husbands who create wills beware!, your wife wil come back contesting the will!! read here to know more!!
* at about 40+ husband marries wife
* at that time wife is aready a divorcee
* she leaves husband and goes away
* husband files dowry cases, Restitution cases and divorce cases on husband
* husband's sister supports haplesss husband
* husband makes a will and leaves entire property for his first sister and something to the rest of the sisters
* wife comes back to contest will
* she claims forgery etc
* husband has executed will with proper witness and also registered the will
* will survives
* HC confirms that the husband exucuted the will with sound mind andd the will is valid
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
CASE FROM JUDIS DOT NIT DOT IN SITE
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
TESTAMENTARY SUIT NO.54 of 2010
TESTAMENTARY PETITION NO.744 of 2009
Smt. Harsha Mahendra Gutka @ Shah – Petitioner
Mahendra Premchand Shah – Deceased
Smt. Madhu Shantilal Shah – Caveator/Defendant
TESTAMENTARY SUIT NO.127 of 2010
TESTAMENTARY PETITION NO.175 of 2009
Mahendra Premchand Shah – Deceased
Smt. Madhu Shantilal Shah – Petitioner
Smt. Harsha Mahendra Gutka @ Shah – Caveator/Defendant
Ms. Rekha P. Safari for Plaintiff in TS No.54 of 2010 & Respondent in TP No.175 of 2009.
Ms. Sangita S. Katkar for Defendant in TS No.54 of 2010 & Petitioner in TP
Date of reserving the Judgment : 7th May, 2012.
Date of pronouncing the Judgment : 11th June, 2012
CORAM : MRS. ROSHAN DALVI, J.
1. The Petitioner / Plaintiff in Testamentary Suit No.127 of 2010 is the sister of the deceased Mahendra Premchand Shah whose last Will and2 TS No.54_2010-127_2010 testament dated 25th February, 2007 is sought to be propounded. The caveatrix is the wife of the deceased. The Will has been challenged on the ground that it is forged and / or executed under duress. The Petitioner must prove the valid execution of the Will as per law. The Petitioner must show that the deceased was in sound state of mind at the time of execution of the Will. The caveatrix must prove the forgery or duress.
2. Based upon the respective pleadings of the parties Justice D.G. Karnik, framed issues on 9th January,2012 which are as follows:
1 Does the Plaintiff prove that the writing dated 25th
February,2007 is the last Will and Testament of late
Mahendra Premchande Shah (testator) and the same was
duly executed and attested as required by law? Yes
2 Does the Plaintiff prove that the testator was in
sound state of mind when the Will was executed? Yes
3 Does the Defendant prove that the alleged Will
dated 25th February,2007 is fabricated and/or
4 Does the Defendant prove that the deceased was
under the control of his married and unmarried sisters
and the Will has been obtained by undue influence
and/or pressurisation by them? No
5 What order and decree? As per final order
3. The Petitioner has examined herself as well as both the attesting witnesses. The caveatrix has examined herself.
ISSUE NOS.1,3 & 4
4. The Will of the deceased is a computer print out running into 9 pages each of which is signed by the deceased at the foot thereof. The Will mentions the age of the deceased at the time of the execution, his relationship with his wife, the fact that he has giving no property to her, his relationship with his three sisters and how he has disposed of his moveable and immoveable properties essentially to one sister who lived with him and some to the sisters in equal share. The will expresses his gratitude towards his sisters and expresses that he was what he was because of his eldest sister who lived with him. The Will has been executed on 25th February, 2007 which date is also printed alongwith name of the deceased in the execution clause. The deceased has signed the execution clause. The two attesting witnesses are his friend and neighbour.
5. The Will has been registered on 18th June, 2007. The original registered Will has a Doctor's certificate attached thereto and the copies of two PAN cards of the two attesting witnesses who attended at the time of the registration. The registration shows the photograph, signature as well as finger print of the deceased. The relevant stamps of registration showing the seal of the Joint Sub Registrar, Andheri No.4, Mumbai, Bandra and the Registration number are printed on all the pages of the Will. The Registration receipt showing the registration fee is attached to the Will. The Will is registered under No.4616 and shows the number on all the pages of the Will. The registration receipt is also issued on 18th June, 2007, the date of the Registration, bearing No.4640.
