Full Text
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 180 OF 2016
IN
TESTAMENTARY PETITION NO. 1743 OF 2015
Rikin Ranchhodlal Chokshi ...Plaintiff / Petitioner
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Mr. Rohan Cama a/w Mr. Shanay Shah, Ms. Pratiksha Mody, Ms. Sapna
Sharma and Ms. Ketki Rege i/b M/s. K. Ashar & Co., for the plaintiff.
Mr. Amit Arsiwala a/w Mr. Vidhyadhar Shinde i/b Singhania Legal Services, for Defendant.
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JUDGMENT
1. This testamentary suit arises out of testamentary petition filed for grant of probate of Will dated 06th July, 2000, allegedly executed by the deceased i.e. Ranchhodlal Manilal Chokshi. He died on 25th January, 2008 and the probate petition was filed in the year 2015.
2. The aforesaid Will appointed Rikin Ranchhodlal Chokshi (plaintiff / petitioner) as a sole executor, while the beneficiaries were the plaintiff i.e. the son of the deceased, his widow Urmila, as also the two daughters Nita Zaveri and Shaila Shah. While the widow Urmila and one of the daughters i.e. Nita Zaveri gave consent affidavits, supporting the prayer Shrikant Malani SHRINIVAS MALANI made in the probate petition, the remaining daughter i.e. Shaila Shah filed caveat and opposed the grant of probate. As a result, the proceeding was converted from a testamentary petition to the present Testamentary Suit NO. 180 of 2016. On 04th April, 2017, this Court framed five issues for determination in the suit and the rival parties led oral as well as documentary evidence in the matter. The suit came up for final hearing, wherein the learned counsel for the parties were heard at length. Written submissions along with copies of judgments relied upon by the learned counsel were also placed on record. This Court has considered the aforesaid material.
3. The plaintiff examined two witnesses i.e. the widow of the deceased Urmila (PW-1) and the plaintiff himself (PW-2). Both the attesting witnesses to the subject Will expired before filing of the testamentary petition and an affidavit of PW-1 Urmila was placed on record as per Rule 384 of the Bombay High Court (Original Side) Rules, 1980 (hereinafter referred to as the aforesaid Rules), wherein she stated that the deceased had executed and signed the subject Will in the presence of the attesting witnesses, who also signed the subject Will and further that this was done in her presence at the residence of the deceased. The defendant did not examine any witness. The witnesses of the plaintiff were cross-examined on behalf of the defendant (caveator). It is on the basis of such material that the learned counsel for the rival parties have addressed this Court in support of their respective stands.
4. In order to appreciate the rival submissions, it would be appropriate to refer to the issues framed in the present suit. The said issues are as follows: “1. Whether the plaintiff proves that the last Will and Testament dated 6th July 2000 of the deceased- Ranchhodlal Manila Chokshi is validly executed and in accordance with law?
2. Whether the defendant proves that the last Will and July 2000 of the deceased is forged document?
3. Whether the defendant proves that the last Will and July 2000 of the deceased is void for uncertainty?
4. Whether the defendant proves that the last Will and July 2000 of the deceased was executed under suspicious circumstances?
5. What decree? What order?”
5. A perusal of the aforesaid issues framed for consideration in the present suit would show that while the burden to prove the first issue is on the plaintiff, the burden to prove issue Nos.[2] to 4, is on the defendant.
