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2009 Supreme(Bom) 1720
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ANOOP V. MOHTA, J.
Lalita Krishnaraj Parekh & Anr. – Appellant
Vs.
Kirti Jagdish Mulani – Respondent
Testamentary Suit No.61 of 1997 IN Testamentary Petition No.505 of 1996
Decided on : 15th December, 2009.
Mr. DIPEN MERCHANT, Sr. Counsel i/b. M/s.
P. Mehta & Mithi & Co., for the Plaintiffs.
Mr. D. M. SETH i/b. Mr. A. C. SINGH, for the Defendant.
Headnote:Succession Act, 1925 - Section 63 - Petition for probate of Will - Caveat filed by one of daughters of deceased-testator - Plaintiffs examined attesting witnesses - Discharged basic burden of proof and due execution of Will - Signature of deceased not disputed - Held - Deceased-testator expired after three years from date of Will - Plaintiffs proved deceased was in sound state of mind at time of execution of Will - No other daughters, except caveatrix, raised any objection at any stage of proceedings - Will valid and genuine - Execution of Will and its contents proved - Caveat rejected - Petition for probate allowed. - The circumstances need to be tested if a challenge is raised and/or a doubt is raised about the genuineness and/or suspicious circumstances, by leading the basic burden to show that the deceased was in unsound/weak, mental as well as physical condition. As noted, in the present case, the execution of the Will is not in dispute. There is no dispute or objection raised to the signature of the deceased. There is nothing to show/prove that the execution of the Will was the result of any coercion or undue influence. On the contrary, the deceased expired after three years from the date of the Will and during this period, as recorded, he was in good mental condition to discuss and meet other family members and he was hospitalised only twice. There is no contra material and/or evidence brought on record. The caveatrix failed to discharge the basic burden/initial burden to support her case of undue influence or unsound state of mind. On the contrary, the plaintiffs have proved that the deceased was in sound state of disposing mind at the time of the execution of the Will dated 5th October, 1992 and thereafter also till the death. The plaintiffs have proved the case that the Will dated 5th October, 1992 is the last Will and is validly executed.
Petitioner No. 1 is the wife. Petitioner No. 2 is the son. There is nothing unnatural, in the present facts and circumstances of the case, where the deceased bequeathed and/or executed the Will in favour of the petitioners. The contra submission with regard to the same has no force. It is difficult to read the mind of the deceased now. The Will cannot be said to be unnatural, improbable or unfair. All the daughters have been provided with a lump sum amount. All the daughters have been married long time. As noted, except the caveatrix, no other daughters have raised any objection of any kind at any stage of the proceedings.
There is nothing on record to show that petitioner No. 2 i.e. Son, took major role to get the Will signed. On the contrary, he was not present when the Will was executed. There is nothing to show that he took a prominent part in the execution of the Will. Even so, the deceased’s Will bequeathing all immovable properties to the son and the wife just cannot be the reason to raise any doubt or genuineness of the Will and cannot be said to be a suspicious circumstance. The plaintiffs/petitioners have proved the Will in accordance with law. The Will is valid and genuine.
The petitioners have filed the present Petition for a Probate of the Last Will and Testament of Krishnaraj Jagjivandas Parekh (the deceased) dated 5th October, 1992, who expired on 22nd December, 1995.
2. As caveat was filed by the caveatrix, the petition is converted into Suit bearing No.611/ 997.
3. Petitioner no.1 is the wife of the deceased. Petitioner no.2 is the son of the deceased.
4. The caveatrix is one of the daughter of the deceased. The other two daughters namely Bina and Shraddha have not challenged or objected at any point of time to the Petition.
5. Considering the pleadings and the documents this Court on 10.12.2007 framed the following issues:
(1) Whether the plaintiffs prove that the Will dated 5th October, 1992 is a last will and is validly executed, as required by Law?
(2) Whether the plaintiffs prove that the deceased was in a sound state of disposing mind at the time of execution of the Will dated 5th October. 1992 ?
(3) Whether the plaintiffs prove that the properties and assets held by the deceased were self acquired property only?
(4) Whether the plaintiffs are entitled to probate of the Will dated 5th October.
1992 ?
(5) What reliefs, if any?
ISSUE NOS.], 2. 4 AND 5 :
6. The plaintiffs have led evidence of one Solicitor and Advocate Shishir R. Tejpal. The caveatrix has led her evidence.
7. The parties have exchanged the notice to admit the documents including the Will dated 5th October, 1992. The caveatrix has relied upon the said Will. Therefore, there is no serious dispute about the existence of the Will as both the parties have admitted the same.
8. The said Will having been admitted, this Court has not all owed her to cross-examine so far as the challenge to the execution and/or existence of the Will. That relief/order remained intact till this date. The caveatrix in her evidence admitted that she knows Shri. Tejpal and is also her distant cousin. She has also admitted that between 1990 till his death, the deceased was only admitted to Hospital on two occasions, one in 1990 and second in 1995. She has also admitted in the evidence that except a heart-attack suffered by the deceased in 1990, he did not suffer from major illness. She has also admitted that between 1990 and 1995 she used to meet her father regularly during her visits. They used to discuss with her family members various things on regular basis. The deceased was in sound state of mind and health and, therefore, could able to participate and discuss in the family matters. She has also admitted that the shop at Mulji letha Market and Godown at Kalbadevi were disposed of during the lifetime of the deceased and even a shop at Pankaj Building and a property at Lalpur had been sold during the lifetime of the deceased. She has also admitted in the cross-examination that the garage at Hill Sagar and Plot No.33 at Pali Hill belong to her mother who is alive.
9. The basic requirement as contemplated to prove the Will has been complied with in the present matter. Strong reliance has been placed on Bharpur Singh and ors. Vs. Shamsher Singh, (2009)3 SCC 687 : [2009 ALL SCR 334], referring to Sections 69, 70 and 90 of the Evidence Act, 1872 read with Section 63 of the Succession Act, 1925. The basic burden of proof and due execution of the Will has been discharged by the plaintiffs by examining the attesting witness as referred above. The evidence of attesting witness Shri. Tejpal remained intact. In the cross-examination, nothing could be extracted to destroy the case of the plaintiff on any count.
10. The circumstances need to be tested if a challenge is raised and/or a doubt is raised about the genuineness and/or suspicious circumstances, by leading the basic burden to show that the deceased was in unsound/weak, mental as well as physical condition. As noted, in the present case, the execution of the Will is not in dispute. There is no dispute or objection raised to the signature of the deceased. There is nothing to show/prove that the execution of t
