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High Court of Judicature at Bombay
ROSHAN DALVI, J.
Smt. Harsha Mahendra Gutka @ Shah & Another
Versus
Mahendra Premchand Shah & Another
TESTAMENTARY SUIT NO.54 of 2010 IN TESTAMENTARY PETITION NO.744 of 2009 ALONGWITH TESTAMENTARY SUIT NO.127 of 2010 IN TESTAMENTARY PETITION NO.175 of 2009
Decided on : 11-06-2012
A Will prepared by Advocate, executed by deceased, attested by two witnesses, registered by deceased in presence of two attesting witnesses, is valid. - 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 has 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 there those 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 t he Will is proper and valid.
The evidence read as a whole therefore, proves that the Will has been validly execute d 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. Consequently, the administration suit filed by the caveatrix in the testamentary petition claiming a share in the estate of the deceased is required to be dismissed. The title of various properties in the administration suit need not even be considered. Hence the following order :
(1) The testamentary suit is decreed as prayed.
(2) The testamentary petition 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) Suit No. 54 of 2010 is dismissed.
(6) There shall be no orders as to costs.
Succession Act, 1925 - Sections 59 and 63 - Execution of Will.
Where a Will executed by deceased being in good mental state in favour of his sister was duly attested and registered in presence of deceased and signature of deceased on each page of Will were genuine therefore execution of Will valid.
1. The Petitioner / Plaintiff in Testamentary Suit No.127 of 2010 is the sister of the deceased Mahendra Premchand Shah whose last Will and 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:
ISSUES
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 forged. No
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 a
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