6. The Will has been prepared by Mr. Nalin Kumar, Advocate whose name and address is mentioned on the docket of the Will.
7. It is such a Will, prepared by the Advocate, executed by the deceased, attested by the two witnesses, registered by the deceased in the presence of the attesting witnesses also that is sought to be propounded.
8. It is essential to understand the relationship between the parties as also between deceased and his attesting witnesses. The deceased expired on 12th August, 2008. His age is shown to be 51 years in his Will. He was, therefore, about 52 years when he died. The deceased was married when he is about 40 to 45 years of age. The caveatrix was then a divorcee. The deceased lived with his elder sister one Amrut, who was unmarried. The deceased had two other sisters, Kalawati who expired after the death of the deceased and the Petitioner who is a married sister and the executrix under the said Will.
9. The marriage of the deceased and the caveatrix was not happy. The caveatrix had filed petition for restitution of conjugal rights. The deceased had filed the Petition for divorce thereafter. Incidentally, the Petition for restitution of conjugal rights was filed by the caveatrix soon after the execution of the Will on 11th March,2007. The divorce petition was filed on 13th June, 2007 and the Will was registered soon thereafter on 18th June,2007. When the parties were agitating their dispute in the family court, the Will, if not forged, was already executed.
10. It has been the case of the both the parties that they were victims of cruelty. Cruelty and desertion is shown as ground of divorce. Whatever may be the cruelty alleged by the caveatrix, her petition was for restitution of conjugal rights which would mean and imply that she desired to live with the deceased notwithstanding the cruelty. The caveatrix had also admittedly filed criminal complaint against the deceased, as also the elder sister Amrut. She had alleged therein that she was driven out of the house. It is not material to go into those disputes. The fact remains that she had filed for restitution of conjugal rights, thereafter followed by Petition of divorce by the husband on the grounds of cruelty and desertion.
11. It is the claim of the Petitioner that the caveatrix has deserted the deceased. The evidence of the second attesting witness, who is the next door neighbour of the deceased, shows that he had attended the marriage of deceased and caveatrix and knew the caveatrix as his wife. But she had lived with the deceased for one and half years. It is claimed by the Petitioner that she had left matrimonial home. The cross examination of the caveatrix has shown that she lived between Andheri and Matunga, her matrimonial home and her paternal home.
12. What we are concerned with only is that the aforesaid facts did not show a happy marriage or the union of the deceased and caveatrix in matrimonial home. There were disputes between the parties and the parties did not live together. It is under these circumstances that the execution of the Will would have to be appreciated.
13. The Petitioner has shown she got the copy of the Will in a file. That was when she went to the factory/office premises of the deceased and found it in the file alongwith certain leave and license agreement executed by the deceased. She has identified the signature of the deceased. She was, however, not present at the time of the execution of the Will.
14. The cross examination of the Petitioner, the sister of the deceased, shows that she came to know about Will on 18th September,2008 when she went to collect the papers pertaining to a certain case at Girikunj Society. That is not shown to be the residential address of the deceased. She has clarified that it was lying in the factory premises. It was lying with the leave license agreement entered into with one Bhagwanbhai. The Will was seen in a file in drawer of the deceased.
15. She has explained the certificate of Doctor annexed to the original Will which is registered. The certificate shows that the Doctor knew the deceased, aged 51 years, residing at the particular address where the deceased resided and was his patient for 12 to 15 years and he had sound state of mind. It shows that the deceased has executed the Will in full senses and in sound mind. The certificate is shown to the Petitioner in her cross examination. The certificate shows the date 24th February,2007. Two horizontal lines are shown in the figure 4 of the date 24th. It is claimed by the Petitioner that the Doctor had given the certificate on 25th February, 2007. It was put to her that there was an interpolation in the date. There is some cross examination upon the day of the week when the Doctor's certificate was given. Her cross examination shows that it was Monday, 25th February,2007. She has deposed that because the Doctor came on Monday only. She has been put the case that the Doctor had given the certificate on 24th February. It is argued that though the certificate states that the deceased had executed his Will when he was in full senses, no Will is shown to have been executed on the 24th February, 2007. That shows changed date of the certificate and a got up certificate before the execution of the Will, the case which she has refuted.
