the Caveator /
Defendant.
CORAM : MRS. ROSHAN DALVI, J.
Date of reserving the Judgment : 30th April, 2013
Date of pronouncing the Judgment : 10th June, 2013
J U D G M E N T
1. The Petitioner / Plaintiff is the executor under the Will of the deceased Mira R. Nadkarni he has sought to probate. The Caveator / Defendant is one of the heirs of the deceased. The deceased was a widow without issues. She left behind two brothers and two sisters as her heirs and legal representatives. One of the daughters of one of her sisters, one Leena Bijoor (Leena) is the main legatee under her will dated 15 th April, 1988. The Caveator / Defendant is the son of another sister. His wife and son have been nominated by the deceased as nominees in respect of the residential flat of the deceased under her last nomination. The deceased expired on 21st April, 2003. The Caveator / Defendant has essentially contended that the will of the deceased was not genuine and was a ::: Downloaded on - 27/08/2013 20:33:59 ::: jsn 2 TS No.16_2007 fraud committed by the Petitioner / Plaintiff and Leena Bijoor in collusion with one another. His case is that the deceased went to live near the residence of the Caveator / Defendant after she was widowed in about 1970. He and his family looked after and cared for the deceased during her illness. He claims that the will of the deceased was got prepared upon fraud or misrepresentation practised upon her which would not have been her last will and testament and her last will and testament could have been contemporaneous with her later nomination, but which has been suppressed. In essence, therefore, his case is that the execution of the will of the deceased was by fraud or misrepresentation.
2. Upon such pleadings Justice Dharmadhikari framed the following issues on 29th July, 2009 which are answered as follows :
I S S U E S 1 Whether the Petitioner / Plaintiff proves that the No th deceased executed a Will dated 15 April, 1988?
2 Whether the Petitioner / Plaintiff proves that the will No is genuine and valid?
3 Whether the Defendant /Caveator proves that the No deceased was not in a fit state of mind and therefore, the will dated 15th April, 1988 is vitiated?
4 Whether the Defendant / Caveator proves that the No th signature appearing on the will dated 15 April, 1988 is not that of the deceased?
5 Whether the Defendant / Caveator proves that the Yes will is vitiated by a fraud being perpetrated by the Plaintiff / Petitioner and whether the Plaintiff / Petitioner has exercised undue influence on the deceased?
6 Whether the Defendant / Caveator proves that the Yes will is procured by mis-representation and therefore, cannot be relied upon?
7 What order and relief? As per final order.
3. The Plaintiff / Petitioner has examined himself as the ::: Downloaded on - 27/08/2013 20:33:59 ::: jsn 3 TS No.16_2007 executor of the Will and the person in whose custody the Will was kept after its execution. One of the attesting witnesses was a Doctor by profession who has been examined by the Plaintiff / Petitioner.
The Caveator / Defendant has examined himself.
4. The Plaintiff has essentially relied upon the Will of the deceased. The Caveator / Defendant has relied upon the later nomination of the deceased sent by the deceased to the society where her residential flat was situated under her covering letter which aspect has not been disputed. The Plaintiff / Petitioner has confronted the Caveator / Defendant with certain medical bills in his cross examination. Both the parties have personally referred to certain inventory of the flat and the moveables therein which came to be drawn after the death of the deceased but which is not very material.
5. Upon such oral and documentary evidence the Court would have to first decide whether the Will dated 15 th April, 1988 was validly and genuinely executed by the deceased or whether it was a result of a misrepresentation or a fraud perpetrated upon her.
6. It may be mentioned that there is not much dispute with the state of mind of the deceased at the time of the execution of the will which was executed many years prior to her death. Similarly the fact that the signature of the deceased is on the Will is not seriously pressed. The case of the fraud having been made out in the pleading is akin to the case of misrepresentation in view of which the two issues with regard to these aspects being framed, both the aspects would be considered together.
ISSUE NOS.1 & 2.
