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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S. PATEL, J.
PANNA SURENDRA MEHTA – Plaintiff
Versus
PURNIMA LATIK SHAH – Defendant
Testamentary Suit No. 74 of 2011 In Testamentary Petition No. 970 of 2009
Decided On : 14-10-2016
The requirements of a valid unprivileged Will are well known. The testator must be an adult of sound mind. He must be shown to have made the Will of his own volition and without any importunity as might rob him of free agency. He must sign the Will intending it to be such a document.
The execution of the Will must be attested by at least two witnesses. Both witnesses need not be present at the same time, but each must have seen the testator sign the Will. The mere fact that some heirs are excluded is not per se evidence of a Will being unnatural, every Will disrupts the ordinary line of succession, and this is obvious. Were it otherwise, there would be no need for Wills.
Indian Succession Act, 1925 - Section 63-Will.-Undue influence is to be pleaded and must be established as a fact to invalidate a Will.
As to the case on `undue influence`, there is no evidence at all. To invalidate a Will, undue influence must be established as a fact. The actual exercise of that undue influence on the testator, and which is in the nature of coercion and fraud, must also be demonstrated. [Mt. Gomtibai v. Kanchhedilal and others, AIR 1949 PC 272.] It is not enough to show that one person was in a position or had the power to overbear the testator; it must be shown that Will was the result of the exercise of that power. [Wingrove v. Wingrove, (1885) 11 PD 81.] Generalized, allegations will not do : undue influence is to pleaded with specificity, particularity and precision. [Afsar Shaikh and another v. Soleman Bibi and others, (1976) 2 SCC 142.]
Indian Succession Act, 1925 - Sections 63 and 276-Testamentary jurisdiction.-Testamentary jurisdiction, is one of caution and not of suspicion.
The plaintiff "P", seeks Letters of Administration with Will Annexed. She is "J`s" sister-in-law, his wife "V`s" sister. "P" is one of the beneficiaries of the Will. The major beneficiary is "P`s" son, "A" also known as Asit Mehta ("Asit"). He was also the sole executor names in the Will. "A" died on 18th May, 2009. After "J" died, Asit sought probate which was abated consequent to his death. On 30th September, his mother "P" filed the present petition for Letters of Administration with annexed seeking to prove "J`s" Will. On overall assessment, it seems to the Court clear from the record that "J", himself childless, was close to "P" and her son, and treated her son Asit as his own.
Issues such as undue influence, coercion, forgery or the Will being unnatural cast the burden not on the propounder, but on person who alleges these things. Again, these are not matters to be presumed. Where there are reasons shown for exclusion and for favouring one over others and, again, there is no statutory prescription that a Will must favour all heirs and the execution of the Will is satisfactorily established, the propounder`s burden must be held to have been discharged. It is never correct or proper to emphasize only one feature and to ignore other circumstances; an overall view is always the correct approach.
1. Jaswantbhai Natwarlal Jolia (“Jaswantbhai”) died on 26th January 2004 (Ex. “A” in evidence, Vol. D, p. 224). He left a Will dated 10th August 2002 (Copy at Ex. “B” in evidence, Vol. D, pp. 225-226. Original deposited in Court). The Plaintiff, Panna S. Mehta (“Pannaben”), seeks Letters of Administration with Will Annexed to this Will. She is Jaswantbhai’s sister-in-law, his wife Veenaben’s sister. Panna is one of the beneficiaries of the Will. The major beneficiary is Panna’s son, Ashitkumar Surendra Mehta, also known as Asit Mehta (“Asit”). He was also the sole executor named in the Will. Asit died on 18th May 2009.
2. Jaswantbhai’s wife, Veena, died on 3rd March 2000, about four years before Jaswantbhai passed. Jaswantbhai and Veena had no children of their own. Jaswantbhai had three sisters, Ramaben Krishnalal Shah, Indiraben V. Bankley and Trilochanaben T. Fozdar, and a brother Kanhaiyalal Dalal. Ramaben and Indiraben died before Jaswantbhai. He was, therefore, survived by Trilochanaben and Kanhaiyalal, his surviving siblings.
3. After Jaswantbhai died, Asit sought probate. He filed Testamentary Petition No. 243 of 2004. That petition was opposed by Trilochanaben and by three of Ramaben’s children (Panna, Jitendra and Kishore). It was renumbered as Testamentary Suit No. 22 of 2004. Kanhaiyalal died on 10th May 2007 without leaving any heirs. Asit filed Notice of Motion No. 104 of 2007 to dismiss the caveats filed by Ramaben’s children, contending that they had no caveatable interest, since, at the time when succession opened, Jaswantbhai’s heirs in law were Trilochanaben and Kanhaiyalal and they took before, in preference to, and to the exclusion of Ramaben’s children. The Notice of Motion succeeded, and Ramaben’s children’s caveats were dismissed. (Ashitkumar Surendra Mehta vs. Trilochanaben Thakorlal Fojdar, 2008 (4) Bom. C.R. 372)
4. Asit died on 15th May 2009 and it was then held that his probate petition abated (Order dated 4th September 2009, following the decision of the Division Bench in Thrity Sam Shroff vs. Shiraz Byramji Anklesaria, 2007 (4) Mh. L.J. 56. The correctness of this decision has been doubted in the Division Bench decision in Haresh Chetan Thadani vs. Komal Suresh Chainani, Appeal No. 1 of 2015, decided on 27th January 2015, in appeal from an order I passed on 16th December 2014 allowing a Chamber Summons for conversion of a probate Petition into one for Letters of Administration with Will Annexed. The Division Bench in Thadani held that in Thrity Sam Shroff, the Court’s attention had not been drawn to the decision of the Supreme Court in Shambu Prasad Agarwal & Ors. v Bhola Ram Agarwal, (2000) 9 SCC 714). On 30th September 2009, his mother, Pannaben, filed the present petition for Letters of Administration with Will Annexed seeking to prove Jaswantbhai’s Will. On 25th November 2009, Trilochanaben filed Testamentary Petition No. 45 of 2010 for Letters of Administration to Jaswantbhai’s estate. Pannaben filed a Caveat, and this was renumbered as Testamentary Suit No. 118 of 2010. On 1st November 2010, Trilochanaben died in Mumbai. She left a Will dated 11th February 2008. In this, she purported to make bequests of her share, if any, from Jaswantbhai’s estate inter-alia to her own children and to the children of her deceased sister, Ramaben.
5. On 1st April 2011, Trilochanaben’s daughter, Purnima Latik Shah (“Purnima”) filed a Caveat in the present Petition for Letters of Administration with Will Annexed brought by Pannaben. On 16th January 2013, Jitendra Krishnalal Shah and Jaisukh Krishnalal Shah, two of Ramaben’s children, filed Caveats in the present Petition. Pannaben filed Notice of Motion No. 49 of 2013 for discharge of those Caveats. The Motion succeeded: the two Caveats by Jitendra and Jaisukh were discharged (Panna Surendra Mehta vs. Jaisukh Krishnalal Shah & Anr., 2014 (3) ALL MR
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