16. It may be mentioned that Doctor's certificate is immaterial specially when the Doctor himself is not cross examined. The certificate would have to be proved by the Doctor. The only fact that can be seen from the record is that a certificate of a Doctor has been annexed with the Will at the time of his registration. That does not prove the truth of the contents of the certificate at all. (See Omprakash Berlia V/s. UTI, AIR 1983, Bombay 1). It is, therefore, not very material about whether there is interpolation seen in the date on the Doctor's certificate. Counsel on behalf of the caveatrix Ms. Safari argued that it shows the conduct and character of the witness. Such witness may not be wholly believed by the Court, if any, oral evidence were to be considered. It will have to be seen whether the oral evidence of the Petitioner is material and what part of her evidence must be discarded.
17. She was questioned about the instructions given by the deceased to his advocate. She was asked who prepared the Will. It was prepared by the deceased. She was asked that the Advocate had prepared the Will. She replied that it was on the instructions of the deceased. She clarified that she could say that after reading what was stated in the Will. She has agreed that the Will was prepared on computer by Advocate Mr. Nalin Kumar and the signature of the deceased was taken afterwards. That is indeed a fact. She was asked about how instructions were given by the deceased to the Advocate. She has stated that instructions were given face to face. These two answers would show that the witness may make bold to speak what is not even to her knowledge as contended by Ms. Safari. Indeed that part of her conduct may be noted. It is to be seen whether such evidence can impact upon the execution of the Will which is the only aspect which this Court has to consider.
18. Aside from the aforesaid aspects when the Petitioner may have come out in bad light, various questions about the Will put to the Petitioner are wholly irrelevant and did not carry the case of the caveatrix any further. Those aspects may be enumerated.
19. Her cross examination shows also how she had contacted the attesting witnesses after she obtained Will. She was asked how many persons were present when the Will was executed as also registered. She deposed that three people gone for registration, the deceased and the two witnesses. She knew those witnesses. She deposed that when she saw the names of the witnesses in the registered Will, she came to know that they had gone with the deceased to the Registration office. She agreed that it was correct that she was not present at the time of registration of the Will. This fact has been corroborated by the other two witnesses. This evidence, therefore, does not show such character of the witness as to make it fatal to the case.
20. She was shown that the Will was printed leaving half page blank and sufficient space at the bottom. The signatures of the deceased were obtained in advance and the print out was taken thereafter, the deceased did not know English. She was put a case that the Registration number of the Will was different on the first page and on other pages; the Will is shown to be registered under No.4593/1 on the first page and 4693 on the other pages. She has, therefore, been put a case that leaving the first page on which only the name of the deceased and the address appears, the rest of the pages that show the intent to dispose of the properties were forged later. That case put in the cross examination requires to be analyzed. The Will of the deceased begins from the lower half of the page. It shows the title "Will and Testament" in bold. Hence the first page, where the cancelled signature of the deceased appears, it does not show only the name and address of the deceased as the case of the Caveatrix. The first page itself shows the name, religion, occupation of the deceased as also his declaration that was his Will and Testament written hereinbelow. The first page has been titled "Will and Testament" in bold as aforesaid. Consequently, the case that the Petitioner has changed all the pages except the first page has no substance. The Will does leave a large amount on space after only the opening paragraph on that page, but the entire of the space is not taken up by the signature of the deceased as is the case of the Caveatrix. The signature of the deceased is the same on all the pages and is seen to be put at the same time at about same places at the foot of each page.
21. Ms. Safari argued vehemently upon the registration number in the Will. The Registration number is put in Marathi on each of the pages of the Will. Ms. Safari argued that the Registration number is 4693 on all the pages except page 1. It may be mentioned and clarified that the registration number 4613 is shown at page Nos.1 to 9. The number is not 4513 or 4593 on any page. The number is the same. It is written by a clerk. It is written as matter of routine. It may not be in good handwriting. However, there is no difference in number and the entire case of fabrication on that ground cannot be seen.
