IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 74 OF 2011
IN
TESTAMENTARY PETITION NO. 970 OF 2009
PANNA SURENDRA MEHTA,
Hindu Inhabitant, one of the beneficiaries under the Last Will and Testament of the deceased, at present residing at Flat No. 502, Kirti Manor, Plot no. 2, S.V. Road, Santacruz (W), Mumbai - 400054 ... Plaintiff
versus
PURNIMA LATIK SHAH,
Hindu Inhabitant, presently residing at A-142, Narayankunj Vihar Society, Post Narmada Nagar, Bharuch, Gujarat- 392015
... Defendant
APPEARANCES FOR THE PLAINTIFF
Mr. T. G. Vora, i/b Mr. D. R. Mishra
FOR THE DEFENDANT
Mr. G. S. Mansawala & Ms. Kusum Poojary
CORAM : G.S.Patel, J.
JUDGMENT RESERVED ON : 1st September 2016
JUDGMENT PRONOUNCED ON : 14th October 2016
JUDGMENT:
TABLE
OF CONTENTS
A.
PARTIES AND THE LITIGATION HISTORY ..................... 3
B.
THE WILL DATED 10TH AUGUST 2002 ........................... 5
C.
THE CAVEAT & AFFIDAVIT IN SUPPORT........................ 6
D.
ISSUES
...................................................................................
7
E.
THE EVIDENCE ON RECORD ............................................ 8
F.
RE: ISSUES NOS. 1 AND 2
.................................................. 10
G.
RE: ISSUE NO. 3
...................................................................17
H.
RE: ISSUE NO.
3A................................................................ 23
I.
CONCLUSION &
ORDER................................................... 28
14th
October 2016 Panna Surendra Mehta v Purnima Latik Shah |
1.
Jaswantbhai Natwarlal Jolia ("Jaswantbhai") died on 26th
January 2004.
a)
He left a Will dated 10th August 2002.
b)
The Plaintiff, Panna S. Mehta ("Pannaben"), seeks Letters
of Administration with Will Annexed to this Will. She is
Jaswantbhai's sister-in-law, his wife Veenaben's sister. Panna is one
of the beneficiaries of the Will. The major beneficiary is Panna's
son, Ashitkumar Surendra Mehta, also known as Asit Mehta ("Asit").
He
was also the sole executor named in the Will. Asit died on 18th May
2009.
2.
Jaswantbhai's wife, Veena, died on 3rd March 2000, about four years
before Jaswantbhai passed. Jaswantbhai and Veena had no children of
their own. Jaswantbhai had three sisters, Ramaben Krishnalal Shah,
Indiraben V Bankley and Trilochanaben T. Fozdar, and a brother
Kanhaiyalal Dalal. Ramaben and Indiraben died before Jaswantbhai. He
was, therefore, survived by Trilochanaben and Kanhaiyalal, his
surviving siblings.
3.
After Jaswantbhai died, Asit sought probate. He filed Testamentary
Petition No. 243 of 2004. That petition was opposed by Trilochanaben
and by three of Ramaben's children (Panna, Jitendra and Kishore). It
was renumbered as Testamentary Suit No. 22 of 2004. Kanhaiyalal died
on 10th May 2007 without leaving any heirs. Asit filed Notice of
Motion No.104 of 2007 to dismiss the caveats filed by Ramaben's
children, contending that they had no caveatable interest, since, at
the time when succession opened, Jaswantbhai's heirs in law were
Trilochanaben and Kanhaiyalal, and they took before, in preference
to, and to the exclusion of Ramaben's children. The Notice of Motion
succeeded, and Ramaben's children's caveats were dismissed.
4.
Asit died on 15th May 2009 and it was then held that his probate
petition abated. On 30th September 2009, his mother, Pannaben,
filed the present petition for Letters of Administration with Will
Annexed seeking to prove Jaswantbhai's Will. On 25th November 2009,
Trilochanaben filed Testamentary Petition No. 45 of 2010 for Letters
of Administration to Jaswantbhai's estate.
Pannaben
filed a Caveat, and this was renumbered as Testamentary Suit No. 118
of 2010. On 1st November 2010, Trilochanaben died in Mumbai. She left
a Will dated 11th February 2008. In this, she purported to make
bequests of her share, if any, from Jaswantbhai's estate inter alia
to her own children and to the children of her deceased sister,
Ramaben.
3.
Ashitkumar Surendra Mehta v Trilochanaben Thakorlal Fojdar, 2008 (4)
Bom. C.R. 372.
4.
Order dated 4th September 2009, following the decision of the
Division Bench in Thrity Sam Shroff v Shiraz Byramji Anklesaria, 2007
(4) Mh. L.J. 56.
The
correctness of this decision has been doubted in the Division Bench
decision in Haresh Chetan Thadani v Komal Suresh Chainani, Appeal No.
1 of 2015, decided on 27th January 2015, in appeal from an order I
passed on 16th December 2014 allowing a Chamber Summons for
conversion of a probate Petition into one for Letters of
Administration with Will Annexed. The Division Bench in Thadani held
that in Thrity Sam Shroff, the Court's attention had not been drawn
to the decision of the Supreme Court in Shambu Prasad Agarwal &
Ors. v Bhola Ram Agarwal, (2000) 9 SCC 714.