7. It would be material to consider the family tree of the deceased as also the admitted chronology of what has transpired ::: Downloaded on - 27/08/2013 20:33:59 ::: jsn 4 TS No.16_2007 during her life. The deceased was one of the five children of her parents. She is stated to have been married at the age of 15 - 16 in 1946. She was, therefore, born in 1930-31. She expired in 2003 at the age of 72-73 years. Leena, the main beneficiary, one of her many nieces, was born in 1951, five years after the deceased was married. The deceased is stated to have been got married by the mother of Leena, the sister of the deceased, at the young age of 15 - 16 years since their parents had by then expired. It is the case of the Plaintiff / Petitioner that the mother of Leena brought up the deceased and her children grew along with the deceased and Leena was her favourite niece. It is his case that the deceased bequeathed most of her properties to Leena out of her natural love and affection as also and obligation and duty upon she being brought up by her mother. Leena has two other sisters. The same love and affection or obligation of the deceased has not been shown towards those sisters. They are also beneficiaries, albeit of much lesser value of the estate of the deceased. The arithmetical calculation of the percentage of the properties of the deceased inherited by Leena under the said Will of the deceased done by counsel on behalf of the caveator is a wholesome 94%, the other three family members sharing the remainder being a part of her moveable estate.
8. The husband of the deceased expired in 1967 when the deceased was 37 years old. Soon thereafter in 1969-1970 the deceased moved from her residence in Girgaum to Matunga / Mahim which is close to the residence of the Caveator / Defendant and his family.
9. Leena married in 1972 and is stated to have gone abroad and lived abroad from 1988 to 1996. The Will has been prepared on 15th April, 1988 prior to her departure from India.
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10. The Will of the deceased dated 15 th April, 1988 is a wholly typewritten document contained in 2½ pages. It is signed by the deceased as also two attesting witnesses on each of the pages. The deceased has only signed below her name and the typewritten date. The attesting witnesses have put the date of the Will in their handwriting.
11. The Will mentions five separate dispositions. These are in respect of her residential flat, shares in another co-operative society which is agricultural land, moveables contained in shares, debentures, bonds and fixed deposits, jewelry and the residue.
12. The Will sets out that she owns the residential flat which she bequeaths to her niece Leena describing the flat as also the niece and mentions about the registration of the nomination already done by her and a copy of the nomination certificate being handed over to Leena. Similarly, the Will specifies about shares that she owns in the society from which she earns agricultural income bequeathed to Leena in which she has described both the society as also her relationship with Leena. It also specifies that she has registered Leena as a nominee and has given a copy of nomination certificate to Leena. The Will further shows a list of shares, debentures, bonds and FDs enumerated in the annexure to the Will which are stated to be acquired by her in the joint names of herself and one of her nieces or nephews. The list of her immoveable and moveable properties annexed to the Will is also identically typewritten in 2 ½ pages bearing her signatures as also signatures of the attesting witnesses at the foot of each page. Most of the investments are shown to be in the joint names of Leena and some in the names of her mother, her father and her sister Anita. Few are held along with her brother Mohan. Mr. Shyam Kapadia, counsel on behalf of the Caveator / Defendant ::: Downloaded on - 27/08/2013 20:34:00 ::: jsn 6 TS No.16_2007 argued that 94% of the investments are in the joint names of Leena. The Will further mentions about the jewelry kept in safe deposit vault of a specified bank in Matunga which is bequeathed entirely to Leena.
It states that Leena is the authorised signatory of the vault and would take possession of the contents upon her death. Under the Will Leena is the residuary legatee also.
13. The Will bears no handwriting of the deceased except her signatures which are six in number entirely consistent with one another. Each of these signatures is attested by two witnesses on six pages identically.
14. The Will has been prepared when the deceased was 58 years old. It has been prepared days before Leena left India to go abroad for a number of years.
15. There is no dispute that the Will has been executed as required by law. It has been sought to be proved as required by law.
One witness who is a Doctor has testified as to its attestation out of two attesting witnesses as required by law.
