Full Text
CASE NO.:
Appeal (civil) 5060 of 2005
PETITIONER:
Niranjan Umeshchandra Joshi .. Appellant
RESPONDENT:
Mrudula Jyoti Rao & Ors. .. Respondents
DATE OF
JUDGMENT
BENCH:
S.B. SINHA & MARKANDEY KATJU
JUDGMENT:
Appellant is the son of Late Umeshchandra Madhav Joshi (hereinafter referred to as "the deceased"). He owned considerable properties. A
Charitable Trust by the name of "Umesh Yoga Charitable Trust" was created by the deceased in his native village at Manor. For the said purpose, he donated 7 acres of land of his own. 4 acres of land was said to have been donated by the appellant herein. Deceased purchased a residential house at
Dadar named "Umesh Dham" in 1949. The first floor of the said house was used for residence, which he also used for holding Yoga classes and also for manufacture of Hair Oil. Deceased started yoga classes. He also started manufacture of hair oil, namely, (Ramtirth Brahmi Hair Oil). Sometime thereafter, he along with his children shifted his residence to the ground floor of the said house. He had 7 sons and 3 daughters. Appellant herein is his second son. Respondent No. 2 allegedly eloped and married a Muslim boy. Respondent No. 1, however, had an arranged marriage. The relationship amongst the brothers and sisters, except respondent No. 2 was said to be cordial. Sudarshan, Jagdish and Pravin were allegedly helping the testator in management of the business of manufacture of hair oil. All his sons, namely, Sudarshan, Dr. Vishnu, Jagdish, Arvind, Sunil and Tarabai
(respondent No. 2) lived together at the same house known as ’Umesh
Dham’. Appellant herein and another brother Sunil were not married.
Appellant is a doctor of repute. He is a Gynaeocologist and Obstreticist and his qualifications are M.D. (Obst. and Gyt.), FISC, FCPC, D.G.O.D.F.P. He started his practice in 1971. He opened a clinic and hospital at Parel.
From the records, it appears that the deceased was suffering from malignancy Liposercoma (sic). There are some evidences on record to show that he was also suffering from left ventricular failure with Ischemia heart disease. The deceased is said to have no faith in the allopathy system of medicine. He had developed some respiratory problem. He was investigated by Dr. Panikar, a student of Appellant. He was taken to ICU of
Breach Candy Hospital on 13.11.1983 by Appellant and his wife.
On 14.11.1983, the deceased expressed his desire to execute a Power of Attorney as also a Will. On his purported instructions, Appellant contacted Mr. M.K. Mahimkar, Advocate, who was working with M/s
Ramesh Shroff & Co. Mr. Mahimkar and Appellant visited the testator at
Breach Candy Hospital. Deceased instructed Mr. Mahimkar to draft a
Power of Attorney before drafting the Will as he expressed a desire to speak to his wife before executing the Will. He allegedly spoke to his wife. The
Will was drafted the next day. While the Will was being drafted he asked
Appellant and Pravin, his another son to wait outside the room. Appellant and Mr. Mahimkar visited the hospital during non-visiting hours for execution of the Will. It was drawn up in Mr. Mahimkar’s handwriting allegedly at the spot. They and one Mr. Phadke, classmate of Mr. Mahimkar entered the cubicle of ICU of the Hospital at 3.30 p.m. for execution of the
Will. The deceased sent for Dr. Bhupender Gandhi, a friend of Appellant for attesting the Will. He reached the cubicle at about 4.30 p.m. The Will thereafter was executed.
Indisputably, the deceased was under the treatment of one Dr. Udwadia. of the said Hospital. Appellant neither treated him nor did he examine him at any point of time. He even did not know of the diseases he had been suffering from. On 21.11.1983, the deceased was discharged from the hospital. He received visitors on 22.11.1983. In the early morning of
23.11.1983, he allegedly asked his wife Tarabai to count the cash lying in the almirah. He died soon after having asked his wife for coffee.
After cremation of the dead body, the factum of execution of the Will by the deceased was disclosed. A meeting of the family members was arranged in the office of Mr. Mahimkar for inspection of the Will; consent letters were also prepared; Pravin signed the same at the spot as he was to leave for Manore. Xerox copies of the consent letters were prepared. First
Respondent herein also signed the consent letter. On 7.12.1983, a joint consent letter was given by sons of the deceased. Sunil also gave his consent letter on the said day separately.
However, no step was taken for obtaining a probate soon thereafter.
On 1.4.1985, a deed of assignment in regard to the manufacturing unit of
Hair Oil was executed in favour of Sudarshan for a consideration of Rs. 4 lakhs. As per the deed of assignment, a sum of Rs. one lakh (hereinafter as
Will) was to be paid on or before 31.12.1986 and the rest of the amount was to be paid on or before 31.3.1988.
A Testamentary Application was filed by Appellant on 21.12.1985.
