Bombay High Court
Lalitkumar D. Chapsey & Anr vs Nickie K. Nanavati on 22 February, 2018
Author: G.S. Patel
Bench: G.S.Patel
Lalitkumar D Chapsey & Anr v Nickie Kiran Nanavati
MPT39-2004-TS4-2005-J-F3.DOC
AGK|DB|ZS|SA|SK
REPORTABLE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
MISCELLANEOUS PETITION NO. 39 OF 2004
IN
TESTAMENTARY PETITION NO. 233 OF 2004
1. LALITKUMAR D. CHAPSEY,
2. Adult Indian Hindu Inhabitant of Mumbai,
Residing at Chapsey Building, 72, Princess
Street, Mumbai 400 002
2. SAMIR L. KAPADIA
4. Adult Indian Hindu Inhabitant of Mumbai,
Residing at 61, Ashok , 16, Hansraj Lane,
Byculla, Mumbai 400 027 ... Petitioners
~ versus ~
NICKIE KIRAN NANAVATI
Residing at 7104, Inverness Ct, West Chester,
OH 45069, USA
Through his Constituted Attorney
5. Pramathesh C. Kapadia, Hindu Inhabitant of
Mumbai Residing at Bherumal Bhavan, Block
No. 1 Mogul Lane, Mahim, Mumbai 400 016 ... Respondent
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Lalitkumar D Chapsey & Anr v Nickie Kiran Nanavati
MPT39-2004-TS4-2005-J-F3.DOC
WITH
TESTAMENTARY SUIT NO. 4 OF 2005
IN
TESTAMENTARY PETITION NO. 178 OF 2004
1. LALITKUMAR D. CHAPSEY,
Adult Indian Hindu Inhabitant of Mumbai,
Residing at Chapsey Building, 72, Princess
Street, Mumbai 400 002
2. SAMIR L. KAPADIA
Adult Indian Hindu Inhabitant of Mumbai,
Residing at 61, Ashok , 16, Hansraj Lane,
Byculla, Mumbai 400 027 ...Plaintiffs
~ versus ~
NICKIE KIRAN NANAVATI
Residing at 7104, Inverness Ct, West Chester,
OH 45069, USA
Through his Constituted Attorney
Pramathesh C. Kapadia, Hindu Inhabitant of
Mumbai Residing at Bherumal Bhavan, Block
No. 1 Mogul Lane, Mahim, Mumbai 400 016 ...Defendant
A PPEARANCES
Mr Rajesh Kachare, for the Petitioners in the Miscellaneous
Petition & the Plaintiffs in the Testamentary Suit
Mr Uday Bhanu Sinh, i/b Ivor Peter D'Cruz, for the respondent
in the Miscellaneous Petition and the Defendant in the
Testamentary Suit.
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Lalitkumar D Chapsey & Anr v Nickie Kiran Nanavati
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CORAM : G.S.Patel, J.
JUDGMENT RESERVED ON : 25th January 2018
JUDGMENT PRONOUNCED ON : 22nd February 2018
JUDGMENT:
CONTENTS A. INTRODUCTION.................................................................. 4 B. FACTS .................................................................................... 7 C. THE WILL IN QUESTION ................................................... 9 D. THE CODICIL IN QUESTION ............................................13 E. THE CAVEAT TO THE PROBATE PETITION..................14 F. ISSUES ..................................................................................15 G. THE EVIDENCE ON RECORD ...........................................17 H. RE: ISSUES NOS. 1, 3 AND 4 ...............................................17 I. RE: ISSUE NO.2 ....................................................................33 J. RE: ISSUE NO. 5 .................................................................. 36 K. GENERAL OBSERVATIONS & CONCLUSIONS .............. 38 L. ORDER ................................................................................. 49 Page 3 of 54 22nd February 2018 ::: Uploaded on - 28/02/2018 ::: Downloaded on - 01/03/2018 01:00:03 ::: Lalitkumar D Chapsey & Anr v Nickie Kiran Nanavati MPT39-2004-TS4-2005-J-F3.DOC A. INTRODUCTION
1. The Testamentary Suit and Miscellaneous Petition both relate to the estate of one Dr. (Miss) Bharati Dhanvantlal Nanavati ("the Deceased"; "the Testator" or "Bharatiben"). The Plaintiffs to the Testamentary Suit are the Petitioners in the Miscellaneous Petition. Where necessary, I refer to them in this judgment by their names ("Lalit"; "Samir") or as "the Plaintiffs". The original Defendant to the Suit was one Kiran Dhanvantlal Nanavati ("Kiran") Bharatiben's brother and only surviving relative. He died in August 2009. His son, Nickie, has continued in his deceased father's place. Kiran originally obtained Letters of Administration to Bharatiben's estate, claiming intestacy. The Plaintiffs/Petitioners sought to have these revoked in their Miscellaneous Petition. They said Bharatiben left a Will dated 26th March 2001 ("the Will") and a Codicil dated 24th June 2002 ("the Codicil"). They claimed they were appointed executors under the Will. On that Miscellaneous Petition, this Court directed the Letters of Administration to be deposited in Court. The Plaintiffs then filed the Testamentary Petition to propound these testamentary writings, seeking probate. Kiran entered a caveat to oppose the grant of probate. The suit was taken to trial. Clearly, if the Plaintiffs succeeded and obtained Probate either to both the Will and the Codicil, or at least to the Will, Kiran's grant of Letters of Administration would automatically fail; that is to say, the Plaintiffs'/Petitioners' Miscellaneous Petition for revocation of the grant of Letters of Administration would automatically succeed.
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2. This contested Probate Petition is unusual in one crucial, and as we shall see, most telling, aspect: there are no less than three avatars of the Will propounded. The Plaintiff says they are all identical. They are not. One has a marking or stamp that is missing in the other two. Another document, produced in trial, and said to be a photocopy of the Will, has markedly different signatures of the two attesting witnesses. The entire case therefore turns on a single determinant: if these three avatars of the Will clearly differ in their physical countenance, and there is no explanation at all from the Plaintiffs seeking probate for these discrepancies, can it be said, only because the contents of the Will are the same, that due execution and attestation of the Will stand proved? If the Will is unproved, the Codicil cannot stand on its own; and, as we shall see, there are innumerable issues with the Codicil itself.
3. Of which of these three documents do the Plaintiffs seek probate? We are not told, and it is, in my judgment, no answer at all to say that all three documents -- each slightly different from the other -- together constitute 'the Will'. This is simply untenable in law. 'Proof of a Will in its solemn form' requires proof of execution, proof of attestation by at least two witnesses, and proof of mental and physical fitness for the purpose. This proof is required in respect, evidently, of a single document. Multiple documents, each internally inconsistent or discrepant, and especially with differing signatures, cannot either all, each or even one claim to be "the Will"
in question. The law allows a plaintiff to give proof of a copy of a Will. It does not contemplate proof of various incarnations of the document. A probate court is not concerned with the contents of the Will propounded. We do not invalidate Wills on the basis of the Page 5 of 54 22nd February 2018 ::: Uploaded on - 28/02/2018 ::: Downloaded on - 01/03/2018 01:00:03 ::: Lalitkumar D Chapsey & Anr v Nickie Kiran Nanavati MPT39-2004-TS4-2005-J-F3.DOC dispositions they contain, barring of course considerations of the Will being unnatural. 'Proof of the Will in its solemn form' is proof of the legitimacy of the execution of the document, not of the correctness of its contents. A probate court will look to the contents only to assess if the execution is or is not proved. It is therefore quite untenable to suggest that because the contents of these three documents are the same, therefore the unexplained discrepancies in signatures or marking are irrelevant.
