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2017 Supreme(Bom) 1589
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
In the matter between Dhana Nambiar - Petitioner
Versus
E.P. Vinod Kurup of Mumbai - Respondent
Testamentary Suit No. 59 of 2003 in Testamentary Petition No. 237 of 2003
Decided On : 10-10-2017
Advocate Appeared:
For the Petitioner: Prakash Lad, Aparna Murlidharan, Sayli Apte
For the Respondent: Clive D'Souza
Headnote:
The plaintiff filed a petition for probate of the last Will and Testament of the testator dated 18th August 2002 who died on 4th September 2002. The defendant, one of the sons of the deceased, filed a caveat and affidavit-in-support alleging that the Will was a false and fabricated document prepared at the instance of the plaintiff with a view to make provision for herself and her children. The plaintiff examined herself, one of the sons of the deceased and Mr. Kishor V. Tembe, advocate who was alleged to be one of the attesting witnesses to the Will. The defendant examined himself, one of the sons of the deceased and Dr. Nobhojit Roy of BARC Hospital. The Court framed issues and heard the parties.
Fact of the Case:
The testator died on 4th September 2002 leaving behind three sons and one daughter. The plaintiff, the daughter of the deceased, filed a petition for probate of the Will dated 18th August 2002. The defendant, one of the sons of the deceased, filed a caveat and affidavit-in-support alleging that the Will was a false and fabricated document prepared at the instance of the plaintiff with a view to make provision for herself and her children. The plaintiff examined herself, one of the sons of the deceased and Mr. Kishor V. Tembe, advocate who was alleged to be one of the attesting witnesses to the Will. The defendant examined himself, one of the sons of the deceased and Dr. Nobhojit Roy of BARC Hospital.
Finding of the Court:
The Court found that the Will was not duly executed and attested as required under the provisions of the Indian Evidence Act, 1872. The Court also found that the Will was surrounded by suspicious circumstances and that the plaintiff had failed to dispel the same. The Court further found that the testator was not of sound mind and disposing capacity at the time of the execution of the Will.
Issues: (i) Whether the last Will and Testament of the testator dated 18th August 2002 was validly executed? (ii) Whether the Will was obtained by fraud or was forged and fabricated?
Ratio Decidendi: The Court held that the plaintiff had failed to prove that the Will was duly executed and attested as required under the provisions of the Indian Evidence Act, 1872. The Court also held that the Will was surrounded by suspicious circumstances and that the plaintiff had failed to dispel the same. The Court further held that the testator was not of sound mind and disposing capacity at the time of the execution of the Will.
Final Decision: The Court dismissed the Testamentary Suit No.59 of 2003 and held that there shall be no order as to costs.
1. The plaintiff herein has filed a petition bearing No.237 of 2003 which is converted into Testamentary Petition No.59 of 2003 inter alia praying for probate of the last Will and Testament of Mr. Edakuda Panankandiyil Narayana Kurup dated 18th August 2002 who died on 4th September 2002 (Hereinafter referred as the “said deceased”). Some of the relevant facts for the purpose of deciding this suit are as under:-
2. The plaintiff claims to the sole executrix of the said Will dated 18th August 2002 alleged to have been executed by deceased Mr. Edakuda Panankandiyil Narayana Kurup. Plaintiff was the daughter of the said deceased. It is the case of the plaintiff that the said deceased left the Will dated 18th August 2002 bequeathing a flat described in the Will to his grandson Harish Nambiar, son of the plaintiff absolutely and exclusively. Except the said bequest, the deceased has alleged to have bequeathed all his estate, movable as also immovable to his daughter-plaintiff absolutely and exclusively. It is the case of the plaintiff that the said deceased left behind him surviving as his only next of kin according to the Hindu Succession Act, 1956 i.e. three sons and one daughter.
3. In the said alleged Will, it was provided that all three sons were well settled and the testator did not wish to give them anything out of his estate and hence he had excluded all his three sons from his estate and directed that none of them shall have any share or interest of any nature in any portion of his estate. According to the plaintiff, the said Will was witnessed by Mr. Kishor V. Tembe, Advocate and also by his wife i.e. Mrs. Neela K. Tembe.
4. On 4th September 2002, the said deceased died at Mumbai. On 17th February 2003, the plaintiff herein filed a Testamentary Suit No.237 of 2003 inter alia praying for probate of the alleged last Will and Testament of the said deceased. Citations were served upon the next of kins described in paragraph 8 of the plaint.
5. Mr. Kishor V. Tembe and Mrs. Neela K. Tembe filed two separate affidavits both dated 17th February 2003 as the attesting witnesses which were annexed to the testamentary petition. Out of three sons of the said deceased, the defendant herein filed a caveat and affidavit for opposing the probate petition. In view of the said caveat and affidavit-in-support of the caveat, the Testamentary Petition No.237 of 2003 was converted into a Testamentary Suit No.59 of 2003. In the affidavit-in-support of the caveat, the caveator alleged that the alleged Will purportedly executed by the deceased on 18th August 2002 was a false and fabricated document prepared at the instance of the plaintiff with a view to make provision for herself and her children so that the entire estate of the deceased would belong to them.
6. It was further alleged that the plaintiff had a malafide motive of disinheriting the caveator completely which the deceased would never have done. It is stated by the caveator that he was given to understand that the left hand thumb impression was obtained by the Sub Registrar at the residence of the deceased. The said deceased was unable to sign the purported Will. However, the purported Will bear the signature of the deceased. It is contended that the attesting witnesses of the purported Will are the husband and wife. The caveator objected to grant of probate also on the ground that the plaintiff who was eldest in the family, her eyes were always set on the estate of the deceased. The deceased was suffering from Cancer which suffering increased in the final days of his life. The deceased died on 4th September 2002 i.e. 17 days from the date of execution of the alleged Will. The deceased was 88 years old and was not in a proper state of mind to understand what he was doing. The deceased was illiterate and was understanding only Malayalam. He could not read or write English. The
