Jehangir Tehmas Patel v. Fateh Singh Cheema & Ors.

1) and (ii) Mr. Jonathan Samuel Solomon (PW-2) whose evidence was recorded in Court. The Defendants did not lead any evidence. Submissions on behalf of the Plaintiff’s

5. Mr. Tamboly, Learned Counsel appearing on behalf of the Plaintiff first dealt with Issue No. 41. He submitted that since the Cheema’s had not led any evidence in support of Issue No. 4, they had failed to establish that they had any caveatable interest in the estate of the Deceased, much less that they were the nephews of the Deceased.. He submitted that the Cheema’s were therefore clearly nothing more than meddlesome interlopers who had no locus or legal right to oppose the grant of Letters of Administration in favour of the Plaintiff. He submitted that on this ground alone the caveats filed by the Cheema’s were required to be dismissed.

6. Mr. Tamboly then pointed out that the Cheema’s had themselves in the Affidavit in Reply to Notice of Motion No. 209 of 2012 contended that evidence would have to be led in order to decide as to whether the Cheema’s had a caveatable interest in the estate of the Deceased. He pointed out that it was on this basis that this Court had dismissed the said Notice of Motion inter alia recording that oral evidence would have to be led and that the caveat could not be brushed aside at that stage. He submitted that in these facts, it was incumbent upon the Cheema’s to have established by leading the necessary evidence, that they were the nephews of the Deceased or that they had any caveatable interest in the estate of the Deceased. He pointed out that the Cheema’s had infact repeatedly sought time to file their Affidavit of Evidence but did not do so. It was 1 4.Whether the defendant nos. 1 to 3 prove that they have any caveatable interest qua the estate of the deceased? thus he submitted that the Cheema’s had failed to establish that they had a caveatable interest in the estate of the Deceased.

7. Mr. Tamboly then submitted that since the Cheema’s did not have any caveatable interest in the estate of the Deceased, they had no locus to oppose the grant of Letters of Administration or for that matter even question the said Will. In support of his contention, he placed reliance upon a judgment of the Hon’ble Supreme Court in the case of Elizabeth Antony vs. Michel Charles John from which he pointed out the following:

8. Mr. Tamboly then also placed reliance upon Section 114(g)3 of the Indian Evidence Act, 1872 and submitted that since the Cheema’s had not led any evidence in support of their claim that they were the nephews of the Deceased, a negative inference under Section 114(g) of the Evidence Act must necessarily be drawn against them. He also took pains to point out that the Cheema’s despite contending that they were the nephews of the Deceased had not taken any positive steps to secure and preserve the estate of the Deceased or to obtain Letters of Administration in respect thereof. Basis this he submitted that it was clear that the Cheema’s were clearly meddlesome interlopers who did not have any caveatable interest in the estate of the Deceased, and it was thus that Issue No.4 was required to be answered in the negative. 3 114 (g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;

9. Mr. Tamboly, then in dealing with Issue No. 24 pointed out that as per Section 63(c)5 of the Indian Succession Act, 1925 (“Succession Act”) a valid Will was required to be attested by two witnesses. He pointed out that in the present case the fact that the said Will was attested by two witnesses namely Neelam and Mr. Solomon an esteemed Solicitor of this Court was not in dispute. He pointed out that though Neelam had filed a caveat, she had not denied attesting the said Will. It was thus that he submitted that the requirements of Section 63(c) of the Succession Act stood duly complied with. Mr. Tamboly then pointed out that while a valid Will was required to be attested as per Section 63(c) of the Succession Act, the same was required to be proved like any other document, which in law was required to be attested as per Section 686 of the Indian Evidence Act 1872 (“Evidence Act”). He pointed out that Section 68 of the Evidence Act, provided that the evidence of any one of the attesting witnesses 4 2.Whether the Will of the deceased dated 15th May, 1986 has been duly executed and attested as per the requirements of the Indian Succession Act, 1925? 5 63 (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence an d by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. 6 68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied could be led to prove due execution and did not require the evidence of both attesting witnesses to be led.

10. Mr. Tamboly submitted that the Plaintiff had thus in accordance with Section 68 of the Evidence Act, led the evidence of Mr. Solomon (PW-2) to prove due execution of the said Will. In support of his contention, he drew my attention to the following answers given by Mr. Solomon in cross examination, viz. “3. Q. (Shown Will No. 250 of 2012) Can you identify this document? Ans. Yes. This is the Will of Dr. Dilieepkumari Cheema, the deceased.

4. Q. Who drew up this document? Ans. I did.

5. Q. On whose instructions did you do so? Ans. On the instructions of the deceased.

6. Q. Can you identify the signatures on this document? Ans. Yes. The first signature is that of the deceased. Below her signature and to the right of the execution clause is the signature of Miss Neelam S. Chima, who was also present at that time of signing of the Will. The signature at the bottom on the left is my own and below that I have in my handwritten the words “Advocate and Solicitor, Bombay.”

8. Q. In whose handwriting are the date and month written? Ans. They are in the handwriting of the deceased.

9. Q. How are you aware that the handwriting of the date and month is that of the deceased? Ans. The deceased wrote the date and the month in my presence.