4. I heard a most unusual submission from Mr Kachare for the Plaintiffs. He said the reason the signature of one attesting witness on one document differed from the same attesting witness's signature on another document was due to a photocopying error, but the contents of the three documents were indistinguishable. The so- called photocopying error is simply impossible, as we shall see; and even the second attesting witness's signature does not tally. This submission means the Plaintiffs accept the existence of a discrepancy. If that be so, there must be a credible explanation from the Plaintiffs or their attesting witnesses. Absent a good explanation, the probate action must fail in regard to the Will; and therefore the entire suit must be dismissed.
5. These discrepancies are by no means the only issues. There are other factors, too, none of them in favour of the Plaintiffs. I cannot with any conviction claim to be satisfied that the due execution and attestation of the Will and Codicil have been established, or that the Will has been properly proved in its solemn form. Having heard counsel for both sides, and, with their assistance, considered the material on record, I have held for the Page 6 of 54 22nd February 2018 ::: Uploaded on - 28/02/2018 ::: Downloaded on - 01/03/2018 01:00:03 ::: Lalitkumar D Chapsey & Anr v Nickie Kiran Nanavati MPT39-2004-TS4-2005-J-F3.DOC Defendant. I have dismissed the Testamentary Suit. The result, of course, is that the Plaintiffs'/Petitioners' Miscellaneous Petition for revocation also fails, and the grant of Letters of Administration to Kiran revives. My reasons follow. I have made an order, finally, permitting that grant of Letters of Administration to be amended in the present Defendant's, Nickie Nanavati's, favour.
B. FACTS
6. Bharatiben was a qualified doctor. She never practiced. She worked with the Mumbai Port Trust. She did not marry, and she left no lineal descendants. She died in Mumbai on 30th June 2002, at the relatively early age of 69. Her only living relative was her brother, Kiran; their parents had passed earlier. It is not in dispute that he had migrated to America many years earlier, and lived there with his family, though he visited Mumbai with some regularity. Kiran contested this litigation, and even originally sought Letters of Administration, through his Constituted Attorney, Prathamesh C. Kapadia (no relation to the 2nd Plaintiff ).
7. The two Plaintiffs are not related to Bharatiben. They claim to have looked after her affairs in her lifetime. Neither was her caregiver in the strict sense of the expression. The 1st Plaintiff, Lalit, is a share and stock broker. He says he advised Bharatiben on her financial and investment portfolio. The 2nd Plaintiff, Samir Kapadia, was Bharatiben's Chartered Accountant. Samir is the one who claims to have 'drafted' Bharatiben's Will.
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8. Bharatiben owned a residential flat at Carter Road, Bandra, Mumbai. This is Flat No. 11 on the 6th floor of a building called 'Sunflower' ("the Sunflower Flat"), in the Sea and Sky Co- operative Housing Society Ltd. The flat is opposite the Otters' Club and, given its location, is evidently a property of considerable value. Bharatiben also owned other property: jewellery, fixed deposits, cash in bank accounts and equity in listed companies.
9. On Bharatiben's death, Kiran (through Prathamesh Kapadia, his Constituted Attorney), filed Testamentary Petition No.233 of 2004 seeking Letters of Administration to her property and credits. The Petition was uncontested -- as it had to be, for there were no other heirs to be cited -- and the grant was issued on 28th June 2004. A few months later, on 24th August 2004, Lalit and Samir filed Miscellaneous Petition No. 39 of 2004, seeking a revocation of the grant of Letters of Administration to Kiran. They said they had, on 16th February 2004 -- nearly two years after Bharatiben died, a matter of some consequence as it turns out -- filed Testamentary Petition No. 178 of 2004 seeking Probate to the Will 26th March 2001 and Codicil dated 24th June 2002, of which they said they were appointed executors. Kiran entered a Caveat dated 30th October 2004 and filed an Affidavit in Support dated 5th November 2004. The Petitioners' Testamentary Petition No. 178 of 2004 was renumbered as Testamentary Suit No. 4 of 2005. On 7th April 2005, SK Shah J made an order in the Chapsey-Kapadia Miscellaneous Petition No. 39 of 2004 for revocation (of the Letters of Administration granted to Kiran), inter alia directing that those Letters of Administration be deposited in Court within two weeks.
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10. For the immediate purpose, I will take up what is said to be the 'original' Will, the one deposited with the Registry. It is a typed document of five pages. Bharatiben's initials appear on each page. The fifth page has nothing but the execution clause. Here, we see the signatures of Bharatiben and two attesting witnesses, one Ms Nirmala Parekh ("Nirmalaben; Ms. Parekh") and one Mahendra Bhagwandas ("Bhagwandas"). The date and month on page 5 are handwritten. There are no other markings or corrections on this document. This document is marked Exhibit "A" in evidence.
11. What is annexed as Exhibit "A" to the Petition (and which I later marked on 25th January 2018 as Exhibit "A/1" in evidence) has an obscured handwritten endorsement below the signature of the second attesting witness on page 5. This has been (clumsily) half-erased or obscured, but it is still apparent that there existed some matter there: one can still make out the words "Locker - Bank of India". There was also some matter below Nirmalaben's signature, and there is an inverted tick mark to the right. What this document is we are not told; it is most certainly not a photocopy of Exhibit "A" in evidence, the original Will lodged in the Registry. The third version of the Will is part of Exhibit "F" in evidence.1 Here, the signatures of the two attesting witnesses are quite differently positioned and formed. Nirmalaben's signature slopes steeply to the right; and Bhagwandas's signature is set lower against the numeral '2' than it is in Exhibit "A", the original Will lodged in 1 Record, p. 144-148.
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IMAGE 1 This is from page 5 of Exhibit "A/1" in evidence, the copy annexed to the Petition. The obscured/partly-erased matter below the attesting witnesses' signatures is visible, as is the inverted tick mark to the right.
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IMAGE 2 From Exhibit "F" in evidence. Nirmalaben's signature slopes sharply right; and Bhagwandas's signature does not align with the numeral 2.
It is at once apparent that the two documents are not the same. Indeed, the two signatures by Nirmalaben are markedly different even in their formation (the letters "l" and "P" in particular). Nobody suggests a forgery. Yet, it is clear that Exhibit "F" is not a copy of Exhibit "A" or Exhibit "A/1", and the difference cannot be Page 11 of 54 22nd February 2018 ::: Uploaded on - 28/02/2018 ::: Downloaded on - 01/03/2018 01:00:03 ::: Lalitkumar D Chapsey & Anr v Nickie Kiran Nanavati MPT39-2004-TS4-2005-J-F3.DOC attributed to a 'photocopying error'. I will turn to a consideration of these patent discrepancies when I discuss the issue of proof of due execution. The letter from HDFC Bank says that the copy of the Will that it held was forwarded by the Plaintiffs. The source or provenance of what I will call 'the HDFC Bank Will copy' is thus not in doubt.
12. To return to the Will and its contents: in clause 2, Bharatiben is said to have appointed the two Plaintiffs as her executors. Clause 6 directs them to dispose of the flat. It says, too:
"My relatives are not to retain/occupy the above premises at any time after my demise till the date of its final disposal without the permission of my Executors."
