Janki Suresh Bhandoola v. Ramesh T. Parasani

3. In the present Suit, the following issues were framed for determination by this Court, viz. “1. Whether the Plaintiff proves that the writing dated 1st February 2001 was duly and validly executed and attested in accordance with law as the last Will and Testament of the deceased, Sushiladevi T. Parsani?

2. Whether the Plaintiff proves that at the time of the said alleged Will, the deceased was of sound and disposing state of mind, memory and understanding?

3. Whether the Defendant proves that the alleged Will is a forged, fabricated and got up document?

4. Whether the Defendant proves that the alleged Will is unnatural?

5. What reliefs and what orders?” Evidence led by the Plaintiffs:

(i) Ms. Sita Laxmi Narayanswami (attesting witness) PW-1, and

(ii) Sushila Teunram Parsani (the Plaintiff) PW-2 as propounder.

(i) Ramesh Teunram Parsani (the Defendant) DW-1

4. At the outset Ms. Kochar invited my attention to the said Will and submitted that the Testatrix had dictated the same to the Plaintiff in the Sindhi language to PW- 2 who had then translated and typed out the same in English and thereafter read out the entire Will in English, Hindi and Sindhi to the Testatrix. In support of her contention, she invited my attention to the cross examination of PW-2 viz.

5. Learned Counsel then to prove due execution of the said Will invited my attention to the Affidavit of Evidence (AOE) of PW-1 and pointed out therefrom that PW-1 had deposed as follows: - “5) Thus, I say that on 1st February 2001, I was present together with Major S.R. Chandran at INHS Asvini, Colaba, Mumbai and together we did then and there see the said Late Mrs. Sushila Teunran Parsani set and subscribe her name at the foot of her Will, written in English language.

6) I further say that, thereupon, I and the said Major S.R. Chandran did at the request of the said Late Mrs. Sushila T. Parsani in her presence and in the presence of each other, at the same time, set and subscribed our respective names and signatures at the foot of the Will, as witnesses thereto.

7) I say that the signatures at the foot of the Will are that of the said Late Mrs. Sushila T Parsani, Major S.R. Chandran and myself. I identify the signatures.

8) That, at the time, the said Late Mrs. Sushila T. Parsani Subscribed her name and signature to the said Will, she was of sound and disposing mind, memory and understanding, and had executed the said Will of her own free Will and pleasure.”

6. Learned counsel then invited my attention to the cross-examination of PW-1 and pointed out therefrom, that the same corroborated what had been stated by PW-1 in her AOE. She then placed reliance upon the judgment of the Hon’ble Supreme Court in the case of Raj Kumari and Others vs Surinder Pal Sharma[1] to submit that, though Section 63 required a will to be attested by two witnesses, it was not necessary that the evidence of both witnesses be led to prove a Will. She submitted that due execution of a will could therefore be proved by the evidence of only one of the two attesting witnesses. Basis this she submitted that the execution of the said Will had been duly proved as required under Section 63 of the Indian Succession Act, 1925 (“Succession Act”).

7. Ms. Kochar then submitted the propounder was not a major beneficiary under the said Will, but that the Testatrix had infact evenly distributed her estate to all her children. She submitted that the Defendant had also not been excluded, but had received under the said Will.

8. She then, without prejudice to the above submitted that merely because the Plaintiff had played an active role in the preparation of the said Will, which fact, the Plaintiff had openly admitted, this was not by itself sufficient ground to create doubt about the genuineness of the said Will. In support of her contention, she placed reliance upon a judgment of the Hon’ble Supreme Court in the case of Pentakota Satyanarayana & Ors. vs Pentakota Seetharatnam & Ors.[2]