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5.
On 1st April 2011, Trilochanaben's daughter, Purnima Latik Shah
("Purnima") filed a Caveat in the present Petition for
Letters of Administration with Will Annexed brought by Pannaben. On
16th January 2013, Jitendra Krishnalal Shah and Jaisukh Krishnalal
Shah, two of Ramaben's children, filed Caveats in the present
Petition. Pannaben filed Notice of Motion No. 49 of 2013 for
discharge of those Caveats. The Motion succeeded: the two Caveats by
Jitendra and Jaisukh were discharged.5 Thus, Ramaben's children had
twice opposed proof of Jaswantbhai's Will: first in the Probate
Petition filed by Asit and again in the Petition for Letters of
Administration with Will Annexed filed by Pannaben. Both oppositions
failed. The surviving opposition to the present Petition is only,
therefore, by Purnima.
B.
THE WILL DATED 10TH AUGUST 2002
6.
I turn now to the physical aspect of the Will dated 10th August 2002.
This is a two-page document typed in English. Jaswantbhai's
signatures appear on both pages. The attesting witnesses to this Will
are Mr. Kirit Damania, an Advocate & Solicitor of this Court, and
one Ms. Shree Kumary S. Mr. Damania was Jaswantbhai's friend and
legal advisor. Ms. Shree Kumary S was his stenographer. In the
document, the testator refers to himself as "Jaswantbhai";
he signs it as "Jaswantlal". This, as we shall see, is of
significance because it is central to Purnima's opposition that he
was never known by this name but only as "Jaswantlal". In
the Will,
5.
Panna Surendra Mehta v Jaisukh Krishnalal Shah & Anr., 2014 (3)
ALL MR 341 : 2014 (3) Mh. L.J. 724; per R. D. Dhanuka, J.
14th
October 2016 Panna Surendra Mehta v Purnima Latik Shah | Reportable
TS-74-2011-PANNA V PURNIMA-F1.DOC Jaswantbhai sets out his properties
and assets in some detail. He makes an absolute bequest in favour of
his nephew, Ashitkumar (alias Asitkumar, alias Asit), and directs him
to take charge of his entire estate. He also devises and bequeaths
all his gold and other valuable ornaments and silver utensils in
equal shares to 1) Devyani H. Kapadia (Pannaben's sister) and 2)
Pannaben. The Will also speaks of a flat at Kirti Manor on S.V. Road,
Santacruz (W). The words "with two garages" are
handwritten. Then there is the signature of the testator on the first
page.
C.
THE
CAVEAT & AFFIDAVIT IN SUPPORT
7.
In her Affidavit in Support of her Caveat, Purnima alleges that this
Will is forged, fabricated and unnatural.6 She takes these grounds:
(a)
Purnima says that the name on the Will is 'Jaswantbhai Natwarlal
Jolia' and not 'Jaswantlal Natwarlal Jolia', which was his 'real'
name. She claims he was never known as Jaswantlbhai. The Defendant
also relies on the death certificate,7 bank account details8 and
certain share certificates9 to substantiate her claim.
(b)
Purnima claims that Jaswantlal's signature was obtained on a blank
paper; the Will had been drawn
6.
Affidavit in Support of the Caveat, pp. 37-47.
7.
Exhibit "A" in evidence, Vol. D, p. 224.
8.
Not received in evidence.
9.
Ex. D-5, Vol. D., p. 386.
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TS-74-2011-PANNA V PURNIMA-F1.DOC thereafter and that the signature
itself is of Jaswantlal Jolia and not Jaswantbhai Jolia.
(c)
Purnima alleges that Asit coerced Jaswantlal into signing the Will;
(d)
Finally, Purnima sets up an affirmative case that Jaswantlal always
treated Purnima as his own daughter and, therefore, he would have
confided in her and brought to her notice his intention to create a
Will.
ig
D. ISSUES
8.
Mrs. R.P. Sondurbaldota J framed and settled issues on 1st March
2012.10 On 1st September 2016, I framed an additional issue, parties
having agreed. The final issues are set out below with my findings
against each.
Sr
No Issue Findings
1.
Whether the Plaintiff proves that Will dated 10th August 2002 is the
last Will and In the affirmative.
testament
of Mr. Jaswantbhai Natwarlal Jolia?
2.
Whether Plaintiff proves that the said Will dated 10th August 2002 is
validly executed In the affirmative. by the deceased as per provision
of law?
3.
Whether Defendant proves that the said Will is forged and fabricated
by the In the negative. Plaintiff?
3A.
Whether the Defendant proves that the In the negative.
10.
Vol. A, pp. 48-49.
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TS-74-2011-PANNA V PURNIMA-F1.DOC Will in question is unnatural?
4.
What Order?
As
per final order.
E.
THE EVIDENCE ON RECORD
9.
The Plaintiff examined herself (PW1) and Mr. Kirit Damania, an
attesting witness (PW2).
10.