10. Q. In whose presence did deceased sign on this document? Ans. She did so in the presence of Ms. Neelam Chima and myself.

11. Q. In whose presence did you attest this Will? Ans. In the presence of Dr. Cheema and Ms. Neelam Chima.

12. Q. Who was present when Ms. Neelam Chima attested the Will? Ans. The deceased and I were present.

13. Q. Where was this Will signed and attested? Ans. In my office of M/s. Solomon & Co.

14. Q. Where and when did the deceased give you instructions to draw up this Will? Ans. She came to my office to give instructions. As far as I recollect it was on the same day as the execution of the Will, 15th May 1986.

20. Q. Would you be able to speak about the soundness of the testator’s state of mind, memory and understanding on that day? Ans. I found her to be absolutely of normal and sound mind.

21. Q. How old was Dr. Cheema in 1986? Ans. I do not know her exact age, but my impression was that she was about 60 years old.

25. Q. Did Neelam at any time after the demise of the testatrix ever make any grievance in your presence about the execution and attestation of this Will? Ans. Not about this Will.” Basis the above, he submitted that, there could be no manner of doubt that the said Will had been duly executed as per the provisions of the Succession Act. He therefore submitted that the Plaintiff had duly discharged the burden of proving due execution of the said Will.

11. Mr. Tamboly then without prejudice to the above, took pains to point out that the Affidavit in Support of the Caveat filed by the Cheema’s said nothing about the execution and/or attestation of the said Will. He pointed out that it was only in the Further Affidavit filed by the Cheema’s that they had raised the following contentions, namely that (i) Neelam was asked by the Deceased to sign a typed document (ii) there was no signature on the document (iii) Neelam was not told what she was signing and (iv) that Neelam did not have the intention of attesting the document. Dealing with the said contentions Mr. Tamboly first submitted that it was unfathomable as to how the Cheema’s could contend any of this, when Neelam had not in her own Affidavit in Support of the Caveat, taken any such contentions. Second, he pointed out from the Plaintiff’s Affidavit of Evidence that it was Neelam herself who had found and handed over the said Will to Mr. Solomon and was also provided a receipt by Solomon and Company for the same. Third, that the Cheema’s had, apart from alleging that Neelam had no intention of attesting the said Will, not raised any other legitimate grounds to challenge the due execution of the said Will. He also took pains to point out that Neelam had herself neither denied attesting the said Will nor had she led any evidence in the Suit in support of any of the contentions taken by her in the Affidavit in Support of her Caveat. It was thus he submitted that the Plaintiff had more than adequately proved Issue No.2 and thus the same was required to be answered in the affirmative.

12. Mr. Tamboly then dealing with Issue No. 57 submitted that neither the Cheema’s nor Neelam had produced what they alleged was the subsequent Will much less taken any steps to prove the same. He thus submitted that in this admitted factual backdrop, that the question of the Defendants contending much less having proved that the said Will had been superseded by a subsequent Will did not arise. He thus submitted that Issue No. 5 must necessarily be answered in the negative.

75. Whether defendant nos. 1 to 3 prove that the Will of the deceased dated 15th May, 1986 has been superseded by a subsequent Will dated 20th

13. Mr. Tamboly then dealing with Issue No. 38 submitted that there was overwhelming evidence to show that Kate Patel had manifested her intention to execute the said Will. He pointed out that Kate Patel had incurred expenses towards (i) the funeral and last rights of the Deceased (ii) the obituary of the Deceased (iii) the cost for the assessment of the jewellery which he submitted was jointly owned by the Deceased and Kate Patel and (iv) paid the fees to the chartered accountant for sorting out the securities of the Deceased which would be required to be listed in the schedule of assets of the Deceased appended to the Probate Petition. He submitted that all this was even though Kate Patel had a fall on 20th July 2011, shortly after the death of the Deceased which resulted in a fracture of her hip and femur joint. He submitted that Kate Patel was thereafter moved to Pune on 29th July 2011 and was admitted to the Sancheti Hospital, where she underwent a surgery for the fracture suffered by her.. He therefore submitted that there could be no manner of doubt that Kate Patel had manifested an intention to execute the said Will and had infact taken positive steps in that regard before she passed away.

14. Mr. Tamboly then placed reliance upon a judgement of the Division Bench of this Court, in the case of John Francis Anthony Gonsalves vs Agnes to point out that this Court had specifically held that 8 3. Whether Dr. Kate Patel in her capacity as the sole executrix of the Will of the deceased dated 15th May, 1986 has manifested any intention to execute the same? 9 2008 (3) Mh.L.J. 804 an executor who orders the funeral expenses of the testator but passes away before applying for probate, has manifested an intention to act as an executor and, is therefore, entitled to take the legacy. Basis this he submitted that there could be no manner of doubt that in the facts of the present case, Kate Patel having not only made payment of the funeral expenses of the Deceased but also having taken the various other steps as detailed above, had clearly manifested her intention to execute the said Will.

