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The Indian Succession Act, 1925
The Indian Evidence Act, 1872
Section 276 in The Indian Succession Act, 1925
Shashi Kumar Banerjee & Ors vs Subodh Kumar Banerjee Since ... on 13 September, 1963
Section 237 in The Indian Succession Act, 1925

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Bombay High Court
"Shiv-Krupa" vs Gaurang Gunvantrai Gupta on 22 July, 2008
Bench: V.C. Daga
      IN   THE     HIGH   COURT OF JUDICATURE        AT     BOMBAY

           TESTAMENTARY AND INTESTATE JURISDICTION.

               TESTAMENTARY SUIT No. 48 of 1996.




                                                              
                                 IN




                                      
           TESTAMENTARY PETITION No. 601 of 1995.


      Gunvantrai S. Gupta of Bombay,
      Indian Inhabitant, residing at




                                     
      "Shiv-Krupa", 18/20, St Mary
      Road, Mazgaon, Bombay-400 010.
                        ..Plaintiff.




                               
                      VERSUS.

      1.   Gaurang Gunvantrai Gupta,
               
      Indian Inhabitant residing at
      2nd Floor, "Shiv-Krupa" 18/20
      St Mary's Road, Mazgaon, Mumbai
      400 010.
              
      2.    Miss      Snehlata   Chhotalal
      Mody.

      3.   Miss   Nurupama Chhotalal
      Mody Both residing    at A/32
      


      Eeshita Apartment, Navrangpura
      Ahmedabad 380 009.
   



      4.   Miss Nita Hasmukhlal Mody

      5.   Miss Rupa Hasmukhlal Mody
      Both residing at 102/4 Shreyas,





      Sewree Wadala Scheme Road No.7,
      Wadala, Mumbai- 400 031.
                       ..Defendants.

      CORAM:      V.C.DAGA,J.
      DATED:      22.07.2008.





      Mr D.C.    Shah i/b Indu D.             Shah       for      the
      Petitioner-Plaintiff.

      Mr S.      J.   Shobhavat, Advocate for Respondent
      No.1.




                                      ::: Downloaded on - 09/06/2013 13:37:03 :::
       Mr S.C.Mody, Advocate for Respondent Nos.                           2
      to 5.

      JUDGMENT:-
      ---------




                                                                   
      1.         In   this    Testamentary        Petition,            the




                                           
      Plaintiff-propounder          of    the Will is           praying

      for     probate with the Will annexed thereto                     of




                                          
      the     properties owned by Late Narendra Shivlal

Gupta together with the credits held by him in business establishment.

FACTUAL MATRIX:

---------------

2. One Narendra S/o Shivlal Gupta died on 12.12.1993 in Kambala Hill Hospital in Mumbai after having undergone major surgery since he was a cancer patient. He is said to have executed his alleged last Will and testament on 27.11.1993 at about 2.00 a.m. (midnight) before being admitted to the hospital for acute abdominal pain. His brother Shri Hemantrai s/o Shivlal Gupta (hereinafter called the "Petitioner/Plaintiff/Propounder") has filed Testamentary Petition on 28.7.1995 ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 3 ) to seek probate of the alleged Will dated 27.11.1993 alleged to have been executed by his brother Late Narendra Gupta.

3. On being served with the citation, widow of the deceased Narendra Gupta had filed a caveat on 3.8.1998 alongwith affidavit in support thereof denying execution of the alleged Will by her husband and alleged fraud on the part of the propounder of the Will and contended that her husband was not mentally fit to ig execute the alleged Will at the relevant time and on the date mentioned and that the alleged Will is not genuine, valid and legal. In view of the contest, the Testamentary Petition became contentious as such registered as Testamentary Suit. The affidavit filed in support of the caveat was treated as written statement.

PLAINT ALLEGATIONS:

ALLEGATIONS

-------------------

4. The petitioner-plaintiff, Guvantrai Gupta, has stated in the petition/plaint that ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 4 ) his brother Late Narendra Shivlal Gupta died in Mumbai on 12.12.1993 ("the said deceased"

for short). At the time of his death, his fixed place of abode was Mumbai. The properties left by him are situate within the jurisdiction of Greater Mumbai in the State of Maharashtra. The petitioner has further stated that the deceased left the writing as his last Will and Testament and that he is appointed as executor of the Will. The description of the property left by the deceased ig is to be found in the Schedule-I marked as Exhibit B. The expenses incurred are shown in Exhibit C. The beneficial interest held by the deceased is described in Exhibit D annexed to the plaint. The assets of the deceased are valued at Rs.62,83,452.46.

The name of Mrs Lalitadevi N. Gupta is disclosed as next of kin and kith, according to Hindu Law. The prayer is made to grant probate with Will annexed thereto in respect of the properties and credits to which the deceased was entitled during his life time.

DEFENCE PLEA:

-------------

5. The Caveator ("the defendant" for short) ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 5 ) Mrs Lalitadevi (since deceased) had filed her caveat alongwith affidavit cum-written statement stating therein that she was the widow of Late Shri Narendra Shivlal Gupta of Mumbai entitled to succeed to the estate left behind by her husband Late Narendra Gupta.

6. The defendant had also stated in defence that to the best of her knowledge and belief, her husband Late Narendra Gupta did not make any Will or testament and that her husband died intestate; that she came to know about the alleged Will for the first time, when a Subpoena dated 1.3.1996 was served on her through the Sheriff of Bombay.

7. She had further stated, in defence, that as per Rule 397 of the Bombay High Court Original Side Rules (O.S.Rules) the petitioner was bound to give her advance notice about filing of the Probate Petition in this Court.

According to her, the petitioner had deliberately kept her in dark about filing of the present Probate Petition and did not give her any notice of the Petition with sole intention to obtain Probate in a surreptitious ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 6 ) manner. Thus, breach of Rule 397 on the part of the Petitioner is alleged.

8. The defendant had further stated in defence that the Plaintiff did not comply with Rule 374 of the Original Side Rules and failed to file the alleged Original Will with the office of Prothonotary and Senior Master of this Court at the time of the presentation of this Suit/Petition; that he had deliberately made false statement in para 3 of the suit/petition with regard to the filing of the alleged Original Will in the office of the Prothonotary and Senior Master of this Court and also challenged the bonafides of the petitioner.

9. The defendant had further challenged the order allowing the amendment sought by the Petitioner to the plaint/petition and has further asserted, in para 5, of her counter affidavit that she had sent a reply dated 3.4.1996, within eight days from the date of receipt of the Subpoena, addressed to the Prothonotary and Senior Master of this Court and informed this Court that the Original Will ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 7 ) alleged to have been executed by her late husband on 27.11.1993 was not in her possession, power or control as alleged by the Petitioner; that she was neither aware of the execution of the alleged Will dated 27-11-1993 nor had any knowledge about it; that the Petitioner has falsely alleged that the alleged Will was and is in her possession;


      that    the     said     allegations          are      made       with




                               
      ulterior      motive of creating false evidence to

      show    that the original Will was in                    existence

      so    as
                 
                 to     avoid the responsibility                 for      the

      production        of    the original Will             alleged        to
                
      have    been      executed      by her late           husband        on

      27.11.1993.
      


      10.     The     defendant       did produce copy of                 the
   



      letter     addressed       to     the      Prothonotary             and

Senior Master of this Court on 3.4.1996. She had also stated that the said letter was received by the office of the Prothonotary and Senior Master of this Court and that she was holding postal acknowledgement and certificate evidencing posting of the letter dated 3.4.1996 and undertook to produce the same.

::: Downloaded on - 09/06/2013 13:37:03 :::

( 8 )

11. The defendant had also stated that the petitioner deliberately did not give notice of filing of the probate petition. She had further asserted that the Will propounded by the petitioner was non existent and that the photo copy of the Will was not a genuine but fabricated by the Petitioner. That the petitioner had adopted dubious method in filing Testamentary Petition.