The Defendant led the evidence of nine witnesses:
DW1:
the Defendant herself;
(2)
DW2:Dr. Sandeep Borse, a doctor at the P.D. Hinduja National Hospital
& Medical Research Centre, Mahim in the Neurology department;
(3)
DW3: Dr. Parinaz Humranwala, a Consulting Homeopath;
(4)
DW4: Dr. P. Marfatia, a medical practitioner;
(5)
DW5: Dr. Deepak Rajani, another medical practitioner;
(6)
DW6: Ajay Barve, Chief Branch Manager, Bank of Maharashtra, Tardeo
Branch;
(7)
DW7: Mrs. Kumudini Sequeira, Branch Manager, Bank of Maharashtra,
Khar West Branch;
(8)
DW8: Chandmal B. Chhajed, a Chartered Accountant;
14th
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TS-74-2011-PANNA V PURNIMA-F1.DOC (9) DW9: Sankaran Nair, Chief
Manager, Indian Overseas Bank, Santa Cruz Branch.
11.
The Plaintiff led four documents in evidence:
(1)
Ex. "A": Jaswantbhai's death certificate as Ex. "A";11
(2) Ex. "B": the Will in question, of 10th August 2002, as
Ex. "B";12 (3) Exs. "P" and "P1": true
certified copies of property tax and land revenue issued by the
Talati, Gram Panchayat, Kabilpur, Taluka District Navsari, Gujarat in
respect of a bungalow known as Vina Villa.13
12.
The Defendant put seven documents into evidence:
(1)
Ex. "D": undated letter from Jaswantbhai to the Branch
Manager, Bombay Mercantile Cooperative Bank;14 (2) Ex. D1: letter
dated 12th March 2001 from Jaswantbhai to M/s C. B. Chhajed &
Co.15 (3) Ex. D2: A Share Certificate dated 1st January 1980 of the
Kirti Manor flat.16
11.
Vol. D, p. 224.
12.
Copy at Vol. D, pp. 225-226. Original deposited in Court.
13.
Vol. D-1, p. 373.
14.
Vol. D, p. 227.
15.
Vol. D, p. 228.
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(d)
Ex. D3 (Colly): The original bills in respect of the flat at Kirti
Manor.17
(e)
Ex. D4: Letter dated 8th March 1999 in Gujarati on the letterhead of
ACME Manufacturing & Agencies.18
(f)
Ex. D5 (Colly): Share certificate dated 1st February 1988;19
Possession Receipt;20 Four maintenance receipts dated 29th June 2012,
29th June 2012, 27th April 2012 and 27th April 2012;21 Five
electricity bills from the Gujarat State Electricity Board;22 Letter
dated 2nd April 2004 from Jaswantbhai.23
(g)
Ex. D6 (Colly): Four receipts -- two receipts in respect of Shop No.
20;24 two receipts in respect of Garage/Godown No.7.25
13.
The burden of these two issues is on the Plaintiff. They need to be
addressed together. The requirements of a valid unprivileged
16.
Vol. D-1, p. 374.
17.
Vol. D-1, p. 375-384.
18.
Vol. D-1, p. 385.
19.
Vol. D-1, p. 386.
20.
Vol. D-1, p. 387.
21.
Vol. D-1, pp. 388-391.
22.
Vol. D-1, pp. 392-396.
23.
Vol. D-1, p. 397.
24.
Vol. D-1, pp. 398-399.
25.
Vol. D-2, pp. 400-403.
14th
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TS-74-2011-PANNA V PURNIMA-F1.DOC Will are well known. The testator
must be an adult of sound mind.26 He must be shown to have made the
Will of his own volition and without any importunity as might rob him
of free agency.27 He must sign the Will intending it to be such a
document. The execution of the Will must be attested by at least two
witnesses. Both need not be present at the same time, but each must
have seen the testator sign the Will.28
14.
As to the actual execution, we have the evidence of PW2, Mr. Kirit
Damania, an Advocate & Solicitor of this Court. He filed an
Affidavit in lieu of Examination-in-Chief.29 He says he knew the
testator both as Jaswantlal and Jaswantbhai; they were family friends
since 1977. Mr. Damania is aware that Veenaben died earlier on 3rd
March 2000. Mr. Damania has an office at Nariman Point and another at
Khar. On 10th August 2002, Jaswantbhai came to Mr. Damania's Khar
office. There, in the presence of Mr. Damania and his stenographer,
Ms. Shree Kumary S., Jaswantbhai signed the Will. Then Mr. Damania
and Ms. Shree Kumary S. signed it as witnesses. Mr. Damania says that
Jaswantbhai knew English well and that before signing the Will, he
went through it and only executed it after understanding its
contents. Mr. Damania identifies the signatures on the Will.
26.
Succession Act,
Section 59.
27.
Succession Act,
Section 61.
28.
Succession Act,
Section 63. The
Section allows the making of a mark or the signature on behalf of the
testator by another and at his direction; each attesting witness must
either see the testator sign, make or make another sign the Will or
receive a personal acknowledgement of the signature, mark or other
person's signature from the testator.
29.