15. Mr. Tamboly, then in support of Issue No.1, placed reliance on and 23311 of the Succession Act to submit that the Plaintiff would be entitled to seek letters of administration in respect of the said Will, since (i) the Deceased, had named Kate Patel as both the sole Executrix and absolute beneficiary of her estate (ii) Kate Patel had in her own last Will and Testament, appointed the Plaintiff as one of the Executors and a beneficiary (iii) the Plaintiff had obtained probate of Kate Patel’s Will and (iv) the bequest in favour of Kate Patel under the Deceased’s Will had never lapsed. He submitted that in view of 10 232. Grant of administration of universal or residuary legatees.—When— (a) the deceased has made a Will, but has not appointed an executor, or (b) the deceased has appointed an executor who is legally incapable or refuses to act, or who has died before the testator or before he has proved the Will, or

(c) the executor dies after having proved the will, but before he has administered all the estate of the deceased, an universal or a residuary legatee may be admitted to prove the Will, and letters of administration with the Will annexed may be granted to him of the whole estate, or of so much thereof as may be unadministered.

11233. Right to administration of representative of deceased residuary legatee— When a residuary legatee who has a beneficial interest survives the testator, but dies before the estate has been fully administered, his representative has the same right to administration with the Will annexed as such residuary legatee. Sections 232(b) and 233 of the Indian Succession Act, the Plaintiff was entitled to administer the estate of the Deceased in his capacity as the executor and beneficiary under Kate Patel’s Will. In support of his contention that a residuary legatee has the locus standi to apply for Letters of Administration, placed reliance on the following judgments D.C. Khanna v. Pirthi Singh Dhillon S/o S. Jai Singh12, Shib Prosad Sadhukhan v. Shri Nemai Chandra Ghoshal13 and Haripada Saha & Anr. v. Gobind Chandra Saha14

16. Additionally, Mr. Tamboly pointed out that the Plaintiff, in his capacity as Executor of Kate Patel’s Will, had continued to pay for security expenses, electricity bills, municipal taxes, and other dues related to Kavita Building from Kate Patel’s estate account. In contrast, the Cheema’s who claimed to be entitled to the estate had taken absolutely no steps to either protect the estate or assert their so-called entitlement.

17. It was thus and basis the aforesaid submissions that Mr. Tamboly submitted that the Suit be decreed in favour of the Plaintiff. He submitted that given the conduct of the Cheema’s in the present case the Plaintiff was entitled to costs. He submitted that it was now writ large that the Cheema’s had simply stalled the grant of Letters of Administration in favour of to the Plaintiff for the last 13 odd years without having a semblance of interest in the estate of the 12 AIR 1963 P&H 66

14 (1946-47) 51 CWN 917 Deceased. He submitted that the Plaintiff had to spend a considerable amount to protect and preserve the estate of the Deceased. He submitted that the Plaintiff had paid a sum of Rs. 59,13,207/- towards security charges, property tax, water charges, electricity bills for ‘Kavita’ building and towards the rent for locker NO. 438 at Indian Overseas Bank. He also reiterated that the Cheema’s had taken no steps to protect and preserve the estate of the Deceased or to obtain Letters of Administration in respect of the estate of the Deceased. He submitted that it was therefore ex facie evident that the Defendants had acted in bad faith and solely with the intention to cause unnecessary delay and obstruction to the grant of Letters of Administration in favour of the Plaintiff. He submitted that the conduct of the Cheema’s had resulted in considerable financial loss to the Estate of Dr. Kate Patel and undue hardship to its rightful beneficiaries. It was thus he submitted that costs be awarded to the Plaintiff.

18. Mr. Tamboly pointed out that the provisions of the Code of Civil Procedure, 1908 would be applicable to Testamentary Suits in view of Section 268 and 295 of Indian Succession Act. He then invited my attention to the judgments of Hon’ble Supreme Court in the case of Salem Advocate Bar Association v/s Union of India15, Charu Kishor Mehta v/s Prakash Patel16, Padmawati v/s Harijan Sewak Sangh17 to point out that the Hon’ble Supreme Court had held that the Courts have a duty to discourage wrong doers from prolonging litigation by imposing costs and that the costs imposed must be the real costs equal to the deprivation suffered by the rightful person. It was thus he submitted that the Plaintiff was entitled to costs in the present case. Submissions on behalf of Defendants.

19. Mr. Sharma Learned Counsel appearing on behalf of the Cheema’s at the outset submitted that the Plaintiff’s contention that the Cheema’s did not have any caveatable interest in the estate of the Deceased was plainly untenable. He pointed out that the Cheema’s had, in paragraph one of their Further Affidavit in Support of the caveat, specifically set out the manner in which they were related to the Deceased. He also pointed out that the Cheema’s had annexed a family tree to the same Affidavit setting out how they were related to the Deceased. Mr. Sharma then took pains to point out that the Plaintiff had in the Affidavit in Reply dated 15th February 2014 not specifically denied that the Cheema’s were the nephews of the Deceased and had put the Cheema’s to the strict proof thereof. Mr. Sharma submitted that denial for want of knowledge, was no denial in law, for which he placed reliance upon the judgements of the Hon’ble Supreme Court in the case of Muddasani Venkata Narsaiah vs. and Jafarui Sah and Others vs. Dwarika Prasad Jhunjhunwala and others19. It was thus that he submitted that the Cheema’s were 18 (2016) 12 SCC 288.

not required to lead any evidence to prove that they were related to the Deceased, since the Plaintiff had not specifically denied the contents of paragraph one of Further Affidavit in Support of the caveat.

