Suresh Sunderdas Harpalani v. Dayal Sundersad Harpalani

11 Mr. Kanade then placed reliance upon the deposition of PW[4], who he submitted was a handwriting expert and forensic document examiner, to point out that PW[4] had also deposed to the fact that the signature on the said Will was that of the Testator. He thus submitted that, based on the evidence of PW[1] and PW[4], the Plaintiffs had clearly established that the said Will was prepared on the basis of the instructions of and as per the wishes of the Testator and was neither a fabricated nor a got-up document as alleged by the Defendants. He pointed out that PW[4] had confirmed that the signature on the said Will was that of the Testator and that the Defendants had not even attempted to prove otherwise. He thus submitted that Issue No. 3 was required to be answered in the negative.

12 Mr. Kanade then placed reliance upon the judgements of the Hon’ble Supreme Court in the case of Surendra Pal & Ors. vs. Dr. (Mrs.) Saraswati Arora & Anr.[5] and Raj Kumari & Ors. Vs. Surinder Pal Sharma[6] and pointed out that the Plaintiffs had duly discharged the burden that was cast upon them as propounders since they had, through cogent evidence, established that (i) the said Will was signed by the Testator, (ii) the Testator was in a sound disposing state of mind and had understood the nature and effect of the disposition made thereunder, and (iii) the Testator had signed in the presence of two witnesses, both of whom had attested the said Will in the Testator’s presence. He submitted that in the facts of the present case, the Plaintiffs have therefore duly proved due execution of the said Will by satisfying the criteria laid down by the Hon'ble Supreme Court in the said judgements and had also dispelled the existence of any suspicious circumstances. Submissions on Behalf of the Defendants 13 Mr. Tendulkar, Learned Counsel appearing on behalf of the Defendants, submitted that the said Will was not a registered will and would therefore require a higher degree of proof to prove its authenticity as also its due execution, which the Plaintiffs had failed to discharge.

14 He then submitted that the execution of the said Will was surrounded by suspicious circumstances which had not been explained, much less dispelled, by the Plaintiffs. In support of his contention that both the making and execution of the said Will were shrouded in suspicious circumstances, he invited my attention to the evidence of the attesting witnesses and pointed out that the same was replete with multiple contradictions between what had been stated in the respective AOE’s and the answers given in crossexamination.

15 He first from the AOE of PW[2] pointed out that PW[2] had in his AOE stated as follows:

He then pointed out that PW[2] had, in cross-examination, answered as follows:

16 Mr. Tendulkar then invited me to the cross-examination of PW[3] and pointed out the following answers given by PW[3], viz.:

17 Mr. Tendulkar thus submitted that the evidence of PW[2] and PW[3], namely both the attesting witnesses, was not only replete with material contradictions and inconsistencies but also such that the same did not meet the test which was required to be met under Section 63(c) of the Succession Act. He thus submitted that the Plaintiffs could not rely upon the evidence of either of the attesting witnesses to prove due execution of the said Will. Additionally, Mr. Tendulkar submitted that from the answers given by both the attesting witnesses, it was clear that they both could not have been present at the same time since both the attesting witnesses had named different persons who were stated to have been present at the time when the said Will was alleged to have been executed. He thus submitted that Plaintiffs had therefore not proved that the said Will had been executed in accordance with Section 63(c) of the Succession Act, and Issue No.17 therefore would 7 1. Whether the Plaintiffs prove that the writing dated 18th November, 2000 was duly have to be answered in the negative.

18 Mr. Tendulkar then pointed out that the medical certificate upon which reliance was placed by the Plaintiffs to prove that the Testator was of a sound and disposing state of mind had been marked in evidence subject to proof of the truth of its contents. Mr. Tendulkar submitted that the Plaintiffs had, however, not led the evidence of the doctor, i.e., Dr. Jotwani, who was stated to have issued the said certificate. He submitted that the medical certificate could therefore not be relied upon. He thus submitted that the Plaintiffs had therefore not been able to discharge the initial burden that was cast upon the Plaintiffs as the propounders, namely that of proving that the Testator was of a sound and disposing state of mind, and hence Issue No. 28 was also required to be answered in the negative.