12. The defendant had further reiterated that her husband had not made any Will at any point of time during his life time, and more particularly, on 27.11.1993 as alleged by the petitioner. That during the last three weeks prior to the death of her husband i.e. on 27.11.1993, he was not keeping good health and she had at all times remained by the side of her Late husband. She had never left her husband alone at any time during his illness, especially, during the period from 22.11.1993 to 12.12.1993. She has further stated that her husband was suffering from cancer which was detected when her husband had undergone major surgery in the month of April, 1992 and that the health of her husband was ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 9 ) deteriorating day by day and that he was mentally depressed and physically weak and handicapped. As such he was not a normal person.

13. The defendant had further stated that the petitioner had tried to obtain signature of her husband through Dr. Gangal, brother-in-law of her husband (sister's husband), who had specially come down to Bombay from Hubli to see her husband. That, at the instance of the petitioner, Dr. Gangal had given some papers to her husband for his signature in her presence. After scanning those papers, her husband had returned those papers to Dr. Gangal without putting his signature, who in turn returned them to the Petitioner. After Dr Gangal had left the Nursing Home, her husband had told her that the paper which Dr.Gangal had given to him was the Will which was prepared by the petitioner and had given to Dr Gangal to obtain his signature. She has further stated that after the papers were returned by Dr.Gangal to the petitioner, there was heated discussion between the petitioner and her Late husband ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 10 ) and the petitioner had become very angry with her husband and started shouting at her husband for having refused to sign the papers.

On hearing the shouts of the petitioner, Dr Antia, who was attending her husband immediately came to her husband's room and scolded the petitioner for shouting and misbehaving with the patient, who had undergone major surgery.

14. The defendant had also stated in her affidavit that her husband was temperamentally very cool and quiet and that the petitioner is temperamentally very hot and aggressive in nature and always dominated in domestic as well as business matters inspite of the fact that her husband was the elder brother of the petitioner. She had further stated that while her husband was alive and active in business, he used to give her an amount of Rs. 5,000/-

every month for her personal expenses and that after the death of her husband, the petitioner continued to maintain the said practice for sometime without asking her for any acknowledgment. However, subsequently, acknowledgement was asked for the purpose of ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 11 ) maintaining account of the estate of her husband and gave her a bunch of receipts which were simple receipts in respect of payment of Rs. 5,000/- which were already scribed. She had thus stated that she had signed those acknowledgments in good faith and later on found out that those vouchers were prepared to establish the genuineness of the Will. She has, thus, stated that her signatures had been fraudulently obtained on these vouchers.

15. The defendant had also given a graphic picture about the health of her husband. On 27.11.1993 he had suffered severe pain in the stomach and abdomen which had increased considerably by midnight. The pain had become absolutely unbearable. Due to severe pain in the stomach and abdomen, her husband had gradually lost consciousness. She was frightened due to sudden deteriorated health of her husband, therefore, she had to request the petitioner, his wife and two sons at 2.00 a.m. on 27.11.1993 to make necessary arrangement for his medical treatment. Dr Godbole, who was attending her husband, was informed of the bad health. He advised to ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 12 ) take her husband immediately to the hospital.

Thereafter, her husband was admitted in the hospital. She had, thus, alleged that the allegations made in the petition about execution, custody and possession of the original Will purported to be the last Will of her husband in her possession is patently false to the knowledge of the Plaintiff. She had further asserted that the petitioner did not disclose as to how the original Will purported to be the last Will dated 27.11.1993 came in ig her possession. She had further stated that it was highly improbable for her husband to execute Will purported to be the last Will as pleaded in the Testamentary Suit.

Thus, in her written statement, she had challenged the execution, existence and validity of the Will and went on to allege fraud played by the petitioner. She had also alleged that the Will of which the Probate is sought is a Will manufactured by the Petitioner showing himself and his sons as beneficiaries. The Will is not attested by any independent witnesses. Rival pleadings have given rise to the following issues framed by this Court.

::: Downloaded on - 09/06/2013 13:37:03 :::

( 13 ) ISSUES:-

-------

1. Whether he Plaintiff/Petitioner proves that the deceased Narendra S.
Gupta had validly executed the Will being Exhibit A to the Petition?
2. Whether the Defendant Nos. 2 to 5
prove that the deceased Narendra S.
Gupta had not executed the Will being Exhibit A to the Petition?
3. Whether the Plaintiff is entitled to grant of Probate of the xerox copy of the Will of deceased Narendra S. Gupta being Exhibit A to the Petition in the absence of the Original Will?
4. What order?
5. Whether the probate could be granted on the basis of xerox copy of the Will without production of the original Will?

6. Whether the xerox copy of the Will ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 14 ) produced by the Plaintiff/Petitioner is a genuine copy of the Will propounded by the Petitioner/Plaintiff?

7. Whether the original of the Will propounded by the Plaintiff/Petitioner was in the possession of the original Caveator/defendant and widow of the deceased Narendra Shivlal Gupta as alleged, keeping in view reply to the subpoena sent by the original Caveator and affidavit dated 6th August, 1996 filed by her in support of the Caveat?

8. Whether the production of the Original Will could be dispensed with by the Hon'ble Court keeping in view of the order dated 13.6.1996 passed by the Hon'ble Court on the application of the Plaintiff/Petitioner?

9. Whether the Petition for Probate is entertainable by the Hon'ble Court on the basis of xerox copy of the Will propounded by the Petitioner/Plaintiff?

::: Downloaded on - 09/06/2013 13:37:03 :::
( 15 )
10. Whether the Plaintiff/Petitioner is entitled for the Probate of the Will in view of the order passed by the Hon'ble Court on 13.6.1996?
11. Whether the secondary evidence is admissible for the purpose of granting the probate of the Will?
12. Whether the Plaintiff/Petitioner has sufficiently explained and accounted for the non-production of the original Will?
13. Whether the Plaintiff/Petitioner is entitled for the grant of the probate of the Will, keeping in view the suspicious circumstances in which the Petition for probate was filed?

16. Parties were permitted to lead evidence.

The plaintiff has examined witnesses namely;

Gunvantrai Shivlal Gupta (P.W.1), Gaurang Gupta (P.W.2), Anand Gunvantrai Gupta (P.W.3), Prabhakar Sambhaji Kamble (P.W.4), Dr. Sanjay ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 16 ) Ganesh Godbole (P.W.5), whereas the defendants did not examine anybody.

17. Before considering the matter on its own merits, it is necessary to sketch the rival submissions made before this Court.

RIVAL SUBMISSIONS:

-----------------

18. The learned counsel appearing for the Petitioner/plaintiff submits that the plaintiff has examined himself as P.W.1. The plaintiff has also examined attesting witnesses P.W. Nos. 2 and 3, i.e. his sons.

Both the attesting witnesses have affirmed the execution of the Will. The Bank Officer (P.W.4) was examined to prove signature of the deceased put on the Will. Dr Sanjay Ganesh Godbole, ( P.W. 5 ), who had treated the deceased Late Mr N.S. Gupta for number of ailments had testified that the deceased was healthy and in sound state of mind at the time of execution of the subject Will. The plaintiff, thus, submits that the Will has been duly proved as validly executed by the ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 17 ) deceased. The plaintiff claims to have proved photocopy of the Will as the original was not forthcoming. The plaintiff submits that the burden cast on the (plaintiff) propounder of the Will has been discharged and all suspicious circumstances are cleared. In his submission the subject of the Will was opened one month after the death of the deceased i.e. on 21.1.1994 in presence of all family members of the plaintiff as well as one of the relatives of the widow of the deceased one Dr. Hasmukh ig Mody, i.e. the brother of the widow.