20. Mr. Sharma then placed reliance upon the judgment of Hon’ble Supreme Court in Ranjit Singh and Another v/s State of Uttarakhand and others20 to submit that it was trite law that even in cases where a Suit proceeds ex-parte a Defendant always has the right to cross examine the Plaintiff’s witnesses to establish that the case propounded by the Plaintiff, is false. He also pointed out that this Court had, vide the Order dated 25th April 2024 specifically recorded as follows, viz. “2. Issue Nos.[3] and 4 framed in the present suit place the burden entirely on defendant Nos.[1] to 3 to prove, in the first place, as to whether they have any caveatable interest in the present proceedings. Having failed to lead any evidence in the matter, the said defendants may not be able to discharge the burden as per issue No.3 framed in the present suit. On this basis, the learned counsel of the plaintiff submits that the present proceedings ought to be treated as uncontested proceedings and the grant may be issued.

3. This Court is of the opinion that as a Testamentary Court and a Court of conscience, this Court is required to appreciate the material on record to come to the conclusion that the letters of administration with Will annexed, can be granted on the basis of the subject Will. It is also an admitted position that the plaintiff’s witnesses have been cross-examined on behalf of defendant Nos.[1] to 3.

4. This Court would like to see the evidence and material on record before passing any order.” Basis the above he submitted that it was therefore now not open for the Plaintiff to contend that merely because the Cheema’s had not led any evidence, they were precluded from in any manner contesting the Suit. He submitted that as already noted in the Order dated 25th April 2024, it was well settled that before the grant of Probate or Letters of Administration the conscience of the Court was required to be satisfied and thus, the Cheema’s were entitled to oppose the said grant of Letters of Administration by pointing out the various infirmities in the evidence led by the Plaintiff.

21. Mr. Sharma then pointed out, what according to him were the infirmities in the evidence led by the Plaintiff, as also the suspicious circumstances which surround the execution of the said Will. However, before proceeding further, I must note that a major part of the so-called discrepancies in the Plaintiff’s evidence all pertained to the Will of Kate Patel and its execution. Hence, even assuming the contention of Mr. Sharma is correct, such discrepancies are wholly irrelevant for the purpose of deciding the present Suit, since firstly, the present Suit concerns the Will of the Deceased and not Kate Patel’s Will and secondly, probate in respect of Kate Patel’s Will has already been granted to the Plaintiff. Thus, any so-called discrepancies in the evidence insofar as the same pertain to Kate Patel’s Will are wholly immaterial and irrelevant to the Issues at hand in the present Suit.

22. It is, however, necessary to set out what according to Mr. Sharma are the infirmities in the evidence of the Plaintiff as also the suspicious circumstances surrounding the said Will. Insofar as suspicious circumstances were concerned, Mr. Sharma has submitted that the following would constitute suspicious circumstances, viz. i. The Testamentary Petition was filed by suppressing that the Cheema’s were the nephews of the Deceased and thus no citation was served upon the Cheema’s. ii. The signature of the Deceased on the Will did not tally with the signature of Deceased. iii. That the date and month of the said Will were both written in hand, whereas the year was typed. iv. That Neelam in the Affidavit in Support of her caveat had not stated that the Deceased had signed the said Will in her presence or that Mr. Soloman had attested the said Will. v. That Neelam was never examined, nor had she filed any Affidavit of an attesting witness to the said Will.21

23. Mr. Sharma then insofar as the evidence led by the Plaintiff, pointed out that the evidence clearly indicated the possibility of the Deceased having left more than one Will. He also submitted that there were extremely suspicious circumstances regarding the custody of the said Will, since the letter dated 13th January 2012 specifically stated that the original Will of the Deceased dated 15th May 1986 along with original registered deed of sale dated 20th March 1981 were lying with M/s Solomon and Company, which was reiterated by Mr. Solomon in his cross examination. He however pointed out that Mr. Solomon had in his Examination in Chief, submitted that the Original Will of the Deceased May 1986 and original registered deed of sale dated 20th were handed over to him by Neelam. Basis this Mr. Sharma submitted that the testimony of Mr. Solomon created a doubt in mind that there existed more than one Will of the Deceased.

24. Mr. Sharma then submitted that the examination in chief of Mr. Solomon contained contradictory statements qua the presence of the Neelam at

21 Affidavit in support of Caveat filed by Defendant No.4 the time of execution of the said Will. He pointed out that Mr. Solomon, had on the one hand submitted that the Deceased signed the Will in his presence and in presence of Neelam while on the other hand stated that the date on which the said Will was executed, only Kate Patel had accompanied the Deceased to his office. He also pointed out that Mr. Solomon had stated that while giving instructions to Mr. Solomon, no one other than the Deceased were present.22 He placed reliance upon the following answers given in examination in chief by Mr. Solomon to support his contention:

14. To Court Where and when did the deceased give you instructions to draw up this Will? Ans. Ans. She came to my office to give instructions. As far as I recollect it was on the same day as the execution of the Will, 15th May 1986. Q.15 Did anyone accompany the deceased to give you the instructions? Ans. Ans. When the deceased gave me instructions no one else was present.