19 Mr. Tendulkar then pointed out that from a plain look at the manner in which the signatures of the Testator and the attesting witnesses were placed on the said Will, it was clear that the execution thereof was extremely suspect. He first invited my attention to the signature of the attesting witnesses and pointed out that the same were placed where the Testator ought to have signed and then pointed out that the signature of the Testator was placed above the same near the date viz. and validly executed and attested in accordance with law as the last Will and testament of the deceased, Sunderdas Mulchand Harpalani? 8 2. Whether the Plaintiff prove that at the time of the said alleged Will, the deceased was of sound mind and disposing state of mind, memory and understanding ?

20 Mr. Tendulkar submitted that the Deceased was not only literate but was also well qualified and would therefore know where to affix his signature. He submitted that the Plaintiffs had not been able to explain how these signatures appeared in the manner in which they did on the said Will. Basis this, Mr. Tendulkar submitted that the manner in which the signatures appeared on the said Will made clear that the same were not intended to give effect to the said Will and would therefore not satisfy the requirement of of the Succession Act. He submitted that it was clear, therefore, that the said Will was a colourable and highly suspect document, which fact remained unexplained by the Plaintiffs. Mr. Tendulkar also pointed out that the evidence of PW[4] was required to be disregarded in its entirety since PW[4] 9 63. Execution of unprivileged Wills.— … (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. had, in cross-examination, in answer to Question Nos. 1 and 2, stated as follows:

21 Mr. Tendulkar then pointed out that the major beneficiary under the said Will was Plaintiff No. 1, who was present at the time of its alleged execution and had actively participated in its execution. Similarly, he pointed out that Plaintiff No. 2, who was the wife of Plaintiff No. 1 and was also a proponent of the said Will had played an active part in the making of the said Will and in its execution.

22 Mr. Tendulkar then pointed out that in the present case, there could be no dispute that (i) the Plaintiffs, being the major beneficiaries, played an active role in the execution of the said Will (ii) in the said Will there is an unequal distribution of assets among the Testator’s legal heirs and (iii) there are discrepancies in the evidence led by the attesting witnesses. He then placed reliance upon the judgement of the Hon’ble Supreme Court in the case of Kavita Kanwar vs Pamela Mehta and Ors10, wherein similar facts were held to constitute suspicious circumstances surrounding the execution of the will, to submit that when the execution of a will is surrounded by suspicious circumstances, such suspicious circumstances would have to first be removed/dispelled by the propounder before such a will can be accepted as being a valid will. Mr. Tendulkar then submitted that in the present case, the Plaintiffs had not only failed to explain the suspicious circumstances but had not even attempted to do so. He thus submitted that the question of granting probate of such a Will would therefore not arise, and the Suit was required to be dismissed on this count alone. Submissions in Rejoinder on behalf of the Plaintiffs 23 Mr. Kanade, in response to the Defendant’s submission that the said Will was not a registered document and thus casts doubt on its execution, placed reliance upon the judgement of the Hon’ble Supreme Court in the case of Ishwardeo Narain Singh vs. Kamta Devi & Ors.11 to point out that there is no requirement under law for a Will to be registered. He submitted that merely because the said Will was not registered would not ipso facto cast any doubt on its validity or that it had not been duly executed.

24 Mr. Kanade then submitted that the contention of the Defendants that the said Will had not been duly executed since the signatures of the Testator and the attesting witnesses were not affixed in the right place was also untenable and devoid of any merit since DW[1] had admitted that the signature on the said Will, which he pointed out from the following answer given by DW[1] in cross-examination:

25 Mr. Kanade then additionally submitted that the Defendants had also failed to adequately plead and prove that the said Will was executed under undue influence and/or force and coercion. He took pains to point out that the contention of undue influence was an implicit admission of the fact that the Testator had in fact executed the said Will. Alternatively, he submitted that the Defendants had not produced any evidence in support of the contention that the Testator had executed the said Will under undue influence, force, or coercion.