6. Mr. Rohan Cama, learned counsel appearing for the plaintiff submitted as follows: a) The signature of the deceased on the subject Will dated 06th July, 2000 and its proper execution was duly proved by the witnesses of the plaintiff. PW-1 Urmila specifically stated in her affidavit and also during her cross-examination as to the manner in which the deceased executed the subject Will. She not only proved the signature but also the contents of the Will. Sufficient documents were placed on record to show that the signature on the Will was indeed that of the deceased. In this situation, non-availability of the attesting witnesses of the Will cannot lead to any adverse inference against the plaintiff. b) The deceased used to have a short signature and a long signature. On the subject Will the deceased had appended the short signature, which was also the signature found on the passport, driving license, ration card and other such documents placed on record. The original passport, driving license and the ration card were placed for the perusal of this Court, in order to support the assertion of the plaintiff that the signature on the Will was that of the deceased. c) Apart from this, sufficient documentary evidence was placed on record, including documents pertaining to Mutual Funds in the name of the deceased, as also Bank Account details. Some of the said documents showed that the Mutual Funds and other instruments were held jointly by the deceased and the defendant. In these documents also, the deceased had used his short signature and therefore, it cannot lie in the mouth of the defendant that since short signature was used on the Will, it could be said to be a suspicious circumstance. On this basis, it was asserted that the signature of the deceased and valid execution of the Will have been duly proved by the plaintiff. d) The learned counsel for the plaintiff invited attention of this Court to the statement of admission and denial of documents submitted on behalf of defendant. It was submitted that the documents like the original passport, driving license, ration card and other such documents wherein the short signature of the deceased was found, were merely denied on the ground that there were no pleadings in the testamentary petition regarding the documents and that the plaintiff had not obtained leave of the Court while filing list of documents as required under Order VII Rule 14 of the Code of Civil Procedure, 1908 (CPC). It is also emphasized that receipts were executed by the defendant and others about benefits received under the subject Will. The signatures on the said receipts were not denied by the defendant. In fact, the amount stated in the receipts was also admitted and denial was only on the basis that the said receipts were got executed by the plaintiff on a misrepresentation of fact that the defendant would be getting shares in HUF, as also shares in the assets of the deceased. Reliance was placed on order dated 12th September, 2017, passed by this Court, whereby documents were marked. It was specifically highlighted that the passport of the deceased, his driving license and ration card were marked as Exhibits “P-3, P-4 and P-5” by consent of parties and there was no endorsement that the said documents were marked subject to proof. On this basis, it was submitted that the defendant could not turn around and claim that short signature on the subject Will was a suspicious circumstance creating a doubt about the valid execution of the Will. In this context, the learned counsel for the plaintiff relied upon judgment of Full Bench of this Court in the case of Hemendra Rasiklal Ghia Vs. Subodh Mody[1] e) The learned counsel for the plaintiff specifically referred to the aforesaid receipts executed by defendant herself on 04th August, 2008, her husband Abhaykumar Shah, her daughter Twisha Shah and herself on behalf of her minor son Viraj Shah, all dated 04th August, 2008, wherein it was specifically recorded that cheques for specific amounts were received in terms of bequeath to the defendant, her husband and children under the subject Will dated 06th July, 2000. It was emphasized that in all the receipts, it was specifically recorded that the person executing receipts had no further claims in respect of the estate of the deceased. On this basis, it was submitted that having taken benefit under the subject Will, the defendant cannot be permitted to challenge the valid execution of the said Will. In support of the said proposition, the learned counsel for the plaintiff relied upon judgments of 1 2008 (6) Mh.L.J. 886 this Court in the case of Mirzban Darabshaw Surti Vs. Cedric Vaz & another[2] and judgment and order dated 24th June, 2015 passed in the case of Nanak S. Ghatalia Vs. Swati Satishchandra Ghatalia (Chamber Summons No. 133 of 2014 in Testamentary Petition No. 457 of 2014). In this context, reliance was placed on Section 187 of the Indian Succession Act, 1925 (hereinafter referred to as the Succession Act). f) The learned counsel for the plaintiff relied upon the contents of the testamentary petition, as also the affidavits-in-lieu of examination-in-chief filed on behalf of PW-1 and PW-2, and the answers given by the two witnesses in cross-examination, to contend that the first issue regarding the valid execution of the subject Will was duly proved by the plaintiff. It was further submitted that since the defendant did not lead any evidence at all, she failed to discharge the burden of proving issue Nos.[2] to 4, thereby demonstrating that the suit deserves to be decreed. Attention of this Court was specifically invited to answers given by PW-1 Urmila in respect of the questions put to her with regard to the execution of the subject Will, contending that despite lengthy cross-examination, her evidence in support of valid execution of the Will could not be shaken and that therefore, the subject Will was sufficiently proved by the oral and documentary evidence on record. g) The learned counsel for the plaintiff responded to the contention 2 2015 (2) Mh.L.J. 184 raised on behalf of the defendant with regard to the Bankers Book Evidence Act, 1891 (hereinafter referred to as the Act of 1891) in respect of the documents issued by Mutual Funds lying in the name of the deceased. It was submitted that the said documents were not covered under the definition of Bankers Book as per Section 3 of the said Act of 1891 and therefore, the submissions made on behalf of the defendant were misplaced. As regards emphasis placed on behalf of the defendant on Section 69 of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act) with regard to proof when no attesting witness is found, it was submitted that the present case was covered under Rule 384 of the aforesaid Rules of this Court. The first part of the said Rule clearly applied as PW-1 Urmila had filed her affidavit and hence second part of the said Rule being not applicable, the question of applying Section 69 of the Evidence Act would not arise. In any case, it was submitted that PW-1 Urmila had sufficiently proved the signature of the deceased and therefore, the broad proposition being canvassed on behalf of the defendant in the context of Section 69 of the Evidence Act cannot be accepted. Reference was made to judgment of the Supreme Court in the case of Babu Singh and others. Vs. Ram Sahai alias Ram Singh[3], to contend that the submission made on behalf of the defendant ignoring Rule 384 of the aforesaid Rules cannot be accepted.