9. Ms. Kochar then submitted that Defendant was challenging the said Will only on account of the sibling rivalry that existed between the Defendant and the Plaintiff and nothing more. She pointed out that except for the Defendant none of the other children of the Testatrix had opposed the said Will or the grant of Probate in respect thereof. She then submitted that the Defendant was aggrieved by the fact that no substantial bequeath was made to him under the said Will, ignoring the fact that the Defendant had received his share under the Will of Teunram. Learned counsel then submitted that the fact that the Testatrix was not educated beyond the third standard or that the Testatrix was not very proficient in English made absolutely no difference and did not in any manner impact the ability of the Testatrix to make a will. In support of her contention, she invited my attention to Section 59 of the Succession Act and pointed out that even persons who are deaf or dumb or blind are not incapacitated from making a Will if they are able to know what they do by it. She then submitted that thus 2 MANU/SC/0819/2005 even an illiterate person was initialed in law to make a Will and hence the fact that the Deceased was not proficient in English made no difference. In support of her contention, she placed reliance upon a Judgment of the Delhi High Court in the case of Shri Rai Singh V/s. The State & Ors.3.

10. Learned counsel then submitted that, the evidence led in support of proving a will must be read and construed as a whole. She submitted that a judicial verdict cannot be based merely on suspicion alone and that there must be real and germane grounds to oppose the grant of probate and not merely fantasies of a doubting mind. In support of her contention, she placed reliance upon the following judgments: -

(i) Madhukar D. Shende V/s. Tarabai Aba Shedage[4]

(ii) P.P.K. Gopalan Nambiar V/s. P.P.K. Balakrishnan Nambiar & Ors.[5]

11. She then submitted that the evidence of the attesting witnesses was vital and material in proving due execution and that slight irregularities,

4 2002 SCC 85/2002 SCC OnLine SC 57 5 1995 Supp (2) SCC 664 inconsistencies, or exaggeration should not ordinarily be a ground to disbelieve the evidence led as a whole. In support of her contention, she placed reliance upon the Judgment in the case of Hari Singh and Ors. V/s. The State and Ors.[6]

12. Basis all of the above, Ms. Kochar submitted that the Plaintiff had duly proved the said Will and was entitled to the grant of Probate as prayed for. Submissions of Mr. Pimple on behalf of the Defendant.

13. At the very outset, Mr. Pimple learned counsel for the Defendant invited my attention to the locus classicus judgment of the Hon’ble Supreme Court in the case of H. Venkatachala Iyengar V/s. B.N. Thimmajamma & Ors.[7] and pointed out that, a Will was a document which had a great degree of solemnity attached to it since at the time when the same is propounded, the maker thereof (“Testator”) is not available to certify the veracity of the same.

14. Mr. Pimple then submitted that a propounder of a Will was required to show by cogent evidence that (a) the Will was signed by Testator (b) 6 MANU/DE/3341/2010 7 1959(1) SuPP. SCR 426 that the Testator at the relevant time was in a sound and disposing state of mind

(c) that the Testator understood nature an effect of the disposition and put signature thereon of his own free will (d) that the will was duly attested as per Section 63 (c) of the Succession Act and (e) that the evidence led by the propounder was disinterested, satisfactory and sufficient. He then submitted that when the Execution of a Will was surrounded by his suspicious circumstances, the burden was upon the propounder to dispel the same by sufficient evidence. He submitted that unless a propounder satisfactorily discharges this burden a Court would be loath to treat document propounded as being a valid Will.

15. He then submitted that it was well settled that a propounder who plays a prominent part in execution of Will which confers upon the propounder substantial benefits, is itself treated as suspicious circumstances which the propounder was required to remove by leading satisfactory evidence. Mr. Pimple submitted that in the present case the Plaintiff had failed and neglected to do so.

16. Mr. Pimple then submitted that the burden of proving that the Testatrix was in a sound and disposing state mind at the time when the said Will was made, also lay upon the propounder. Learned counsel submitted that the Plaintiff in this case had failed and neglected to lead satisfactory evidence to show that Testatrix was infact in a sound and disposing state of mind at the time when she executed the said Will.

17. Learned Counsel then pointed out that the Defendant (DW-1) had deposed to the fact that the Testatrix had stayed with him till 1984, until the time she left for Indore. He submitted that it was the case of the Plaintiff that the Testatrix was residing with her upto the time of her death. He pointed out that DW-1 had deposed to the fact that the Plaintiff never used to allow to testatrix to talk to the Defendant. He therefore submitted that the burden of proving that the Testatrix was in a sound and disposing state of mind was squarely upon the Plaintiff, which the Plaintiff had failed to do.