The sale proceeds were to be divided in a specified manner. Kiran was to receive an amount of a 'maximum of Rs.10 lakhs', and Rs.25,000 was to be given to Ganpati Pule. Of the balance, 50% was to go o the Tata Cancer Research Foundation; 20% to other charities identified by the executors; 5% to Samir, Plaintiff No.2, and the remainder to Lalit, Plaintiff No.1. Clause 7 gave the executors to distribute Bharatiben's gold jewellery in their discretion but specified no beneficiaries. Her motor car was, in Clause 8, given to one Raju Kiran Ashok. Clause 9 contained provisions for investment and then allowed the executors to distribute the corpus and income in any manner they saw fit, and, in clause 10, conferred on them the authority to vary investment without being required to render any accounts. From this, two things are immediately apparent: the two Plaintiffs are significant beneficiaries, and they have a wide and open-ended discretion in distribution. Kiran, Bharatiben's only Page 12 of 54 22nd February 2018 ::: Uploaded on - 28/02/2018 ::: Downloaded on - 01/03/2018 01:00:03 ::: Lalitkumar D Chapsey & Anr v Nickie Kiran Nanavati MPT39-2004-TS4-2005-J-F3.DOC living relative, was confined to a bequest of no more than Rs.10 lakhs.
13. In the Will, Bharatiben is said to have left her flat "at the disposal of the Plaintiffs", who are directed to distribute the proceeds from the sale of the flat after deducting all debts, liabilities and expenses between a specified charity (50%), other charities at their discretion (20%), Samir (5%) and Lalit (the remaining 25%).
D. THE CODICIL IN QUESTION
14. The Codicil dated 24th June 2002 is a one-page holograph document. Bharatiben did not sign it: her left hand thumb impression appears on the bottom right of the Codicil. The attesting witnesses to the Codicil are said to be one Kamalan Moolya, ("the Nurse"; "Kamalan") the then nurse of Bharatiben, and one Himanshu Chapsey ("Himanshu"). He is the 1st Plaintiff's son. In the Codicil, Bharatiben is said to have made a number of alternate dispositions:
LEGATEE BEQUEST (in Rs) Bhavana Shailesh Kapadia Rs.10,00,000 Shiva Shekhar (son of Nitu Shekhar) Rs.50,000 Prashant (son of Raju Kiran Ashok) Rs.25,000 Sweta (daughter of Raju Kiran Ashok) Rs.25,000 Mrs Banuben Kritivadan Kapadia Rs.50,000
15. In addition, the Maruti Zen car, bequeathed under the Will to Raju Kiran Ashok, was left in this Codicil to Bhavana Shailesh Kapadia. It is not clear from the document itself who Bhavana, Page 13 of 54 22nd February 2018 ::: Uploaded on - 28/02/2018 ::: Downloaded on - 01/03/2018 01:00:03 ::: Lalitkumar D Chapsey & Anr v Nickie Kiran Nanavati MPT39-2004-TS4-2005-J-F3.DOC Shiva, Nitu or Banuben are; their addresses are not given and their association with Bharatiben is unstated.
16. The Codicil was made less than a week before Bharatiben died. In contrast to the Will, a document that is said to contain her signature, and which appears fluent, there is only a thumb impression said to be hers on this Codicil.
E. THE CAVEAT TO THE PROBATE PETITION
17. On 30th October 2004, Kiran filed a Caveat to oppose the probate petition. On 5th November 2004, he filed his Affidavit in Support of that Caveat. In this, he alleged that no citation was ever served on him. He said that he filed his own petition for Letters of Administration on 15th October 2003 after he searched, several times, for any testamentary document; he found none. He obtained Letters of Administration on 28th June 2004. According to him, the Will and Codicil were forged and fabricated. He also said that Bharatiben's signature and thumb impression were taken on blank papers. There was no kinship between the Plaintiffs and Bharatiben, and their relationship (that is to say, their association) was unknown. The Plaintiffs had not disclosed how they came into possession of the alleged Will and Codicil. He said that even before filing for probate, the Plaintiffs went ahead and made several withdrawals from Bharatiben's bank accounts. There was an unexplained delay in seeking probate.
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18. On 12th December 2008, SC Dharmadhikari J framed issues in the contested probate petition. These are set out below, with my findings against each.
Sr. Issue Findings No.
1. Whether the Plaintiffs prove that the Last Will and Testament dated 26th March 2001 and further Codicil In the dated 24th June 2002 of the negative deceased Bharati Dhanvantlal Nanavati were executed as per law?
2. Whether the Defendant proves that the Last Will and Testament dated Partly in 26th March 2001 and further Codicil the dated 24th June 2002 are forged, affirmative.
fabricated and concocted documents?
3. Whether the Defendant proves that the deceased was not of sound Does not mind, memory and understanding at survive.
the time of execution of the Will and Codicil?
4. Whether the Defendant proves that the execution of the Last Will and Testament dated 26th March 2001 Does not and Codicil dated 24th June 2002 survive.
was obtained by fraud and that the deceased did not know and had not approved the contents of the Will?
19. Issue No. 3 must, in my view, be properly understood. The initial burden can never be on the Defendant to prove unsoundness of Page 15 of 54 22nd February 2018 ::: Uploaded on - 28/02/2018 ::: Downloaded on - 01/03/2018 01:00:03 ::: Lalitkumar D Chapsey & Anr v Nickie Kiran Nanavati MPT39-2004-TS4-2005-J-F3.DOC mind or body. It is always on a petitioner seeking probate to prove that at the time of execution, the testator was of a sufficiently sound and disposing state of mind, memory and understanding. That is why every affidavit of an attesting witness has such a statement; and Section 59 of the Succession Act says that every person of sound mind not being a minor may dispose of his property by Will. This means that to 'prove a Will in its solemn' form, a plaintiff must show not only due execution and attestation as required by Section 63, but also fitness for the purpose, that is to say the testator was an adult possessed of sufficient dispositive capacity. All these ingredients must be established by he who propounds a Will. It is only when this is done that the burden then lies on the defendant disputing the Will to show affirmatively that the testator lacked the necessary testamentary capacity. If, therefore, a plaintiff fails to discharge his initial burden, proof of the Will fails, and there is then no obligation on the defendant to discharge his burden to show lack of dispositive capacity or to establish unsoundness of mind. The reason is plain: once the plaintiff fails to prove the Will in its solemn form, the defendant need do nothing further. Thus, an issue such as the present Issue No.3 is a consequential issue, one that arises only if an affirmative answer is returned on the first issue, the burden of which is on the plaintiff.
20. In other words, a plaintiff who fails to discharge his initial burden under Issue No.1 cannot succeed only because the defendant fails to prove his consequential burden under Issue No.3. It is the reverse.
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21. On a closer reading of the Affidavit in Support of the Caveat, I find an additional issue needs to be framed. This is set out below with my finding.
5. Whether the Defendant proves In the the Will is unnatural? affirmative.
G. THE EVIDENCE ON RECORD
22. The Plaintiffs led their evidence and that of the attesting witnesses of the alleged Will and Codicil. The Defendant led no evidence. Neither side adduced the evidence of a handwriting or forensic expert. As regards documentary evidence, several documents were led in evidence by both sides. The Plaintiffs adduced only the Will and Codicil, marked Exhibit "A" and Exhibit "B" respectively. The Defendant's documents run from Exhibit "1" to Exhibit "16".
H. RE: ISSUES NOS. 1, 3 AND 423. Issue No.4 is the converse of Issue No.1; and Issue No.3 is also covered in Issue No.1, as discussed earlier. I will, for this reason, consider these three issues together.
24. The initial -- and primary -- burden lies on the Plaintiffs to 'prove the Will in its solemn form'. This means that they must prove testamentary capacity, due execution and attestation of the Will in Page 17 of 54 22nd February 2018 ::: Uploaded on - 28/02/2018 ::: Downloaded on - 01/03/2018 01:00:03 ::: Lalitkumar D Chapsey & Anr v Nickie Kiran Nanavati MPT39-2004-TS4-2005-J-F3.DOC the manner required by Sections 59 and 63 of the Indian Succession Act, 1925:
"59. Person capable of making wills. Every person of sound mind not being a minor may dispose of his property by will.