h) It was further submitted that the defendant is not justified in claiming that the disposition in the present case was unnatural as it was slanted in favour of the plaintiff, thereby giving rise to a suspicious circumstance. By referring to the clauses of the Will, it was submitted that the deceased had given certain amounts to each of his children and grandchildren, while the remaining movable and immovable property was all bequeathed in favour of his wife i.e. PW-1 Urmila. On this basis, it was submitted that the disposition was neither slanted in favour of the plaintiff, nor could it be said to be unnatural. The defendant could not claim that the propounder of the Will was the only or major beneficiary in the present case. i) It was further submitted that the defendant cannot claim that the testamentary petition suffered from delay as it was filed in the year 2015. The oral and documentary evidence on record sufficiently demonstrated that the defendant and all others had co-operated for implementation of the clauses of the subject Will and therefore, there was no occasion for the plaintiff to have sought probate of the subject Will. It was only when certain property in the State of Gujarat, lying in the name of the deceased was to be transferred in favour of the PW-1 Urmila and the defendant raised objections, that the cause of auction arose for the plaintiff to file the testamentary petition. It was also submitted that the defendant had filed testamentary petition for grant of Letters of Administration without Will and this was also a reason for the petitioner to approach this Court. On this basis, it was submitted that there is no question of delay in filing the probate petition. j) On the basis of the aforesaid submission, the learned counsel for the plaintiff submitted that the issue ought to be answered in favour of the plaintiff and that the suit may be decreed, thereby granting probate of the subject Will having effect throughout India.
7. On the other hand, Mr. Amit Arsiwala, learned counsel appearing on behalf of the defendant submitted as follows: i) The plaintiff in the present case was required to discharge the burden of proving valid execution of the subject Will by proving the signature as well as contents thereof. It was submitted that in the present case, the signature of the deceased was suspicious, for the reason that even the plaintiff proceeded on the basis that the deceased used to have a short signature and a long signature. It was submitted that a bare perusal of the signature on the subject Will as compared to the signatures of the deceased on the original passport, driving license and ration card would show material differences, thereby raising strong suspicion about the valid execution of the Will. ii) It was further submitted that reliance placed on documents pertaining to the Mutual Funds in the name of the deceased and also jointly held by the defendant and the deceased in the context of signature of the deceased cannot be looked at by this Court, for the reason that the requirements of the Act of 1891 have not been satisfied. It was submitted that the plaintiff failed to examine any official or authorized person of such Mutual Funds in support of the said documents and merely because the documents were stamped by the said Mutual Funds was not enough satisfy the requirements of the Act of 1891. On this basis, it was submitted that the said documents cannot have any evidentiary value, thereby demonstrating that the plaintiff cannot take advantage of the same. iii) It was submitted that even if the defendant had not led any evidence, the burden was squarely on the plaintiff to prove valid signature of the deceased on the subject Will and also the contents thereof. The burden had not been discharged by the plaintiff by leading any cogent evidence. Reliance was placed on Section 69 of the Evidence Act, to contend that the plaintiff was required to prove the handwriting of the deceased person and having failed to do so, the burden had not been discharged. Reliance was placed on the judgment of the Supreme Court in the case of Moturu Nalini Kanth v. Gainedi Kaliprasad[4], in support of the said submission. iv) The answers given in cross-examination by PW-1 Urmila demonstrated that she was not even aware as to in what context she was deposing before the Court. It was submitted that she had no knowledge of English language and that she was conversant only with Gujarati language, thereby demonstrating that she could not have filed a satisfactory affidavit under Rule 384 of the aforesaid Rules, as both the attesting witnesses had expired and they were unavailable. In the cross-examination, PW-1 Urmila had deposed that the Will was handwritten, while it is a matter of record that the subject Will was typewritten. It was further submitted that her responses to the questions with regard to when and how the plaintiff (PW-2) became aware of the existence of the subject Will, also demonstrated serious suspicious circumstances shrouding the Will. It was also submitted that neither PW-1 Urmila nor PW-2 i.e. the plaintiff gave satisfactory answers to specific questions put with regard to the attesting witnesses and their signatures, raising serious doubts about the very existence of the said persons. v) As regards the documents on record, it was submitted that even if the said documents had been marked as Exhibits, at the stage of final hearing the defendant was certainly entitled to make submissions with