On 8.1.1987, a joint consent letter was filed by Tarabai, Dr. Vishnu, Arvind and Sunil in the said Testamentary Application.
On 14.1.1987, a Promissory Note for Rs.3 lacs was executed by
Sudarshan in favour of Appellant in furtherance of the said deed of assignment. On 10.3.1987, a Caveat was filed by Mridula, first Respondent without affidavit and on 28.4.1987 an Affidavit was filed by her withdrawing the "no objection" earlier given for grant of probate. She was allowed to do so after she affirmed on an affidavit in support thereof.
The second respondent also filed a caveat. Thereafter a Testamentary
Suit was filed by Appellant before the Bombay High Court wherein respondents herein were parties. The hearing was taken up in 1994.
Recording of evidence in the matter commenced on 7.11.1984. It continued upto 8.11.1994. Arguments were heard and concluded in December 1994.
Appellant examined himself in the said proceeding. He had examined his mother Tarabai and also the attesting witnesses viz., Mr. Mahimkar and Dr. Bhupender Gandhi. He also examined Dr. Vijay Kumar Panikar.
A learned Single Judge of the High Court by a judgment and order dated 28.11.1995 dismissed Appellant’s application for grant of probate, inter alia, opining that ’although respondents herein could not prove that the signatures of the testator appearing in the Will as also those of the attesting witnesses, were not theirs; the circumstances surrounding the execution of the Will were so suspicious that it was impossible to believe that the Will had been executed at the place, time and in the manner suggested by
Appellant’. In arriving at the said conclusion, the learned Single Judge took into consideration the purpose for which the Will was proposed to be executed, the manner in which the same was drafted and executed, the effect thereof and various other circumstances and in particular the one that
Appellant was totally ignorant of the ailment(s), the deceased was suffering from. The learned Single Judge concluded that no case for grant of probate had been made out.
An Intra-court Appeal was filed by Appellant thereagainst. During the pendency of the Appeal, Purnima, another sister of Appellant took out
Chamber Summons, revoking her consent to the Probate Petition on
16.6.2003, inter alia, on the allegations that she had doubts about the genuineness of the alleged Will and wished to support the respondents herein. Chamber Summons had also been taken out by Jagdish, Pravin and
Dr. Vishnu in the pending appeal. They also revoked their consent to the probate petition and prayed to be joined with Respondents herein. In support thereof, an affidavit was affirmed by Jagdish in July 2003 not only questioning the genuineness of the Will but also expressing his shock and surprise at the fraud played on all the family members by Appellant. By reason of the impugned judgment dated 4.2.2004, a Division Bench of the
High Court affirmed the judgment and order of the learned Single Judge.
Mr. Shanti Bhushan, learned Senior Counsel appearing on behalf of
Appellant raised the following contentions in support of the appeal :
(1) Execution of the Will having duly been proved, the High Court committed an error in passing the impugned judgment. The fact that all the brothers and sisters of Appellant had given their consent, except Respondent No. 2 herein, who was under the influence of her husband, who was a Muslim boy clearly established that the Will was genuine. (2) Subsequent withdrawal of the consent by Mrudula would also show that she had changed her mind only on the ground of not having been paid an amount of Rs.50,000/- as was allegedly promised to her which cannot be relied upon. (3) The evidence brought on records clearly show:
(i) The deceased was of sound mind and, thus, had the capacity of making his Will on 15.11.1983.
(ii) Indisputably, the deceased having executed the Will and the same having been attested by Shri Mahimkar and Dr. Gandhi, the genuineness thereof could not have been questioned.
(iii) The background of hospitalization of the deceased had not been appreciated by the High Court in its proper perspective, as it failed to consider that he had always been reluctant to take allopathic drugs and was, thus, expected to be in the hospital for a short period.
(iv) The deceased was kept in the ICU, not because his condition was serious but because no bed was available. elsewhere.
(v) Although she was suffering from cancer, the same being within tolerable limits, it was not necessary to put him under any sedative.
(vi) Deceased left hospital in good health. He was brought home by
Niranjan. He went to his office on the first floor and met all his family members. On 22.11.1983, he signed a letter of authority addressed to the Punjab National Bank. He had also expressed his desire to go to the village after his discharge from the hospital.
(vii) On 22.11.1983, he met many of his friends and enquired about their various activities. On 23.11.1983 at 3.00 a.m. he asked Tarabai, his wife to prepare coffee for him.