18. He pointed out that the Testatrix had died within two months after preparation of the alleged Will. In this context he pointed out that despite the fact that the said Will was executed only two months prior to the date of the demise of the Testatrix, and that PW-2 had deposed to the fact that the Testatrix was old and that she would take her for the periodic check-ups to INHS Asvini Hospital, no other evidence has been produced regarding the soundness of the Testatrix mind at the time of the execution.

19. He submitted that no doctor’s certificate was produced by the Plaintiff and no medical records of the Testatrix were also produced. He then placed reliance upon the Judgment of this Court in the case of Romeo Anacleto D’Souza V/s. Havlock D’Souza[8] to submit that the Court must therefore draw a negative inference against the Plaintiff on this ground. He submitted that another suspicious circumstance was the fact that the said Will, despite being prepared by the Plaintiff and making a bequeaths in favour of a doctor i.e. one Colonel S. Rohatgi, the evidence of such doctor was not produced. He submitted that even the evidence of the other attesting witness namely Dr. Ramchandran who was stated to be dentist of the Testatrix, was not produced nor was any explanation given as to why the Plaintiff had not produced the evidence of Dr. Ramchandran (“the second attesting witness”). He submitted that there was no evidence on 8 2014 (3) Mh.L.J. 816 record, either written or oral, to show that the Plaintiff had attempted to contact Dr. Ramchandran for leading evidence and that Dr. Ramchandran had infact refused. He submitted that therefore, the Plaintiff had infact withheld the best evidence and an adverse inference must therefore be drawn against the Plaintiff in this regard. In support of his contention, he placed reliance upon the judgment of this Court in the case of Jivaji Framroze Tarachand & Ors. V/s. Minoo S. Mistry & Ors.[9]

20. Mr. Pimple then submitted that, even though there were two attesting witnesses to the said Will only the evidence of one attesting witness namely PW-1 had been produced. He submitted that there was no explanation provided as to why the evidence of the other attesting witness had not been produced. He then submitted that the testimony of PW-1 could not be said to be disinterested since PW-1 had claimed that she was family friends with the Testatrix and used to visit her often. He pointed out that there were also inconsistencies in the testimony of PW-1 in as much as in the AOE PW-1 that stated she was employed by M/s. Hindustan Thompson Associates, and her office close to where the Testatrix used to reside. Whereas in cross-examination PW-1 had deposed that she used to work with an advertising firm, JWT. In crossexamination PW-1 had deposed that she was a close friends of the Plaintiff’s son one Mr. Ajay Bhandoola whom she met whilst in College. This fact is however absent in her AOE. He then submitted that, PW-1 was much younger than the Testatrix and therefore unnatural choice of an attesting witnesses. Basis all of this, he submitted that the evidence of PW-1 cannot be termed as independent but was infact highly suspect.

21. Mr. Pimple then invited my attention to the cross-examination of PW-1 and pointed out question Nos. 20, 21 and 33 which read thus:

Q.33. Was the Will already signed by Sushila Parsani at the time of your signing the Will or was it signed after you singed the Will?

Basis the above he submitted that due execution of the said Will had infact not been proved by the Evidence of PW-1 since PW-1 had not deposed to the fact that the Deceased had signed the said Will in her presence. Basis this, he submitted that therefore the requirements of Section 63(c) of the Succession Act had clearly not been fulfilled.

22. Learned Counsel then submitted that, the Testatrix had infact informed the Defendant that she was made to execute a Will against her wishes. He submitted that when granting probate the conscience of the Court was required to be satisfied that (a) the Will in question was executed and duly attested in accordance with the provisions Section 63 of the Succession Act (b) that the Will was executed by the testator voluntarily and out of his own free will and (c) that testator was aware of the contents of the said Will. In support of his contention that a propounder was required to adduced such evidence that a testator has put his signature to the said Will after understanding the contents thereof he then placed reliance upon the Judgment in the case of N. Govindarajan V/s. N. Leelavathy & Anr.10. He submitted that in facts of the present case the propounder had failed to do so as there was absolutely nothing stated in the AOE of PW-2 as to any of these aspects.