16. To Court Did the deceased come to your office alone or with someone else? Ans. As far as I remember she came with Dr. Kate J. Patel.

25. Mr. Sharma then invited my attention to the Affidavit in Support of Caveat filed by Neelam and submitted that Neelam though named as an attesting

22 Examination in chief of PW-2 Q. 14, 15 and 16 witness had filed a caveat stating that (i) the Deceased had executed a subsequent Will dated 20th September 2001 (ii) the subsequent Will dated 20th September 2001 was concealed by the Plaintiff in collusion with a neighbour of the Deceased and (iii) that the Deceased had told Neelam the Deceased had made bequeaths to charity due to change in circumstances. Mr. Sharma submitted that Neelam had informed the Cheema’s that sometime in 1986 the Deceased had made her sign a typed document and that there was no other signature on said documents. It was thus he submitted that Neelam had signed the said Will without knowledge of what she was signing hence Neelam did not have animus attestandi i.e. intention to attest the said Will when she signed.

26. Basis the above Mr. Sharma submitted given the fact that Mr. Solomon had (i) made contradictory statements regarding Neelam’s presence at the time of execution of the said Will (ii) Neelam though shown as an attesting Witness of the said Will, did not depose that she had signed the said Will in the presence of the Deceased and (iii) Mr. Solomon in examination in chief stated that said Will was handed over to him by Neelam, whereas letter dated 13th January 2012 specifically stated that the original Will of the Deceased dated 15th May 1986 along with original registered deed of sale dated 20th were lying with M/s Solomon and Company. Basis this Mr. Sharma submitted that the execution of the said Will was surrounded by grave and suspicious circumstances, Mr. Sharma then placed reliance upon judgment of the Hon’ble Supreme Court in Chinu Rani Ghosh vs. Subhash Ghosh and others23 and Murthy and Others v/s C. Saradambl24 to submit that the burden of proof is on the propounder of the Will and in case there exists suspicious circumstances surrounding a Will, then the burden is on the propounder to satisfy the conscience of the Court and dispel these suspicious circumstances. Mr. Sharma in support of his contention that fraud vitiates everything, and all the advantages gained by a party who practices fraud would have to be taken away, placed reliance upon a judgment of the Hon’ble Supreme Court in Lillykuutty v/s Scrutiny Committee, SC & ST25 and Meghmala v/s G. Narsimha Reddy26. He submitted that the evidence produced by the Plaintiff did not inspire confidence but infact showed suspicious circumstances existed surrounding the said Will. It was thus he submitted that the said Will could not be said to have been duly executed in accordance with Section 63 of the Succession Act.

27. In view of the above, he submitted that the Suit must necessarily be dismissed, and the estate of the Deceased be administered on the basis that the Deceased had died intestate.

28. In rejoinder, Mr. Tamboly submitted that the Petitioner’s contention that the Plaintiff’s failure to specifically deny the alleged relationship between the Cheema’s and the Deceased amounted to an admission on the part of the

Plaintiff, thereby eliminating the need for evidence was entirely misconceived. He submitted that Plaintiff's Affidavit in Reply was being read selectively and the same was required to be read in its entirety. He then placed reliance upon the judgment of the Hon’ble Supreme Court in Udhav Singh v. Madhav Rao Scindia27 to submit that pleadings must be read as a whole to ascertain their true intent and cannot be interpreted in isolation. He pointed out that a plain reading of the Plaintiff’s Affidavit in Reply to the caveat made it clear that the Plaintiff had expressly stated that the Cheema’s had failed to produce any documentary evidence to substantiate their claim. He submitted that it was in this limited context that the Plaintiff had put the Cheema’s to strict proof of their claim. He pointed out that the judgment relied upon by Mr. Sharma in the case of Muddasani Venkata was inapplicable to the facts of the present case, since in that case the Defendant had initially claimed unawareness of a document’s execution, of which evidence was subsequently led to establish the document’s existence and then it was that evidence which remained unchallenged. He thus pointed out that the said judgement was delivered in an entirely different factual context and thus could not be applied to the present case.

29. Mr. Tamboly then placed reliance upon Order XIV Rules 1, 5, and 6 of the Code of Civil Procedure, 1908 (“CPC”) and pointed out that Issues in a Suit are framed when a material fact or law is affirmed by one party and denied by the other party. He submitted that since the Plaintiff had disputed that the 27 1976 AIR 744 Cheema’s were related to the Deceased, the Court had specifically framed Issue No. 4. He then pointed out that the Cheema’s had never challenged the framing of Issue No.4 at any stage of the proceedings. He also pointed out that the Cheema’s had infact never contended that their failure to lead evidence regarding their alleged caveatable interest was justified by an implied admission on the Plaintiff’s part. He therefore submitted that it was now not open to the Cheema’s to contend that they were not required to establish by leading evidence that they had a caveatable interest in the estate of the Deceased.

