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High Court of Judicature at Bombay
D.Y. CHANDRACHUD & S.C. GUPTE, JJ.
Wilma Levert Canuao & Others
Versus
Allan Sebastian D'Souza & Another
Appeal No.643 of 2012 In Testamentary Suit No.29 of 2007 In Petition No.79 of 2007
Decided on: 01-07-2013
Succession Act, 1925 - Section 63 - Evidence Act, 1872, Section 69 - Proof of execution of Will. - Since evidence of witnesses fulfills mandatory requirement of Section 69 of Evidence Act hence mere non-registration of Will not sufficient to raise doubt on authenticity of Will. - For the purposes of Section 69 of the Evidence Act and having due regard to the fact that both the attesting witnesses were dead, an inference was capable of being legitimately drawn that the attestation of one attesting witness in his handwriting was proved. The evidence of Paresh Shah, who identified the signature of his father - one of the attesting witnesses - is clear in that regard.
Section 69 of the Evidence Act also requires proof that the signature of the person executing the document is in his handwriting. The second witness, joined Shah and Sanghavi in 1980 as a peon and deposed that he was promoted as an office clerk in 1987. The witness continued to work in the same firm. He deposed that the testator used to visit the off ice of M/s. Shah and Sanghavi for his legal work and on 20 March 1989 when he visited the office, he was informed by Mr. Jaswant Shah that the testator has visited the office for execution of his will. The witness stated that he had seen the deceased-testator, put his signature on the last page of the will and placed his initials on the other pages and that both the attesting witnesses had witnessed the execution of the will together. The submission of the counsel for the appellants is that the witness did not produce any document to show that he was employed with M/s. Shah and Sanghavi. Court does not found any substance in this contention nor is there any reason to disbelieve the testimony of the witness. His employment with M/s. Shah and Sanghavi was not disputed nor was there any line of cross-examination on that aspect. Again, it was sought to be urged that since the witness was assigned the duties of registering documents, there was no reason why the firm of solicitors would not have advised the testator to register the will. The difficulty in accepting the submission is that it proceeds purely on the basis of conjectures. As a matter of first principle, a testamentary disposition does not require to be registered. The witness was not questioned on the circumstances in which the will was not registered. The mere fact that the will was not registered is not sufficient to raise a doubt on the authenticity of the document particularly in view of the fact that registration of a Will is not a mandate of the law.
Ultimately in a matter such as the present, the test that has to be applied is as regards the satisfaction of the judicial conscience of the testator being in a sound and disposing state of mind. The testator was 68 years of age when the will was executed and the record indicates that he was not suffering from any mental condition or from any condition that would have rendered him incapable of making a testamentary disposition. On the contrary, there is on the record the deposition of one of the caveators, who is one of the daughters of the testator, to the effect that the deceased did not suffer from any major illness during his lifetime and that he was not even admitted to a hospital for any illness. The submission of the appellants is, therefore, purely conjectural which it would be impossible to accept.
Dr. D.Y. Chandrachud, J.
1. Admit. Learned counsel for the Respondents waives service. The appeal is taken up for hearing and final disposal, by consent and on the request of the learned counsel.
2. This appeal arises from a judgment of a learned Single Judge holding that the last will and testament of Sebastian John D'Souza, the testator, dated 20 March 1989 is proved and be probated.
3. The testator died on 5 September 1999. The two Respondents who are the original Plaintiffs are his sons. The testator was survived besides his two sons, by six daughters, three of whom, the Appellants, had lodged caveats in response to the Testamentary Petition seeking probate of the will alleged to have been executed by the testator on 20 March 1989. Under his will, the testator directed his executors and trustees to pay a sum of Rs.30,000/-to each of his daughters and an amount of Rs.1.00 lakh to his wife. The residue was bequeathed to his two sons who are appointed as executors. Pauline, the wife of the testator, died on 20 July 1994.
4. The following issues were drawn up:
1. Whether the Plaintiffs prove that they are entitled to probate of the last Will and Testament of the deceased?
2. Whether the Plaintiffs prove that the deceased left the duly executed last Will and Testament?
3. Whether the Defendants prove that the signature on the Will is not that of the deceased?
4. Whether the Defendants prove that the Will is not genuine and valid for the reasons set out in paragraphs 7 and 8 of the affidavit in support of the caveat?
5. What relief and order?
5. There were two attesting witnesses to the will of the testator.
Both of them were solicitors and advocates. One of them, Jaswant Chimanlal Shah was a partner in the firm of M/s. Shah and Sanghavi and had filed an affidavit dated 18 December 2006 in the testamentary petition. He died on 9 May 2008 before he could be examined in evidence. The second attesting witness Kantibhai R. Thakkar was also a solicitor who was working with M/s. Shah and Sanghavi, but he too had died in 1993. The will was sought to be proved by leading the evidence of five witnesses:
(i) Paresh Shah, a partner of M/s. Shah and Sanghavi and the son of one of the attesting witnesses (Jaswant Shah) who was a solicitor in the same firm;
(ii) Sudhakar Kawthekar, a Clerk with M/s. Shah and Sanghavi;
(iii) Yashwant Datey, a Graphologist;
(iv) Dr. Narayan Kamat, a Medical Practitioner; and
(v) Bonaventure Dominic Misquitta, a nephew of the deceased.
The First Appellant Wilma Levert Canuao and the Third Appellant Mary Basil Karzai deposed in evidence on behalf of the Appellants.
6. The learned Single Judge by the judgment which is in appeal, held that the will had been duly proved and directed that probate shall issue.
7. In support of the appeal, the following submissions have been urged by Counsel:
(i) None of the witnesses who deposed in evidence had seen the testator signing the will;
(ii) No medical certificate of a doctor certifying the soundness of the mind of the testator was produced;
(iii) The propounder of the will has not entered into the witness box and was not examined;
(iv) Under Rule 382 of the Rules framed by this Court on the Original Side, a petition for the grant of probate ought to have been filed within a period of three years from the date of death of the testator. Though the petition was filed over seven years after the death of the testator, no explanation has been tendered for the delay.
8. On the other hand, it has been urged on behalf of the Respondents that:
(i) Section 63 of the Succession Act provides for the manner in which a will has to be executed. Section 69 of the Evidence Act relates to the proof of a will, if no attesting witness can be found;
(ii) Both the attesting witnesses had died and hence the will was proved primarily by leading the evidence of PW-2 Paresh Shah, a partner in M/s. Shah and Sanghavi. The evidence of Paresh Shah is corroborated by the evidence of the clerk in t
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