23. Learned counsel then submitted that it was well settled that the active participation of the propounder who a major beneficiary in the preparation of the Will was also it was itself a suspicious circumstance which was a propounder Will was required to dispel with cogent evidence. In support of his contention, he placed reliance upon the following judgments: - (a) N. Govindarajan v/s. N. Leelavathy & Anr.11 (b) Edakuda Panankandiyul Narayana Kurup v/s. E.P. Vinod Kurup of Mumbai12

(c) Joseph Antony Lazarus v/s. A. J. Francis13

(d) Romeo Anacleto D’Souza v/s. Edgar Havlock D’Souza14

24. He then submitted that there was no evidence led by PW-2 in her AOE as to how the said Will was prepared. He submitted that though the AOE of PW-2 was completely silent aspect of how the said Will was prepared PW-2 had in cross-examination stated that the Will was dictated by the Testatrix in Sindhi and that it was translated and typed by PW-2 in English after which it was read out and explained to the Testatrix. He pointed out that PW-2 had also deposed to the fact that only she was present with the testatrix at the time when the Will was prepared, and PW-2 had deposed to the fact that she did not remember if anyone else was present when the Will was read out to the Testatrix. He submitted that therefore the only evidence on record, regarding the preparation of the said Will was that of PW-2 who was major beneficiary under the said Will. He pointed out that the only attesting witness examined had also not deposed to the fact that the Will was read over and explained to Testatrix in her presence. He submitted that was a crucial aspect to prove whether or not the Testatrix had understood the nature and effect of what she had executed.

25. He submitted that failure of the Plaintiff to prove that the Testatrix was aware of what she signed, itself makes clear that there was no adequate compliance with the provisions of Section 63. He then submitted that another suspicious circumstance was that the said Will began with the “Bhabhi’s (Mrs. Sushila T. Parsani’s) letter dictated to Janki Bandoola...”. He pointed out that it was also a suspicious factor since PW-2 who claimed to have typed out the said Will would refer to herself in the third person. He submitted that it was equally suspicious as to why PW-2 would refer to the Testatrix as “Bhabhi” when infact the Testatrix was her mother. He pointed out that none of these suspicious circumstances had been explained, much less dispelled by the Petitioner by leading cogent evidence.

26. He then submitted that DW-1 being the son of the Testatrix had in detail, in his AOE, deposed to the fact that the Testatrix did not know English and only knew a few alphabets, some basic numbers and was only able to sign in English. He had deposed to fact that the Testatrix would not be able to understand English even if the same were read out to the Testatrix. He however pointed out that no documentary evidence was produced by the Plaintiff to show that the Testatrix could either speak or read English. He then placed reliance upon a Judgment of this Court in the case of Edakuda Panankandiyul Narayana Kurup V/s. E.P. Vinod Kurup of Mumbai15 to submit that the Plaintiffs failure to lead any evidence in this regard, coupled with the fact that the Defendant had for no apparent reason been excluded from the said Will was a highly suspicious factor. He then placed reliance upon a judgment of this Court in the case of Edakuda Panankandiyul Narayana Kurup which in a similar fact scenario, held as follows, viz.

27. He then submitted that the said Will was not a registered Will as confirmed by PW-2. He submitted that though registration of a Will is not compulsory, it is a factor which a Court would take into consideration when deciding upon the validity of the Will in respect of which probate is being sought for. In support of his contention, he placed reliance upon the Judgment of the Hon’ble Supreme court in the case of Rani Purnima Devi & Anr. V/s. Kumar Khagendra Narayan Dev & Anr.16

28. Learned Counsel then pointed out that the notarization of the said Will was itself highly suspicious. He pointed out that the notary stamp appearing on the said Will was of Thane and that PW-2 had deposed that the said Will was notarized before a Thane based notary who according to PW-2 was eligible to practice in Bombay. PW-2 had deposed that the Testatrix at come into contact with this Thane based notary during the sale of a flat of the Testatrix which was situated in Ghatkoper. Learned counsel then pointed out that in crossexamination PW-2 had deposed that the Will was notarized at the Small Causes Court VT. PW-2 had deposed that the Will was signed that the Asvini Hospital and later on the Notary took PW-2 to sign on the register maintained in Small Causes Court. Learned counsel then pointed out that the said Will appeared to have the stamp of an Advocate from Bhayender, whereas there was no explanation much less evidence led to show how the stamp appeared or whose stamp the same was. Learned counsel pointed out that after Advocates were involved in the preparation or execution of the said Will it was indeed odd that the said Will was dictated to the propounder. He submitted there was absolutely no evidence led by PW-2 to explain all these factors.