According to the plaintiff, the subject Will was read over and, thereafter, two photo copies thereof were prepared, out of which one was handed over to Dr. Hasmukh Mody, brother of the widow of the deceased and the other copy was retained by the plaintiff and that the original Will was handed over to the widow of the deceased for safe custody.

19. The learned counsel for the plaintiff urged that the Will was written by the deceased in his own handwriting. It was signed by him in the presence of two witnesses i.e. sons of the plaintiff Mr Gaurang G.

::: Downloaded on - 09/06/2013 13:37:03 :::

( 18 ) Gupta (P.W.2) and Anand G. Gupta (P.W.3). He further submits that the Will was written at about 2.00 a.m. on 27.11.1993 by the deceased and, therefore, it is quite obvious that, at that point, independent witnesses could not have been made available to witness the execution of the Will. He submits that both the witnesses have corroborated the said version of the plaintiff.

20. The learned counsel for the plaintiff-propounder submits that to establish handwriting of the deceased as well as his signature on the subject Will (Exh. A), the plaintiff has produced Exh.B to H, i.e. two cheques bearing signatures of the deceased and the passports of the deceased bearing his signature together with driving licence issued by the R.T.O. and power of attorney executed by the deceased. In order to prove handwriting of the deceased, the plaintiff has also examined one more witness, the Manager of the Central Bank of India, (P.W.4), who had issued signature verification certificate and produced two slips bearing specimen signatures of the deceased. He further submits that ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 19 ) though medical evidence is on record to prove good physical health and sound mental condition of the deceased testator, as such the Will has to be taken as proved beyond doubt. He, thus, submits that the plaintiff is entitled for grant of Probate.

21. The learned counsel for the plaintiff placed reliance on the decision of the Apex Court in the case of Mrs Hem Nalini Judha v.

Mrs Isolyne Sarojbashini A.I.R. 1962 S.C.

1471 in support of his submission.

22. Per contra, at the out set, Mr Mody, learned counsel appearing for the defendants submits that the plaintiff has not come to this Court with clean hands to seek the Probate and tried to set up a false case, as such, the suit is liable to be summarily thrown out. Reliance is placed on the law laid down by the Apex Court in the case of S.P. Chengal Naidu vs. Jagannath, A.I.R.

1994 S.C. 853. He further submits that the fraudulent conduct of the plaintiff is matter of record, reflected in the form of the order dated 13.6.1996 passed by the learned Single ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 20 ) Judge (Shri K. G. Shah,J as he then was).

He submits that this is not a fit case, wherein this Court can grant Probate in favour of the plaintiff, especially, when the probate proceedings are in rem and binds the whole world. He further submits that the probate proceedings of the purported Will filed by the present plaintiff is tainted with bad motive which is quite apparent from the conduct of the plaintiff. He submits that the Original Side Rules lay down various requirements for filing petition for Probate. He submits that every possible attempt was made by the plaintiff to throw dust in the eyes of this Court and he tried to obtain Probate in his favour by playing fraud on this Court. He sought to urge that the Will suffers from various mysterious circumstances and tried to demonstrate the same on the basis of the record of this Suit.

23. Mr Mody drew my attention to the cause title of the petition wherein words "xerox copy of " were inserted and to the statement made in para 3 of the Probate Petition wherein correction is made in title of the petition by ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 21 ) adding word "xerox copy of Will" after filing of the petition. Mr Mody further submits that no service of the citation was made on the widow of the deceased. No notice was given to the widow of the deceased for handing over possession of the alleged original Will prior to filing of the Petition which was necessary if the possession of the alleged Original Will was with the widow of the deceased as alleged in the petition dated 31.1.1996.

24. Mr ig Mody also tried to demonstrate that the office of this Court had raised an objection with regard to the filing of the photo copy of the Will instead of original one. When the plaintiff was asked to file the original Will he came out with a false story that the original Will was in possession of the widow of the deceased testator and requested Court for issuing subpoena to her.

25. Mr Mody also tried to highlight the circumstances under which the alleged Will was sought to be prepared and also highlighted attempts on the part of the plaintiff to obtain consent order in collusion with his ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 22 ) sons which was, ultimately, set aside by the Appellate Court.

26. Mr Mody submits that an attempt was made not to add defendant Nos. 2 to 5 as the defendants to the Testamentary Suit and every possible attempt was made to seek orders from this Court behind their back. He further submits that the documents filed by the plaintiff are not admissible in evidence for want of foundation in the pleadings. Some of the documents tendered in evidence by the plaintiff were never disclosed in the affidavit of documents. He further submits that large number of isolated vouchers in respect of payments alleged to have been made to the widow were produced without producing books of accounts. No person was examined through whom alleged payments were made. He thus, submits that neither alleged payments were established, nor alleged vouchers were proved in accordance with the provisions of the Evidence Act. He further submits that affidavit of evidence by way of examination-in-chief of one Kantilal Mehta was sought to be filed without producing him for ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 23 ) verification of his affidavit or for his cross-examination. Now he is dead. He submits that the identity of the person, who has prepared alleged vouchers was also not disclosed. The said person was not examined.

The actual payments alleged to have been made have also not been proved. He, thus, submits that the said affidavit of Shri Kantilal Mehta cannot be read in evidence.

27. Mr Mody further submits that purported Will dated 27.11.1993 propounded by the plaintiff alleged to have been certified as true copy by the Notary Public on 21.2.1993 has also not produced. He further submits that it was obligatory on the part of the plaintiff to examine Mr N. N. Dalvi, Notary Public who alleged to have notarised true copy of the alleged subject Will and should have been made available for the cross-examination.

He thus submits that the notarized copy has neither been produced nor proved.

28. Mr Mody further submits that attesting witnesses who have appeared were interested ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 24 ) witnesses being sons and beneficiaries under the alleged Will. That no leave to lead secondary evidence was obtained by the plaintiff from this Court. That this Court had never permitted the plaintiff to lead secondary evidence. In his submission, the Will was required to be proved by primary evidence unless permitted by the Court to lead secondary evidence as per law laid down by the Apex Court in the case of Wasudeo v. Vilas 2006 (2) Mh.LJ 605 (page 627).

627)

29. Mr Mody submits that the plaintiff had made application in the initial stage of the Suit (before Justice K.G.Shah as he then was) to dispense with the production of the original Will but the said application was rejected by an order dated 13.6.1996. No permission was granted by this Court to lead secondary evidence. That the widow-defendant had categorically stated that she had never seen any Will nor was she ever in possession of the alleged original Will. The possession of the widow so far as subject Will is concerned has also not been established. With ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 25 ) the aforesaid submissions, Mr Mody also tried to highlight that there are various suspicious circumstances to disprove the case sought to be made out by the plaintiff. He, in ultimate submission, prayed for dismissal of the suit with heavy costs.

LAW OF WILL.

------------

30. Before dealing with the various aspects of rival submissions surfaced during the course of arguments, it is necessary to trace the law of Will expounded by the Supreme Court in the matter of proof of the Will and duty of the Courts in considering the question relating to the execution of the Will surrounded by suspicious circumstances.

31. The learned counsel for the parties have cited number of decisions, reference to all of them is not necessary except following few leading cases of the Apex Court from which the settled legal principles can be culled out.

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( 26 )

32. The Apex Court in the case of Shashi Kumar Banerjee and others v. Subodh Kumar Banerjee since deceased and after him his legal representatives and others reported in A.I.R. 1964 S C 529 ruled that 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, Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious ig 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 ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 27 ) 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. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken in to account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations.

33. In the case of Kalyan Singh V. Smt.

Chhoti and Others, A.I.R. 1990 Supreme Court 396, the Three Judges Bench of the Apex Court ruled that the Will is one of the most solemn ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 28 ) documents known to law. The executant of the Will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the Will. It must be stated that the factum of execution and validity of the Will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the Court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.