16. The Petitioner / Plaintiff is the only executor and was not present at the time of the execution of the Will. His evidence shows he was known to the deceased for about 50 years as he was related to her as a distant cousin and family friend who visited the deceased very often. He was, therefore, her well "wisher, friend, philosopher and guide." The Will was handed over to him by the deceased about a week after it was executed. It was contained in an envelop. It was directed to be retained by him and opened only after her death. He was informed about the Will being made by the deceased of her own will and accord and that he owed a responsibility to her to see that the estate was administered as per the Will. He was told that he was the sole executor.
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17. The meticulously executed Will contained in 2½ pages of bequests and 2½ pages of enumeration of her estate without any contemporaneous, circumstantial or corroborative evidence of what was stated in the Will is required to be seen with circumspection. The academic mind of the deceased is, therefore, required to be tested. The evidence of the executor who knew the deceased for 50 years shows that the deceased was 72 years old at the time of her death in 2003. She was, therefore, born in 1930-1931. She was, therefore, married when she was 15 to 16 years old. He has deposed that the deceased knew English and could read, write and understand it. He also deposed that the deceased was a housewife who worked for some years after her husband's death as LIC agent. She was orphaned at a young age and brought up by her sister until she was married at the age of 15 or 16 and widowed at the age of 37 after which she became an LIC agent for some years. In his cross examination he deposed that the deceased completed her SSC but that he would not be able to state her exact educational qualification.
18. The Doctor who is the attesting witness has also deposed that the deceased had studied up to 9th or 10th standard but was never told about her qualification and she had never asked about it. Upon being asked how she could state that deceased had studied up to 9 th or 10th standard, she has deposed in her cross examination that the deceased might have studied in English school, therefore, she might have known English. The academic excellence of the deceased goes thus far. She was an orphaned child, a child wife and a young widow. She did not have her parents, her husband or any issues. The admitted chronology tendered to Court shows that she was married in 1946 at the age of 15 or 16. The SSC examination in those days was matriculation examination of eleven grades. It could be finished ::: Downloaded on - 27/08/2013 20:34:00 ::: jsn 8 TS No.16_2007 earliest at the age of 15 or 16 years by which time the deceased was already married off by her elder sister. The love and affection which is sought to be portrayed from the factum of marriage, may well have been an act to get her settled where she was taken to belong upon marriage rather than in the family of her birth. There is absolutely no evidence to show or suggest the kind of school education also which she got or the medium of its instruction. The Will has not been explained to her in the vernacular language that would have been her mother tongue.
19. It has been argued on behalf of the Petitioner / Plaintiff that she was a woman of the world being a LIC agent and was expected to be conversant with English language. The caveator has deposed that the deceased had LIC agency but her assistant used to manage her affairs. The deceased merely signed the papers (much as she has signed her Will). It is argued on behalf of the Caveator / Defendant that being a LIC agent she was not required to be conversant with English language as even the forms of LIC are in Hindi, Marathi and English languages. This is brought upon an act of industry by counsel on behalf of the Caveator / Defendant. Though it is not part of the evidence, it is the fact of which the judicial notice must be taken.
20. Seeing the lengthy, well drafted, detailed, typedwritten Will containing absolutely no errors or corrections in the handwriting of the deceased, it being not explained to her by any one in her mother tongue and wholly unaccompanied, in this suit, by the number of documents mentioned in the Will itself as contemporaneous to the bequests made in the Will, the Will would be susceptible to some suspicion. It, therefore, falls upon the executor to remove the suspicion. To that end the executor has neither produced nor led ::: Downloaded on - 27/08/2013 20:34:01 ::: jsn 9 TS No.16_2007 evidence of any witness including the main beneficiary under the Will to show the contemporaneous documentary record of the nomination made by the deceased alongside the Will in respect of her residential flat, the agricultural society, the investments of the deceased in various joint names or the record relating to her safe deposit vault in the bank.