regard to the probative value of such documents. It was submitted that the documents on record, although marked as exhibits even by consent, are required to be appreciated by the Court in the context of the overall oral and documentary evidence on record to reach any conclusion with regard to the evidentiary and probative value of the said documents. In this regard, reliance was placed on the judgment of the Delhi High Court in the case of Sudir Engineering Company vs. Nitco Roadways Ltd[5], as also the aforesaid full bench judgment of this Court in the case of Hemendra Rasiklal Ghia Vs. Subodh Mody (supra). vi) It was submitted that there was delay in filing the testamentary petition for grant of probate and that the plaintiff deliberately waited till both the attesting witnesses had expired. It was brought to the notice of this Court that there was variance in the reasons stated in the testamentary petition with regard to the reason why the testamentary petition for grant of probate was filed in the year 2015, when compared to the reasons stated in the affidavitin-lieu of examination-in-chief filed on behalf of the plaintiff (PW-2). It was submitted that the deceased expired on 25th January, 2008, while the testamentary petition for grant of probate was filed by the plaintiff in the year 2015, clearly showing that it was hopelessly delayed. vii) It was further submitted that the disposition in the subject Will was unnatural as the plaintiff was specifically favoured while bequeathing specific amounts. Since there was no acrimony in the family, there was no reason for the daughters being kept out by the deceased. viii) Attention of this Court was invited to answers given to specific questions put to PW-1 Urmila and PW-2 i.e. the plaintiff in crossexamination. According to the learned counsel for the defendant, the answers 5 1995 DRJ (34) 86 clearly demonstrated that the plaintiff miserably failed to prove valid execution of the subject Will and that the same was clearly shrouded by suspicious circumstances. On this basis, it was submitted that the suit deserved to be dismissed.
8. This Court has considered the rival submissions in the light of the oral and documentary evidence on record. The deceased was the father of the plaintiff and the defendant and he died on 25th January, 2008, about which there is no dispute. The subject Will allegedly executed on 06th July, 2000, is disputed by the defendant i.e. one of the daughters of the deceased, while the widow of the deceased and his other daughter have consented to the grant of probate in the present proceedings. The objections to grant of probate raised on behalf of the defendant are based on alleged delay on the part of the plaintiff in filing the probate petition; the failure of the plaintiff in proving the signature as well as contents and valid execution of the subject Will; the Will is alleged to be unnatural, depriving the daughters of their rightful shares; and that the Will being uncertain and surrounded by suspicious circumstances ought not be accepted by this Court.
9. As a Testamentary Court and being a Court of conscience, this Court is required to examine and consider the oral as well as documentary material on record to come to a considered conclusion with regard to the validity of the subject Will, in order to reach a finding as to whether probate can be granted. This Court is not expected to be suspicious about the material on record and the same has to be examined objectively in the light of the rival submissions.
10. In the present case, the plaintiff has led oral as well as documentary evidence. The plaintiff being the executor of the Will has been examined as PW-2, while the widow of the deceased i.e. mother of the plaintiff and the defendant has been examined as PW-1. It is an admitted position that the defendant refused to lead any evidence and that the defendant did not examine a single witness in support of her claims. A perusal of the issues framed by order dated 04th April, 2017, shows that the burden was on the defendant to prove that the subject Will was a forged document, that it was void due to uncertainty and that it was executed under suspicious circumstances. The defendant having failed to lead any evidence and also having failed to examine any witness, much less any handwriting expert, this Court is of the opinion that the defendant has failed to discharge the burden to prove issue No.2 pertaining to the subject Will allegedly being a forged document. Even in respect of issue Nos.[3] and 4, for discharging her burden, the defendant is necessarily required to rely only upon the cross-examination of the witnesses of the plaintiff and the material that has otherwise come on record before this Court.
11. Nonetheless, the plaintiff is required to prove as per issue No.1, the valid execution of the subject Will of the deceased. Both the attesting witnesses to the Will expired before the probate petition was filed by the plaintiff and hence, they were unavailable for filing affidavits in support of the subject Will. In this situation, PW-1 Urmila i.e. the widow of the deceased filed an affidavit under Rule 384 of the aforesaid Rules, stating that she was very much present when the deceased executed and signed the said Will in the presence of the two attesting witnesses, who also signed the said Will in her presence. In this context, submissions were advanced in the context of Section 69 of the Evidence Act and Rule 384 of the aforesaid Rules.