34. The Apex Court in the case of Guro (Smt) ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 29 ) vs. Atma Singh and Others (1992) 2 Supreme Court Cases 507 held that where there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before the Will could be accepted as genuine. Such suspicious circumstances may be a shaky signature, a feeble mind and unfair and unjust disposal of property or the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit. The presence of suspicious circumstances makes the initial onus heavier and the propounder must remove all legitimate suspicion before the document can be accepted as the last Will of the testator.

35. In the case of Gurdial Kaur and others vs. Kartar Kaur and others (1998) 4 S.C.C.

384, the Apex Court held that the law is well settled that the conscience of the court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 30 ) was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will.

36. In the case of M.H. Venkataiya Iyengar Vs. B. N. Thimmajamma, A.I.R. 1959 S C 443 it has been held that where the propounder was unable to dispel the suspicious circumstances which surrounded execution of the question of valid execution and attestation of the Will, no Letter of administration in favour of the propounder could be granted.

37. Before considering the matter on its own merits, it is necessary to sketch the rival submissions made before this Court.

CONSIDERATION IN THE BACKDROP OF THE

----------------------------------------------

DEVELOPMENTS BEFORE THIS COURT.

COURT

------------------------------

38. . Having heard parties to the suit and having seen the documents, various affidavits and the evidence on record, the present suit ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 31 ) needs to be decided on the basis of the evidence led by the plaintiff-petitioner, since the Caveators-defendants did not lead any evidence. The plaintiff has to stand on his own legs.

39. The factual matrix, already drawn hereinabove, shows that the Testamentary Petition No. 601 of 1995 was filed by the Petitioner on 28.7.1995 for the probate of the alleged will dated 27.11.1993 of late Narendra s/o Shivlal Gupta, husband of the deceased (i.e. the original defendant-Caveatrix).

40. The aforesaid petition was filed by the Petitioner/Plaintiff one and one half year after the death of the husband of the deceased defendant/caveatrix. Her husband died in Mumbai on 12.12.1993. This delay has not been explained.

41. The Probate Petition was filed on the basis of a photocopy/xerox copy of the probate Will propounded by the Plaintiff/Petitioner.

The original of the Probate Will was not produced at the time of filing of the ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 32 ) Petition. The Probate Petition has been solemnly affirmed by the Petitioner before appropriate Officer of this Court. In para 3 of the Probate Petition, this is what, the Petitioner has stated:

"That the deceased left writing, which is last Will and Testament. The said writing hereinafter referred to as the "Will" is marked Exh."A" and is handed in separately for being filed, and kept in a safe place in the office of the Prothonotary and Senior Master. A copy of the said Will is hereto annexed and also marked Exh.A".

(Emphasis supplied) 42. The aforesaid statement made in para 3 of the Petition, shows that the original Will of which Probate is being sought for was with the Petitioner at the time when the Petition was presented and that as per averments made in the petition, he had handed over the original Will separately to the office of this Court for being filed and kept in the safe custody of the Prothonotary and Senior Master of this Court. However, after presentation of the petition, it transpired that the Petitioner had never handed over original Will to the Officer of this Court. He only handed ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 33 ) over a Photo copy/xerox copy of the Will. The Petitioner, who claims to be the executor of the Will of the deceased, in his affidavit dated 28.8.1995, has for the first time, stated (when the office objection raised) that he was not in possession of the original Will and that he had been provided only with xerox copy of the Will and that the original Will was in the custody and possession of Smt.

Lalitaben Narendra Gupta, widow of the deceased.

      43.     In      the         above           backdrop,              the
             
      Petitioner/Plaintiff          prayed        for issuance            of

      Subpoena      to    the    widow of       the      deceased         to

      produce      alleged original Will alleged to have
      


      been    executed by the deceased on                  27.11.1993.
   



      That    Subpoena      was issued and served                 on     the

      widow    of    the deceased.        She did not             produce





      the    original Will denying possession thereof.

      A    precipe was, thus, moved by the                  Petitioner

      requesting      this      Court to dispense             with       the





production of the original Will.

44. At this juncture, it is relevant to note that under the provisions of Section 276 of ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 34 ) Indian Succession Act, 1925 the original Will on the basis of which the Petition for Probate was filed, is required to be annexed with the Petition. Rule 374 of the O.S. Rules of this Court, specifically, provides that the original Will is required to be deposited in the office of the Prothonotary and Senior Master for safe custody and a copy of the Will is required to be annexed to the Petition. A specific averment is also required to be made in the petition itself, stating that the said Rule has been complied with.

45. Rule 374 of O.S. Rules prescribes for filing of the probate petition to confirm to the requirement of Section 276 of the Succession Act (the Act). Section 276 of the Act further provides that a copy of the Will or, draft or statement of the contents thereof shall be annexed with the Petition. Copy of the Will is admissible, subject to necessary averments made in the petition itself, explaining facts and circumstances for the non production of original Will. A specific averment is also required to be made in the petition for grant of probate on the basis of ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 35 ) the copy of Will. The Court has to be satisfied about facts and circumstances for non-production of the Will.

46. It may further be noted that Section 237 of Succession Act carves out the exception to the mandatory provisions of Section 276 of Succession Act. In the present case, provisions of Section 237 of the Succession Act have no applicability. As such, production of the original Will was absolutely necessary ig for entertaining Petition for the Probate of the property of the husband of the original defendant propounded by the plaintiff/petitioner.

47. It is well settled that if certain things are required to be done in a specific manner, it cannot be done in any other manner as laid down by the Apex Court in the cases of Nazir Ahmed v.

                  v          King Emperor, A.I
                                           A I.R.
                                               R.              1936 P





      243, State of Uttar Pradesh v.               Singhara Singh

      and   Ors, A.I.R.        1964 S C 358 and in              Vanmala

      S.    Aney    v.       National     Education           Society,

      Khamgaon and Ors, 1982 Mh.L.J.               403.




                                           ::: Downloaded on - 09/06/2013 13:37:03 :::
                           ( 36 )




      48.     The    Plaintiff claims to be the executor

      of    the    property of the original               defendant's




                                                                    

husband and as such the plaintiff was supposed to be in possession of the original Will under which Executorship is being claimed. In case the Petitioner was not in possession of the original Will, the Petitioner was expected to obtain the possession of the original Will prior to the filing of the Petition. In absence thereof, the Petitioner was under obligation ig to produce prima facie; evidence of the possession of the original Will with a third party. A specific averment was required to be made in the petition in that behalf to seek production of the original Will, by making necessary application for issuance of the Subpoena for the production of the original Will.

49. In the present case, as indicated hereinabove, the plaintiff has neither made any averment in the petition about non-

possession of the original Will nor any proof of any attempt made to seek possession of the original Will was tendered. No steps, well ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 37 ) within time, were taken to seek Subpoena for production of the alleged original Will. On the contrary, he made a specific averment in para 3 of the Petition to the effect that the original Will of the deceased was handed in separately to in the office of the Prothonotary in accordance with Rule 374 of the O.S.Rules. This statement, ultimately, turned out to be a false statement, which the Petitioner/Plaintiff has also admitted in his evidence, in para 19, which reads as under:

"It is correct that originally when the petition was filed, I made a false statement that the original Will is handed over to the Prothonotary."
(Emphasis supplied)
50. It is relevant to note that the false averment made by the Plaintiff/Petitioner in the petition was detected by the Testamentary Department of this Court when the petition was scrutinized. The precipe was required to be filed by the Advocate for the Plaintiff for issuance of a Subpoena to the defendant alongwith affidavit dated 28.8.1995. But Subpoena was not issued till 1.3.1996,though ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 38 ) it was subsequently issued and served on the widow of the deceased.

