2013 Supreme(Bom) 1010

High Court of Judicature at Bombay
ROSHAN DALVI, J.
Suresh Hemmady
Versus
Dinesh Pandurang Bellare
Testamentary Suit No.16 of 2007 In Testamentary Petition No.475 of 2003
Decided on: 10-06-2013

Headnote:Succession Act, 1925 - Section 63 - Execution of Will.

       Where suspicious circumstances appearing in execution of Will was not removed therefore Will cannot be held to be validly executed. - Seeing the lengthy, well drafted, detailed, typewritten Will containing absolutely no errors or corrections in the handwriting of the deceased, it being not explained to her by any one in her mother tongue and wholly unaccompanied, in this suit, by the number of documents mentioned in the Will itself as contemporaneous to the bequests made in the Will, the Will would be susceptible to some suspicion. It, therefore, falls upon the executor to remove the suspicion. To that end the executor has neither produced nor led evidence of any witness including the main beneficiary under the Will to show the contemporaneous documentary record of the nomination made by the deceased alongside the Will in respect of her residential flat, the agricultural society, the investments of the deceased in various joint names or the record relating to her safe deposit vault in the bank.

       Though the executor is stated to be her distant cousin, the description of the relation- ship is not shown or proved. Though he has claimed to be a family friend and on visiting terms with the deceased, and he claims to be her "well wisher, friend, philosopher and guide," he has been unable to state her exact educational qualification. He was not consulted at the time of the preparation of the Will. Similarly, he has admitted that his advise was not sought while forwarding the later nomination of the deceased.

       The relationship in the nature of mother and daughter is unlikely to have been cultivated after the child reaches her adulthood or even her teens. There is absolutely no evidence to corroborate the oral evidence of the relationship of the deceased with Leena such as to make her almost the sole beneficiary of the entire estate of the deceased, who had other brothers and sisters as also other nieces and nephews.

       The totality of the evidence, therefore, shows that the deceased has indeed signed in English at the foot of 6 pages on 15th April, 1988. Whether she knew what she was signing cannot be vouchsafed. There is nothing to corroborate and substantiate the statements made in the Will to show that the deceased alone could have made that. There is nothing to show who prepared the Will or typed it. The distant cousin whose linage is not shown and a neighbour who was a Doctor were contacted by the deceased for attesting the Will. Their identification is not substantiated. The residence of the attesting witnesses is not shown. The relationship of the petitioner with the deceased is not established. The petitioner knew Leena, the main beneficiary in the Will; the Doctor did not. Her knowledge is upon what the deceased told her. Her evidence does not show that Leena was even visiting the deceased in the number of years that she remained the neighbour of the deceased in Girgaum/Mahim/Matunga. For want of identification, the Court may be suspicious of the fact that these two witnesses may be the two stooges of the main beneficiary. Those suspicions have not been removed. Even taking them at face value only upon acceptance of their own evidence, the evidence of the petitioner shows that the deceased was associated with all the daughters of the sister who brought her up, Leena being her favourite. The evidence of the Doctor shows that she was asked to prepare her affidavit of evidence by the husband of Leena though she prepared it upon consulting with her own husband who has legal background. That legal background extended to he being a member of the police department; at times in the traffic department and at times in police station. She prepared an affidavit in consultation with another friend’s husband after being asked to prepare it by Leena’s husband.

       The suspicion with regard to knowledge of English of the deceased is also not removed by producing evidence relating to her education. The factum of the LIC agency is shown to be only for some years after the death of her husband and which, as aforestated, could have been undertaken either through an agent or an assistant or by understanding the forms in the vernacular languages.

       The totality of the evidence, therefore, leaves the suspicion of the Court unremoved. The plaintiff/petitioner has not removed all the suspicious circumstances as required by settled law. The Will of the deceased, therefore, remains at that. It cannot be held to be the Will validly or genuinely executed by the deceased.