Explanation 1.--A married woman may dispose by will of any property which she could alienate by her own act during her life.
Explanation 2.--Persons who are deaf or dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it.
Explanation 3.--A person who is ordinarily insane may make a will during interval in which he is of sound mind.
Explanation 4.--No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing.
63. Execution of unprivileged wills. Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it Page 18 of 54 22nd February 2018 ::: Uploaded on - 28/02/2018 ::: Downloaded on - 01/03/2018 01:00:03 ::: Lalitkumar D Chapsey & Anr v Nickie Kiran Nanavati MPT39-2004-TS4-2005-J-F3.DOC was intended thereby to give effect to the writing as a will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
25. These requirements are fundamental and cannot be jettisoned under any circumstances. There is no question of 'substantial compliance'. Section 63(c) postulates that the person seeking to prove the Will must, for that purpose, 'prove' that the signature on the testamentary instrument is genuine, that is to say, it is the true signature of the testator. The propounder must also prove that the act of the testator signing the Will was attested by at least two witnesses, each of whom saw the testator sign in the presence of the witnesses, and that the witnesses at the instance of the testator also signed the Will in the capacity of such witness. It is not necessary that both witnesses be present at the same time, but each must have seen the testator sign, or received a personal acknowledgement of his signature and a request to be a witness.
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26. I will turn first to the testimony of the Bhagwandas (PW2) and Nirmalaben (PW3). Their evidence ought to have been led first to prove the Will.2 Bhagwandas says he knew Bharatiben for a long time, and that she was a very close friend. He says she was like family to Lalit. Bhagwandas and Lalit are brothers-in-law. Bhagwandas himself does not seem to have been directly acquainted with Bharatiben. He only says that at Lalit's request, he accompanied him to Bharatiben's residence at Bandra to witness her execution of a Will. Bhagwandas says that on that day, 26th March 2001, apart from himself and Nirmalaben, Lalit too was present.3 This is of some consequence. Nirmalaben, PW3, says that Bharatiben signed the Will in the presence of herself and Bhagwandas. She makes no mention of Lalit being present; but she does not affirmatively say he was not present. Given the discretion afforded to Lalit, his subsequent actions and his role as a beneficiary, his presence at the time is not without consequence.
27. Coming to the three versions of the Will, Bhagwandas identifies all three signatures -- that of the deceased, his own, and then Nirmalaben's. He claims the positions of the signatures are more or less the same.4 In cross-examination, it was suggested that only one document was signed.5 I must note here that the cross- examination was recorded in a narrative format on commission, a practice wholly to be deprecated. In this fashion, it is virtually 2 Walter D'Souza v Anita D'Souza & Ors, 2015 (2) ABR 90 : 2014 SCC OnLine Bom 1671.
3 PW2's Evidence Affidavit, paragraph 2, p.95. 4 PW2, cross-examination, paragraph 2, p. 100. 5 PW2, cross-examination, paragraph 2, p. 100.
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28. Further cross-examination of Bhagwandas resulted in very odd answers:6 (Shown Exhibit A to the probate petition and the attention of the witness is drawn to signatures at the end of the document). Yes. One signature is that of deceased Bharati Nanawati. The other signature is that of witness no.1 Nirmala N. Parekh and I have signed as witness no.2.
2. (Attention of the witness is drawn to the writing which is illegible). I cannot say what that writing is about.
Q: Why have you not mentioned anything with regard to the said writing shown to you at the end of the will?
A. I do not know whether it is mentioned or not.
3. ... [Shown original will and Exhibit A to the probate petition.] 6 PW2, cross-examination, pp. 99-101.
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29. Nirmalaben was asked about the discrepancies in her signatures between Exhibit "A" and Exhibit "F". This is what she said:7 Q. Is it correct to say that position of the signatures on the two Wills is different?
A: Both the signatures are mine except that on the attestation page of the copy of the Will annexed to Exhibit F colly. My signature is in slant.
30. It is not only 'in slant'. It is an entirely different signature, with entirely distinct letter forms. What emerges is that both witnesses admit that there is difference between the last pages of Exhibit "A", the original Will, and Exhibit "F", the photocopy received from HDFC Bank. This clouds the entire evidence on due execution. Without a satisfactory explanation as to how this could possibly be, it is impossible to return a finding that the execution of the Will is proved; and the fact that the contents of the two documents are the same is wholly immaterial. We are concerned with execution and attestation and it is now clear that Exhibit "A", the original Will, is quite different from the document from which the photocopy at Exhibit "F" was made. This could only be if more than one document was signed, or attested or both -- and yet, none for the Plaintiffs says this was so. If not, and there was no second or 7 PW3 cross-examination, p. 110.
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31. The Codicil fares no better. PW4 was Himanshu Chapsey, Lalit's son. In his Evidence Affidavit, he says:8 I say that the deceased in my presence requested my father that she wanted to give some specific bequests to certain persons in addition to what has been provided in the Will made earlier. The deceased gave instructions to my father with regard to some legacies she wanted to give and in my presence my father in his own writing and as per wishes of the deceased wrote down the Codicil dated 24th June, 2002 and my father read over to the deceased the said writing viz. Codicil and she understood the contents thereof.
Later in the same Affidavit, he says:9 8 PW4, Evidence Affidavit, pp. 114-115.
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But Lalit himself, as PW1, does not corroborate this at all. In his Evidence Affidavit, he says:10 I received a phone call from Bharatiben i.e. the deceased sometime on 21 or 22nd of June 2002 requesting to see her immediately and accordingly on or about 24th June 2002 I went to her residence at Bandra when she told me that she wanted to give some specific bequests to certain persons in addition to what has been provided in her Will made earlier and she was keeping indifferent health though she was mentally alert and of sound mind. She gave me oral instructions with regard to some legacies and I in my own handwriting, as per her wish and dictation wrote down the Codicil dated 24th June 2002 and I read over the same to her and she understood the contents thereof and after giving the same to her for signature she was not in a position to sign the said Codicil and therefore she put her left hand thumb impression on the said codicil in the presence of two witnesses one of who was one K.S. Moolya who was the Nurse attending upon the deceased and the other one was Himanshu Chapsey who is my son and who had also accompanied me at her residence on 24th June 2002.
(Emphasis added) 9 PW4, Evidence Affidavit, pp. 115-116.
10 PW1 Evidence Affidavit, paragraph 10, pp. 61-62.
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32. This lack of precision and clarity is, in my view, fatal. We do not know whether the Codicil was ever read at all to Bharatiben, and if so, by whom. This is important because of the admission that in the short time between the Will (26th March 2001) and the Codicil (24th June 2002), Bharatiben's health had so deteriorated -- and so rapidly deteriorated -- that she could no longer sign. Of this extreme health condition, and its contours, we are told nothing at all. Lalit and Himanshu only say she was 'weak'.11 Mr Kachare argues that Bharatiben's condition was not so grave as to have impaired her mental faculties: she was sufficiently in possession of those to know the testamentary dispositions she did and did not want to make. It was only her physical condition that was problematic. Section 63(c) does not, Mr. Kachare says, necessitates a testatrix's signature, a thumb impression may do. But that surely begs the question. We know from Lalit's evidence that by the time of the Codicil, Bharatiben had an attending nurse, one Kamalan Moolya. She was the second attesting witness to the Codicil. Her evidence was never led. Given the extreme collapse of her physical abilities, some proof was needed of her mental fitness for the purpose, and this is entirely absent.
