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2014 Supreme(Bom) 2174
IN THE HIGH COURT OF BOMBAY
R.S. Dalvi, J.
Dasappa Dhomba Karkera Revathi V. Amin - Appellants
Vs.
Mahesh Dasappa Karkera - Respondent
Testamentary Suit No. 9 of 2003 in Testamentary Petition No. 834 of 2002
Decided On : 08.10.2014
For the Appellant : D.Y. Chitnis instructed by Deepak Chitnis Chiparikar and Co.
For the Respondents: Ajay Prajapati and J.S. Kini instructed by Suresh Dubey
The main legal point established in the judgment is the validation of the deceased's Will and the determination of the deceased's sound disposing mind at the time of execution.
Headnote:
Testamentary Suit - Will - 1. Indian Succession Act, 1925 - Section 57, Section 213, Section 57 - The court discussed the validity of the deceased's Will and the bequeathal of his properties to his children, highlighting the provisions of the Indian Succession Act, 1925 and their interpretation in the context of the case.
Fact of the Case:
The petitioner filed a testamentary suit for letters of administration of the deceased's Will, which was contested by one of the deceased's sons. The son challenged the Will on the grounds of ownership of the flat and the deceased's mental state at the time of execution.
Finding of the Court:
The court found that the Will was validly executed and that the deceased was in a sound disposing mind at the time of execution. The court also ruled in favor of the petitioner, granting letters of administration with the Will annexed.
Issues: The issues included the validity of the Will, the authenticity of the deceased's signature, and the mental state of the deceased at the time of execution.
Ratio Decidendi: The court found no evidence of forgery or unsound mind of the deceased, leading to a ruling in favor of the petitioner.
Final Decision: The court ordered the issuance of letters of administration with the deceased's Will annexed and dispensed with the drawn-up decree.
R.S. Dalvi, J.
1. The testamentary suit is filed by the petitioner for letters of administration of the deceased Dasappa Dhomba Karkera with the Will of the deceased dated 2nd August, 1996 annexed thereto. The deceased had 3 sons and 3 daughters. The deceased lived with one son, the caveator herein. The deceased has bequeathed the movable properties to his 3 daughters who were his joint holders in his investments. The deceased has bequeathed his immovable property being his residential flat to 5 out of his 6 children excluding only the caveator who lived with him. He has directed sale of the flat and equal distribution of the proceeds to his 5 children further directing that the caveator be vacated from the flat by his nominees who were his eldest daughter and youngest son. The deceased has declared that his son, the caveator herein who lived with him was not looking after and taking care of him in his old age. The Will is attested by two witnesses on 2nd August, 1996 and registered before the Sub-Registrar of Assurances in the presence of two other witnesses being the Advocate of the deceased and the Executor appointed under the Will also on 2nd August, 1996. The caveator has essentially challenged the Will on the ground that he has sent monies from abroad and paid for the consideration of the flat and hence the flat belongs to him and it could not have been bequeathed to the other children of the deceased. The caveator has claimed that accordingly the Will is bogus. The caveator/defendant has also claimed that the deceased was not in a sound and disposing state of mind at the time of the execution of the Will and the signature on the Will is not of the deceased.
2. Based upon the respective cases of the parties the following issues came to be framed which are answered as follows:
"1. Whether plaintiff/petitioner proves that the execution of the Will of Dasappa Domba Karkera is according to provisions of Law and the same is valid.
2. Whether the caveator/defendant proves that the signature on the Will is not of the deceased.
3. Whether the caveator/defendant proves that the deceased at the time of the execution of the Will was not in sound disposing mind or that the deceased has executed the Will under undue influence.
4. What relief, if any, the petitioner is entitled to?"
3. The plaintiff examined himself, one attesting witness and the executing witness appointed under the Will. The caveator/defendant examined himself. The issues in the suit Will have to be decided upon considering the oral evidence of the parties alongside the documentary evidence more specially the contents of the Will itself.
4. Issue No. 1:
"The Will is seen to be most natural. The deceased had 6 children. He has provided for 5 of them. He has provided the movable properties equally for his 3 daughters. He has provided the immovable property equally for his 3 daughters and 2 sons with whom he had no grievance, quarrel or dispute. He has specifically excluded only one son, the caveator. This was though the caveator lived with the deceased. In fact a completely contrary Will in which the entire estate is given only to the son who lived with the deceased would have been more unnatural. If the Will was not executed by the deceased and the signature on the Will was not that of the deceased and the Will was got executed by the petitioner or any other of his children, the Will would not have shown bequest to all the remaining 5 children almost equally."
5. Upon such a premise the evidence of the parties would have to be considered.
6. The evidence of the plaintiff shows that the deceased purchased the suit flat and paid the consideration therefor. It further shows that in 1992 the caveator started residing with the deceased. There were quarrels between the caveator and his wife and the deceased. They were cooking separately because of the bad treatment. The deceased was made to live at different places, even with his married daughters. Her evidence shows that he