Vol. C, pp. 82-84; further cross-examination, Vol. C, pp. 85-87.
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15.
Mr. Damania was cross-examined, though very briefly.30 The very first
question put to him was whether this was the first time Mr. Damania
had said that Jaswantbhai and Jaswantlal were the same person. The
question is itself peculiar; Mr. Damania had no occasion to say
anything of the kind before; at the time when the Petition was filed,
there was no Caveat and this case by Purnima, that Jaswantbhai and
Jaswantlal do not refer to the same person, had never been put up
before. It is difficult to comprehend why such a question was put at
all; it invited a riposte and, predictably, this followed, for Mr.
Damania promptly said that that he knew the deceased as Jaswantlal N.
Jolia and also Jaswantbhai N. Jolia. Now this was a frontal blow to a
principal defence, and it came very early in the proceedings. To my
very great surprise, I find that this answer was not further tested
at all; the entire line of question was simply abandoned, and the
testimony of Mr. Damania, therefore, obtained in cross-examination,
remained uncontroverted. The only question that came is whether, when
he drafted the Will, Mr. Damania did not state (presumably in the
Will) that Jaswantbhai N. Jolia was also known as Jaswantlal N.
Jolia. To this, Mr. Damania said yes; as indeed he had to, because
that is what the Will says. Nothing in law requires that every alias
or nickname must be inserted into every document; and Purnima's case
that Jaswantbhai was only ever known as Jaswantlal is her affirmative
case, the burden of proving which is squarely on her. In any case, it
is difficult to see to what issue these questions are directed.
30.
Vol. C., pp. 87-89.
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16.
Mr. Damania was asked if he knew that Jaswantbhai was unwell four
years before his death; Mr. Damania said yes, but did not know of a
hospitalization.31 He was then asked if during his last days,
Jaswantbhai was unable to walk and suffered from a lack of memory. To
this, Mr. Damania responded saying that for at least a year prior to
his death, the testator could move about and had a good memory.32
Again, this was an answer that ought to have been tested further in
cross-examination but was not. It remains uncontroverted.
17.
The time frame of these questions is unhelpful. The Will is of 10th
August 2002. Jaswantbhai lived for a good two years after, and died
on 26th January 2004. The first of the questions about his health
relates to a period of four years before 10th August 2002, i.e.,
about 1998; and that is, therefore, irrelevant. The second is vague
when it speaks of 'last days', and in any case is fully met by Mr.
Damania's answer, that at least for a year before his demise, i.e.,
for a year after the making of the Will, Jaswantbhai was of sound
health and memory. The result of this testimony is, of course, to
immediately shift the burden onto Purnima to show that Jaswantbhai
lacked the necessary testamentary capacity.
18.
It is the Defendant's case that Jaswantbhai was not of sound mind and
body. In paragraph 7 of her Affidavit in support of Caveat,33 Purnima
says that after Veenaben died, Jaswantlal was confined to bed and was
suffering from paralytic attacks. This is not
31.
PW2 cross-examination, Vol. C, Qns. 18-19, p. 88.
32.
PW2 cross-examination, Vol. C, Qn. 20, p. 88.
33.
Vol. A, p. 40.
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TS-74-2011-PANNA V PURNIMA-F1.DOC enough to show testamentary
incapacity. The law does not require a testator to be in absolutely
perfect health; were it so, almost no testator could ever make a Will
(though perfectly capable of rendering judgment in Court). Persons
with speech, hearing or visual impairments may make Wills.34 A person
not of sound mind may also do so in an interval of lucidity.35 What
is relevant is testamentary capacity on the date of execution of the
Will.
19.
To demonstrate testamentary incapacity, Purnima had to show either
that Jaswantlal was, on account of his condition of paralytic
attacks, never, i.e., at no point in time, in a sufficiently lucid
state of mind to make a testamentary instrument, or, alternatively,
that on the day in question, 10th August 2002, he was so
incapacitated that he could not possibly have made the Will. It is
not for the Plaintiff, Pannaben, to show those conditions did not
exist. Purnima must show they did. It is enough for Pannaben to show
that at the time of the Will, Jaswantlal was of sufficiently sound
mind. In his evidence, Mr. Damania, PW2, clearly said that on the day
of execution of the Will, Jaswantlal himself came to his office, read
the Will, understood it, and then executed it.
20.
Though Purnima called very many medical practitioners to give
evidence, none of it establishes testamentary incapacity. The only
relevant testimony is from DW4, Dr. P. Marfatia. After a short
34.
Succession Act,
Section 59,
Explanation 3.
35.
Succession Act,
Section 59,
Explanation 4.
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TS-74-2011-PANNA V PURNIMA-F1.DOC examination-in-chief,36 Dr.
Marfatia was cross-examined.37 This is most revealing:
Q.16.
Who introduced J. N. Jolia to you?
Ans.
I do not recollect who called up, but on 16.10.2002, somebody called
up and requested me to visit Mr. Jolia.
Q.18.
At which place did you examine Mr. Jolia?
Ans.
I examined him at the residential place of Jolia at Kirti Manor.
Q.19.