21. Though the executor is stated to be her distant cousin, the description of the relationship is not shown or proved. Though he has claimed to be a family friend and on visiting terms with the deceased, and he claims to be her "well wisher, friend, philosopher and guide,"
he has been unable to state her exact educational qualification. He was not consulted at the time of the preparation of the Will.
Similarly, he has admitted that his advise was not sought while forwarding the later nomination of the deceased. He has further accepted that he knew Mohan Kalyanpur, the brother of the deceased who has witnessed the later nomination of the deceased though he has not accepted the nomination form signed by Mohan Kalyanpur as witness thereto.
22. Though he claims to have visited the deceased often at her residence he is not shown to be living near to the deceased. He has deposed that in the last one year or two years before the death of the deceased, she often felt ill and was hospitalised several times with difficulty in breathing. Though he claims to have visited her once in about two months to enquire about her health, he had not expended for the deceased during her hospitalisation at any time.
23. The Petitioner has deposed that the deceased initially lived in Girgaum, Mumbai. After the death of her husband she sold her flat in Girgaum and moved to Matunga / Mahim in around 1970 where she lived until her death. He accepts that the Caveator / Defendant ::: Downloaded on - 27/08/2013 20:34:01 ::: jsn 10 TS No.16_2007 was residing in the vicinity of residence of the deceased in Matunga / Mahim and during her medical ailments and hospitalisation she was attended to by the Caveator / Defendant and his family. He played no part in attending to the deceased during her hospitalisations. His deposition that the deceased was orphaned at young age, brought up by her sister, the mother of Leena till she was married shows the short period during which between her being orphaned and married she could have been cared for by Leena's mother. His evidence that because she had no issue of her own, she was closely associated with her sister's daughters with whom she had grown up can be seen only during that short period between her being orphaned and married that she could have been grown up with Leena and her siblings. Leena was not even born then. The Petitioner's / Plaintiff's evidence is that the deceased treated Leena as her daughter. There is no contemporaneous record showing that fact which could have been shown best by the evidence relating to her properties in which she was joined or nominated including her safe deposit vault. His evidence that she grew up along with all the children of the sister who cared for her until she was got married is not reflected from the Will in which one of the sisters is totally excluded and the other is shown as the joint holder and consequently the beneficiary of only very small portion of her estate.
24. The Petitioner has specifically deposed in paragraph 9 of his evidence that Leena was her favourite and was treated as daughter. His evidence shows that the deceased would go and stay with Leena even when Leena was out of Bombay due to transfer and Leena would stay with the deceased whenever "they" visited Bombay on holiday. Though there is absolutely no evidence of any such meetings, Leena having gone abroad from 1988 to 1996, the evidence ::: Downloaded on - 27/08/2013 20:34:01 ::: jsn 11 TS No.16_2007 would show that Leena would only visit Bombay on a holiday with her husband.
25. The entire chronology of the events of the life of the deceased would show that out of the first 15 years when she was unmarried and orphaned, Leena was not even born. Leena was born five years after her marriage. At the age of about 35 years she went abroad for 8 years. Thereafter she appears to be posted outside Bombay and was visiting Bombay. The husband of the deceased expired in 1967 when Leena was 15 years old. During first 15 years of Leena's life the deceased was married to her husband. When Leena would have finished her school studies, the husband of the deceased expired. There is no evidence whatsoever about Leena's college education. The relationship in the nature of mother and daughter is unlikely to have been cultivated after the child reaches her adulthood or even her teens. There is absolutely no evidence to corroborate the oral evidence of the relationship of the deceased with Leena such as to make her almost the sole beneficiary of the entire estate of the deceased, who had other brothers and sisters as also other nieces and nephews.