12. The learned counsel for the defendant heavily relied upon the language of Section 69 of the Evidence Act, to contend that the plaintiff was required to prove attestation of the subject Will by the attesting witness in his handwriting, further proving that the signature of the person executing the document was in the writing of that person. Much emphasis was placed on the word “handwriting” on the part of the defendant. In this context, reliance was placed on the aforesaid judgment of the Supreme Court in the case of Moturu Nalini Kanth v. Gainedi Kaliprasad (supra). On the other hand, the learned counsel for the plaintiff relied upon Rule 384 of the aforesaid Rules to contend that the requirement of complying with Section 69 of the Evidence Act would arise only if the second part of Rule 384 of the said Rules became applicable. It was contended that since the present case was covered under the first part of the Rule 384, the contentions raised on behalf of the defendant in the context of Section 69 of the Evidence Act can be of no relevance.
13. In this context, reference to Section 69 of the Evidence Act and Rule 384 of the aforesaid Rules would be necessary. Section 69 of the Evidence Act reads as follows: “Section 69. Proof where no attesting witness found: If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person.”
14. Rule 384 of the Bombay High Court (Original Side) Rules, 1980, reads as follows:
15. In the present case, it is undisputed that both the attesting witnesses expired before the testamentary petition was filed and therefore, their affidavits could not be placed on record. In this context, PW-1 Urmila i.e. the widow of the deceased filed affidavit under Rule 384 of the aforesaid Rules. Under the said Rule if it is not possible to file affidavit of any of the attesting witnesses to the Will, an affidavit of some other person can be filed who may have been present at the time of execution of the Will. In the present case, PW-1 Urmila filed her affidavit specifically stating that she was very much present at the time when her deceased husband executed the Will and that the deceased as well as the attesting witnesses signed in her presence, further stating that the deceased was of a sound and disposing state of mind while executing the Will. There is substance in the contention raised on behalf of the plaintiff that such an affidavit satisfies the requirement of the first part of Rule 384 of the aforesaid Rules. The second part of Rule 384 of the aforesaid Rules comes into operation only when no such affidavit of a person who was present at the time of execution of the Will can be produced. In such a contingency, evidence on affidavit is required to be produced of the fact of execution of the Will and of the handwritings of the deceased and attesting witnesses as also any circumstance which may raise a presumption in favour of due execution. In the present case, PW-1 Urmila, being the widow of the deceased, having filed the aforesaid affidavit under first part of Rule 384 of the said Rules, the contingency contemplated in the second part of the said Rule does not arise at all. Thus, in the facts of the present case, the plaintiff was not required to prove the hand-writings of the deceased and the attesting witnesses for raising a presumption in favour of due execution of the subject Will. PW-1 Urmila having filed her affidavit, satisfied the requirement of first part of Rule 384 of the said Rules. The defendant was certainly entitled to cross-examine her, which exercise was indeed undertaken. But, the insistence on the part of the defendant that the plaintiff ought to have proved the handwriting of the deceased and the attesting witnesses as per Section 69 of the Evidence Act cannot be accepted.
16. In the case of Moturu Nalini Kanth v. Gainedi Kaliprasad (supra), the Supreme Court referred to Section 69 of the Evidence Act. But, the observations made in the said judgment have to be read in the context of the facts before the Court. In the said case, neither of the attesting witnesses to the Will could be examined and therefore, Section 69 of the Evidence Act came into picture. In this context, it was found that in the said case no witness was examined, who was familiar with the signature of either of the attesting witnesses and it was found that the scribe himself could not say for sure anything about the signature of one of the attesting witnesses. It was also observed that one of the witnesses, who deposed in the said case did not even know the attesting witness and could not vouch for his identity. It was in this context that the Supreme Court observed that for the purposes of Section 69 of the Evidence Act, it is not enough to merely examine a random witness who asserts that he saw the attesting witness affix his signature on the Will. It was further observed that if the evidence of such a random or stray witness was to be accepted, the requirement of law would be whittled down.