33. Now this evidence is scanty at best. But matters become much worse for the Plaintiffs when we look at the evidence regarding the preparation of the Will. Lalit, in his Evidence Affidavit, says Samir prepared the Will:12 11 PW1's Evidence Affidavit, paragraph 10, p. 62; PW4 Cross Examination, Paragraph 4, p.119.
12 PW1 Evidence Affidavit, paragraph 6, pp. 59-60.
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(Emphasis added)
34. Lalit and Samir knew each other for about 10 years;13 the latter was handling Bharatiben's income tax matters.14 In cross- examination, Lalit said:
The deceased had given oral instructions to Mr. Samir Kapadia to prepare the will. I do not recall when the draft Will was prepared by Mr. Samir Kapadia and given to the deceased. I cannot say whether any suggestions to the draft will were made by the deceased to Mr. Samir Kapadia. I am not aware when Mr. Samir Kapadia prepared the final Will and gave it to the deceased. I was present when the deceased signed the Will.
(Emphasis added) 13 PW1 cross-examination, paragraph 5, p. 81. 14 PW1 cross-examination, paragraph 5, p. 81.Page 26 of 54
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35. Now this directly contradicts the testimony in chief, in which, as we have seen, Lalit claims far more familiarity with the making of the Will. But what of Lalit himself? How came he so close to Bharatiben? What was his association with this unmarried lady living alone? In his Evidence Affidavit, he says:15
3. ... My father Dwarkadas Chapsey was a Share Broker and used to handle the portfolio of the deceased and along with him, I also used to go to her residence and I was also attending her portfolio along with my father and after the death of my father in or about-1989, continued to handle the portfolio of the deceased. I know the deceased since last 35 years and over a period of time, we developed close relationship and I became just like a Family Member with deceased. I and my family used to help the deceased in many ways in her day to day life as she was staying alone and she also used to take my advice in various matters. She used to confide in me lot and she had full trust and confidence in me: Even, I was handling her financial, affairs and she treated me like a brother.
(Emphasis added) He goes on:16 As a matter of fact though I am a professional share broker and I had looked after her portfolio for long number of years, I had never charged a single paise from here for the service rendered by me throughout her life only because of our relationship.
(Emphasis added) 15 PW1, Evidence Affidavit, paragraph 3, pp. 58-59. 16 PW1, Evidence Affidavit, paragraph 9, p. 61.
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36. In view of this categorical assertion that Lalit was Bharatiben's stock broker and handled her portfolio, what follows is in cross-examination is astonishing. Before the Commissioner, on 12th October 2010, Lalit said in cross-examination:17 During the lifetime of the deceased I was practicing as a share broker. I was keeping accounts of all my different clients. The deceased did not have an account with me. I only acted in the capacity as a advisor and did no business on her behalf. I have knowledge of the fact that my father who was also a share broker acted in capacity of an advisor to her in respect of trading in shares. I reiterate that I acted only in the capacity as an advisor and never did any business for her.
(Emphasis added)
37. Nothing at all remains of this witness's credibility. Lalit does not just contradict himself. He ties the Plaintiffs' entire case in knots. On this basis, and no other at all, he would have us believe that Bharatiben gave him 25% of the sale proceeds of her flat, Samir another 5%, and gave them both the widest powers in the distribution of her estate, and the whole of her jewellery: bequests, I am asked to believe, to a Chartered Accountant handling income tax returns, and to a stock broker who was not hers. We have only this statement of affinity. No one else is examined who is not immediately involved in the Will. There is no neighbour, no friend, no work colleague; none come forward. Where there ought to have been evidence, there is only a yawning evidentiary abyss. And that is not all: in his Evidence Affidavit, Lalit makes bold to say in terms 17 PW1, cross-examination, paragraph 2, pp. 68-69.
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38. Even on this so-called intimacy or affinity or familiarity with Bharatiben, Lalit is consistent only in his inconsistency. In his Evidence Affidavit, he claims:19 I say that it is myself and my family who had always looked after the deceased as a member of our family and we stood by her in all the times of her needs and difficulties.
(Emphasis added) In cross-examination, he says:20 To my knowledge the deceased Ms. Bharatiben Nanavati was not suffering from any major disease before her death. I am not aware whether the deceased Bharatiben was suffering from Kidney failure. I am not aware whether the deceased Bharatiben was undergoing dialysis for kidney failure. I was in no way concerned with any kind of illness. It would be correct to say that I stood by her most of the time but did not take any interest in her illness or investments.
(Emphasis added) 18 PW1 Evidence Affidavit, paragraph 7, p. 60. 19 PW1 Evidence Affidavit, paragraph 9, p. 61. 20 PW1, cross-examination, paragraph 1, pp. 85-86.
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39. I confess I cannot comprehend Mr Kachare's submission that this contradiction is immaterial or that nothing turns on it. To my mind, everything turns on it. Here we have a man who gains a vast amount under a Will, but who is unrelated to the testator, saying that he knew not of her illness, of kidney failure and dialysis (which could explain her inability to sign but would also possibly result in a want of fair cognition), and then going on to say that he was not concerned with any kind of illness. This, I am asked to believe, was like being 'just like a family member'; constitutes 'looking after' and help in 'day to day life'; and is evidence of Lalit having 'stood by her in all the times of her needs and difficulties'. It is impossible to reconcile these statements without doing extreme violence to the language.
40. Matters are probably far more disturbing than this. In cross- examination, Lalit was confronted with a nomination form said to have been made by Bharatiben in regard to the flat.21 Lalit was admittedly no relative of Bharatiben's. Yet the nomination form describes him as her 'brother'. The form is of 13th August 1999. Mr Kachare would have it that this shows the closeness between the two and establishes the bond. But if this was indeed so, then surely Lalit's interest in Bharatiben would extend to her healthcare and medical condition. If the 'deemed kinship' and affinity started and stopped with giving him any rights or benefits over the flat and nothing more -- and this is what Lalit's own evidence indicates -- then it is not genuine affinity or closeness that are established, but something far more sinister.
21 Exhibit "C", p. 162.
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41. Where did Lalit get the Will and Codicil? He says he found it in Bharatiben's cupboard.22 When and how we do not know. We are only told that, before she died, Bharatiben 'revealed' to Lalit the location of the Will; again, when and in what circumstances, we do not know. Lalit admits he had the Codicil even before Bharatiben died.23 He says he opened the Will, which was in a sealed cover, at his residence and read it. The Codicil was not in a sealed envelope. It was in Lalit's own handwriting.24
42. And what of Nirmalaben? Strangely, she, too, is not related by kinship to Bharatiben. But she is so related to Lalit. She is his cousin. Nirmalaben herself says she and Bharatiben were friends since school.25 They also met socially and kept in touch.26 She says that on 21st March 2001, Bharatiben called her and asked her to be a witness to her Will. She claims that, as far as she knew, Bharatiben had no health complaints.27 But this is problematic, for it contradicts what Lalit and Himanshu say; and it does not explain why the Codicil has no signature but only a thumb impression, and why Bharatiben needed a nurse in attendance. These assertions cannot all co-exist.
22 PW1 cross-examination, paragraph 10, pp. 71-72. 23 PW1 cross-examination, paragraph 7, p. 70. 24 PW1 Evidence Affidavit, paragraph 10, pp. 61-62. 25 PW3 Evidence Affidavit, paragraph 1, p. 104; cross-examination, paragraph 1, p. 107.