29. He therefore reiterated that it was indeed a suspicious circumstance that the Notary whose stamp appeared on the said Will was from Thane, the stamp of the Advocate was from Bhayender and the Will was stated to have been executed in Asvini Hospital, Colaba and notarized the Small Causes Court, VT.

30. Basis the above, Learned counsel submitted that the Plaintiff as propounder had failed to discharge the initial burden of proving the said Will. He pointed out that the said Will was surrounded by glaring and evident suspicious circumstances, which had not been explained by the propounder. He therefore submitted that this Court ought not to grant Probate to the Plaintiff.

31. I have heard Learned counsels for the Parties, considered their rival contentions, as also carefully read the evidence led by both sides and the various judgments cited. In this backdrop, I shall proceed to decide the Issues which have been framed for determination in the present Suit.

32. I shall first deal with Issue Nos. 1 and 2 which read thus, viz. “1. Whether the Plaintiff proves that the writing dated 1st February 2001 was duly and validly executed and attested in accordance with law as the last Will and Testament of the deceased, Sushiladevi T. Parsani?

2. Whether the Plaintiff proves that at the time of the said alleged Will, the deceased was of sound and disposing state of mind, memory and understanding?” First, Section 63 (c) of the Succession Act provides as follows, viz.

Thus, PW-1 has not in cross examination stated that she witnessed the Testatrix signing the said Will. Infact when pointedly asked, PW-1 has stated that she did not remember the order of signing. Admittedly, the evidence of the other attesting witness was never produced.

33. Second, I must note that another reason I find the AOE of PW-1 as suspect is that, in the AOE, PW-1 has stated that the other attesting witness was one Major S.R. Chandran. However, in cross examination PW-1 has stated that the other attesting witness was one Dr. Ramchandra. No attempt was made to clarify and/or explain this by the Plaintiff and/or PW-1. Also, PW-1 has in the AOE stated that the PW-1 and the Testatrix were well acquainted since they were family friends whereas it has emerged in cross examination that PW-1 was a college friend of the Plaintiffs son. This fact was never disclosed in the AOE.

34. Third, another aspect which I find is crucial is the nature of the evidence led by PW-2. On a plain reading of the AOE of PW-2 it is apparent that the AOE of PW-2 is in fact no evidence at all, but in the nature of a pleading/Affidavit in Reply to the Affidavit in Support of the caveat filed by the Defendant. Even if I were to construe the same as an AOE, I find that there is absolutely nothing therein which (a) explains the manner in which the said Will came to be made (b) so much as suggests that the Testatrix was in a sound and disposing state of mind (c) had understood the nature and effect of what was provided for in the said Will.

35. Fourth, the manner in which the said Will has been notarized is also to my mind extremely suspicious. The Notary whose stamp appeared on the said Will was from Thane, the stamp of the Advocate was from Bhayender and the Will was stated to have been executed in Asvini Hospital, Colaba and notarized the Small Causes Court, VT. I find that this is indeed a suspicious circumstance which has not been explained away.

36. Fifth, another factor which I find that would require explanation, is that fact that while it is the case of the Plaintiff that the Testatrix had dictated the said Will to the Plaintiff, why the Plaintiff would refer to herself in the third person and refer to her own mother has “Bhabhi”. Again, I find that there is not even an attempt on the part of the Plaintiff to explain this anomaly. Hence, for all of the aforesaid reasons for me, I find that the Plaintiff has failed to prove both Issue No. 1 and 2 and hence both the Issues are answered in the negative.

37. Hence, I pass the following order, viz. i. The Suit is dismissed. ii. The Prothonotary and Senior Master is directed to retain the Will in his custody. (ARIF S. DOCTOR, J.)