22. The other questions put to the Petitioner are wholly irrelevant. The fact that the deceased did not know English, the attesting witnesses not having put the date on the Will, the Will not having mentioned about any liabilities debts and funeral expenses and other expenses, the Petition having been filed without the consent of other sister of the deceased Kalawatiben (Kalawatiben had expired prior to the filing of the petition), the Will not having had signatures in the margin, the Petitioner not knowing who explained the will to the deceased in Gujarati or Hindi or any language, the signatures of the deceased being in different ink on all the pages, or having spaces between each letter or certain letters looking different in the signatures, the signature on one page being congested, the signature of both attesting witnesses being different in the PAN Cards and on the Will, the Will not being in a sealed envelope but in file when found, the property being not shown to be joint family property, there being no mention of any partnership deed between deceased and sister mentioned in the Will, the name of attesting witnesses not being mentioned in the Will, the Will being registered after four months, the partnership business of the deceased Madhu Plastics not being mentioned in the Will, the Will being executed before the Family Court proceedings and the Will not having the signature of the advocate who prepared it. The questions related to the case of the caveatrix having paid Rs.8 lacs to the deceased after her divorce of her first marriage and not returned by the deceased. The Petitioner has stated that she was not aware of this fact and was not correct. It can be easily seen that most of these arguments and cases are wholly redundant. The argument and case about signatures of the deceased on each pages of the Will are incorrect. A reading of the original Will shows the same flow of the signatures on each page. The signatures are in similar handwriting at each of the first eight pages. It is in a bigger handwriting in the execution clause. Aside from that there is no difference in any of the signatures.
23. In fact, the caveatrix relied upon a leave and license agreement executed by deceased to claim certain maintenance in the family court. The caveatrix has been examined upon that agreement. She has refuted the signature of the deceased on that agreement. She would be estopped from doing that once she relied upon that document to show the income of the deceased. The signatures of the deceased on the leave and license agreement must, therefore, be taken to be the admitted signatures. They are required to be compared with the signatures of the deceased on the Will. It may be mentioned that the signatures are identical.
24. Further, there are certain letters written and sent to caveatrix. Even in those letters, which have been shown to the caveatrix in the cross examination, the signatures of the deceased are identical to those on the Will. In the light of the numerous signatures on record it is difficult to reject the ones on the Will.
25. The two attesting witnesses have deposed about how they attested. The deceased and the two attesting witnesses were present together. There were only three persons at the time of execution and attestation of the Will. They have both deposed that the date of the execution of the Will was earlier fixed. They attended on the date agreed. The first attesting witness was the school friend of the deceased. He lived close by to the building of the deceased. The second attesting witness was the neighour of the deceased. He lived in the adjacent flat. They both went to the house of the deceased on Sunday i.e. 25th February, 2007 at about 9 a.m. in the morning. The first attesting witness, one Pradyuman Babulal Gandhi, came first followed by the second attesting witness Jayesh Damji Soni. Thereafter they all signed the Will after the deceased one by one. The Will was accordingly executed and attested.
26. They have deposed that thereafter the Will was registered. Though not required at all, they had attended the registration office also with the deceased. The original Will, which has been duly registered, shows photocopies of their PAN cards.
27. Each of the three witnesses have been extensively cross examined upon the execution and attestation of the Will, most of which, aside from being verbose, has turned out to be only irrelevant.
28. The two attesting witnesses have also been cross examined on certain material aspects and most other immaterial aspects. The reading of their cross examination as whole shows that the deceased had decided about the execution of the Will on 25th February, 2007 which date has been printed in the Will itself alongside his name in that execution clause. One witness was his school friend. The other witness was his next door neighbour. Both of them agreed to attest the Will. They both were called on Sunday 25th February, 2007. They agreed to come and actually came as appointed by the deceased. The friend who lived about 5 to 7 minutes away came first. He passed by the room of the neighbour. He called him to the home of the deceased. He waited at his house of the deceased in the meantime. The second attesting witness, who was neighbour came in thereafter. The deceased executed the Will informing them that that was his Will. They attested the Will one by one. Only the three of them then were present. Sister Amrut was not present in the entire flat.