26 PW3, cross-examination, paragraph 1, pp. 107-108. 27 PW3 cross-examination, paragraph 1, pp. 107-108.
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43. Last, but by no means the least, there is this: we simply do not know who the persons named in the Codicil are, or how they were connected to Bharatiben. The Plaintiffs and their witnesses provide no clue. The Codicil has no indication. Nothing indicates that the Plaintiffs made any attempt to find out who these persons are or were; and without that, it is difficult to see how they could, as executors, ever have been able to fulfil their statutorily mandated obligations.
44. It is in this context that I must see Mr Kachare's submission that the due execution and attestation of the Will and Codicil have been sufficiently established. It is not possible to arrive at any such conclusion. It is of entirely inconsequential that the Will has a charitable bequest, for there are also very substantial bequests to present Plaintiffs, most especially Lalit. The nature of the disposition does not in any case prove the execution or attestation of the testamentary instrument. There are far too many suspicious circumstances surrounding the execution of the Will and the Codicil, and all remain unexplained. It cannot be coincidence that the witnesses to the Will and the executors are all related or know each other well, but it is unknown how, of all the persons Bharatiben undoubtedly must have had dealings with, these, and only these, came to be involved in her testamentary instruments' making.
45. Issue No. 1 is answered in the negative. Consequently, Issue Nos. 3 and 4 do not survive. Specifically, since the Plaintiffs have failed to prove testamentary capacity, there is no burden on Kiran, the Defendant, or his son, Nickie, to prove the lack of it.
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46. If Issue No.1 fails, and the Will and Codicil are not proved in their solemn form, then this issue, viz., whether Kiran proves the Will or Codicil (or both) are forged, fabricated and concocted will not survive. Let us, nonetheless, see what the evidence indicates.
47. Kiran says, in his Affidavit in Support of his Caveat, that the Will and Codicil were forged and fabricated, and were obtained under suspicious circumstances. These ought to have been framed as distinct issues. Forgery is not proved. None have led any evidence of forgery, and that cannot be presumed. Fabrication has another colour: the signature may be genuine, but attached by unlawful means to a writing.
48. It is true, though, that there are far too many suspicious circumstances to ignore. The existence of three different, and disparate, physical documents all purporting to be the Will is just one. The probate petition was filed two years after Bharatiben's death, and there is no explanation for this at all. No one knows why, less than a week before she passed, Bharatiben felt the need to make a Codicil and such a Codicil as this. After all, her executors under her Will had wide discretion.
49. It is in the context now of what the Will and Codicil purport to do that we must evaluate the evidence. It is beyond doubt that the most significant bequests are to Lalit, especially if one includes the discretionary powers in clause 7 and that 25% of the flat sale Page 33 of 54 22nd February 2018 ::: Uploaded on - 28/02/2018 ::: Downloaded on - 01/03/2018 01:00:03 ::: Lalitkumar D Chapsey & Anr v Nickie Kiran Nanavati MPT39-2004-TS4-2005-J-F3.DOC proceeds go to Lalit. I am told that Lalit and his family have in fact taken possession of the flat in all this time. As we have seen, the evidence of closeness and affinity is anything but convincing, and there is no explanation at all in regard to the misdescription of Lalit as Bharatiben's 'brother' in the nomination form for the flat. The want of clear evidence about her deteriorating health in a mere 15 months or so is a telltale circumstance -- the timing of the two documents is itself peculiar and unexplained.
50. Thus, though forgery may not be proved, this does not make either of the testamentary instruments authentic. The expression 'fabricated' would have to be understood simply as meaning 'untrue', 'unauthentic' or 'falsified'; and the word 'concocted' is even less stringent. Given that the Will and Codicil are set without credible context and, on the contrary, the explanations given for their being brought into existence are so utterly implausible, the inescapable conclusion must be that both are, at the very least, concocted. There is the lack of explanation about Bharatiben's health. We have the inconsistency in Lalit's evidence about his 'closeness' to Bharatiben -- being like her family, and looking after all her needs, yet being wholly unaware of her medical condition, one that resulted in her being admittedly unable to sign her Codicil, said to have been made just a few months after her Will, and less than a week before she died. We have, too, the extremely peculiar fact that Lalit and Samir knew each other for 10 years, and that Bhagwandas, Nirmalaben and Himanshu are all related, but not one is related to Bharatiben. More important perhaps is what we are not told -- the evidence not led is more eloquent than the testimony given. Bharatiben's nurse, said to be the second attesting witness to Page 34 of 54 22nd February 2018 ::: Uploaded on - 28/02/2018 ::: Downloaded on - 01/03/2018 01:00:03 ::: Lalitkumar D Chapsey & Anr v Nickie Kiran Nanavati MPT39-2004-TS4-2005-J-F3.DOC the Codicil, is not examined. No doctor comes forward to explain her condition, and, indeed, Nirmalaben who claims to have known her since childhood says she had no medical condition. If this is true at the time of the Will, then her evident deterioration by the time of the Codicil needed evidence. There is no evidence of any neighbour, friend, associate, or fellow society member. We are simply asked to believe, at face value, that other than a Chartered Accountant and stock broker's son (Lalit; who himself did no work for her), Bharatiben had no outside contacts. Yet the Will itself speaks of her association to Ganpati Pule and mentions others, and very many others are mentioned in the Codicil. There is nothing at all on record to explain the Ganpati Pule reference, or who the others mentioned in the Codicil were, or what their link to Bharatiben was. The two documents, quite literally, spring from nowhere, anchored to neither context nor background.
51. But the most telling circumstance that points to concoction and fabrication is the discrepancy between what is said to be the original Will and the one received from HDFC Bank at Exhibit "F". We have it in evidence that this photocopy was given to HDFC Bank, where Bharatiben had an account, by Lalit.28 Now, as we have seen at the beginning, and as I have discussed earlier, the document from HDFC Bank is not and cannot be a 'photocopy' of the original Will at Exhibit "A". The signature of Nirmalaben on the two is entirely different, and Bhagwandas's signature has a different planar alignment. How and when did this 'other' copy of the Will come 28 Exhibit "F", pp. 143-148, letter dated 9th January 2004 from HDFC Bank Ltd.
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52. Issue No.2 is answered partly in the affirmative.
J. RE: ISSUE NO. 553. That Lalit knew of Kiran's existence and that he was Bharatiben's brother is common ground. He has earlier, mentioned in his own cross-examination that he was unable to contact Kiran, although he claims to have attempted to do so several times.29 There is nothing to show this. It is difficult to believe that one who claims to have been 'like a family member', and 'looked after' Bharatiben's daily needs even in difficulties, one who was a confidante could have been so totally unaware of the address of her brother. On its own, this is a suspicious circumstance. The Will itself gives two addresses for Kiran, and his telephone numbers. We have no cogent evidence of any attempt made to contact Kiran.
54. Mr Kachare argues that Kiran was estranged, and that he never visited Bharatiben, and that this is Lalit's evidence.30 But other than his word, there is nothing to show this. Certainly the Will 29 PW1 cross-examination, paragraph 6, p. 70. 30 PW1 Evidence Affidavit, paragraph 11, pp. 62-63.