17. In the present case, PW-1 Urmila, being the widow of the deceased, cannot be said to be a random or stray witness. PW-2 i.e. the plaintiff, being the son of the deceased, has also deposed about the signatures of the attesting witnesses by producing certain documents in the context of which he was cross-examined on behalf of the defendant. Considering the aforesaid material on record, in the context of the facts of the present case, reliance placed on behalf of the defendant on the judgment of the Supreme Court in the Moturu Nalini Kanth v. Gainedi Kaliprasad (supra) cannot be of any assistance to the defendant.
18. In any case, this Court finds that the affidavit of PW-1 Urmila i.e. the widow of the deceased complies with the first part of Rule 384 of the aforesaid Rules and hence, it has to be taken into consideration, of course subject to cross-examination of the said witness on behalf of the defendant. The proposition sought to be argued on behalf of the defendant that the plaintiff was required to prove the handwriting of the attesting witnesses, as also that of the deceased in the context of Section 69 of the Evidence Act, cannot be accepted and hence the same is rejected. As a consequence, this Court is considering the affidavit of PW-1 Urmila filed in terms of Rule 384 of the aforesaid Rules, as also her affidavit-in-lieu of examination-in-chief along with her cross-examination to ascertain as to whether the plaintiff can be said to have proved issue No.1, pertaining to valid execution of the subject Will.
19. In this context, the learned counsel for the defendant attacked the evidence of PW-1 Urmila by inviting attention of this Court to her answers given in cross-examination to question Nos.[6] to 37. It was submitted that the said witness was conversant only with Gujarati language and even during cross-examination the questions had to be translated into Gujarati language for PW-1 Urmila. By referring to the answers to the aforesaid questions, it was emphasized that the said witness was not even aware about the context in which she was giving evidence and that she was not aware about the contents of the subject Will at all. Much emphasis was placed on the answer given by PW-1 Urmila to question No.23 where she stated that the Will of her husband was handwritten. It was also brought to the notice of this Court that in response to question No.28, the said witness stated that her son i.e. the plaintiff, her daughter-in-law and her husband along with two witnesses were present in the house when the subject Will was executed. It was emphasized that as per PW-2 i.e. the plaintiff himself, he became aware of the Will much later and that he found the same in a cupboard after the demise of the deceased. This was highlighted as a suspicious circumstance surrounding the Will.
20. This Court has perused the answers given by PW-1 Urmila to the aforesaid questions during cross-examination. This Court finds that PW-1 Urmila has responded in detail as to the manner in which her husband executed and signed the subject Will in the presence of the attesting witnesses, who also signed in her presence. Even though it is clear that the said witness was conversant in Gujarati language, she has stated at various places in her evidence that the contents of the Will were explained to her by her husband i.e. the deceased. There is nothing unnatural about the same. The statement made by PW-1 Urmila that the Will was handwritten cannot be used as a sole circumstance, out of context, to discredit her evidence which is throughout consistent as regards the manner in which the deceased executed the subject Will in her presence. It is relevant to note that the record refers to a Will of the said witness, which indeed was handwritten.
21. Much emphasis was placed on behalf of the defendant on the answers given by PW-1 Urmila in response to question Nos.45 to 58. These questions were put to the witness in the context of the two attesting witnesses and their signatures. Questions were put to PW-1 Urmila as to why she did not produce any government documents reflecting the signatures of the attesting witnesses. But, since she had specifically stated that the two attesting witnesses had signed in her presence, the emphasis placed on the said aspect on behalf of the defendant cannot take her case any further.
22. Even otherwise, PW-2 i.e. the plaintiff himself had stated about the signatures of the attesting witnesses and documents were also placed on record with regard to the signatures of the said attesting witnesses. This Court has perused the responses given by PW-2 to question Nos.101 to 110, during cross-examination. The aforesaid witness did state that he was not familiar with the handwriting of the attesting witnesses, but he was very much familiar with their signatures. Reference was made to the exhibit containing the signatures of the two attesting witnesses, being a receipt, to which the said witness specifically stated that the receipt was prepared and signed by the attesting witnesses in his presence. Considering the discussion hereinabove, in respect of Section 69 of the Evidence Act and Rule 384 of the aforesaid Rules, the emphasis sought to be placed on identifying the handwriting of the attesting witnesses pales into insignificance.
23. The material on record shows that the plaintiff produced a number of exhibited documents bearing the signatures of the deceased, including the original passport, driving license and ration card. This Court compared the signatures of the deceased on these original documents and the subject Will. This Court finds no substance in the contention raised on behalf of the defendant that there is variance in the signatures, raising any suspicion in that regard.