29. They have been cross examined upon the factum of attestation. Gandhi, the first attesting witness has given his address and stated that he knew the second attesting witness. He has also attended the funeral ceremony of the deceased. He was a friend of the deceased and not a relative. He knew him since his school days i.e. 1975. He signed the Will at 9.30 a.m. He was mislead in the cross examination by stating that two attesting witnesses signed before the deceased which he refuted, the Will was in the handwriting of the deceased which he refuted and stated that it was typed and the Will was signed by the deceased in English which also he refuted and stated that it was signed in Gujarati language. This tenor of cross examination only shows the soundness of his evidence; even misleading questions did not mislead him.
30. He has accepted that he was not explained the contents of the Will. He was cross examined on the point of date and time. He has explained why the Will was registered four months after its execution. He has stated that because of his business preoccupation in the shop during the month of March, April, it was not easy for him to go for registration during the said period and he requested the deceased to make the registration in the month of June. He remembered the dates of the execution and registration of the Will because those were important dates though he had not remembered the date of the affirmation of his affidavit of recent time because he did not feel it necessary to remember. He has been cross examined on how and where he had affirmed his affidavits which is not material. He has been cross examined upon how he went before or after second witness to the house of the deceased. He has explained that he went to take the second witness and called him and then they both went to the deceased house. Thereafter he has explained that because he was not neighbour and he went to the house of deceased he asked the other attesting witness also to come as the time was fixed in advance by the deceased and both witnesses were called. However, there are two contradictory statements about how he went earlier or later than the second attesting witness. He explained that both the statements were correct because he informed the second witness and then went to the house of the deceased after which the second witness came to the house of deceased.
31. He was asked where he signed the Will and why he did not put the date against the signature. He stated the Will was signed at the house of the deceased and as the date was mentioned in the first paragraph at Page 9 he did not write the date again. He refuted the case of the caveatrix that the Will was prepared after the date of deceased and that other witness as well as he signed the Will not in the presence of the deceased but afterwards. He has fairly stated that he did not know who had explained the Will to the deceased because it was not explained in his presence. Later he was asked whether the name of the advocate was mentioned in the Will. He accepted that advocate was not present. He did not have to be.
32. The evidence of the witness shows that the he is a witness of truth. He has not stated any more than was required. He could not explain about registration numbers because they were in Marathi language. He did not state that the Will was explained to the deceased in his presence. He stated how the Will was attested by two attesting witnesses in the presence of the deceased and in the presence of one another which fact has been established in his cross examination.
33. The second witness Jayesh Soni has corroborated evidence of the first attesting witness entirely. He has deposed about date, time and manner of execution and attestation similarly. Those facts need not be repeated since there is no contradictory evidence. He has further deposed that he had attended the marriage of the deceased. He knew the caveatrix. He did not belong to the family of the deceased. The Deceased Sister Amrut resided in the flat with the deceased. He lived in his flat for 35 years. The deceased was in plastic business and that the wife caveatrix stayed with the deceased for one and half years. He has given the description of the flat of the deceased as having one room kitchen and a gallery. The Will was attested in the said flat. Amrutben was neither in the kitchen nor in the room then. He was informed about the Will two weeks before the execution of the Will. The date was fixed by the deceased. He was on cordial terms with the deceased despite his age difference because he was his neighbour. He has also been cross examined about the execution of the affidavit which is not material. He did not know the contents of the Will. The deceased did not show him the Will. He had asked deceased whether the Will was explained to him and he was informed that Advocate Nalin Kumar has explained it to him. He has been put the case that on 25th February, 2007 Advocate Nalin Kumar was not present and therefore his name was not mentioned, which in fact explains the execution of the Will as also the explanation to the deceased.