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55. Every testamentary disposition disrupts the natural line of succession.31 Wills, by their very nature, usually result in the reduction or deprivation of the share of a natural heir; were it otherwise, no Will would be necessary. The exclusion, therefore, of a particular heir is not ipso facto a suspicious circumstance sufficient to dislodge an otherwise valid Will,32 or to make it 'unnatural'.33 The exclusion of Kiran is not automatically suspicious. Yet, there is no evidence led by the Plaintiffs of any discord between Kiran and Bharatiben. We are simply asked to assume this, on the basis of nothing at all. It was here, perhaps more than anywhere else, that the Plaintiffs were bound to lead additional evidence -- that of a neighbour, a fellow society member, a work colleague, perhaps the nurse or the others mentioned in the Codicil. But there is nothing. Balancing these factors, viz., on the one hand substantial bequests to outsiders, and, on the other, nothing at all to the surviving relative, 31 Rabindra Nath Mukherjee & Anr v Panchanan Banerjee, (1995) 4 SCC
459. 32 Uma Devi Nambiar & Ors v TC Sidhan, (2004) 2 SCC 321. 33 Pentakota Satyanarayana & Ors v Pentakota Seetharatnam & Ors, (2005) 8 SCC 67.
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56. Issue No. 5 is answered in the affirmative.
K. GENERAL OBSERVATIONS &
CONCLUSIONS
57. The picture the Plaintiffs portray of Bharatiben is entirely unconvincing. This is an image of an unmarried lady, living alone, with no contacts from her building society, neighbours, neighbourhood, or work place, and no affinities other than her Chartered Accountant who filed her tax returns, and the son of her earlier stock broker. He claimed he handled her portfolio without charge, and then said he did no work for her. He did not live in the area or close to her, but halfway across the city; even so he claimed such a deep bond that she left a bulk of her estate to him. Yet he knew nothing of her medical condition, and had nothing at all to show about her alleged distancing from her only living blood relative, her brother. It was he who found the Will, he claims, in her flat; but he found not a single document evidencing any estrangement from her brother, Kiran. He was deeply involved in the making of a self-serving Will and he handwrote her Codicil, one she was in no state to sign, just a few months after her Will, and less than a week before she passed. What is one to make of any of this except to say that there are overwhelming suspicious circumstances, not one of which is satisfactorily explained?
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58. The onus always lies on the propounder of a Will to show that it was validly executed. In H Venkatachala Iyengar v BN Thimmajamma and Ors,34 the Supreme Court said:
20. ... 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 provided to be the last will and testament of the departed testator. Even so, in dealing with proof of wills the court will start on the same enquiry as in the case of the proof of 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 the dispositions and put his signature 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, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
21. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the 34 AIR 1959 SC 443.
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(Emphasis added)
59. Granted that this is not a jurisdiction of suspicion, but one of circumspection, can it legitimately be said that the necessary doubts have been removed? Available evidence has not been led. In Babu Singh & Ors v Ram Sahai,35 the Supreme Court said that where the 35 (2008) 14 SCC 754, paragraph 14.
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60. The entire conduct of the Plaintiffs is dubious. They have been in possession of the flat. Between 12th July 2002 and 27th July 2004, Lalit withdrew Rs.1,75,120 from Bharatiben's bank account.36 This included a pay order of Rs.60,120 in favour of his own wife. In cross-examination, Lalit said he was not accountable for this,37 a position Mr Kachare maintains to this day.
61. The decisions on which Mr Kachare relies -- Gopal Swaroop v Krishna Murari Mangal & Ors,38 and Uma Devi Nambiar v TC Sidhan39 -- do not advance the Plaintiffs' cause. They affirm the position in Venkatachala Iyengar that all suspicious circumstances must be explained and removed with credible evidence. These principles were reaffirmed, as Mr Uday Bhanu Sinh points out, in paragraph 4 of the five-Judge bench Supreme Court decision in Shashi Kumar Banerjee & Ors v Subodh Kumar Banerjee:40
4. ... Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court 36 Exhibit "2", pp. 52-53.
37 PW1 cross-examination, paragraph 1, pp. 91-92. 38 (2010) 14 SCC 266.
39 (2004) 2 SCC 321.
40 AIR 1964 SC 529; followed in Ramchandra Rambux v Champabai, AIR 1965 SC 354.
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These principles are reaffirmed in Pushpavati & Ors v Chandraja Kadamba & Ors,41 relied on by Mr Sinh.
62. The observations of the Supreme Court in Bharpur Singh & Ors v Shamsher Singh42 are most instructive:
15. This Court in H. Venkatachala Iyengar v. B.N. Thimmajamma [AIR 1959 SC 443] opined that the fact that 41 AIR 1972 SC 2492.
42 (2009) 3 SCC 687.Page 42 of 54
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16. In H. Venkatachala case [AIR 1959 SC 443] , it was also held that the propounder of a will must prove:
(i) that the will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and
(ii) 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, courts would be justified in making a finding in favour of propounder, and
(iii) if a will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and Page 43 of 54 22nd February 2018 ::: Uploaded on - 28/02/2018 ::: Downloaded on - 01/03/2018 01:00:03 ::: Lalitkumar D Chapsey & Anr v Nickie Kiran Nanavati MPT39-2004-TS4-2005-J-F3.DOC sufficient evidence to dispel suspicion. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein.
It was moreover held: (H. Venkatachala case [AIR 1959 SC 443] , AIR p. 452, para 20) "20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy;
and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It Page 44 of 54 22nd February 2018 ::: Uploaded on - 28/02/2018 ::: Downloaded on - 01/03/2018 01:00:03 ::: Lalitkumar D Chapsey & Anr v Nickie Kiran Nanavati MPT39-2004-TS4-2005-J-F3.DOC is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
17. This Court in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao [(2006) 13 SCC 433 : (2006) 14 Scale 186] held: (SCC pp. 447-48, paras 33-34) "33. The burden of proof that the will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. (See Page 45 of 54 22nd February 2018 ::: Uploaded on - 28/02/2018 ::: Downloaded on - 01/03/2018 01:00:03 ::: Lalitkumar D Chapsey & Anr v Nickie Kiran Nanavati MPT39-2004-TS4-2005-J-F3.DOC Madhukar D. Shende v. Tarabai Aba Shedage [(2002) 2 SCC 85] and Sridevi v. Jayaraja Shetty [(2005) 2 SCC 784] .) Subject to above, proof of a will does not ordinarily differ from that of proving any other document.
34. There are several circumstances which would have been held to be described (sic) by this Court as suspicious circumstances:
(i) when a doubt is created in regard to the condition of mind of the testator despite his signature on the will;
(ii) when the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) where propounder himself takes prominent part in the execution of will which confers on him substantial benefit.
(See H. Venkatachala Iyengar v. B.N. Thimmajamma [AIR 1959 SC 443] and T.K. Ghosh's Academy v. T.C. Palit [(1974) 2 SCC 354 : AIR 1974 SC 1495] .)"
...
20. This Court in Anil Kak v. Sharada Raje [(2008) 7 SCC 695] opined that the court is required to adopt a rational approach and is furthermore required to satisfy its conscience as existence of suspicious circumstances plays an important role, holding: (SCC p. 714, paras 52-
55) Page 46 of 54 22nd February 2018 ::: Uploaded on - 28/02/2018 ::: Downloaded on - 01/03/2018 01:00:03 ::: Lalitkumar D Chapsey & Anr v Nickie Kiran Nanavati MPT39-2004-TS4-2005-J-F3.DOC "52. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/or letters of administration with a copy of the will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine.
53. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order.
54. It may be true that deprivation of a due share by (sic to) the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a will.
55. Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation."