26. Though the evidence of the attesting witness in such position as per law is not even challenged and need not be considered in depth, the Doctor's evidence is more embellished then would be expected. The Doctor who is the attesting witness lived in Girgaum from 1966 to 1971 where she claims to have met the deceased in around 1966. The deceased moved to Mahim in 1969 - 70. The husbands of both deceased as well as the Doctor were in the police department and lived closed by. She was, therefore, acquainted with the deceased between 1966 to 1969-70. She visited the deceased in Girgaum, worked in MGM hospital, Parel from 1971 to 1998 when ::: Downloaded on - 27/08/2013 20:34:01 ::: jsn 12 TS No.16_2007 she retired as consultant anesthetist. She lived in the hospital quarters between 1971 to 1980. She lived in Mahim, presumably close to the flat of the deceased, between 1980 to 1995. The deceased shifted to Mahim in 1970. The Doctor would have been known to the deceased about 8 years between 1980 when she shifted to Mahim and 1988 when the deceased is stated to have executed her Will. Whatever was the relationship by which the deceased chose the Doctor to be her attesting witness could have been formed between 1980 to April, 1988.
27. Based upon such relationship the Doctor has sought to depose about the early life of the deceased which she claims to have learnt from the deceased and therefore, falls within realm of hearsay evidence, otherwise inadmissible. It is not a fact told to the Doctor immediately before the death of the deceased to make it a dying declaration and accordingly admissible. The evidence of her knowledge of the youth of the deceased in paragraph 4 of the affidavit of evidence is a mere repetition of what has been deposed by the Petitioner / Plaintiff.
28. Her evidence in her cross examination about the educational qualification of the deceased falls from her knowledge of the deceased upon the acquaintance with the deceased after her marriage as a neighbour. That evidence only goes to the extent of stating that the deceased might have studied in English school till 9 th or 10th standard as she knew English.
29. The totality of the evidence, therefore, shows that the deceased has indeed signed in English at the foot of 6 pages on 15 th April, 2008. Whether she knew what she was signing cannot be vouchsafed. There is nothing to corroborate and substantiate the statements made in the Will to show that the deceased alone could ::: Downloaded on - 27/08/2013 20:34:01 ::: jsn 13 TS No.16_2007 have made that. There is nothing to show who prepared the Will or typed it. The distant cousin whose linage is not shown and a neighbour who was a Doctor were contacted by the deceased for attesting the Will. Their identification is not substantiated. The residence of the attesting witnesses is not shown. The relationship of the Petitioner with the deceased is not established. The Petitioner knew Leena, the main beneficiary in the Will; the Doctor did not. Her knowledge is upon what the deceased told her. Her evidence does not show that Leena was even visiting the deceased in the number of years that she remained the neighbour of the deceased in Girgaum / Mahim / Matunga. For want of identification, the Court may be suspicious of the fact that these two witnesses may be the two stooges of the main beneficiary. Those suspicions have not been removed. Even taking them at face value only upon acceptance of their own evidence, the evidence of the Petitioner shows that the deceased was associated with all the daughters of the sister who brought her up, Leena being her favourite. The evidence of the Doctor shows that she was asked to prepare her affidavit of evidence by the husband of Leena though she prepared it upon consulting with her own husband who has legal background. That legal background extended to he being a member of the police department; at times in the traffic department and at times in police station. She prepared an affidavit in consultation with another friend's husband after being asked to prepare it by Leena's husband.
30. The suspicion with regard to knowledge of English of the deceased is also not removed by producing evidence relating to her education. The factum of the LIC agency is shown to be only for some years after the death of her husband and which, as aforestated, could have been undertaken either through an agent or an assistant or by ::: Downloaded on - 27/08/2013 20:34:02 ::: jsn 14 TS No.16_2007 understanding the forms in the vernacular languages.