51. The Caveatrix, in her reply- cum-

affidavit filed on record, made a positive statement that her husband had died intestate, as such question of production of the Will, much less original Will did not and could not arise. The reply to the Subpoena was sent by her by Registered post A.D. It was delivered in the office of the Prothonotary and Senior Master on 8.4.1996 as per the photocopy of the postal acknowledgement available on record.

The defendant's reply to the Subpoena is not to be found on the record of the proceedings.

The attention of the then Judge of this Court, ( Shri K. G. Shah, as he then was) was also drawn to the non-availability of the reply to the Subpoena at the time of hearing of the Petition on 28.1.1996. The learned Judge had issued directions to the Testamentary Department on 21.8.1996 to trace out defendant's reply to the subpoena.

52. The photocopy of the reply given by the ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 39 ) widow of the deceased alongwith photocopy of the acknowledgement both are produced on record. It is, no doubt, true that no evidence in this behalf, as required under the provisions of the Evidence Act, was led by the Caveatrix, since during the pendency of the Suit she left for heavenly abode. Her statement, that she had replied to the Subpoena was ordered to be investigated by the learned Judge of this Court. Till today, no report from the Testamentary Department has been received or placed on record.

53. At this juncture, it is relevant to note that looking at the affairs of the Testamentary Department, as noticed from time to time by this Court, the statement made by the deceased on oath cannot be ignored. This is no doubt a disturbing feature of the working of the Testamentary Department.

However, it is clear that the Testamentary Department has failed to carry out directions of this Court.

54. Be that as it may, the question will have to be considered on the basis of the ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 40 ) admissible evidence and circumstances available on record as to whether, at any point of time, the alleged original Will was in existence and if so, was it in possession of the widow of the deceased. This issue is being addressed hereinafter at the appropriate stage of this judgment.

55. It may further be pointed out that the defendant's reply to the subpoena was not before this Court when the petition was heard by Shri K.G. Shah,J (as he then was) on 13.6.1996.

56. At this juncture, it will be relevant to point out that the Judge of this Court (K.G.Shah,J (as he then was) had heard the matter in detail and after having heard, delivered the order dated 13.6.1996 which speaks volume about the conduct of the plaintiff in the present case. The learned Judge recorded a specific finding about the methodology adopted by the Plaintiff in filing of this Petition, wherein the learned Judge has observed as under:

::: Downloaded on - 09/06/2013 13:37:03 :::

( 41 ) "In the present case, as I read para 3 of the petition, the petitioner has stated that the original Will (Exh.A) is handed in separately for being filed and kept in safe place in the office of the Prothonotary and Senior Master. This would mean that the original Will was in his hand at the time when the petition was presented. Undisputedly, he had not handed over the original Will in the office of this Court at the time when petition was presented and, therefore, the office raised the objection. Now, the Petitioner wants to contend that the original Will is not with him. It was not with him at any point of time. But it was in possession of the widow of the deceased. Now, these facts are not at all to be found in the petition. He has prayed for a subpoena being issued to the widow of the deceased calling upon her to produce the original Will which he alleges is in possession of the widow of the deceased. Not only that the petitioner has in para 3 of the petition clearly purported to say that he produces the original Will implying thereby that the original Will was in his hand at the time petition was presented but nowhere in the petition has he stated that original Will was with the widow of the deceased."

"The matter was taken up yesterday and I heard Mr D.C. Shah, the learned counsel for the Petitioner at length. At that time, it appeared that there were several things which raised suspicion about the petitioner's case that the Original Will is in the possession of the widow of the deceased. In para 3 of the petition, the Petitioner has made statements which would clearly go to show that at the time the petition was presented the original Will was with him. In the petition, nowhere has it been stated that the Will was with the ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 42 ) widow of the deceased. In the affidavit of Gaurang Gupta filed along with the petition, there is not a whisper to say that the original Will is with the widow of the deceased."

(Emphasis supplied)

57. In the aforesaid order Justice K.G.

Shah (as he then was) made it absolutely clear and recorded a categorical finding reading as under:

"It is claimed that the Petitioner has never served the widow with a notice calling upon her to hand him over the original Will or to produce the same in Court. Under these circumstances, I think the ends of justice demand that the widow of the deceased should be supplied with all the affidavits filed by the Petitioner on the record of the case including the affidavit of the attesting witnesses, precipe and all other papers on record and she should be called upon to have say in the matter of the Petitioner's request for dispensing with the production of the original Will. I, therefore, direct that the office of this Court shall serve the widow of the deceased with all the papers on record of the case so far produced including all the affidavits, the precipis and other papers on record of the case and ask by a notice to appear before this Court on 10th July, 1996 to show cause why the Court should not pass an order dispensing with production of the original Will."
(Emphasis supplied) ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 43 )
58. In the above order, it was specifically made clear that issuance of notice by itself will not be a ground in favour of the Petitioner to dispense with production of the original Will.

59. With the above caveat, show cause notice was issued. The widow of the deceased was called upon to file a reply, which she had filed, denying the alleged execution and/or the existence of the Will and strongly opposed the prayer for dispensing with the necessity of filing of the original Will.

      


      60.     The    Notice      of Motion No.            503 of        1997
   



      was      taken        out          by         the          original

      defendant-Caveatrix           Ms         Lalitaben            (since





      deceased)       for      dismissal       of       the        Probate

      Petition.       The      original    defendant             died      at

Ahmedabad on 25.3.1998, during pendency of the said notice of Motion No. 503 of 1997. The original defendant had made a Will dated 27.10.1997.

::: Downloaded on - 09/06/2013 13:37:03 :::

( 44 )

61. In the above Will, the original defendant has appointed Ms Snehlata, Ms Nurupama, both daughters of Chhotalal Mody, and Ms Nita and Ms Rupa, both daughters of Hasmukhlal Mody, as Executrix of the Will.

62. The Advocate for the defendant had informed the Advocate for the Plaintiff about the death of original defendant Ms Lalitaben Gupta by a letter dated 6.4.1998. The copy of the Will dated 27.10.1997 executed by the original ig defendant was forwarded to the Advocate of the Plaintiff. A specific request was made to bring the four ladies beneficiaries under the Will on record as legal representatives of the original defendant in accordance with the provisions of Order XXII Rule 4 of the Code of Civil Procedure. However, the Advocate for the Plaintiff failed to take action for bringing them on record. This inaction also speaks volumes about the foul and malafide intentions of the plaintiff.

63. Instead of bringing above four ladies on record as legal representatives of the ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 45 ) original defendant, the plaintiff took out a Chamber Summons No. 626 of 1998 in the present Suit and brought his son Gaurang Gunvantrai Gupta, the present defendant no.1 on record, as legal representative of the original defendant, on the basis of purported Will of the deceased widow alleged to be dated 2.4.1994. The said Chamber Summons No. 626 of 1998, taken out by the Plaintiff, was made absolute by consent of the father and son i.e. Plaintiff and Gaurang Gupta, son of the Plaintiff, ig in view of the order dated 15.7.1998 passed by this Court (Smt. K.K.

Bam,J, as she then was). That is how, the plaintiff's son Gaurang was brought on record as legal representative of the original defendant in this Testamentary Suit.

64. It is also interesting to note that the Plaintiff had taken out Chamber Summons No.941 of 1997 for the liberty to amend the Petition after service of Notice of Motion No. 503 of 1997 taken out by the original Plaintiff as mentioned hereinabove. The said Notice of Motion No. 503 of 1997 was placed for hearing before this Court (Smt K.K. Bam,J as she then ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 46 ) was). The Notice of Motion No. 503 of 1997 and Chamber Summons No. 941 of 1997, both were heard and disposed of by a common order dated 29.7.1998 on the basis of Minutes of order signed by the plaintiff, his son and countersigned by their respective Advocates, obviously, in collusion with each other.

