2001 Supreme(Bom) 409

IN THE HIGH COURT OF BOMBAY
A.B. Palkar, J.
Gokaldas Ramjui Tanna others .... Plaintiffs.
Versus
Dhirajlal Tribhovandas Raichura others.... Defendants.
Suit No. 29 of 1987 in Petition No. 143 of 1987, decided on 20-4-2001.
Advocates appeared :
Ms. Jaishree N. Surti with N.N. Surti, for plaintiffs/petitioners.
Rajiv Narula with Anuj Narula, Mrs. Ranjana Humane Ms. Priti Bathena, for defendants/ respondents.

Headnote:Succession Act, 1925 - Section 59 - Will - Genuineness of - New Will made by deceased - Bequests given to grand children and other heirs taken away - Appointed his Tax - Consultant as sole executor - Giving his discretion to utilised it for "Shubh Karya" - "Shubh Karya" not defined - Held - Genuineness of Will doubtful - Deceased was 82 years old - Disin- herited all heirs including wife - Bequests made in earlier Will taken away - Property left with full discretion of Executor - Not a close relative - Bequests vague and unnatural - Will not acceptable as genuine. - There are circumstances which create strong suspicion which the propounder has failed miserably to repell. (i) The deceased has left a considerable property, moveable as well as immoveable, (ii) The scribe Popatlal Gandhi was the tax consultant of the deceased and had thus a fiduciary relationship with the deceased (iii) It is claimed that the will is signed by the deceased which fact is disputed by the close relatives of the deceased (iv) The deceased was about 82 years of age on the date of execution (v) The will distinherits sons, daughters and grand children of the deceased (vi) The bequest is allegedly for some auspicious function as the wording used is Subh Karya (vii) Executors are given full powers and complete discretion to deal with the property without any control over them (viii) Executors are not close relatives of the deceased (ix) Earlier to this deceased had admittedly executed a will bequeathing immoveable property to his grand children (x) That will is dated 12.12.1975 and is admittedly a genuine will (xi) The bequest is unnatural (xii) The bequest is vague, (xiii) The deceased had weak eye sight and evidence of will having been read over is contradictory and the document is silent on that aspect. The bequest is also vague in the sense that the executors have been authorised to use the entire property for any holy or auspicious function Shubh Karya . This is an extremely vague purpose and although it is claimed that it was a charitable purpose, the word does not necessarily convey any charitable purpose. Executors can very well use the property for functions like marriage ceremonies or birthday functions or naming ceremonies of their children and grand children and still successfully maintain that it was for Shubh Karya as envisaged by the will. In such a case it would be difficult to challenge that it was not a Shubh Karya . In this connection, the plaintiffs have relied on a judgment of this Court reported in 59 Bom LR page 472 (Mahadeo Ramchandra Washikar v. Damodar Vishwanath Gokhale), wherein the direction by the testator was in dispose of his residuary estate according to the discretion of the executor as he deemed fit. It is pertinent to point out that it was only in respect of the residuary estate clear discretion was given to the executors. Here the entire property is bequeathed in such a manner that executors can usurp the property and use it entirely for their own benefit and still successfully maintain that they have used it as is laid down by the testator, that also and this after disinheriting all the heirs and close relatives including his grand children to whom property was given by earlier will. There is nothing on record to show that after the earlier Will there was any reason for the deceased to change his mind not to give any property to his grand children for whom he had the same care and affection. Why should the deceased have anything against the grand children. The deceased has a widowed daughter and it has come in the evidence of plaintiffs witness that deceased was loving her and taking care of her welfare. Similarly welfare of his wife would be prime consideration in the mind of the deceased. Even if we presume that since the wife was living with Dhirajlal and deceased has no worry on that account, his anxiety for his widowed daughter would still remain and it is highly improbable that without making any adequate provision for her, the deceased would bequeath the property for a vague purpose Shubh Karya giving executors full authority and opportunity to exploit and use the property in the manner they like. In any case no reasonable explanation has come from the petitioners as to why the deceased wanted to change his earlier Will in which he had meticulously and carefully prepared in 1975. It is extremely improbable that the deceased was in a position to read himself and one of the attesting witness even does not say that will was read over to the deceased. Therefore mere proof of signature would not be sufficient to prove genuine nature of the Will and since above referred evidence clearly shows that the signature does not appear to be genuine, it is not possible to accept the Will as genuine. For all these reasons, Court found that it is not possible to accept the petitioners case that the will is either executed by the deceased or is otherwise a genuine last will of the deceased and therefore all the issues are answered against petitioners and in favour of caveators/defendants.

       Succession Act, 1925 - Section 63 - Will - Execution of - Liability of propounder of will - Last and genuine will - Validity of proof - Requirement of scrutiny of evidence must - Handwriting dispute - Expert evidence - Admission of.