31. It cannot be vouchsafed that the deceased required the document, putting a half dozen signatures at the foot of such number of pages " after knowing fully its contents". (See N. Govindarajan Vs. N. Leelavathy, 2011 5 CTC 287 DB (Madras) and understanding that she was signing her last Will and testament understanding the nature and effect of her dispositions (or that they were such dispositions at all) (See H. Venkatachala Iyengar Vs. B. N. Thimmajamma & Ors., AIR 1958 SC 443 para 19), to which my attention has been drawn by Mr. Kapadia. Hence if the main beneficiary with one other person who claims to be the attesting witness gets a document signed and attested, it would not per se be a validly and genuinely executed Will, being a document attested by 2 witnesses. The second attesting witness has not at all been in the reckoning and under such circumstances merely one witness stating about the attestation by the other witness would also not suffice (See Surinder Kumar Grover Vs. State and Ors., 177 (2011) DLT 188 (Delhi). The case of H. Venkatchala (Supra) has been followed in Shashi Kumar Banerjee Vs. Subodh Kumar Banerjee, AIR 1964 SC 529 and continuously thereafter. The settled law allows a Will to be proved by the evidence of one of the two attesting witnesses upon deposing as to the mode prescribed in Section 63 of the Indian Succession Act. But that would be enough only if nothing amiss is otherwise found in evidence i.e. if there are no "suspicious circumstances". If any circumstance shows a suspicion in the mind of the Court that the deceased may not have put her pen to paper knowing and believing the document to be her Will, it should mandatorily be removed by the person propounding the Will to discharge the onus which lies on him. This has been explained in the ::: Downloaded on - 27/08/2013 20:34:02 ::: jsn 15 TS No.16_2007 case of Shashi Kumar (Supra) following the case of H. Venkatchala (supra) thus :
The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S.63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. 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 being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator.
32. The totality of the evidence, therefore, leaves the suspicion of the Court unremoved. The Plaintiff / Petitioner has not removed all the suspicious circumstances as required by settled law. The Will of the deceased, therefore, remains at that. It cannot be held to be the Will validly or genuinely executed by the deceased. Hence Issue Nos.1 and 2 are answered in the negative.
ISSUE NO.3
33. There is no issue between the parties about the health of ::: Downloaded on - 27/08/2013 20:34:02 ::: jsn 16 TS No.16_2007 the deceased in 1988. The deceased is not shown to be ill or debilitated at the time of execution of the Will. It has been executed 15 years before her death. The case of fraud and misrepresentation made out by the Caveator / Defendant must be tested upon legal validity of the execution seeing the academic mind of the deceased.
The Doctor has deposed about sound health of the deceased with no complaints of her health of whatsoever nature until 1995. Her evidence about the health of the deceased until 1995 when they were neighbours, which includes period of execution of the Will of the deceased, is acceptable. 15 years before her death the deceased was expected to be in sound state of mind and health. Hence Issue No.3 is answered in the negative.
ISSUE NOS.4,5 AND 634. These issues relate to whether the Will was not executed by the deceased or whether it was executed upon fraud being perpetrated upon deceased or upon misrepresentation.
35. It has been argued that the basic principle of pleading for alleging fraud or coercion and undue influence is to give full particulars of such act. Mr. Mansukhani relied upon the judgment in the case of Bishundeo Narain Vs. Seogeni Rai, AIR 1951 SC 280 in that behalf. That was the case of a partial partition followed by a civil suit for the unpartitioned properties resulting is a compromise decree which came to be challenged. That was not the case of a Will which is executed by another person who has since expired. That judgment also does not extend to the case of a misrepresentation which is the ambit of the caveator's case herein.
36. The Caveator / Defendant is the son of other sister of the deceased. He lived near the deceased. The deceased sold her house ::: Downloaded on - 27/08/2013 20:34:02 ::: jsn 17 TS No.16_2007 in Girgaum to live close to the said nephew. The evidence of the Caveator / Defendant has shown that he visited the deceased to give her moral support. She approved his marriage. Her husband officiated in place of his parents, who were then deceased. After his marriage he lived for some days with the deceased and her husband in Girgaum and then shifted to Mahim / Matunga. The deceased helped in setting up new home and taught his wife cooking. He treated the deceased and her husband as parents.
37. The deceased lived with him when she felt alone. He helped the deceased with her Doctors, bank work etc. He lived with her during her hospitalisation. His evidence shows that he was a heart patient and hence it was inconvenient to live on the 3 rd floor where he had his residence and hence lived with the deceased in her flat. He performed the last rites of the deceased.