30. Mr. Tamboly also pointed out that reliance upon the judgement of the Hon’ble Supreme Court in the case of Ranjit Singh & Anr. was entirely misplaced since the Cheema’s had not been denied an opportunity to crossexamine the Plaintiff’s witnesses. He further argued that the Hon’ble Supreme Court’s judgment in the case of Chinu Rani Gosh was also of no assistance to the Cheema’s since in that case, the details of the attesting witness were not provided, whereas no such deficiency existed in the present case. He reiterated that Neelam had, despite filing a caveat, not led any evidence nor had she taken any steps to establish the existence of any alleged subsequent Will of the Deceased much less having produced the same before the Court.

31. Mr. Tamboly then reiterated that as per Section 68 of the Evidence Act, due execution of a Will could be proved by the testimony of a single attesting witness. He submitted that in the present case, due execution of the said Will was done through the evidence of Mr. Solomon. He further pointed out that Neelam had never disputed the execution of the said Will and had, in fact, admitted its existence. He reiterated that the only contention of the Cheema’s was that Neelam had signed the Will without the intention of attesting it (animus attestandi). He however pointed out that this claim was made not by Neelam herself but by the Cheema’s in their Affidavit in Support of the caveat. Given these facts, Mr. Tamboly submitted that the Cheema’s contention regarding suspicious circumstances surrounding the execution of the said Will was entirely untenable and thus the contention that there existed suspicious circumstances was totally baseless. He thus submitted that the judgment in Murthy v. C. Saradambal was also misplaced and inapplicable to the present case. He also reiterated that the Plaintiff was entitled to costs given the complete lack of any bonafides on the part of the Cheema’s in opposing the grant of letters of administration as had been prayed for in the Suit. Reasons and Conclusions

32. After having heard learned counsel and having appreciated the evidence on record, I answer the Issues framed for consideration as follows, viz.

33. The above squarely places the burden of proof upon the Cheema’s to establish that they have a caveatable interest in the estate of the Deceased. Order XIV Rule 1 of the CPC makes it clear that Issues are framed when a material proposition of fact or law is affirmed by one party and denied by the other party. It was thus in this context based on the pleadings that Issue No. 4 was framed by this Court. The Cheema’s after the Issues were framed, did not seek any modification of the Issues framed. Therefore, in my view it is now not open for the Cheema’s to contend that they were not required to lead evidence to establish that they had a caveatable interest in the estate of the Deceased in view of any alleged admission by non-traverse on the part of the Plaintiff. Had this infact been the case, Issue No.4 would not have been framed by this Court. However, Issue No. 4 having been specifically framed, it is now not open to the Cheema’s to contend that the Plaintiff had accepted that they had a caveatable interest in the estate of the Deceased for want of non-traverse. Thus, this contention in the facts of the present case needs only to be stated to be rejected.

34. Additionally, it is indeed befuddling as to how the Cheema’s can contend that they did not have to lead any evidence to establish that they had a caveatable interest in the estate of the Deceased in light of the stand taken by them in the Affidavit in Reply to Notice of Motion No. 209 of 2012 and the Order of this Court dated 9th January 2014 which specifically observed that the question of whether the Cheema’s had a caveatable interest would require oral evidence. Thus, in view of these facts, there can be no manner of doubt that the Cheema’s had to establish that they had a caveatable interest in the estate of the Deceased. The Cheema’s have not only failed to do so but have not even so much as attempted to do so. Hence in my view, Issue No. 4 must necessarily be answered in the negative.

35. Section 63(c) of the Succession Act provides that a Will is required to be attested by two or more attesting witnesses. In the present case, it is not in dispute that the said Will infact bears the signatures of two attesting witnesses, namely Neelam and Mr. Solomon. Neelam though having filed a caveat has in the Affidavit in Support thereof not in any manner denied or disputed that she had attested the said Will. The only real contention taken by Neelam in the said Affidavit is that the Deceased left a subsequent Will dated 20th September 2001. However, Neelam has not led any evidence in support of the contentions taken nor has she even attempted to produce the alleged subsequent Will. Infact, Neelam has, after the filing of the caveat, clearly abandoned the Suit.

36. Crucially, all contentions which suggest that Neelam had not duly attested the said Will are to be found in the Further Affidavit filed by the Cheema’s and not Neelam. Even assuming they could, the Cheema’s have not led any evidence in support of the case pleaded by them in their Further Affidavit. Thus all such contentions remain at the very highest, the mere ipse dixit of the Cheema’s, who I have already held above, do not have any caveatable interest in the estate of the Deceased. Thus, these contentions must necessarily be rejected outright.

37. Conversely the Plaintiff has, as per the requirements of Section 68 of the Evidence Act, led the evidence of Mr. Solomon, who is one of the attesting witnesses to prove due execution of the said Will. I have read the evidence of Mr. Solomon who is indeed a well-respected Solicitor of this Court and in my view, the evidence of Mr. Solomon on the aspect of due execution of the said Will is entirely unimpeachable. The minor inconsistencies in some of the answers given by Mr. Solomon and of which the Cheema’s sought to make capital of firstly do not pertain to the aspect of execution of the said Will and secondly, it is well settled that cross examination is not a memory test and therefore, minor discrepancies in evidence would not by themselves warrant the evidence as a whole to be disregarded. Thus, in my view, given the evidence led by the Plaintiff and the fact that admittedly no evidence has been led by the Cheema’s to prove that the said Will was not duly executed, I find that the Plaintiff has duly discharged the burden of proving that the said Will was duly executed as per the provisions of the Indian Succession Act, 1925.