I put it to you that prior to 16.10.2002, you did not meet Mr. Jolia
at any point of time?
Ans.
Yes.
Q.20.
Why did you not advise Mr. Jolia, after his examination, to get
himself admitted in the hospital?
Ans.
At the time of my examination of Mr. Jolia, his general condition was
not bad.
Q.21.
Then, what was the reason you were called to examine Mr. Jolia?
Ans.
Mr. Jolia had difficulty in breathing.
36.
Vol. C, pp. 154-156 .
37.
Vol. C, pp. 157-159.
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TS-74-2011-PANNA V PURNIMA-F1.DOC Q.22. Do you agree that the
breathing problem was not that serious and therefore you did not
advise Mr. Jolia to get admitted in the hospital?
Ans.
l agree.
Q.23.
How many times you examined Mr. Jolla?
Ans.
Only once i.e. on 16.10.2002.
21.
It is, in my judgment, thoroughly unreasonable to say that this is
evidence of testamentary incapacity. To the contrary, it is clear
that Jaswantbhai had a transitory issue on 16th October 2002 (several
months after he made his Will on 10th August 2002); that it was
admittedly not serious; and, in fact, was so trivial that the doctor
who saw him did not see him for this complaint ever again. This is no
evidence of want of testamentary capacity on 10th August 2002, the
date of the Will.
22.
The other doctors contribute nothing to this, and I do not propose to
spend further time labouring their evidence. DW2, Dr. Borse, spoke of
Jaswantbhai's hospitalization in 1998. That is not denied. It is,
however, wholly irrelevant and does not prove testamentary incapacity
four years later in 2002. In any case, Dr. Borse had no personal
knowledge about Jaswantbhai's condition.
Dr.
Humranwala, DW3, also on a summons like Dr. Borse, is a homeopath.
She deposed that Panna Shah (not the Plaintiff; Ramaben's daughter)
came to her on 5th April 2004 -- after Jaswantbhai's death and of
which Dr. Humranwala was unaware -- for a medical certificate saying
that she had examined Jaswantbhai 14th October 2016 Panna Surendra
Mehta v Purnima Latik Shah | Reportable TS-74-2011-PANNA V
PURNIMA-F1.DOC on 23rd January 2003 at his residence. That
certificate was not marked in evidence as the original was not
produced. She had examined him earlier at her clinic in 1996 and
again in 1998. He did not visit her clinic thereafter. In her
Affidavit in lieu of Examination- in-Chief, Dr. Humranwala says
Jaswantbhai had diabetes, hypertension, bronchial asthma and 'chronic
renal failure'. Of this last, there is no evidence at all; and, as
for the others, they are not in and of themselves sufficient to
support a theory that Jaswantbhai was too incapacitated to make a
Will. Importantly, Jaswantbhai lived for another six years after his
last visit to Dr. Humranwala. DW5 was Dr. Rajani, a physician at the
Mahavir Medical & Research Centre, where Jaswantbhai was
hospitalized for a two days between 19th and 21st August 2003. The
original records were not produced and are not in evidence.
23.
There is nothing, I note, to controvert Mr. Damania's evidence of the
actual execution and attestation of the Will. As to the second
aspect, viz., testamentary capacity, there is no material to indicate
that Jaswantbhai lacked it in the slightest on the day he made the
Will. The inevitable result is that Issues Nos. 1 and 2 are proved.
24.
Paragraph 4 of Purnima's Affidavit in Support of her Caveat contains
several contradictory statements. In that Affidavit, she claims his
signature was taken on blank paper. In paragraph 4, she says that on
a second reading, he handwrote a correction regarding 14th October
2016 Panna Surendra Mehta v Purnima Latik Shah | Reportable
TS-74-2011-PANNA V PURNIMA-F1.DOC two garages. This demolishes her
case of the signature being taken on blank paper; but also says that
the papers were signed by the testator as Jaswantlal (though the name
on the Will is Jaswantbhai);
and
this further contradicts her case that the two are different persons.
She seems to accept his signature on the first page but not the
second.
25.
The evidence of the Plaintiff herself, Pannaben, is actually relevant
on only one aspect of the matter. In her Affidavit in lieu of
Examination-in-Chief, she says clearly that the testator was known
both as Jaswantbhai and Jaswantlal.38 In her further examination-in-
chief,39
the Plaintiff said the Will was of Jaswantlal N. Jolia.40 In
cross-examination, a most peculiar suggestion was put to her:
Q.23
I put it to you that the Will was made by Jaswantlal N. Jolia and not
by Jaswantbhai N. Jolia?
A.
I state that the Will was made by Jaswantlal N.
Jolia.
26.
Now, apart from the Pannaben's unequivocal refutation of the
suggestion, what is important is the suggestion implicit in the
question. If it is, therefore, shown that Jaswantlal and Jaswantbhai
are the same person, then on this case placed by the Defendant
herself the Testamentary Suit must succeed; for it admits the
execution of the Will but only disputes the identity of the maker of
it.
38.
PW1, Evidence Affidavit, Vol. C, pp. 50-55; paragraphs 7 and 8, p.
54.
39.
Vol. C, pp. 56-57.