34. It was sought to be shown that the signature of the second attesting witness on his PAN card copy was different from the signature of the Will. The case was put to the Petitioner also. It is seen from the evidence that, the PAN Card has long signature of the witness; the Will has his short signature. It has transpired in the cross examination that he had two PAN cards. He was called upon to produce that another PAN card. The PAN card copy thus produced is on record. That shows the same signature as that on the Will. That has clarified the issue completely. His PAN card was not required to be produced or proved. Yet that was done at the time of registration of the Will. The attesting witness is not required to prove his signature and hence it compared with his signature identification yet that has been done in the cross examination when demanded.
35. This witness has also deposed about registration. He was present then. He deposed that he was given a copy of the Will by the deceased on the night of the signing of the said Will. He had not made a copy therefrom because he had no time. In fact that is not required. The same three persons have attended registration office. Though that was also not required, they had gone to the registrar's office at 11 a.m. The work went on upto 4.30 p.m. on Monday 18th June, 2007. He was shown registration numbers on the document and he commented when shown that they were correct. He was put the case that the Will does not mention that the Will is revocable, which is hardly material.
36. The evidence of both the attesting witnesses show how an old friend and a neighbour only attested the Will as required in law as requested in advance and without any fanfare when none else was present. They were not told about the contents of the Will; they were not required to be told. They did not explain the Will; they did not have to. They were called, they came and did what was legally required, without more. The Will stands proved upon their evidence.
37. A reading of the entire evidence shows that the Will has been duly executed and attested. The cross examination is either irrelevant or infact proved the execution and attestation.
38. It may be mentioned that all the witness have been asked to comment upon the flow of the signature of the deceased as also the registration number on each of the pages of the Will. It is not for witnessed to give their opinion. It is for the Court to read the document and its contents. The Court has made observation with regard to signature and the registration as above.
39. The caveatrix has examined herself. Her evidence is not material except for stating that the Will was not executed. Her cross examination, however, has shown that she has not even read the Will of her husband and had no knowledge of the contents. She had never read the proceedings of the husband served upon her but only use to give sealed envelopes to her advocate. Hence she went by what the advocate has to say and given her evidence upon the challenge made by the advocate. Her cross examination shows that the deceased was residing at Andheri and her parents house was in Matunga and she used to shuttle between Andheri and Matunga. She had left her matrimonial home on her own. She has been shown three letters signed by the deceased. She has refuted the signatures of the deceased on the ground that it was signed by him after she had signed. She accepted that her name was not on the ration card of the deceased but refuted that that did not show her residence with him. She was asked and has deposed about the complaint filed by her against the deceased and also his sister of having beaten her and treated her with cruelty. However, in the cross examination she admitted that that sister was sick and 62 years of age. She had left side paralysis and was a diabetic patient. She could not walk or stand for long period. She also admitted that she was residing together with the deceased since her childhood till death of the deceased.
40. Her cross examination shows the petition was for conjugal rights filed by her and petition for divorce filed by husband which were heard, but her husband died just before the judgment was to be pronounced. This family Court proceedings were between April,2007 and August, 2008. These were just prior to the execution of the Will of the deceased. She was shown the leave and license agreement dated 22nd February,2007 relied upon by her in the Family Court proceedings. She was also cross examined on the payment of Rs.8 lacs alleged to be given to the deceased in cash in installments soon after her marriage and after her divorce with the first husband. She has stated that it was withdrawn from the bank account of Bank of Maharashtra but refused to produce the bank documents. This shows her conduct to appreciate her evidence as a whole.