65. Ms Snehlata, Ms Nurupama, Ms Nita and Ms Rupa challenged the above order dated 15.7.1998 passed in Chamber Summons No. 626 of 1998 and the common order passed on 29.7.1998 in Notice of Motion No. 503 of 1997 and Chamber Summons No. 941 of 1997 in Appeal No. 951 of 1998. The said Appeal came up for admission before the bench presided over by Hon'ble Justice S.N. Variava (as he then was). The said appeal was disposed of by Minutes of order, wherein the plaintiff and his son had agreed to bring the said four ladies i.e. Ms Snehlata, Ms Nurupama, Ms Nita and Ms Rupa on record as the legal representatives of the original defendant.

The Notice of Motion No. 503 of 1997 and Chamber Summons No. 941 of 1997 were directed to be heard and decided on merits.

::: Downloaded on - 09/06/2013 13:37:03 :::

( 47 )

66. The Testamentary Suit and Notice of Motion No. 503 of 1997 were amended as per the Minutes of order passed in Appeal Nos.951 and 1017 of 1998 and the above four ladies were brought on record of the suit as defendant Nos. 2 to 5.

67. At this juncture, one more relevant aspect needs a reference i.e. the Chamber Summons No. 941 of 1997, whereby the plaintiff ig prayed for grant of leave to amend the plaint-petition as per Schedule annexed to the Chamber Summons, whereby he wanted to insert some words in para 3 of the plaint, reading as "Xerox copy of which " in the said Petition after the words Exh."A" and also to incorporate words "xerox copy" after sentence reading as "the original Will is in custody and possession of the original defendant of the deceased Lalita N. Gupta".

68. In support of the above Chamber Summons, an Affidavit was filed by the Petitioner-Plaintiff on 23.7.1997.

::: Downloaded on - 09/06/2013 13:37:03 :::

( 48 )

69. The learned Judge of this Court (Smt.

K.K. Bam,J as she then was) by an order dated 31.7.1998 allowed the above Chamber Summons observing that the added Defendant Nos. 2 to 5 shall be at liberty to file additional written statement. Parties were directed to exchange affidavits of discovery and inspection of documents within two weeks.

70. That after disposal of Appeal Nos. 951

and 1017 of 1998 filed by the Appellants, Notice of Motion No. 503 of 1997, taken out by the original defendant, came up for hearing and final disposal before Justice K.K.Bam (as she then was) on 29.1.1999, who was pleased to dismiss the said Notice of Motion No. 503 of 1997. She allowed the suit to proceed on the basis of the photocopy of the Will holding that the issue will have to be tried as to whether or not the Petitioner/Plaintiff is entitled to obtain Probate on the basis of photo/xerox copy of the Will and held that the suit will have to be decided on the basis of the evidence led.

71. After service, the aforesaid Defendant ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 49 ) Nos. 2 to 5 also filed their written statement opposing the grant of probate and considering rival contentions of the parties, issues were framed as reflected in para 15 supra. They are being considered in paras appearing hereinafter.

CONSIDERATION:

-------------

ISSUE Nos. 1 to 12:-

--------------------

------------------

72. Issue Nos. 1 to 12 being interlinked they are being considered together in the back drop of the events, which took place before this Court as also evidence on record.

73. As already stated hereinabove, in extenso, the probate petition was filed by the Plaintiff, one and half years after the death of the deceased Narendra Gupta, without producing the original Will. He made a false statement in para 3 of the plaint already extracted in para 49 supra. Till the scrutiny of the petition by the Testamentary Department ::: Downloaded on - 09/06/2013 13:37:03 ::: ( 50 ) original Will was not produced. A false statement was made in the Petition as indicated hereinabove. By an order dated 13.6.1996 Prothonotary and Senior Master directed the plaintiff to file original Will before the petition could be proceeded further. The subsequent developments which took place before this Court were extensively sketched hereinabove.

74. Now, the question which needs to be addressed ig is: whether the existence of the original Will is proved by the Plaintiff?

75. In order to address this question one has to read the Probate Petition, the affidavits filed from time to time on record by the plaintiff in support of various Motions and/or Chamber Summons, coupled with the evidence of the Plaintiff brought on record.

76. It is also necessary to bear in mind that the beneficiaries under the Will are the Plaintiff and his two sons. The attesting witnesses of the alleged Will are also sons of the Plaintiff. Under these circumstances, the ::: Downloaded on - 09/06/2013 13:37:04 ::: ( 51 ) appreciation of evidence has to be with a pinch of salt.

77. The first question which needs to be addressed is: Why the Plaintiff should make a false statement in the Probate Petition? Can it be said that at the time of filing of the Probate Petition, he was not aware of the fact that the alleged original Will was not in his possession and was with the widow of the deceased? The answer has to be that he was well aware of this fact since he claims to have issued advance letter to the widow requesting for original Will (see para 10 of his evidence).

78. The Probate Petition must have been drafted by the Advocate on the basis of the instructions given. If one turns to the original Probate Petition, one would find the insertion of the words "xerox copy" appearing in the petition, just above the name of the Petitioner in the cause title. Originally, it was typed as under:-

::: Downloaded on - 09/06/2013 13:37:04 :::
( 52 ) "In the matter of Petition of Probate of the Will of Narendra Shivlal Gupta, who expired on 12.12.1993 at Bombay ...deceased."

79. The addition made reads as under:

"In the matter of Petition of Probate of the xerox copy of Will of Narendra Shivlal Gupta, who expired on 12.12.1993 at Bombay ...deceased."
(Emphasis supplied)
80. The word "xerox copy" appearing in the same ink in which the Plaintiff has signed, this does not bear the counter-signature of the Oath Officer. It is, thus, clear that the words "xerox copy" in the opening part of the cause title of the Petition were added subsequent to the affirmation of the petition.

81. With this, let me turn to the evidence of the plaintiff. In the evidence, the plaintiff has stated in para 3 that the original Will was executed by his brother on 27.11.1993 and was kept with his wife Mrs Lalitaben. He has further stated that he saw the original Will for the first time on 12.1.1994 at 4.00 p.m. when the envelope containing subject Will was opened i.e. exactly a month after the death of his elder brother. He has further stated that he opened ::: Downloaded on - 09/06/2013 13:37:04 ::: ( 53 ) the envelope and took out the Original Will and read over contents thereof to every one who were present in the room. After having read the subject Will, he asked his elder son Gaurang Gupta to get the alleged original Will laminated and to get two xerox copies thereof.

Accordingly, his son got the original Will laminated and two xerox copies thereof. He has further stated that, the original laminated copy of the alleged Will was again given to his sister-in-law, Mrs Lalita. Out of the two xerox copies of the Will, one was kept by him and the other was given to Dr Mody, (brother of Mrs Lalitaben). The original alleged Will is in Gujarati. From this evidence, the plaintiff wants to suggest that the Will was opened for the first time on 12.1.1994. In the wake of this evidence, it could not have been said in the Probate Petition that the alleged original Will is being produced and handed over to the Prothonotary and Senior Master. This vital aspect of possession of the Will with Ms Lalita could not have escaped the mind of the plaintiff. Hence, the story sought to be put up by the plaintiff that the Will was given in ::: Downloaded on - 09/06/2013 13:37:04 ::: ( 54 ) the custody of the widow is contrary to the material evidence on record. The case sought to be made out does not inspire judicial confidence.

82. In para 3 of the evidence of the plaintiff, he has stated that on 27.11.1993 itself the original Will was given in the custody of Mrs Lalita and for the first time he saw it on 12.1.1994 and got it laminated and the alleged Will was again given in the custody of Mrs Lalita. In the same para (page

4) the plaintiff has stated the xerox copy was taken by him from the original which was lying with him. If, at all, original Will was with Mrs Lalita, then how the plaintiff got photocopy from the original? How and when, he came in possession of the original Will is a big question. This piece of evidence again shows that Mrs Lalita was never in possession of the original Will. The shifting stand taken by the plaintiff is one of the pointer to demonstrate falsity of his case.

