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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Mrs. ROSHAN DALVI, J.
Mr. P. D. Navghare & Anr. – Appellants
Vs.
Mrs. S. D. Chachad & Ors. – Respondents
Testamentary Suit No.45 of 2005 IN Testamentary Petition No.23 of 2004
Decided on : 12th October, 2010.
Succession Act, 1925 - Section 276-Evidence Act, 1872, Section 90-Will-Execution of-Proof-Presumption-Will, 30 years old-Produced from proper, legitimate and natural custody-Will fully eligible for presumption under Section 90 of Act, 1872-Presumption as to its correctness attracted.-The case of Dhanapal Chettiar and others v. Govindaraja Chetty and others, AIR 1961 Mad 262 was also a case of the proof of Will more than 30 years old. It was executed in 1920. The suit was instituted in 1954. It was produced from a proper custody. Actual execution and attestation was held to be presumed under Section 90 of the Indian Evidence Act which was considered it was observed that the language of the Section "may presume" gives the Courts judicial discretion in drawing the presumption. It was held that the Court however cannot arbitrarily refuse to draw presumption merely because the matter is for the exercise of its discretion. It was held that when the document emanates from an apparently lawful custody and was likely to have been executed having regard to the common course of human conduct and there were no circumstances to excite the Court’s suspicion such as unnaturalness or artificiality surrounding the transaction, or interlineation or correction or tampering with the document, the Court will draw the presumption. That would be the presumption of the execution of the Will. This is despite the fact such presumption would dispense with proof of due execution but the Court must act with extreme caution and utmost circumspection.
This Petition is for grant of Probate of the last Will and Testament dated 22nd September, 1967 of one Janardhan Banduji Navghare who expired on 27th December, 1969. The wife of the deceased had predeceased him. The deceased left behind 2 sons and 4 daughters. The deceased left behind essentially 2 immovable properties; one in Matunga, Mumbai and one in Dahanu. Thane District. The property in Matunga was bequeathed to the original Petitioner and the property in Dahanu was bequeathed to the other son, Surendra. All the chi luren of the deceased essentially accepted the use and management of the aforesaid properties by the 2 sons. Surendra is stated to have sold the Dahanu property in 1984. The sale has not been challenged.
2. It appears that certain disputes have arisen between the Petitioner and his sisters more than 3 decades after the death of the deceased father leading the original Petitioner to file this Petition for grant of Probate essentially in respect of the Matunga property bequeathed to him.
3. The original Petitioner filed the Petition in person. He failed to file affidavit in support of Petition. He is one of the beneficiaries under the Will. He is an executor under the Will. He is not an attesting witness. Nevertheless he filed his affidavit along with Petition as the affidavit of the attesting witness. That is clearly erroneous.
4. Upon his death, his son and daughter, the present Petitioner have been brought on record of the Petition since the estate of the deceased bequeathed to the original Petitioner devolved upon them by succession. They have been allowed to amend the Petition and have been shown as the Petitioners in their capacity as the beneficiaries to the estate of the deceased though not named as such in the Will of the deceased. (There is an error in the amendment carried out in paragraph 5 of the Petition also showing them as beneficiaries named in the Will).
5. Upon the citation being served in respect of the Petition, the Caveatrices filed their Caveats and affidavits in support thereof. The Petition is converted into above Suit.
6. It is the contention of the Petitioner that the Will was validly executed by the deceased. It is the contention upon the Caveatrices that the Will has been fabricated by the Plaintiffs.
7. Based upon such pleadings, the following issues were framed by Justice Oka on 13th November, 2009 and are answered as follows:
ISSUES
I. Whether the Plaintiffs prove that the deceased Janardhan Bancluji Navghare executed Will dated 22nd September, 1967?
No.
2. Whether the Defendants prove that the said Will was fabricated by the Plaintiffs?
No.
3. What order?
No.
As per tinalorder.
8. The Petitioners have examined Petitioner No.1. He is a grandson of the Testator. He was not present at the time of the execution of the Will. He was a mere child at the relevant time. He has no knowledge about the execution of the Will and any related aspects. It is conceded that his evidence is rather irrelevant.
9. The Petitioners have not examined any attesting witness to the Will. One attesting witness is stated to have expired. The other attesting witness is stated not to have been known or identified by the Petitioners. This may be natural given the fact that the Will was executed more than 35 years prior to the filing of the Petition and more than 4 decades prior to the evidence being led.
10. The Petitioners have examined their mother, the daughter-in-law of the deceased under Section 69 of the Indian Evidence Act read with Rule 384 of the High Court Rules. The Caveatrices have not examined anyone on their behalf. The only material evidence to be considered to decide whether the Testator had duly executed the Will and the attesting witnesses had duly attested the same is the oral evidence of Kusum read with the only documentary evidence being the death certificate of one of the attesting witnesses, admitted by the Caveator as will be considered presently.
ISSUE NO.1:
11. The daughter-in-law of the Testa
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