38. Since it is well settled that the conscience of the Court is required to be satisfied before the grant of probate and/or letters of administration it is essential that I deal with what Mr. Sharma has contended are the suspicious circumstances in the present case. I find that the alleged suspicious circumstances need only to be stated to be rejected for the following reasons (i) the Cheema’s were not required to be named in the Testamentary Petition, since they do not have a caveatable interest in the estate of the Deceased (ii) no evidence was led or any other signature of the Deceased was produced to substantiate the contention that the signature on the Will did not tally with the signature of the Deceased (iii) that the mere fact that the date and month on the said Will were written in hand while the year was typed does not by itself amount to a suspicious circumstance and more so in view of the evidence of Mr. Solomon which proves due execution.

(iv) that the evidence of Mr. Solomon corroborated that the Deceased had executed the said Will in the presence of Neelam hence the fact that Neelam had not specifically said so in her Affidavit in Support of the caveat would not by itself be a suspicious circumstance more so when Neelam had not led any evidence in the matter or for that matter ever contested the Suit after she filed her Affidavit in support of her Caveat and (v) that fact that Neelam was not examined as an attesting witness nor had she filed an Affidavit as an attesting witness is also not a suspicious circumstance, firstly since Neelam has not in her Affidavit in Support of the caveat denied attesting the said Will and secondly Section 68 of the Evidence Act requires a Will to be proved by only one attesting witness, which in this case was Mr. Solomon. Hence viewed holistically and especially since the Cheema’s had not, led any evidence to support the contention of suspicious circumstances surrounding the said Will and the fact that Neelam had also after filing her Affidavit in support of her Caveat abandoned the Suit, I find that there are absolutely no suspicious circumstance surrounding the said Will. Issue No. 2 is therefore answered in the affirmative.

39. The contention that the Deceased left a subsequent Will is to be found in the Affidavit in support of Caveat filed by Neelam and the Cheema’s Further Affidavit in support of their Caveat. However, no such subsequent Will has been produced either by Neelam or the Cheema’s. Crucially and at the cost of repetition, neither Neelam nor the Cheema’s have led any evidence to establish the existence of any such subsequent Will nor have either of them taken any steps to prove such alleged subsequent Will. Thus, the contention that the Deceased left a subsequent Will remains only the ipse dixit of Neelam and the Cheema’s and therefore must be rejected as such. Hence in my view, Issue No. 5 can only be answered in the negative and is accordingly so answered.

40. I find in the facts of the present case, this Issue stands squarely answered by the judgement of this Court in the case of John Francis Anthony Gonsalves in which this Court held as follows, viz. “8….On careful reading of Sectin 141 it becomes clear that a person to whom a legacy is bequeathed and who is name as an executor of the will, shall not take the legacy unless he proves the will or otherwise manifests an intention to act as executor. If the will is proved, he takes a legacy. However, there may be circumstances where he does not have time and, therefore, he may not get the will proved but still if he manifests an intention to act as a executor, he gets a will. As per the illustration to Section 141, A, who is named an executor and to whom the legacy is given under the will, himself dies within a few days after the testator and, therefore, he could not prove the will but still as he orders the funeral according to the directions contained in the will, A has manifested an intention to act as executor and, therefore, he would also take the legacy, though the will is not proved. On careful perusal of the section, it appears that he has either to prove the will or otherwise to manifest the intention to act as executor. In the present case, evidence on record reveals that the petitioners came to know about the existence of will only in April, 1990 and shortly thereafter they filed the petition for probate and as per the evidence on record as well as findings of the trial Court, they have also proved the will. Therefore, there could be no difficulty in granting probate to them. In fact by immediately applying for probate, they have also manifested their intention to act as an executors. The learned trial Court wrongly came to conclusion that the petitioners had not manifested their intention to act as executors for long period of twenty-one years and are not entitled to probate under Section 141 of the Indian Succession Act. Section 222 of the Indian Succession Act provides that probate shall be granted only to an executor appointed by the Will and under Section 224 probate may be granted to several executors simultaneously. Under Section 223 probate can be refused to a person, who is minor or is of unsound mind or is an association of individuals unless it is a company. In the present case, none of the circumstances are present under which probate could be refused under Section 223 of the Indian Succession Act. ” The evidence bears out that Kate Patel, had after the death of the Deceased, inter alia incurred expenses for the funeral and obituary of the Deceased and had also taken steps for the assessment of jewellery and other details required for the filing of probate Petition. The evidence also bears out that shortly after the death of the Deceased, Kate Patel had a fall which resulted in her suffering a fracture for which she had to be operated upon in Pune and that Kate Patel infact passed away within three months from the date of the death of the Deceased. Thus, in my view there can be not even a modicum of doubt that Kate Patel had, despite the adverse circumstances that had befallen her, manifested her intention to execute the said Will. Hence, I answer Issue No. 3 in the affirmative.