83. Let me further proceed with the evidence of the Plaintiff, wherein he has stated that ::: Downloaded on - 09/06/2013 13:37:04 ::: ( 55 ) he was not in the room where the Will was prepared by his brother on 27.11.1993. He was in the adjacent room, which is his bed room.

He was busy on telephone contacting doctor as his brother was seriously ill. It was about 2:15 to 3:15 a.m. when the said Will was executed. He has further stated that he was not awake at 3:15 a.m. but was woken up by his brother Narendra by knocking his bed room at 2.00 a.m. and therefore he woke up. That his brother told him that he wanted to prepare his Will. He asked him to get a piece of paper and a fountain pen. The plaintiff gave him a letter pad of Saraswati Mill Store Co.

and a pen for writing his Will.

84. After giving fountain pen and paper, he was busy contacting Dr Gupta and Dalvi Hospital, so as to take his brother to the Hospital and that is how he says he was not present when the Will was executed. This evidence, thus, makes it clear that he was completely unaware about the Will which was executed in his favour. The Will was written by deceased attested by his two sons as attesting witnesses. The plaintiff, has thus, ::: Downloaded on - 09/06/2013 13:37:04 ::: ( 56 ) completely shown absence of his knowledge and his presence in the room at the time of the execution of the Will.

85. Now, let me examine the correctness and the truthfulness of this piece of evidence in the light of the evidence of his son Mr Gaurang Gupta. At this juncture, it is relevant to note that in the Will a figure "2000" has been altered to "5000". This alteration is visible to the naked eye. In the cross-examination of defendant No.1 Gaurang, a specific question was put to him concerning the said corrections made in the Will. In reply, he has stated that "there is correction in the figure of "Rs. 2000", that was made by my father Narendra Gupta. It is not correct to say that this figure was changed from Rs. 2000 to Rs. 5000 at my instance." Mr Narendra Gupta is not the father of the said witness. Obviously, father means the plaintiff. Thus, the statement made by the plaintiff about his absence at the time of execution of the Will is nothing but a false attempt to show that he did not take part in the getting the Will of his brother executed ::: Downloaded on - 09/06/2013 13:37:04 ::: ( 57 ) in his favour and in favour of his sons.

86. The plaintiff in his affidavit dated 23.7.1997 filed in support of Chamber Summons No. 941 of 1997 has stated as under.

"I further say and submit that it would also be interesting to note that a theft had taken place in our office situated at 56 C.P. Tank road, Bombay 400 004 and a complaint in respect thereof is already lodged with V.P. Road Police Station. I say that after knowledge of theft and complaint being lodged the police personnel were making search trying to find out and assess the amount involved and for that purpose they were checking and inspecting each and every part of the office including the drawers of the table which was being used by the deceased N.S. Gupta during his life time. I say that to my great shock and surprise during such course of investigation the copy of such writing was found in the drawer of the deceased which is notarised and bearing endorsement "Original seen". I, therefore, say and submit that had thereby no such documents in existence, firstly the same could not have been executed and secondly notarised with an en endorsement "original seen". I crave leave to refer to and rely upon the said xerox notarised copy of the Will/writing found from the drawer of the deceased lying in the office premises situate at 56 C.P. Tank Road, Bombay 400 004 when produced."
(Emphasis supplied).

supplied)

87. The notarised copy referred to ::: Downloaded on - 09/06/2013 13:37:04 ::: ( 58 ) hereinabove; in the affidavit affirmed by the plaintiff, has not been placed on record. So far as the existence of the notarised xerox copy of the Will is concerned, one has to put a question: How this notarised xerox copy has come into existence? The evidence tendered by the plaintiff-petitioner was that on 27.11.1993, alleged Will was executed and signed by the deceased and given in the custody of his wife Mrs Lalita. It was opened for the first time one month after the death of the deceased i.e. on 12.1.1994. Two photo copies thereof were prepared. The original Will was laminated and delivered in possession of Mrs Lalita. Out of two photo copies, one was retained by the plaintiff and another was given in the custody of Dr Mody. If this be so, then a question arises as to how the third copy, said to be a notarised xerox copy carrying endorsement of the notary public "seen original" has come in existence? How it could be traced out in the office? Why it was not produced on record? Why it was not proved? Had there been a third notarised copy of the Will carrying endorsement "original seen", the same would have been produced by ::: Downloaded on - 09/06/2013 13:37:04 ::: ( 59 ) the plaintiff-petitioner on record being a best evidence. He did not produce it though in his affidavit dated 23.7.1997, he had undertaken to produce it. (See para 86 supra).

88. When the petition for amendment was taken out, affidavit was filed to say that a search of the office premises was required to be done because of the police report of which there is no evidence. The police complaint is not on ig record. The date on which the complaint was lodged, has not been disclosed.

When the search of the premises was taken by the police, has not been disclosed. Panchnama alleged to have been prepared by the Police is not on record. Under these circumstances, I have no hesitation to say that the non-production of the alleged notarised copy of the Will (if it was in existence) constituted failure on the part of the plaintiff to produce the best evidence and presumption has, therefore, to be raised against him that if such evidence had been produced, the same would have gone against the case propounded by him. The matter does not ::: Downloaded on - 09/06/2013 13:37:04 ::: ( 60 ) end there. The failure of the plaintiff to bring the Notary Public into the witness box and the fact that he made no attempt to have his Notary book produced (the entry in which, perhaps, would have clinched the issue in dispute) must similarly be construed and presumption drawn that this evidence also would have gone against the plaintiff. (See Gopal Krishnaji Ketkar v. Mohamed Haji Latif and others, A.I.R.1968 S C 1413 and Khushalbhai Mahijbhai Patel v. A firm of Mohamadhussain Rahimbux, A.I.R. 1981 S

977.).

977.)

89. In the above premises, I hold that the existence or the execution of the alleged original Will itself has not been proved. The shifting stand taken by the plaintiff, from time to time, is sufficient to explain the falsity of the case sought to be made out by the plaintiff. I go a step ahead and hold that the plaintiff appears to have prepared a false document purported to be a last Will of the deceased Late Narendra Gupta in collusion with his sons and on the basis of false document claimed probate. The plaintiff is ::: Downloaded on - 09/06/2013 13:37:04 ::: ( 61 ) not entitled to get probate, at any rate, on the basis of the xerox copy of the alleged Will. The Petitioner-plaintiff has failed to sufficiently explain and account for non-production of the original Will. In the facts and circumstances of the case, no secondary evidence can be entertained on the basis of the xerox copy of the alleged Will for the purpose of granting probate. The plaintiff has not only failed to sufficiently explain and account for non-production of the alleged ig original Will but the shifting stand, non-production of the alleged notarised copy of the alleged original Will and the false stories sought to be aired has given rise to number of suspicious circumstances, which the plaintiff has failed to explain as discussed hereinafter.

ISSUE No.13:-

-----------

90. The Apex Court in the case of Shashi Kumar Banerjee and others v. Subodh Kumar Banerjee since deceased cited supra and Kalyan Singh v. Smt.

                      Smt       Chhoti and    others,
                                              others          A.I.R.




