2004 Supreme(Bom) 1003

IN THE HIGH COURT OF BOMBAY
Lodha R.M. Devadhar J.P., JJ.
Zarina R. Irani another .... Appellants.
Versus
Shapur Jawanmardi another.... Respondents.
Appeal No. 546 of 1994 in Suit No. 18 of 1987 in Petition No. 69 of 1987, decided on 19/20-7-2004.
Advocates appeared :
S.H. Karim, for appellants.
Girish Desai with Ms. Geeta Shastri Amit Shastri, for respondent Nos. 1(b) 2.

Headnote:Succession Act, 1925 - Section 63 - Validity of Will. - Since deposition of attesting witness suffered from inherent improbabilities hence Will said to have been executed by deceased not valid. AIR 1959 SC 443; AIR 1962 SC 567; (1977) 1 SCC 369; AIR 1989 Guj 75; AIR 1990 SC 396; AIR 1991 Ker 123; (1992) 2 SCC 507; 1967 Mh LJ 341 : AIR 1967 Bom 382; 2003 (3) All MR 638; AIR 1971 SC 2236; AIR 1977 SC 63; (1996) 9 SCC 222; 2001 (8) Supreme 474; AIR 2002 SC 637; 2004 (1) Mh LJ (SC) 1 : (2003) 8 SCC 537; AIR 2001 SC 2802; AIR 1925 Cal 485 - Referred. - Whether the execution of the Will is satisfactorily proved? As already noticed above, three witnesses were examined by the propounder. The direct evidence is only of the attesting witnesses ’P’, PW 2. His evidence is important. Is he reliable. Not so. He is said to be the friend of the deceased for decades and used to meet him practically every day until his death but he never entered the house of the deceased except on the day of the execution of the said Will. He would ordinarily meet the testator at 5 p.m. every day but on 29th October, 1979 the testator asked him to come to his place at 4 p.m. He does not ask the deceased the purpose for which he is called at 4 p.m. though he has to leave his work-place early. He admitted that although his office hours were 7 a.m. to 3 p.m. he being the Deputy Weaving Master in Bombay Dyeing and Spinning Mills, was required to remain in the office upto 6 p.m. He even did not know that the testator was suffering from carcinoma prostat gland. It is intriguing that a friend practically visiting the deceased every day for many years until his death would not know of such a serious ailment. Can it be believed that a person suffering from Cancer would not tell his friend who has been visiting him every day about his illness. Though he claims to be one of the attesting witnesses to the Will and he had been visiting the deceased for many years, significantly he did not talk of the Will to any one after the death of the deceased including Jehangir, the son of the deceased whom he met. It is only intriguing that being the friend of the deceased and having allegedly attested the Will would not talk of the widow of the deceased testator about the Will for number of years until the year 1987. Though this witness claims to be a long time friend of the deceased-testator and would visit him almost daily when he was asked by the testator to sign the Will, initially his response was that he did not want to get involved by signing as a witness. He was not able to steer clear the doubt that the full address, name and the date below his signature was in his handwriting. He deposed that after he read over and explained the contents of the Will, the deceased took away the said Will from him and in his presence put his signature thereon in Gujarati. If that was so, the Will would not have mark (X) suggesting the place where the testator was required to sign. The deposition of PW 2 suffers from inherent improbabilities. He is not worthy of the Court’s faith. His evidence is unnatural. He attempted to say that he attested the signature of the deceased testator in his presence and also of the attesting witnesses each other of the day of its execution and so also the place, date and time thereof but failed miserably in his attempt.

       The last evidence on behalf of the propounder is that of son Jehangir (PW 3). Admittedly, he was not present when the said Will is said to have been executed. He also did not know as to when and where Dr. Lobo and P.J. Siganporia had put their signatures on the said Will. According to him, he came to know of the said Will from his mother when she gave that to him in the year 1987. The mother (PW 1) on the other hand in her re-examination said that although immediately after the death of her husband, she did not say anything about the writing but then she disclosed about the writing to four persons including PW 3. This witness said that he did not know whether his sister Parvin was married to one Lilamwala. He also did not know whether his brother Shapur was married. He even did not remember that he filed written statement in the City Civil Court in the suit concerning partnership. Later on in his deposition he admitted that his brother Shapur got married after the death of his father. He was not aware whether his brother Shapur stayed with his parents in the month of March, 1979. Though he admitted that his father was suffering from carcinoma prostate gland, he would insist the Court to believe that his father was hale and hearty until he died. Having considered his entire deposition, we find that he is not straight forward witness and has not at all been candid and honest in his statement before the Court. He has a memory of connivance. His evidence, therefore, does not help in proving the execution of the Will.

       Succession Act, 1925 - Section 63 - Execution of Will. - Non-explanation of various suspicious circumstances surrounding Will sufficiently by propounder, renders Will invalid. - Various suspicious circumstances surrounding the Will have not been sufficiently explained by the propounder. The doubt remains in the mind of the Court. The classic statement of law made in the case of Jaswant Kaur is that in cases where the execution of a Will is shrouded in suspicious, us proof ceases to be a simple lis between the plaintiff and the defendant. What generally is an adversary proceeding becomes in such cases a matter of the Court’s conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly executed by the testator. The proof of execution of the said Will falls much short of that standard and does not satisfy Court’s conscience that the Will was duly executed by the testator. The evidence by the propounder does not offer a cogent and convincing explanation of the diverse suspicious circumstances surrounding the making of the Will. Therefore it is difficult to sustain the finding of the trial Judge that the Will propounded was executed by the deceased testator and bears his signature and that the Will was valid and properly executed.