22. We may notice that in Jaswant Kaur v. Amrit Kaur [(1977) 1 SCC 369] this Court pointed out that when the will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. An adversarial proceeding in such cases becomes a matter of court's conscience and propounder of the will has to remove all suspicious circumstances to satisfy that the will was duly executed by the testator wherefor cogent and convincing Page 47 of 54 22nd February 2018 ::: Uploaded on - 28/02/2018 ::: Downloaded on - 01/03/2018 01:00:03 ::: Lalitkumar D Chapsey & Anr v Nickie Kiran Nanavati MPT39-2004-TS4-2005-J-F3.DOC explanation of suspicious circumstances shrouding the making of will must be offered.
23. Suspicious circumstances like the following may be found to be surrounded in the execution of the will:
(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
(ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
(iv) The dispositions may not appear to be the result of the testator's free will and mind.
(v) The propounder takes a prominent part in the execution of the will.
(vi) The testator used to sign blank papers.
(vii) The will did not see the light of the day for long.
(viii) Incorrect recitals of essential facts.
24. The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not.
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63. The Plaintiffs' case falls under more than one of the situations listed as requiring an explanation.
64. In the circumstances, I do not believe I can order probate to issue.
L. ORDER
65. In the circumstances noted above, Testamentary Petition No. 4 of 2005 for probate fails and is dismissed. Consequently Testamentary Petition No. 178 of 2004 for probate also fails and, by the same reason so does Miscellaneous Testamentary Petition No. 39 of 2004 for revocation of the Letters of Administration granted to the Defendant.
66. Consequently, the grant of Letters of Administration to the Defendant will revive. Since the original Defendant has passed away, leave to amend the grant in favour of the original Defendant's son, the present Defendant, Nickie Kiran Nanavati. Amendment to be carried out without the need of reverification within two weeks from today. If necessary, the Registry will issue a fresh grant on the same terms as the earlier grant but in favour of Nickie Kiran Nanavati.
67. One further aspect remains. It seems that Lalit Chapsey or Samir Kapadia, or both, have, during these proceedings, drawn on the deceased's accounts. There is at least one distribution by Lalit to his wife. Mr Kachare states that Lalit drew on the deceased's Page 49 of 54 22nd February 2018 ::: Uploaded on - 28/02/2018 ::: Downloaded on - 01/03/2018 01:00:03 ::: Lalitkumar D Chapsey & Anr v Nickie Kiran Nanavati MPT39-2004-TS4-2005-J-F3.DOC account to meet the legal expenses of these proceedings. It is his submission that these funds are not required to be returned to the estate. This submission is opposed and countered by Mr Uday Bhanu Sinh for the Defendant. I must agree with Mr Uday Bhanu Sinh. When a Testamentary action is contested, prudence and law dictate that the propounder or plaintiff must bear the expenses himself, reserving the right to recover all costs incurred, together with reasonable interest, from the estate funds. To that extent Mr Kachare is correct, viz., that an Executor would be entitled to defray the costs of protecting the estate from the estate funds. That is a situation that would arise in either an uncontested action or where the plaintiff does in fact succeed. But this does not mean that a plaintiff can draw on the funds in anticipation of succeeding in a contested action and, on its failure, refuse to bring back the funds. That would amount to allowing an unsuccessful plaintiff, one who on failure is no better than an interloper in the estate, to cause loss and devastation to the very estate he claims to safeguard. Thus, where the plaintiff in a contested testamentary action fails, different considerations arise. It is not then open to the unsuccessful propounder of a Will to say that despite the failure of the probate action, i.e. where the Will is not proved and there is therefore no question of executorship, the person propounding the Will is entitled to use estate funds in such an unsuccessful litigation. The correct course would have been for Lalit and Samir to have met those expenses themselves and reserved the right to recover those costs with some reasonable interest from the estate. Having failed, however, the reverse position must obtain. They must be required to bring back to the estate all amounts drawn by them from the estate Page 50 of 54 22nd February 2018 ::: Uploaded on - 28/02/2018 ::: Downloaded on - 01/03/2018 01:00:03 ::: Lalitkumar D Chapsey & Anr v Nickie Kiran Nanavati MPT39-2004-TS4-2005-J-F3.DOC funds. Otherwise, they would be allowed to get away with putting the estate to loss. That cannot be accepted.
68. It is true that in a proceeding such as this, I cannot pass a money decree. That is not my purpose or intent. A direction is however, necessary, and, I believe, entirely permissible to the Plaintiffs in regard to (a) estate funds; and (b) the flat, in the following terms:
(a) REGARDING THE ESTATE FUNDS
(i) The Plaintiffs shall file an Affidavit on or
before 9th March 2018 setting out complete details of all withdrawals made from the deceased's accounts.
(ii) They shall also set out in that Affidavit a full list or inventory of the investments of the deceased including share certificates with all particulars, that are in their hands as also details of all bank accounts, Demat accounts etc;
(iii) By 23rd March 2018, the Plaintiffs shall bring back to the deceased's accounts listed below all amounts withdrawn by the Plaintiffs from those accounts.
(iv) The respective Manager of those bank branches will permit the deposits to be made into that account in accordance with these Page 51 of 54 22nd February 2018 ::: Uploaded on - 28/02/2018 ::: Downloaded on - 01/03/2018 01:00:03 ::: Lalitkumar D Chapsey & Anr v Nickie Kiran Nanavati MPT39-2004-TS4-2005-J-F3.DOC directions and will act on an authenticated copy of this order.
(v) The amounts withdrawn will be returned with interest at the rate of 8% p.a. from the date of filing of the Probate Petition, 16th February 2004, this being the earliest, most accurately ascertainable, date.
(vi) The previous order freezing the following bank accounts is withdrawn and set aside.
(vii) It is the Defendant, Nickie Kiran Nanavati, who will be entitled to operate those bank accounts in accordance with the Letters of Administration to Bharatiben's estate.
(viii) In case of any difficulty, liberty to the Defendant to apply.
(ix) The details of the bank accounts are as follows:
(A) Bank of India, Account no.
000410100067355, Ramdas Nayak Marg,
Bandra, Hill Road Branch, Mumbai.
(B) HDFC Bank Ltd, Account
no.1431000035012, Crawford Market
Branch, Mumbai 400 001.
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Lalitkumar D Chapsey & Anr v Nickie Kiran Nanavati MPT39-2004-TS4-2005-J-F3.DOC (C) UCO Bank, Account no.12949, Chowpatty Branch, Mumbai 400 007.
(D) UCO Bank, Account no.9930, Chowpatty Branch, Mumbai 400 007.
(b) REGARDING THE FLAT:
(i) The share certificates of the flat at Turner
Road will be deposited with Mr Mathkar,
Additional Prothonotary and Senior Master, Testamentary Department.
(ii) The Defendant will be at liberty to seek a withdrawal of the title documents.
(iii) The Plaintiffs will deliver vacant possession of the flat to the Court Receiver, High Court Bombay on or before 23rd March 2018.
(iv) The Court Receiver will act on an
authenticated copy of the order.
(v) The Court Receiver is appointed for the
limited purpose of taking possession from the 1st Plaintiff and his family and delivering vacant possession to the Defendant Nickie K Nanavati either by himself or through his duly authorised representative.
69. These matters are disposed of in these terms.
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70. There will also be an order of costs against the Plaintiffs to be computed in accordance with the rules.
71. Mr Kachare applies for a stay. He says that there has been an order of 7th April 2004 of SK Shah J requiring the Defendant not to act on the Letters of Administration. Indeed, that is a very good reason not to grant the stay. A full 14 years have passed, in which time the Plaintiffs have had use of the flat and have illicitly used funds from the deceased's estate. In the view that I have taken, that the Will itself is not proved for a very large number of reasons, and that considerable suspension surrounds both the Will and the Codicil, this is not an appropriate or borderline case that would justify a grant of a stay. The application is rejected.
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