38. His evidence shows the deceased having been hospitalised on several occasions when he incurred the initial hospital expenses. He was reimbursed by the deceased thereafter. He has produced various hospital and medical bills to corroborate this fact. These bills were given by him to the executor after the death of the deceased.
The hospital bills do corroborate the relationship he had with the deceased which has been orally deposed by him. These bills amongst others were shown to him in his cross examination in confrontation.
39. The bills have been used for a much different purpose.
Whereas the evidence of the Doctor, who is the attesting witness, is that the deceased was in a sound state of mind until 1995 and the evidence of the Petitioner is that the deceased was ill and hospitalised only in the last one or two years before her death, which would be in the years 2002 - 2003, for which period the hospital bills indeed are, amongst these bills which are original documents, photocopies of only ::: Downloaded on - 27/08/2013 20:34:02 ::: jsn 18 TS No.16_2007 three bills for a certain hospitalisation alleged to be of the deceased are put in for the period 23 rd December, 1998 to 6th January, 1999.
The three photocopies stand out like a sore thumb. They run counter to the evidence of the Petitioner / Plaintiff as also the attesting witness. The reason is not far to seek.
40. Admittedly the deceased executed a nomination by signing a nomination form on 23rd December, 1998 accompanied by her letter. It is sought to be shown that on that day she was hospitalised. That important evidence is not reflected in the original bills of her hospitalisation or medications. Only those bills are photocopies. It is interesting to see how these bills are sought to be brought on record amongst the other bills. They are shown to the Caveator / Defendant in a bunch consisting of 135 pages of documents. The Caveator / Defendant upon being confronted under Order 7 Rule 14 of the CPC has been asked in his cross examination : "Is it correct to say that all these bills pertained to treatment of Smt. Mira Nadkarni"?. The Caveator / Defendant upon going through documents has answered "yes". The answer is to be tested upon viewing the documents. The test has betrayed the Petitioner / Plaintiff. They are distinctly smuggled into the record along with all other bills of only 2002 - 2003 to show that the nomination was got executed when the deceased may not have been in sound state of mind. However, the oral evidence of the Petitioner as also attesting witness belies those documents.
41. In view of such mischief, the case of the Petitioner / Plaintiff with regard to the change of nomination is to be viewed. The letter of the deceased dated 23rd December, 1998 shows that she desired to "change" her nomination from Leena Bijoor to Geeta Dinesh Bellare and Jayant Bellare, the wife and the son of the ::: Downloaded on - 27/08/2013 20:34:03 ::: jsn 19 TS No.16_2007 Caveator / Defendant. The fact that the nomination has been registered with the society is not denied. The nomination registered with the society has been accepted by the society and consequently the Petitioner / Plaintiff. The Petitioner / Plaintiff has, however, not accepted that the deceased could have herself of her free will executed the nomination. It is argued on behalf of the Petitioner that the nomination form was filled up by some one else and not the deceased because there is a small 'x' mark near the place of her signature suggesting that the form was filled up and the deceased was only made to sign. This, in fact, would show that the deceased was not as independent of mind as has been sought to be made out to get her Will probated. A person who had got prepared a Will of 2½ pages with 5 detailed bequests would not be required to be shown the place of signature on a nomination form marked 'x'. Conversely a person who would be required to execute a nomination form by signing against the mark 'x' would not be expected to prepare and get attested a Will such as the one sought to be probated as independently as has been sought to be shown. The deceased appears to have signed the Will at 6 places shown to her, much as she is shown to have signed his nomination form. The printed nomination form may indeed be signed by a member as shown and directed in the presence of witness if she is explained the import of such documentation, as is usually done to many members in many housing societies. Yet only few of such signatories execute Wills of the kind in this case in the manner exhibited in this case.