40.
Vol. C, Qn. 3, p. 57.
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27.
Later, Pannaben said that Jaswantlal N. Jolia was the family name or
he was so known to the family, but in business circles he was known
as Jaswantbhai. This is of some significance, because among
Gujaratis, the word 'bhai' is an honorific and a frequently used term
of respect. Yet again, there is no follow through on this answer and
it remains untested.
28.
What follows, however, is as baffling as it is crucial. The Plaintiff
was confronted with an undated letter from the testator to the Branch
Manager of the Bombay Mercantile Cooperative Bank. This was marked in
evidence.41 This letter was signed by the testator as "Jaswantlal
N. Jolia". His name appears in that fashion in handwriting below
his signature. But the letterhead describes him as "Jashwantbhai
N. Jolia". I cannot begin to imagine how and why this document
could have been considered as being of the slightest assistance to
the Defendant's cause. To the contrary, it seems to me that this one
document totally eviscerates her defence that the testator was never
known as Jaswantbhai but only ever as Jaswantlal, and fully
establishes the Plaintiff's case that he was known as both.
29.
I should have thought this was sufficiently damaging to the
Defendant's case, a most grievous self-inflicted wound. But it did
not stop there. The Defendant then confronted the Plaintiff with
another document, a letter dated 12th March 2001 from Jaswantbhai to
his Chartered Accountants, M/s C. B. Chhajed & Co.42 Like the
previous letter to the Bombay Mercantile Cooperative Bank, this is
41.
Vol. D, Ex. "D", p. 227.
42.
Vol. D, Ex. "D-1", p. 228.
14th
October 2016 Panna Surendra Mehta v Purnima Latik Shah | Reportable
TS-74-2011-PANNA V PURNIMA-F1.DOC also on Jaswantbhai's residential
letterhead.43 The printed letterhead is clearly "Jashwantbhai N.
Jolia". The document was marked as the Defendant's document, and
she admits it was signed by the testator. In cross-examination, the
Plaintiff was asked if she was aware that the letter was addressed by
Jaswantlal N. Jolia to M/s C. B. Chhajed & Co; she said yes.44
30.
Quite apart from these two answers being utterly fatal to the
Defendant's case on the question of a difference in identity, it must
be noted that in the two printed documents, the letterhead shows the
testator's name (and there is no doubt that it was the deceased who
signed both) as "Jashwantbhai"; i.e., there is yet another
variant in the name, one that is clearly as irrelevant as the
difference between Jaswantlal and Jaswantbhai.
31.
I turn next to the evidence of DW8, Mr. Chandanmal B.
Chhajed,
a Chartered Accountant with M/s. C. B. Chhajed & Co.
He
filed an Affidavit in lieu of Examination-in-Chief,45 and was briefly
further examined in chief.46 He claimed to have a photocopy
43.
502, Kirti Manor, Plot No. 3, SV Road, Santacruz (W), Mumbai 400
054.
44.
Cross-examination of PW1, Plaintiff, Qn. 33, Vol. C, p. 62. The
follow up question, Qn. 34 at Vol. C, p. 63, seems to have been
incorrectly revised. The suggestion to PW1 was whether the letter was
on the letterhead of Jaswantlal N.
Jolia
and not on the letterhead of Jaswantbhai N. Jolia. It is the other
way around, as the document itself shows; and the initial recording
and noting during the cross-examination was correct. For this reason,
too, the later questions, Qns. 36 and 37, at Vol. C, p. 65,
suggesting that the letterheads were of Jaswantlal and not
Jaswantbhai were misleading and inaccurate. No other letterheads with
these letters were ever produced.
45.
Vol. C, pp. 187-188.
46.
Vol. C, pp. 189-190.
14th
October 2016 Panna Surendra Mehta v Purnima Latik Shah | Reportable
TS-74-2011-PANNA V PURNIMA-F1.DOC of Ex. D-1, the letter dated 12th
March 2001 to him by the deceased.
He
referred to this letter in his examination-in-chief. The cross-
examination that followed reads thus:
Q.14.
Is it true that the photocopy of letter dated 12-3-2001 is typed on
the letterhead of 'Jaswantbhai N. Jolia'?
Ans.
Yes.
Q.15.
I put it to you that "Jaswantlal N. Jolia" was also known
as "Jaswantbhai N. Jolia".
Ans. I used to call him or address him as
"Jaswantbhai".
.16.
Would it be correct to say that "Jaswantlal N. Jolia" and
"Jaswantbhai N. Jolia" were one, and the same person?
Ans.
Yes.
32.
This is the last nail in the defence's coffin. The Defendant's own
witness deposes that her case, of the two being different, and of the
testator never being known as, or using, the name "Jaswantbhai"
is untrue. There are other documents that the Defendant put into
evidence, too, such as the share certificate at Ex. "D-4",47
admitted by the Defendant to be signed by the deceased and showing
his name, written in Gujarati, as 'Jaswantbhai'.
47.
Vol. D-1, p. 386.
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33.
The evidence of DW6, DW7 and DW9 carries the matter no further. None
knew Jaswantbhai personally, but only in their professional capacity
as bank managers at their respective banks.