26 In regard to the Defendants’ contention that PW[3] had stated that the said Will was signed by other individuals, Mr. Kanade submitted that this submission was also incorrect. He submitted that the answer to Question of the cross-examination of PW[3] had to be read in conjunction with the answer to Question 21013, in which PW[3] had clearly stated that the Testator had signed the said Will in his presence and in the presence of PW[2]. He submitted that this was the only intelligible way of reading these answers.

27 Mr. Kanade, then, in reply to the Defendant’s contention that the certificate of Dr Jotwani has not been proved, pointed out that the Defendants had neither attempted to disprove the said certificate by crossexamining any of the witnesses on the aspect of said certificate nor had they proved that the Testator was not of sound health.

28 In response to the contention that the evidence of PW[4] was required to be rejected, Mr. Kanade first pointed out that PW[4] had been practicing as a forensic expert since 2008 and had received extensive practical training from an expert with over 25 years of experience. Secondly, he pointed out that PW[4] had also worked independently on more than 1,000 cases and that 12 Q. 109 Who all were present when you reached the residence of the deceased? Ans. The deceased, me, Bafna and then the doctor was called and Laxmidevi Gul Harpalani. 13 Q. 210 I put it to you the deceased has not signed on the said Will. Do you agree ? Ans. He has signed before me even if the evidence of PW[4] was disregarded, the same would not be of any consequence since DW[1] had not denied that the signature on the said Will was that of the Testator but had only questioned the placement of such signature on the said Will.

29 Basis the above, Mr. Kanade submitted that the Plaintiff had sufficiently proved Issue No. 1 and 2 and the Defendants had failed to prove Issue No. 3, and thus reiterated that probate of the said Will ought to be granted. Reasons and Conclusions A) Before proceeding further, given the evidence that is on record and the Issues that fall for determination in the present case, in my view, it would be apposite to make reference to the observations of the Hon’ble Supreme Court in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma14 which is considered the locus classicus on the law regarding proof of wills and the relevant portions of which are quoted in the judgment of the Hon’ble Supreme Court in the case of Kavita Kanwar upon which the Defendants have placed reliance. In the said judgement, the Hon’ble Supreme Court has, inter alia, held as follows:

22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson “where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth”. It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.” (emphasis supplied) From the above, it is clear that “suspicious circumstances” would include (i) a propounder taking a prominent part in the execution of a will that confers major benefit upon the propounder, (ii) the appearance of the signature of the Testator and (iii) unnatural, improbable, or unfair bequests. (B) The present case it is clear that the Plaintiffs who are the major beneficiaries under the said Will have played an active role, both in its preparation and in its execution. This is evident from the following: i. Affidavit of Evidence of PW[1]: “6…..I say that during the aforesaid occasion and while drafting of the “Last Will and Testament” of the said deceased, the Plaintiffs along with Mrs. Laxmi Gul Rawtani also visited ot the office of Advocate Shri Sheru Ajwani at Chembur, Mumbai…..