41. I have already held above, that the Plaintiff has, established that (i) the Cheema’s have no caveatable interest in the estate of the Deceased (ii) the said Will has been duly executed in accordance with the provisions of the Indian Succession Act and (iii) Kate Patel had manifested an intention to act as an executor under the said Will. In this backdrop, it is not in dispute that (iv) the said Will admittedly names the late Kate Patel as her sole beneficiary (v) Kate Patel by her Will named the Plaintiff as an executor as also a beneficiary and (vi) the Plaintiff has obtained probate of Kate Patel’s Will. Also, and crucially no other person including the Cheema’s have applied for Probate or Letters of Administration of the estate of the Deceased. Thus, in my view, in these facts, the Plaintiff would as per Section 233 of the Indian Succession Act be a residuary legatee and thus be entitled to apply for Letters of Administration in respect of the said Will. Thus, Issue No. 1 is answered in the affirmative.

42. On the aspect of costs, it would be useful to set out that the Hon'ble Supreme Court had, in the case of Salem Advocate Bar Association inter alia held as follows: “ 36. Section 35 of the Code deals with the award of cost and Section 35A with award of compensatory costs in respect of false or vexatious claims or defences. Section 95 deals with grant of compensation for obtaining arrest, attachment or injunction on insufficient grounds. These three sections deal with three different aspects of award of cost and compensation. Under Section 95 cost can be awarded upto Rs.50,000/- and under Section 35A, the costs awardable are upto Rs.3,000/-. Section 35B provides for award of cost for causing delay where a party fails to take the step which he was required by or under the Code to take or obtains an adjournment for taking such step or for producing evidence or on any other ground. In circumstances mentioned in Section 35-B an order may be made requiring the defaulting party to pay to other party such costs as would, in the opinion of the court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred by him in attending the court on that date, and payment of such costs, on the date next following the date of such order, shall be a condition precedent to the further prosecution of the suit or the defence. Section 35 postulates that the cost shall follow the event and if not, reasons thereof shall be stated. The award of the cost of the suit is in the discretion of the Court. In Sections 35 and 35B, there is no upper limit of amount of cost awardable.

37. Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded on the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In large number of cases, such an order is passed despite Section 35(2) of the Code. Such a practice also encourages filing of frivolous suits. It also leads to taking up of frivolous defences. Further wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the Court in its discretion may direct otherwise by recording reasons thereof. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental cost besides the payment of the court fee, lawyer's fee, typing and other cost in relation to the litigation. It is for the High Courts to examine these aspects and wherever necessary make requisite rules, regulations or practice direction so as to provide appropriate guidelines for the subordinate courts to follow.” As already noted above, Issue No. 4 squarely cast the burden upon the Cheema’s to prove that they have a caveatable interest in the estate of the Deceased. Despite this they have chosen not to lead any evidence and as I have already held, failed to establish that they have any caveatable interest in the estate of the Deceased. Crucially, the Cheema’s have also not taken any steps to safeguard the estate of the Deceased, nor have they sought Probate or Letters of Administration in their favour. Thus, in my unhesitating view, the Cheema’s are clearly meddlesome interlopers who have stalled the grant of letters of administration in favour of the Plaintiff. In these facts, not to award costs would not only be against the mandate of the law but would also embolden similarly placed and motivated interlopers like the Cheema’s in stalling legal proceedings which in the normal course have been dealt with and disposed of as being uncontested.

43. As pointed out by Mr. Tamboly, the Hon’ble Supreme Court has, in the case of Charu Kishor Mehta justified the imposition of costs by taking into consideration the conduct of the Petitioner therein and which resulted in an abuse of process of law. Thus, having already noted that the Cheema’s are meddlesome interlopers with no semblance of a legal right in the estate of the Deceased I have no hesitation in holding that the conduct of the Cheema’s has resulted in an abuse of the process of law. This would equally apply to Neelam who has after filing her Caveat and Affidavit in Support thereof, not taken any steps to content the Suit on merit. Neelam has, after filing her caveat, simply abandoned the Suit and has stalled the grant of letters of administration in favour of the Plaintiff which should have followed as a matter of course. Clearly therefore, Neelam’s conduct has also resulted in an abuse of the process of law and thus Neelam and the Cheema’s must necessarily be held liable to pay costs.

44. Hence, the following Order:

(i) Testamentary Suit No. 65 of 2012 is decreed.

(ii) The office to grant Letters of Administration to the Plaintiff expeditiously as per Rules.

(iii) The Defendant Nos.[1] to 4 shall each pay costs of Rs.5,00,000/-

(iv) In the event the costs aforesaid are not paid within the prescribed time, the Plaintiff shall be at liberty to (a) recover the same by executing this order as per the provisions available in law as also (b) by seeking to recover the said costs as arrears of land revenue. (ARIF S. DOCTOR, J.) After Pronouncement

45. At this stage, after the operative part of the judgment was pronounced, an application for stay was made by the Learned Counsel appearing for Defendant nos.[1] to 3. For the reasons that I have recorded aforesaid which clearly hold that the Defendants are meddlesome interlopers the application for stay is rejected. (ARIF S. DOCTOR, J.)