24. As noted hereinabove, the plaintiff produced a number of documents i.e. copies issued by the Mutual Funds held in the name of the deceased bearing the stamp and seal of the offices of the such Mutual Funds. It was emphasized that in some of the documents, as also other such documents on record, the signature of the defendant was found along with the signature of the deceased, which was the same signature as found on the subject Will. The said documents were sought to be discredited on behalf of the defendant by placing reliance on the Act of 1891. This Court is of the opinion that the provisions of Act of 1891 would come into play only if the said documents could be said to be Bankers Books as defined under the Act of
1891. It is not even the case of the plaintiff that these are Bankers Books and therefore, the submissions made on behalf of the defendant in that regard can be of no consequence.
25. Even otherwise, a perusal of the statement of admission and denial placed on record on behalf of the defendant shows that the signatures of the deceased on such documents were denied on behalf of the defendant only on the grounds that there were no pleadings in the probate petition in that regard and that leave of the Court was not obtained while placing the documents on record. The nature of denial itself is significant in the facts and circumstances of the present case.
26. In any case, a perusal of the order dated 12th September, 2017, shows that the original passport, original driving license and original ration card were marked as Exhibits “P-3, P-4 and P-5” with the consent of the defendant and without any endorsement that the same were being marked as Exhibits subject to proof. This is in contrast to other documents marked as Exhibit “P-25 to P-40”, being subject to proof of contents thereof and also the documents at Exhibits “P-48 and P-49”. Thus, it becomes clear that the signatures on the original passport, driving license and ration card were not even denied on behalf of the defendant. The position of law in respect of the documents being exhibited and the categories of documents while marking them has been authoritatively laid down by the Full Bench of this Court in the case of Hemendra Rasiklal Ghia Vs. Subodh Mody (supra). Applying ratio of the said judgment, it cannot be said that the defendant had sufficiently denied the signatures of the deceased on the said documents. Even applying the position of law laid down by the Delhi High Court in the case of Sudir Engineering Company vs. Nitco Roadways Ltd (supra), along with the aforesaid Full Bench judgment of this Court, the probative and evidentiary value of such documents could certainly be examined by this Court at the stage of final hearing. Even if that be so, in the facts and circumstance of the present case, this Court is convinced that the aforementioned documents placed on record on behalf of the plaintiff showing the signatures of the deceased, sufficiently prove the signature of the deceased on the subject Will. This in itself is sufficient to take the case of the plaintiff forward for proving the validity of the subject Will.
27. It is significant that in the present case, the plaintiff has placed on record the aforementioned receipts signed and executed by the defendant for herself and on behalf of her minor son, as also her husband and daughter acknowledging the receipt of specific amounts under the subject Will and further stating that no other claim was outstanding in respect of the estate of the deceased. A perusal of the statement of admission and denial in the context of the said receipts shows that the denial is not of the amount, which is in fact admitted or the signatures on the said receipts, but on the basis that the receipts were obtained under a misrepresentation of fact that the defendant would get share in the HUF and the assets of the deceased. In this context, it is important to note that the defendant chose not to lead any evidence before the Court. Therefore, while the existence of the said receipts has not been denied, the alleged misrepresentation under which the defendant and her husband, as also daughter signed the receipts, as a fact, has not been proved by the defendant, particularly because she chose not to lead any evidence in the matter. Thus, this Court has reached the conclusion that the defendant and her family took benefits under the subject Will. Having taken such benefits, she cannot be permitted to turn around and challenge the very validity of the subject Will.
28. In the case of Mirzban Darabshaw Surti Vs. Cedric Vaz & another (supra), it was held that the recipient of bequest under a Will, having accepted such a bequest cannot turn around and impeach the very document. It was observed that the said rule is based on the well-known principle of approbation and reprobation i.e. a person cannot affirm and disaffirm the same transaction i.e. affirming it to the extent of the benefit received and disavowing it to the extent that it prejudices. Similarly, in the case of Nanak S. Ghatalia Vs. Swati Satishchandra Ghatalia (supra), this Court held that when distribution under a Will is accepted without any qualification and there is an acknowledgment of the Will, the person accepting such distribution cannot be permitted to challenge the document and that the rule of election and against approbation and reprobation must prevail.
29. In the present case, there is sufficient material placed on record to show that on the one hand the defendant accepted all the benefits and bequests under the said Will and thereupon sought to challenge the same. This cannot be permitted.