7. I say that during the entire process i.e drafting the Suit Will and till execution of the same by the said deceased, Mrs. Laxmi Gul Rawtani was present at all occasions and further she has extended all the assistance to the deceased in respect there of. I further say that at the time of drafting of the Suit Will and Testament of the said deceased, even Mrs. Nanki Dayal Varandani was also in constant touch with the said deceased and Plaintiffs as well as her sister Mrs. Laxmi Gul Rawtani, and further she was having full knowledge of execution and contents of the Suit Will……” The above evidence makes clear that PW[1] was intricately aware of all those involved in the making of the said Will. In crossexamination, the direct involvement of PW[1] in the making of the said Will has further emerged, since PW[1] has specifically answered as follows: ii. Cross-examination of PW[1]: “Q.83 Have attended the office of Advocate Sheru Ajwani before execution of the alleged Will? Ans. On the request of the deceased, I along with Laxmi Rautani visited the office of Advocate Sheru Ajwani to fix an appointment for the deceased. Q.84 How many times have you attended the office of Advocate Sheru Ajwani? Ans. As and when the deceased asked me to pass on his message, I visited the office of Advocate Sheru Ajwani. Q.86 Did the deceased ever attend the office of Advocate Sheru Ajwani? Ans. No, the deceased used to call Sheru Ajwani due to the age of the deceased. Q.88 Do you know Sushma Singh? Ans. Yes. At that time I have heard her name because for courtesy purpose Sheru Ajwani told us to meet her.

(C) The evidence also crucially makes clear that the Testator had never met either Sheru Ajwani or Sushma Singh the advocate whose name appears on the docket of the said Will. This is borne out from the following answers given by PW[1] in cross-examination: “Q.86. Did the deceased ever attend the office of Advocate Sheru Ajwani ? Ans: No, the deceased used to call Sheru Ajwani due to the age of the deceased. Q87. So it is correct to say that the alleged Will dated 18th November 2000 of the deceased was drafted by Advocate Sheru Ajwani? Ans. Yes, (Witness volunteers: My answer is based on the meetings held between the deceased and Sheru Ajwani) Q.90. Is this the same Will drafted by Advocate Sheru Ajwani as stated by you in answer to question NO. 87? Ans. Yes. Q.91 Why is the name of Advocate Sushma Singh appearing on the docket when the Will was drafted by Advocate Sheru Ajwani? Ans. Because, at the instructions of the deceased the Will was made by Sheru Ajwani with the help of Sushma Singh. Q.142 If the Will was made by Advocate Mr. Sheru Ajwani with the help of Advocate Sushma Singh as you have claimed, why Advocate Sheru Ajwani’s name is missing from the docket of the Will? Ans. I do not know. It is also crucial to note that neither Sheru Ajwani nor Sushma Singh were examined by the Plaintiffs, so as to explain the manner in which the said Will was made and under whose instructions. Thus, there remains grave doubt as to at whose instance and on whose instructions the said Will was prepared. It was incumbent upon the Plaintiffs to have dispelled this suspicious circumstance and the Plaintiffs could have done so by leading the evidence of Sheru Ajwani and/or Sushma Singh, but chose not to.

(D) Additionally, a careful appreciation of the evidence of both the attesting witnesses is also telling. It is well-settled that compliance with Section 63 of the Succession Act cannot be purely mechanical15. In this case, a perusal of the AOEs of both the attesting witnesses disclose that they are virtually identical, with the only differences being their respective names and their relationship with the Testator. Thus, both the AOEs could, for all practical purposes, be copies of each other. This by itself would not have been an issue if the said Will had not been contested. However, in the facts of the present case, it assumes importance and relevance since the Defendants have specifically challenged due execution of the said Will, which was required to have been proved by the evidence of the attesting witnesses. (E) Further, the evidence of both attesting witnesses is riddled with the following inconsistencies: Cross-examination of PW[2] Cross-examination of PW[3]

15 State of Haryana vs. Harnam Singh and Ors [(2002) 2 SCC 238]

(i) Only the Testator, PW[2] and him set and subscribed their signature to the said Will.

(ii) the said Will had appointed only Plaintiff No. 1, i.e Suresh

Harpalani and Plaintiff No. 2, i.e. Lajwanti Suresh Harpalani as Executors. However, in cross-examination PW-3 has given the following answers: “Q.162. Can you tell us approximately what time you leave the residence of the deceased on 18th Ans. I came to the house of the deceased with Suresh. Things were fixed and Laxmi was also there.. I stayed over the night and next day I left.