Their
testimonies before the Commissioner do not assist the Defendant's
case in any way.
34.
There is absolutely no substance to the case that the testator was
never known as Jaswantbhai but only ever as Jaswantlal. The evidence
the Defendant herself led destroys her case as pleaded that the Will
was fabricated.
35.
On the question of forgery, there is no evidence whatever and, again,
the Defendant's own pleadings, admissions in the cross-
examination
in questions, and on documents falsifies any such case.
36.
As to the case on 'undue influence',48 there is no evidence at all.
To invalidate a Will, undue influence must be established as a fact.
The actual exercise of that undue influence on the testator, and
which is in the nature of coercion and fraud, must also be
demonstrated.49 It is not enough to show that one person was in a
position or had the power to overbear the testator; it must be shown
that Will was the result of the exercise of that power.50 Generalized
48.
Pleaded, after a fashion in paragraph 7 of the Affidavit in Support
of the Caveat, Vol. A, p. 40; no issue separately framed on this.
49.
Mt. Gomtibai v Kanchhedilal & Ors., AIR 1949 PC 272.
50.
Wingrove v Wingrove, [1885] 11 PD 81.
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October 2016 Panna Surendra Mehta v Purnima Latik Shah | Reportable
TS-74-2011-PANNA V PURNIMA-F1.DOC allegations will not do: undue
influence is to pleaded with specificity, particularity and
precision.51
37.
Issue No. 3 must be answered in the negative.
H.
RE: ISSUE NO. 3A
38.
Purnima alleges that the Will is unnatural: she was so close to
Jaswantlal that he could not have made a Will without telling her
about it. In the Affidavit in Support of her Caveat, she says:52 "I
say that Shri Jaswantlal was my maternal uncle and had always treated
me like his own daughter and I used to live with him for months
together since my childhood. He used to visit my house whenever he
was in Bharuch. He would have confined in me and made me know his
intention for Will if really the Will was made by him and hence I
fear that some foul play has been played in making out his Will".
39.
In her Affidavit in lieu of Examination-in-Chief, Purnima said:53 "3.
... The deceased Jaswantlal always treated me like his daughter, and
I used to live with him for months
51.
Afsar Shaikh & Another v Soleman Bibi & Ors., (1976) 2 SCC
142.
52.
Vol. A, paragraph 12, pp. 43-44.
53.
Vol. C, p. 93.
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October 2016 Panna Surendra Mehta v Purnima Latik Shah | Reportable
TS-74-2011-PANNA V PURNIMA-F1.DOC together since my childhood.
Whenever Shri Jaswantlal was in Bharuch, he used to visit my house in
Bharuch.
4.
... He confided in me and used to discuss matters of his property. He
never told me about any Will as made by him."
40.
Purnima was cross-examined on these assertions.54 She was unable to
maintain her case in cross-examination:
Q.62.
When did you shift at Bharuch, Gujarat?
Ans.
I shifted to Bharuch, Gujarat in 1987.
Q.63.
ig
Please state the date and the month when you shifted to Bharuch,
Gujarat?
Ans.
It was in May, 1987.
Q.79.
Would it be correct to say that your permanent address is at Bharuch?
Ans.
Yes.
Q.80.
Whether you are having your own residential accommodation at Bharuch?
Ans.
Yes. We have got our own bungalow at Bharuch. I state that on
occasions, we also visit Mumbai and stay at Vasai.
Q.98.
Did you attend his funeral?
Ans.
No. I did not attend.
Q.101.
When you last met Jaswantlal alias
54.
Vol. C., pp. 101-140.
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October 2016 Panna Surendra Mehta v Purnima Latik Shah | Reportable
TS-74-2011-PANNA V PURNIMA-F1.DOC Jaswantbhai N. Jolia before his
death?
Ans.
It was in 2003.
Q.102.
Do you remember the month when you met Jaswantlal alias Jaswantbhai
N. Jolia in 2003?
Ans.
It was in May 2003.
Q.125.
Do you remember what did you state in that affidavit?
Ans.
In the said affidavit I stated that the Last Will ig of Jaswantlal
alias Jaswantbhai N. Jolia is false.
Q.126.
Before filing your affidavit in response to the citation, did you
take inspection of the original Will from the Hon'ble High Court?
Ans.
No. Q.127. In that event, on what basis you filed your affidavit in
support of the Caveat pleading therein that the Last Will of
Jaswantlal alias Jaswantbhai N. Jolia is false? Ans. I filed the
affidavit on the basis that my maternal uncle Jaswantlal alias
Jaswantbhai N. Jolia could not have made such a Will.
Q.128.
Would it be correct to say that it was your presumption which is not
supported by any evidence that your maternal uncle Jaswantlal alias
Jaswantbhai N. Jolia could not have made such a Will?
14th
October 2016 Panna Surendra Mehta v Purnima Latik Shah | Reportable
TS-74-2011-PANNA V PURNIMA-F1.DOC Ans. Yes. I have no evidence.
(Emphasis
added)
41.