(viii) Mrudula has been visiting her father during his illness and at least she should have testified in the witness box to depose that in regard to the deceased’s mental condition and having not done so, she now should not be permitted to take a different stand. (4) Despite overwhelming evidence of his being in a proper state of mind, no evidence was adduced on behalf of Appellant. (5) The High Court committed a serious error insofar as it failed to take into consideration that Appellant did not play an unprominent role in the preparation of the Will and was not even present at the time when instructions were being given for its preparation on 15.11.1983 as also at the time of execution thereof. (6) He never visited his father and did not know anything about the ailments his father was suffering from, which cannot be said to be unnatural, particularly when he was only a gynecologist and not an oncologist. Mr. Rajiv Dutta and Mr. Sunil Kumar Gupta, learned Senior counsel appearing on behalf the first and second Respondents respectively, on the other hand, submitted: (1) Both the learned Single Judge and Division Bench of the High Court having arrived at a concurrent finding of fact, this Court should not interfere therewith. (2) The circumstances in which the Will was prepared, attested and executed, namely, in a cubicle of ICCU raise serious doubts about the genuineness thereof. (3) No independent witness having been examined, for reasons being known to the appellant, the impugned judgment cannot be faulted as particularly non-examination of the doctor who had been attending the deceased at Breach Candy Hospital having not been explained, the case must be held to be shrouded in mystery. (4) Both the attesting witnesses Dr. Gandhi and Mr. Panikar being known to the Appellant for a long time, no reliance has rightly been placed on their evidence by the High Court. (5) There was no reason as to why the deceased would not leave anything for his other children, particularly when he was running a business and the residential house was not being used for any charitable purpose. (6) Like Appellant, Sunil, who was the youngest of all, was also unmarried and having been residing with his father and unemployed, it was unnatural that no arrangement was made for him. (7) Deceased having been suffering from a serious ailment, it was unlikely that he expressed his desire to execute a Power of Attorney and Will at the same time. (8) No reason has been assigned and no explanation has been offered as to why no step was taken immediately for grant of probate despite the fact no objection was raised by any of the legal heirs, except the second respondent. (9) No explanation has been offered as to why the business of manufacture of hair oil would be transferred to Sudarshan for valuable consideration. (10) The fact that another sister and three brothers of Appellant revoked their consents and expressed doubts as regards the genuineness of the Will also establishes that the execution of the Will was surrounded by suspicious circumstances. (11) Theory set up by the propounder that the Will was executed in furtherance of the Charitable Trust activities having been found to be not correct and the property of the deceased comprised not only of a business but also a residential house clearly goes to show that the High Court was correct in opining that the execution of the Will has not been proved by Appellant. Before adverting to the rival contentions of the parties, as noticed herein before, we would place on record that three brothers of appellant, namely, Arvind, Vishnu and Sunil had filed interlocutory applications before this Court for their impleadment in this Appeal. Mr. Jaideep Gupta, appearing in support of the said application submitted that they are supporting the appellants. The learned Single Judge as also the Division Bench of the High Court had taken great pains in analyzing the evidence, both oral and documentary, brought on records. The learned Judges proceeded on the basis that the Will in question bear the signatures of the deceased and might have been attested by Mr. Mahimkar, Advocate and Dr. Bhupender Gandhi, but circumstances surrounding the execution of the Will being suspicious and the appellant having not been able to remove the same, the prayer for grant of probate should not be granted. The circumstances enumerated by the learned Division Bench in affirming the judgment and order passed by the learned Single Judge are as under:
(i) The Propounder took part in execution of the Will, being sole recipient of the legacy.
(ii) The dispositions made in the Will by the testator are unnatural, unfair and improbable as wife and grand children were excluded from the benefit thereof despite the fact that he had love and likings for all.
(iii) There is no recital in the Will that Respondent No. 2 was to be specifically excluded.
(iv) Why the Will had been executed by the testator within 24 hours of his hospitalization has not been explained.
(v) Witnesses to the Will were interested persons, and evidence adduced in support of execution of the Will was unsatisfactory, particularly when the doctor treating him had not been examined.
(vi) The ailment from which the testator had been suffering was not being disclosed which shows that he might have been terminally ill as within eight days from execution of the Will, he died.
(vii) There was no satisfactory evidence to show as to why the testator sent for Dr. Gandhi for attestation of the Will although he did not have much acquaintance with him.
(viii) No satisfactory evidence was brought on record as regards the cause of death of the deceased.