                                        ::: Downloaded on - 09/06/2013 13:37:04 :::
                         ( 62 )



      1990    (cited       supra) Supreme Court               396       ruled

      that    the    Will    is      one of      the      most      solemn

      documents      known to law.          The executant of the




                                                                       
      Will    cannot    be called to deny               execution          or




                                              
      explain    the    circumstances            in which          it     was

      executed.       It    is, therefore, essential                    that

      trustworthy      and unimpeachable evidence should




                                             
      be    produced    before        the Court         to     establish

      genuineness and authenticity of the Will.                           The




                               

Apex Court also ruled that factum of execution and validity of the Will cannot be determined purely by considering the evidence produced by the propounder. In order to test the credibility of the witnesses and disengage the truth from falsehood, the Court is not expected to confine only to that testimony and demeanour. It is open for the Court to consider the circumstances brought out in the evidence or which appear from the nature and contents of the document itself. It is also open for the Court to look into surrounding circumstances of the case to reach a proper conclusion on the nature of the evidence adduced by the party. Where there are suspicious circumstances, the onus would be on the propounder to explain them to the ::: Downloaded on - 09/06/2013 13:37:04 ::: ( 63 ) satisfaction of the Court before the Will could be accepted as genuine. Such suspicious circumstances may depend upon facts and circumstances of each case. Even where there are no pleadings relating to influence, fraud or coercion but the circumstances give rise to the doubts, then it is open for the Court to go in the circumstances and genuineness of the Will and the condition of the Testator's mind having disposition made in the Will, if prima facie found that the disposition made in the Will are unnatural, improbable or unfair in the light of the relevant circumstances. The onus is on the propounder of the Will to explain them to the satisfaction of the Court.

91. Considering the above parameters laid down by the Apex Court, assuming for the sake of argument but not admitting that the alleged Will was executed by the deceased, it is required to be proved by the propounder by reliable evidence and he has to explain suspicious circumstances as stated.

92. If, at the time of presentation of the petition, the original Will was not with him, ::: Downloaded on - 09/06/2013 13:37:04 ::: ( 64 ) he was required to state in the petition as to where the original Will was. No such statement is to be found in the plaint or petition. The matter does not rest here. Mr Gaurang Gupta is son of the Petitioner.

According to the plaintiff, his two sons are attesting witnesses to the alleged Will in question. The affidavit of Mr Gaurang Gupta has been filed alongwith the Petition. In the evidence brought by the plaintiff, he has stated that the deceased was a patient of terminal ig cancer suffering since 1992. The night falling between 26.11.1993 and 27.11.1993 the deceased testator developed severe stomach pain, he became serious, he asked for medical treatment and at the same time he asked for some papers on which, according to the plaintiff, he wrote his subject Will in presence of his wife Mrs Lalita and two sons of the plaintiff. In none of the affidavits the presence of Lalita has been disclosed by the sons of the plaintiff, namely; attesting witnesses to the Will. The deceased was admitted in Kambala Hill Hospital at around 3.00 a.m. on 27.11.1993. He was in the Hospital for about three days. Mrs Lalita ::: Downloaded on - 09/06/2013 13:37:04 ::: ( 65 ) Gupta has said in her affidavit dated 26.11.1993 that she was present throughout with her husband. She has denied her presence at the time of execution of the alleged Will by her husband. No such Will was executed was her assertion. P.W.2 Gaurang has admitted in his cross-examination that at about 2:30 a.m. on 27.11.1993 the deceased Narendra Gupta was admitted in Hospital on the advise of Dr Sunil Godbole. If this be so, one can very well imagine the physical and mental condition of the petitioner at the relevant time. One can reasonably reach to the conclusion that at such juncture no person can be in a position to take proper decision, much less to execute the Will. The deceased was suffering from cancer right from the year 1992. Ample time was available with him to execute the Will, if he wanted to do so. Why one would execute the Will in the mid night, that too, when he is severely suffering from cancer and stomach ache warranting his urgent admission in the hospital. The affidavit of Gaurang also does not disclose that the deceased wrote down the Will in his hand in his presence. There are no independent witnesses and there was no ::: Downloaded on - 09/06/2013 13:37:04 ::: ( 66 ) reason for the deceased to exclude wife from inheriting the property. The vouchers on the basis of which the payments alleged to have been made have not been corroborated by producing account books to show actual payments. All these vouchers appears to have been written at one stroke. No account books are produced, especially, when they were maintained by the plaintiff being a businessman. (See Hiralal & Ors vs. Badkulal and Ors A.I.R. 1953 S C 225).

225)

93. The above surrounding suspicious circumstances lead me to come to the conclusion that the alleged Will was never executed by the deceased. The same has been prepared by the Plaintiff to claim the property of the deceased and to deprive the widow of the deceased of her legitimate rights. In order to establish existence of original Will, different stories were sought to be brought on record but none could be substantiated by cogent evidence.

94. Apart from the above, one more ::: Downloaded on - 09/06/2013 13:37:04 ::: ( 67 ) circumstance that needs to be taken into account is that, inspite of the intimation by the Advocate appearing for Mrs Lalita Gupta that she has executed Will dated 27.10.1997 and bequeathed her property in favour of Mrs Snehlata Chhotalal Mody, Mrs Nurupama, Mrs Nita Hasmukhlal Mody and Mrs Rupa Hasmukhlal Mody and necessity of bringing them on record, no attempt was made by the plaintiff to join them as party-defendants to the Suit. On the contrary, in collusion with his son defendant no.1, the consent decree was obtained claiming probate which was, ultimately, set aside by the Appellate Court. Thereafter, by consent of parties, defendant Nos. 2 to 5 were brought on record. This trick played by the Plaintiff is also indicative of the scheme prepared by the Plaintiff to grab the share of the widow in the property of the deceased.

95. So far as Gaurang Gupta, who has come on record as legal heir of Mrs Lalita Gupta -

widow of Narendra Gupta is concerned, he has not proved the Will dated 2.4.1994 as per the Evidence Act alleged to have been executed by her in his favour. He came on record as a ::: Downloaded on - 09/06/2013 13:37:04 ::: ( 68 ) legal heir of Mrs Lalita Gupta on the basis of this Will. He was brought on record during the pendency of the suit in collusion with his father, the Plaintiff, based on one of the documents styled as" Will" of Mrs Lalita Gupta, of which legality, authenticity and genuineness has not been established. At any rate, the said document has not been proved in accordance with the provisions of the Evidence Act so as to claim to be a legal representative of the deceased Mrs Lalita Gupta.

He, therefore, could not be recognised as a party-defendant to the suit. His name from the array of parties to the plaint as defendant No.1 is liable to be struck off.

96. As against above, the defendant Nos. 2

to 5 are brought on record by consent of parties. It was, therefore, not necessary for them to establish their right as legal heirs or legal representatives based on the Will dated 27.10 1997. But it was very much necessary for defendant No.1 to establish and prove that he is a legal representative of Mrs Lalita Gupta-Caveatrix based on the Will dated 2.4.1994 since he came on record in collusion ::: Downloaded on - 09/06/2013 13:37:04 ::: ( 69 ) with his father. A collusive order cannot create any right in favour of anybody much less in favour of defendant No.1. Under these circumstances, by no stretch of imagination defendant No.1 could be regarded as legal heir of Mrs Lalita Gupta for the purpose of the present suit. His name accordingly stands deleted from the array of parties.

97. In the above totality of athe facts and circumstances of the case, the plaintiff has miserably not only failed to prove the alleged original Will, existence and execution thereof by the deceased Late Narendra Gupta, but also failed to remove suspicious circumstances sketched hereinabove and approached this Court with unclean hands, tried to play fraud on the Court and has left no stone unturned to exploite the process of law. The suit is thus liable to be dismissed with exemplary costs.

98. Mere dismissal of the suit will not serve the ends of justice. The property of the deceased i.e. keys of the bank locker shall be held by the Prothonotary and Sr. Master as ordered in the order dated ::: Downloaded on - 09/06/2013 13:37:04 ::: ( 70 ) 11.2.1999, so long as proper legal heirs of the deceased do not come forward with their established legal rights. Till such rights are established, defendant Nos. 2 to 5 shall bear the rental charges of the bank locker.

99. In the result, this suit is dismissed in terms of this order with costs quantified in the sum of Rs. 50,000/- to be paid by the plaintiff to the defendant Nos. 2 to 5.

               ig                   (V. C. DAGA,J.)
             
      
   






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