These answers do not further Purnima's case of being so close to
Jaswantbhai that he would, of necessity, and by reason of that close
affinity, told her of the Will. She did not attend his funeral; she
last saw him in May 2003 -- several months before he died; and she
also alleges that he was critically unwell (of which, of course,
there is no evidence either). When she admits that she has no
evidence that Jaswantbhai could not have made such a Will, and that
this is her presumption, what she is actually saying is that she has
no evidence of such closeness that Jaswantbhai would never have
excluded her from his Will.
42.
Mr. Mansawala's reliance of the decision of the Delhi High Court in
Lalita Sharma v.
Sumitra Sharma55 does not, in my view, carry his case further.
There, Kailash Gambhir J only said that where the dispositions in the
Will are unnatural and the Will is propounded by a major beneficiary,
the burden lies heavily on the propounder. But to get to that
proposition, it must first be established that the dispositions are
unnatural. This is not to be assumed; it must be pleaded and it must
be proved. By her own admission, Purnima only speculates; she says
she has no proof of this so-called closeness or that Jaswantbhai
would have confided in
55.
178 (2011) DLT 358.
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October 2016 Panna Surendra Mehta v Purnima Latik Shah | Reportable
TS-74-2011-PANNA V PURNIMA-F1.DOC her of the making of his Will. As
the Supreme Court said in Madhukar D. Shende v Tarabai Aba Shedage,56
cited by Mr. Vora:
"8.
... The conscience of the court has to be satisfied by the propounder
of the will adducing evidence so as to dispel any suspicions or
unnatural circumstances attaching to a will provided that there is
something unnatural or suspicious about the will. The law of evidence
does not permit conjecture or suspicion having the place of legal
proof nor permit them to demolish a fact otherwise proved by legal
and convincing evidence. Well-founded suspicion may be a ground for
closer scrutiny of evidence but suspicion alone cannot form the
foundation of a judicial verdict
-
positive or negative."
(Emphasis
added)
43.
The mere fact that some heirs are excluded is not per se evidence of
a Will being unnatural; every Will disrupts the ordinary line of
succession, and this is obvious.57 Were it otherwise, there would be
no need for Wills. As against Purnima's lack of evidence, there is
the evidence of Pannaben, elicited in her cross-examination, that her
son, Asit, stayed with Jaswantbhai.58 She said she had some proof of
this, but not complete proof. This is in sharp contrast to Purnima's
case, of which she has no proof at all.
56.
(2002) 2 SCC 85.
57.
Pentakota
Satyanarayana & Ors. v. Pentakota Seetharatnam & Ors.,
(2005) 8 SCC 67.
58.
Vol. C., cross-examination of Plaintiff, Qns. 47-49, p. 67; Qn.
62-64, pp. 73-74.
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44.
Issue No. 3A must, therefore, be answered in the negative.
I.
CONCLUSION & ORDER
45.
The testamentary jurisdiction is one of caution, not suspicion.59
Where nothing is shown against the reasonable nature of a Will, and
there are no suspicious circumstances, the propounder's onus is
discharged. On an overall assessment, it seems to me clear from the
record that Jaswantbhai, himself childless, was close to Pannaben and
her son, and treated her son (Asit) as his own.
Issues
such as undue influence, coercion, forgery or the Will being
unnatural cast the burden not on the propounder, but on he or she who
alleges these things.60 Again, these are not matters to be presumed.
Where there are reasons shown for exclusion and for favouring one
over others -- and, again, there is no statutory prescription that a
Will must favour all heirs -- and the execution of the Will is
satisfactorily established, the propounder's burden must be held to
have been discharged.61 It is never correct or proper to emphasize
only one feature and to ignore other circumstances; an overall view
is always the correct approach.62
59.
H. Venkatachala Iyengar v B. N. Thimmajamma & Ors., AIR 1959 SC
443.
60.
Daulat Ram & Ors. v Sodha & Ors., (2005) 1 SCC 40; Sridevi &
Ors. v Jayaraja Shetty & Ors., (2005) 2 SCC 784; Savithri &
Ors. v Karthyayani Amma & Ors., (2007) 11 SCC 621.
61.
Mahesh Kumar v Vinod Kumar & Ors., (2012) 4 SCC 387.
62.
Leela Rajagopal & Ors. v Kamala Menon Cocharan & Ors., (2014)
15 SCC
570.
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46.
The suit succeeds, and is decreed with costs. The caveat is
dismissed. The Registry will proceed to issue Letters of
Administration with Will Annexed in respect of the Will dated 10th
August 2002 of Jaswantbhai alias Jaswantlal Natwarlal Jolia.
47.
The drawn up decree or order is dispensed with. The Registry is not
to raise any objections or requisitions regarding service of
citations. Given that the Petition is of 2009, pending for seven
years already (and that a probate was first sought even earlier in
2004, i.e., 12 years ago), Letters of Administration with Will
Annexed are to be issued no later than by 30th November 2016. For
these reasons, and since, too, I have found not a shred of substance
in the defence, the application for stay of this order is refused.
48.
The registry will act on an authenticated copy of this order.
(G.S.
PATEL, J.) 14th October 2016