30. It was sought to be contended on behalf of the defendant that the bequest under the subject Will was unnatural as the daughters had been left out, while the benefits were slanted in favour of the son i.e. the plaintiff before this Court. In this context, this Court has perused the contents of the subject Will dated 06th July, 2000. The contents show that under clause 4.3, specific amounts have been bequeathed to the plaintiff and his family, the defendant and her family, as also the other daughter i.e. Nita Zaveri and her family. There is indeed a slight difference between the amount bequeathed to the son i.e. the plaintiff and his family, as compared to the amounts bequeathed to the daughters and their families. But, it is not significant enough to show any unnatural bequest in favour of the plaintiff and his family, while depriving the daughters and their families.
31. In any case, the bequest of such specific amounts is miniscule as compared to the bequest of the properties in favour of the widow of the deceased PW-1 Urmila i.e. mother of the plaintiff and the defendant. Clause 4.[1] of the Will specifically bequeaths immovable property i.e. flat to the said Urmila and the residuary clause i.e. clause 6, bequeaths the balance movable and immovable properties entirely in favour of the said Urmila i.e. widow of the deceased. In such circumstances, there is no substance in the contention raised on behalf of the defendant that the bequeath under the Will can be said to be unnatural, thereby indicating a suspicious circumstance surrounding the Will.
32. It was also specifically contended on behalf of the defendant that there was delay in propounding the Will because the deceased expired on 25th January, 2008, while the probate petition was filed in the year 2015. A perusal of the material on record shows that the defendant herself and all the others had accepted specific bequeaths under the subject Will and there did not appear to be any dispute between the parties. This is evident from the receipts placed on record, executed by all the beneficiaries by and on behalf of all the beneficiaries of the specific monetary bequests under clause 4.[3] of the subject Will. It is the case of the plaintiff that when a property located in the State of Gujarat was sought to be transferred in the name of Urmila i.e. the widow of the deceased and the mother of the plaintiff and defendant, that the defendant raised objections, leading to the dispute between the parties. It is also a matter of record that at this stage the defendant filed a testamentary petition for grant of Letters of Administration without any reference to any Will. In this backdrop, the plaintiff was constrained to file the probate petition in the year 2015 and this Court is convinced that there is no question of delay on the part of the plaintiff in filing the probate petition and it certainly cannot be said to be a suspicious circumstance surrounding the Will.
33. It was sought to be indicated during the course of arguments, on the basis of questions put to the two witnesses of the plaintiff that the plaintiff was present at the time of execution of the Will and yet he claims to have become aware about the same only after the death of the deceased and while looking into papers in the cupboard in the residence. This Court has perused the answers given by PW-1 Urmila as well as PW-2 i.e. the plaintiff in this context. PW-1 Urmila merely stated that amongst others the plaintiff was present in the house when the Will was executed. She did not say that the Will was executed in the presence of the plaintiff. There is nothing to indicate that the plaintiff was in possession of or that he was aware about the contents of the Will after it was executed. The plaintiff i.e. PW-2 himself stated in crossexamination that his father told him before his demise about the existence of the Will and that he found the same after keys of the cupboard were given to him by his mother i.e. PW-1 Urmila. There is nothing unnatural about the sequence of events discernible from the said part of the evidence and therefore, this cannot be said to be a suspicious circumstance surrounding the subject Will.
34. In the context of issue No.3 i.e. the subject Will being void due to uncertainty, no serious arguments were raised. In any case, this Court has perused the subject Will. It cannot be said to be uncertain. The deceased testator specified the properties and the manner in which the same were bequeathed under the various clauses of the Will. Therefore, the defendant has failed to discharge the burden pertaining to the said issue also.
35. On an overall analysis of the oral and documentary evidence on record, this Court finds that the plaintiff, as the executor of the subject Will, has been able to sufficiently prove the valid execution of the said Will and that therefore, issue No.1 is answered in favour of the plaintiff. The defendant chose not to lead any evidence in support of her stand. The burden was on the defendant insofar as issue Nos.[2] to 4 were concerned. But, the burden could not be discharged by the defendant. Even if the defendant is to rely upon the cross-examination of the witnesses of the plaintiff, it cannot be said that the defendant has been able to place on record circumstances to indicate any suspicion with regard to the valid execution of the subject Will. Therefore, issue Nos.[2] to 4 are answered against the defendant.
36. In view of the above, issue No.5 is answered by holding that the suit deserves to be decreed in favour of the plaintiff.
37. Accordingly, the suit is decreed and probate is granted in respect of the subject Will dated 06th July, 2000, having effect though out India. The suit is decreed with costs. Pending applications, if any, also stand disposed of. (MANISH PITALE, J.)