       Succession Act, 1925 - Section 63 - Validity of Will.

       Since probability tilts towards non-execution of any Will by deceased hence Will signed by deceased appears to have been obtained fraudulently or upon misrepresentation. - In view of such mischief, the case of the petitioner/plaintiff with regard to the change of nomination is to be viewed. The letter of the deceased dated 23rd December, 1998 shows that she desired to "change" her nomination from Leena Bijoor to Geeta Dinesh Bellare and Jayant Bellare, the wife and the son of the caveator/defendant. The fact that the nomination has been registered with the society is not denied. The nomination registered with the society has been accepted by the society and consequently the petitioner/plaintiff The petitioner/plaintiff has, however, not accepted that the deceased could have herself of her free will executed the nomination. It is argued on behalf of the petitioner that the nomination form was filled up by some one else and not the deceased because there is a small ’x’ mark near the place of her signature suggesting that the form was filled up and the deceased was only made to sign. This, in fact, would show that the deceased was not as independent of mind as has been sought to be made out to get her Will probated. A person who had got prepared a Will of 2’/2 pages with 5 detailed bequests would not be required to be shown the place of signature on a nomination form marked ’x’. Conversely a person who would be required to execute a nomination form by signing against the mark ’x’ would not be expected to prepare and get attested a Will such as the one sought to be probated as independently as has been sought to be shown. The deceased appears to have signed the Will at 6 places shown to her, much as she is shown to have signed his nomination form. The printed nomination form may indeed be signed by a member as shown and directed in the presence of witness if she is explained the import of such documentation, as is usually done to many members in many housing societies. Yet only few of such signatories execute Wills of the kind in this case in the manner exhibited in this case.

       The oral evidence of the caveator/defendant with regard to hospitalisation of the deceased shows that the deceased was asthmatic. She was taken to the hospital 7 to 8 times. The evidence of the petitioner shows that that was only during 2002- 2003 and not in 1998. The evidence of the attesting witness shows the health of the deceased to have been perfect at last till 1995. The caveator/defendant has taken her to the hospital each time. No other relatives came forward. The caveator/defendant used to pay for the hospital expenses and the deceased would reimburse him. The caveator/defendant did not keep record of the expenses. The deceased was got treated by doctor. The fact that the caveator/defendant produced all the hospital bills and handed them over to the petitioner after the death of the deceased is admitted. Neither the petitioner nor Leena has made out any case of they having incurred any hospital expenses for the deceased any time. This solitary documentary evidence supports the relationship made out by the caveator/defendant with the deceased. The change of nomination is the result of the relationship.

       It has been the caveator/defendant’s case that along with the change of nomination the Will of the deceased was also expected to have been changed if the deceased had prepared and executed her Will way back in 1988.

       The caveator/defendant has not produced any Will. None can be imputed from his oral evidence. Having made an oral Will is innocuous and must be ignored. An inventory is made of the moveables in the flat of the deceased. The inventory is signed by the petitioner/plaintiff, Leena and her husband. The son of the caveator/defendant was also present but has not signed the inventory. The inventory makes a reference to an unsigned writing. That also cannot be accepted to be another Will of the deceased and must be left ignored. Indeed there is no other Will of the deceased. From the relationship made out by the caveator/defendant with the deceased and the lack of relationship of the deceased with the other family members also, the quality of the execution of the Will sought to be probated is required to be adjudged.

       Indeed as aforesaid the Will has not been shown to be genuinely and validly executed. The evidence produced by the caveator/defendant though not showing that the signature of the deceased is not that of the deceased, lends credence to the fact that the signatures at the foot of the 6 pages of the Will were obtained from the deceased by perpetrating a fraud or upon a misrepresentation. It is before the main beneficiary Leena went to settle abroad at least for 8 years. Consequently though Issue No. 4 is answered in the negative, Issue Nos. 5 and 6 are answered in the affirmative.