(I) Apart from the fact that it is well settled that the initial burden to prove whether the Testator was of a sound and disposing state of mind at the time of execution of a Will lies on the propounder, in the present case, Issue No. 216 has specifically been framed, which casts this burden upon the Plaintiffs. The Plaintiffs, in an attempt to discharge this burden, have placed 16 2. Whether the Plaintiff prove that at the time of the said alleged Will, the deceased was of sound mind and disposing state of mind, memory and understanding ? reliance upon a medical certificate stated to have been issued by Dr Jotwani. The said medical certificate was marked in evidence subject to proof. However, Dr. Jotwani was never produced as a witness, and thus, the medical certificate was never proved and thus cannot be relied upon. Furthermore, PW[1] has, in cross-examination, stated as follows: “Q.198 In the said paragraph you have deposed "and thereafter he handed over the Suit Will to the Doctor T.D. Jotwani with request to read over and explained the same to him as well all, who were present there". If the deceased was educated person, why was Will read over and explained to him? Ans. To check the deceased's mental fitness. Q.233 Why has Doctor issued Medical Certificate first and then read over the Will to the deceased as mentioned in your Affidavit? Ans. Because as the Doctor came to our house the Doctor just started talking on general talks with the deceased and when the deceased told the Doctor that the deceased needs the Certificate of the Doctor to execute his Will that is why the Doctor first examined the deceased and after that he read over the contents of the Will.” From the above answers, it is crucial to note that (i) Dr. Jotwani did not visit at the Testator's behest, and (ii) the alleged medical certificate was issued even before the said Will was allegedly read out to the Testator. Thus, even accepting that the medical certificate was issued by Dr. Jotwani, the same ought to be disregarded, as PW[1] has deposed to the fact that Dr. Jotwani read the Will to assess the Testator's mental fitness, which was clearly not the case since the medical certificate was allegedly issued even before the said Will was allegedly read out to the Testator. The alleged certificate was clearly given on demand by Dr. Jotwani and without any examination of the Testator. (J) Lastly, the Plaintiffs’ contention that the Defendants, by admitting that the signature on the said Will was that of the Testator could now contend that the said Will had not been executed by the Testator is also entirely misplaced. It is well settled that in order to prove due execution of a will a propounder is required to establish that (i) the testator signed in the presence of two witnesses and (ii) the two witnesses each signed in the presence of the testator. In the facts of the present case, considering the evidence on record, I have no hesitation in holding that the Plaintiffs have failed to proved that the said Will was duly executed by the Testator in the manner contemplated under Section 63 of the Succession Act. Thus the mere fact that the Defendants had not denied that the signature appearing on the said Will was that of the Testator would not ipso facto mean that the Defendants had admitted due execution of the said Will. To accept such a contention would be in the teeth of Section 63 and effectively render the same nugatory.

30 Hence, for the aforesaid reasons, I find that the Defendant's reliance upon the judgement of the Hon’ble Supreme Court in the case of Kavita Kanwar (supra) is entirely apposite. The Plaintiffs have, in my unhesitating view, failed to dispel the suspicious circumstances surrounding both the making of the said Will and its execution. The Plaintiffs have also failed to prove (i) that the Testator was of sound and disposing state of mind at the time when the said Will was allegedly executed and (ii) that the alleged execution was in accordance with the requirements of Section 63 of the Succession Act. I therefore proceed to answer the Issues framed for determination as follows: i) For the reasons recorded in A to H and J above, Issue No. 1 is answered in the negative. ii) For the reasons recorded in E and I above, Issue No. 2 is answered in the negative. iii) Given that Issue Nos. 1 and 2 have been answered in the negative, Issue No. 3 does not survive and is answered accordingly. iv) The Suit is accordingly dismissed. v) No costs. (ARIF S. DOCTOR, J.)