(ix) There is no explanation as to why the appellant and others visited the hospital during non-visiting hours in the ICU cubicle for execution of the Will. From the evidence brought on record, it appears that the deceased knew that he had been suffering from cancer for 10-15 years prior to his death as he claimed that he was cured of his disease because of his practices in yoga. Admittedly, he was suffering from Liposarcoma which is a malignancy of fat cells. He was also suffering from left ventricular failure. The ailments were serious ones as was expressed by Dr. Bhupender Gandhi in his deposition. Dr. Gandhi happened to be a long standing friend of the appellant. He admitted to have met the deceased only once or twice but never treated him; even never examined him. Dr. Panikar was a student of the appellant. He was a young doctor. He had regularly been checking up the deceased medically. From the evidence of Panikar, it appears that the deceased knew that he had been suffering from cancer but according to him as he used to do yogas, he was cured of the said disease. He was suffering from respiratory trouble also. Deceased although was not taking any allopathic medicine, he could be persuaded to be hospitalised. Panikar assured him that he would be hospitalized only for one night. Whether necessary or not, he was admitted in ICU. The treatment started immediately. Presumably because he would not take any oral allopathic drugs, he was put on intravenous fluid. If he was aware of the fact that he would remain in the hospital for one day only, it does not appeal to any reason as to why he would think of execution of a Power of Attorney as also of execution of a Will in favour of Appellant at the same time. If he was under the impression that he was no longer suffering from cancer, it was expected that he would think of execution of any document only after he came back home. He asked the appellant only to contact M/s. Shroff & Co. He did not say about Mr. Mahimkar. Mr. Mahimkar was said to have been deputed by the firm. No evidence to that effect was led. Admittedly, he was known to the appellant since 1976. He had handled the Habeas Corpus petition before the Bombay High Court filed by the husband of Respondent No. 2. Mahimkar came with Appellant. He was accompanied by a Clerk. They were allowed to enter ICU without any prior appointment. There is nothing to show that permission of the hospital authorities had been taken in regard to the visit of persons who were not his relatives. In the small cubicle of ICU which was separated by curtains only and there were other serious patients, Power of Attorney and the Will were said to have been drafted. The execution of the Will was allegedly deferred by a day as deceased wanted to consult his wife. According to her, she raised no objection to the execution of the Will in favour of Appellant. Whether the youngest son and other children were taken into confidence or not, is not known. Power of Attorney would have served the necessity of representing the deceased before various authorities and banks. The very fact that he wanted to execute a Power of Attorney clearly shows that he did not believe that he would meet his end soon. Ordinarily, a person would not think of execution of a Power of Attorney and a Will simultaneously. Although, he chose to execute the Will, he evidently did not have any document with him for the purpose of instructing the Advocate effectively and in details. No document had been handed over to Mr. Mahimkar by the appellant and the deceased. He came to the hospital with a Clerk, dictated the Will then and there and the same was executed by the deceased. Dr. Gandhi although a friend of the appellant deposed in his evidence that the deceased had not known him very intimately. Why, thus, he had been called as an attesting witness is a mystery. A nurse had allegedly tried to contact him. Whether he could be contacted or not is not known. He, however, walked almost immediately after the Will was drafted. He attested the signatures of testator. In his Will, the deceased had, inter alia, declared:- "I, Umeshchandra Madhav Joshi of Bombay, Indian Inhabitant, aged 76 years, residing at Umeshdham, 27, 2nd Vincent Square Street, Dadar, Bombay 400 014, do hereby revoke all my former Wills and testamentary dispositions and declare this to be my last Will and Testament.
1. I appoint my son Dr. Niranjan Umeshchandra Joshi to be the Executor and Trustee of this my last Will.
1. Whatever movable and immovable estate I am seized and possessed of or otherwise well and sufficiently entitled, the same belong to me absolutely and no one has any claim or interest whatsoever to or in the same or any part thereof and I am entitled to make such dispositions thereof as are hereinafter contained." xx xx xx "7. I declare that all the rest and residue of my estate wheresoever situate, after payment of funeral expenses, debts, liabilities, probate duty, costs, charges and expenses of management and administration is hereinafter referred to as my "Residuary Estates".
8. I devise and bequeath my residuary estate to my son Dr. Niranjan Umeshchandra Joshi absolutely.
9. I authorize and empower my executor and Trustee to postpone the realization, sale and/or conversion of my estate or any part thereof for so long as he shall think fit." Why other terms of the Will had to be inserted is not known. There were two schedules in the Will. The first schedule thereof reads as under:- Valuation of the movable and immovable property of the deceased in the State of Maharashtra
1. Cash in the house Rs. 2,434.00
2. Household goods, furniture Rs. 1,000.00
3. Cash in Bank: i) Punjab National Bank, Khodadad Circle, Dadar, Bombay 400 014 Current A/c No. 1835 Rs.3,56,465.85 ii) Punjab National Bank, Khodadad Circle, Dadar, Bombay 400 014 A/c No. 8794 Rs. 32,316.47
4. Leasehold property consisting of Leasehold land with building standing thereon known as Umeshdham, Vincent Square, Street No.2, Dadar, Matunga Estate, Dadar, Bombay 400 014, as per the Valuation report of M/s. Design Collaboration, Architects, Bombay Rs.4,00,000.00
5. Securities: Deposits with Bombay Electric Supply And Transport Undertaking as security For payment of energy bill etc. paid Under Receipt No.61253 dated 27.5.80 Rs. 4,850.00 Rs.8,12,066.32 Deduct amount shown in Schedule No.II Rs.4,77,605.30