41. The reading of the entire evidence shows that the Petitioner was a good candid for making his Will. He had disputes with his wife. His wife lived with him for a short period. She used to shuttle between his house and her parental house. She herself filed Petition for restitution for conjugal rights and an application for maintenance. Deceased had filed Divorce Petition on the ground of cruelty and desertion. Even if these grounds are incorrect or false, the fact that the parties had disputes cannot be disputed. Under those circumstances he could make a Will in largely favour of his elder sister and partly in favour of the all three sisters as his shown in the Will. His elder sister lived with him for his entire life. He was married late. His marriage was not happy. His elder sister must have surely been his moral support. The Will is, therefore, genuine. Incidentally he died one and half years after making his Will rather prematurely after brief illness. The Will shows signature on all the pages. It is difficult to forge as many as nine signatures. The other documents shows other signatures of the deceased. Each of them is in the same flow. They did not require to be of the same size. It does not matter if there are some spaces between certain letters. The Will is registered. The attesting witnesses are not required at the time of attestation. Nevertheless they were taken and they attended the registration office. They were not required to produce their PAN Card copies, yet their PAN card copies have been produced to show their identification. They have attended thrice for the cause of the deceased – to attest his will, to register his Will and to give the evidence. Their evidence is corroborative of each other and the attestation. Their evidence about attestation shows due execution of the Will as per law. They have not been put down in the cross examination. The Petitioner's cross examination is wholly unnecessary. The cross examination of the Caveatrix shows the state of affairs. The execution of the Will is proper and valid.
42. The evidence shows the deceased in a situation to execute his Will as he did. The execution of the Will of the deceased is proved. Its forgery is not proved and neither is the duress practiced upon the deceased by any of his sisters who are the beneficiaries under the Will of the deceased. Hence Issue No.1 is answered in the affirmative and issue Nos.3 & 4 are answered in the negative.
43. The deceased was about 51 to 52 years old at the time of his death. The parties had many disputes. The husband was prosecuting his divorce petition and defending the Petitioner for restitution of conjugal rights as also the application for maintenance which shows his business and expenditure of a license agreement for additional income in the Family Court. He died suddenly. Though the case has been put that he was hospitalized, there is no evidence produced by the caveatrix on this aspect. The Family Court proceedings did not show that the husband is having suffered from any illness. The Petitioner has refuted the case of the caveatrix that the deceased was ill for two months before expired. That case is seem to be belied by the factum of family court proceedings. The Petitioner has stated that the deceased was admitted to the hospital in the month of November, 2007 and at no other time. According to her evidence he died due to tension.
44. The Doctor's certificate has been specifically shown to the Petitioner which is stated not to have mentioned the health condition of the deceased. Aside from the fact that this is incorrect upon seeing the document itself, the Petitioner has stated that the Doctor has mentioned that there the deceased was sound state of mind. That is only aspect required to be considered for the execution of the Will. Any other illness does not matter. In fact, even much older persons execute Wills during and after their illnesses. Such Wills are genuine and are probated if the executor of the Will was in sound state of mind. The Will was executed in February, 2007. It has nothing to do with the hospitalization of the deceased in November, 2007. In fact, the case of the deceased being in a sound state of mind is borne out, not by the Doctor's Certificate, but by his age, his litigations and his business preoccupations. In fact, the Doctor certificate, in which there was slight interpolation as to the date is not considered as a document in support of the Petitioner's case for propounding the Will.
45. It was specifically stated that the deceased was not admitted in any hospital in February, 2007. Even the neighbour who is the attesting witness has mentioned about sound state of mind and good health of the deceased. He has not been put any questions about any hospitalization of the deceased, which he would be knowing as neighbour. The Petitioner's case that the deceased was in sound state of mind when he executed the Will is, therefore, made out. Issue No.2 is, therefore, answered in the affirmative.
46. The evidence read as a whole therefore, proves that the Will has been validly executed when the deceased was in sound state of mind and it was not forged and fabricated or executed under duress. The Will is, therefore, required to be probated. The estate of the deceased cannot be administered as on intestacy. Consequently, the Testamentary Suit No.54 of 2010 claiming to administer the estate of the deceased under Letters of Administration of this Court is required to be dismissed. Hence the following order.
O R D E R
1. The Testamentary Suit No.127 of 2010 is decreed as prayed.
2. The Testamentary Petition No.175 of 2009 shall proceed.
3. The Office of Prothonotary and Senior Master shall issue probate of the Will of the deceased Mahendra Premchand Shah dated 25th February, 2007 registered on 18th June, 2007.
4. Drawn up decree is dispensed with.
5. Testamentary Suit No.54 of 2010 is dismissed.
6. There shall be no orders as to costs.
( ROSHAN DALVI, J.)
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