42. The oral evidence of the Caveator / Defendant with regard to hospitalisation of the deceased shows that the deceased was asthmatic. She was taken to the hospital 7 to 8 times. The evidence of the Petitioner shows that that was only during 2002-2003 and not ::: Downloaded on - 27/08/2013 20:34:03 ::: jsn 20 TS No.16_2007 in 1998. The evidence of the attesting witness shows the health of the deceased to have been perfect at last till 1995. The Caveator / Defendant has taken her to the hospital each time. No other relatives came forward. The Caveator / Defendant used to pay for the hospital expenses and the deceased would reimburse him. The Caveator / Defendant did not keep record of the expenses. The deceased was got treated by Dr. Ajit Vaze. The fact that the Caveator / Defendant produced all the hospital bills and handed them over to the Petitioner after the death of the deceased is admitted. Neither the Petitioner nor Leena has made out any case of they having incurred any hospital expenses for the deceased any time. This solitary documentary evidence supports the relationship made out by the Caveator / Defendant with the deceased. The change of nomination is the result of the relationship.
43. It has been the caveator / Defendant's case that along with the change of nomination the Will of the deceased was also expected to have been changed if the deceased had prepared and executed her Will way back in 1988. If that was so, such a Will has been suppressed. Conversely, it is argued with a good effort at analogy by Mr. Kapadia that if there was no Will already executed known to the deceased, she may not have prepared and executed any other Will revoking the earlier Will. In that case there would be only an earlier nomination later revoked by the deceased. In either case the preponderance of probabilities tilts towards the non-execution of any Will. Hence the Will produced by the Petitioner was unknown to the deceased. The Caveator / Defendant has not produced any Will. None can be imputed from his oral evidence. A bare reference to one Kavita Rao of the deceased having made an oral Will is innocuous and must be ignored. An inventory is made of the moveables in the flat of ::: Downloaded on - 27/08/2013 20:34:03 ::: jsn 21 TS No.16_2007 the deceased. The inventory is signed by the Petitioner / Plaintiff, Leena and her husband. The son of the Caveator / Defendant was also present but has not signed the inventory. The inventory makes a reference to an unsigned writing. That also cannot be accepted to be another Will of the deceased and must be left ignored. Indeed there is no other Will of the deceased. From the relationship made out by the Caveator / Defendant with the deceased and the lack of relationship of the deceased with the other family members also, the quality of the execution of the Will sought to be probated is required to be adjudged.
44. The Caveator / Defendant's evidence would show the execution of the nomination form 10 years after the execution of the Will and five years before the death of the deceased, duly registered with the society and accepted by all as such. The effort in throwing mud upon the conduct of the Caveator / Defendant is exposed. A totality of the entire evidence would show a more than passive part played by Leena in obtaining the Will of the deceased as has been done in sullying the character of the Caveator / Defendant. In any event the Will of the deceased, however executed, along with the nomination form of the deceased in respect of the residential flat of the deceased must be accepted or rejected in consonance with not only a nomination but the cancellation of the earlier nomination in favour of Leena by the deceased in 1998. Rather than the corroborative evidence of the Will, the nomination is the contradictory evidence. It shows the later intention of the deceased though not in testamentary disposition and though not with regard to her entire estate.
45. Indeed as aforesaid the Will has not been shown to be genuinely and validly executed. The evidence produced by the ::: Downloaded on - 27/08/2013 20:34:03 ::: jsn 22 TS No.16_2007 Caveator / Defendant though not showing that the signature of the deceased is not that of the deceased, lends credence to the fact that the signatures at the foot of the 6 pages of the Will were obtained from the deceased by perpetrating a fraud or upon a misrepresentation. It is before the main beneficiary Leena went to settle abroad at least for 8 years. Consequently though Issue No.4 is answered in the negative, Issue Nos.5 and 6 are answered in the affirmative.
ISSUE NO.7
46. The Will of the deceased Smt. Mira Nadkarni dated 15 th April, 1988 has not been validly executed. It cannot be and is not probated.
47. Suit as well as the Petition are dismissed.
48. Drawn up decree is dispensed with.
( ROSHAN DALVI, J.) ::: Downloaded on - 27/08/2013 20:34:03 :::