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2017 Supreme(Bom) 1595
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
Stanislaus F. Rego & Another – Plaintiffs
Versus
Margaret Benjamin Abraham & Others – Defendants
Testamentary Suit No. 75 of 2002 in Testamentary Petition No. 787 of 2001
Decided On : 10-10-2017
For the Plaintiffs :Hiralal Thacker, Senior Advocate a/w Kirit Mody a/w Urvi Patel i/by M/s. M.M. Patel & Co., Advocates
For the Defendants :Ramgopal S. Tripathi, Advocate
Headnote:
The plaintiff, one of the executors of the Will and Codicil dated 26.4.1990, filed a testamentary petition for probate of the Will and Codicil. The defendants, legal heirs and next of kin of the deceased, filed a caveat and affidavit in support of caveat opposing the grant of probate. The plaintiff filed an affidavit in lieu of examination-in-chief and also examined himself as a witness. The defendants examined the defendant no.3 as a witness. The issues framed by the Court were whether the Will and Codicil were duly executed and attested, whether the subject Will was legal and valid, whether the defendant proved that the deceased signed the subject Will without knowledge of the contents thereof or that she was not of sound and disposing capacity, whether the defendants proved that the deceased had virtually collapsed due to overnight death of her husband, whether the defendants proved that the deceased executed the Will under duress or on account of starvation or threat of survival, whether the defendants proved that the subject Will is unnatural, whether the defendants proved that the deceased usually signed as “Issac Talegawkar” and not as “Issac I. Talegawkar”, whether the petition was filed without affidavit of attesting witness, and whether the plaintiff is entitled to the grant of probate.
Fact of the Case:
The deceased, Simha Issac Talegawkar, died on 18.8.1996. She had executed a Will and Codicil on 26.4.1990, appointing the plaintiff and Mr. Hasmukh B. Gandhi as executors. The plaintiff filed a testamentary petition for probate of the Will and Codicil. The defendants, legal heirs and next of kin of the deceased, filed a caveat and affidavit in support of caveat opposing the grant of probate. The plaintiff filed an affidavit in lieu of examination-in-chief and also examined himself as a witness. The defendants examined the defendant no.3 as a witness. The issues framed by the Court were whether the Will and Codicil were duly executed and attested, whether the subject Will was legal and valid, whether the defendant proved that the deceased signed the subject Will without knowledge of the contents thereof or that she was not of sound and disposing capacity, whether the defendants proved that the deceased had virtually collapsed due to overnight death of her husband, whether the defendants proved that the deceased executed the Will under duress or on account of starvation or threat of survival, whether the defendants proved that the subject Will is unnatural, whether the defendants proved that the deceased usually signed as “Issac Talegawkar” and not as “Issac I. Talegawkar”, whether the petition was filed without affidavit of attesting witness, and whether the plaintiff is entitled to the grant of probate.
Finding of the Court:
The Court found that the plaintiff had proved the due execution and attestation of the Will and Codicil, that the subject Will was legal and valid, that the defendants had failed to prove that the deceased signed the subject Will without knowledge of the contents thereof or that she was not of sound and disposing capacity, that the defendants had failed to prove that the deceased had virtually collapsed due to overnight death of her husband, that the defendants had failed to prove that the deceased executed the Will under duress or on account of starvation or threat of survival, that the defendants had failed to prove that the subject Will is unnatural, that the defendants had failed to prove that the deceased usually signed as “Issac Talegawkar” and not as “Issac I. Talegawkar”, that the petition was not filed without affidavit of attesting witness, and that the plaintiff was entitled to the grant of probate.
Issues: 1. Whether the Will and Codicil were duly executed and attested? 2. Whether the subject Will was legal and valid? 3. Whether the defendant proved that the deceased signed the subject Will without knowledge of the contents thereof or that she was not of sound and disposing capacity? 4. Whether the defendants proved that the deceased had virtually collapsed due to overnight death of her husband? 5. Whether the defendants proved that the deceased executed the Will under duress or on account of starvation or threat of survival? 6. Whether the defendants proved that the subject Will is unnatural? 7. Whether the defendants proved that the deceased usually signed as “Issac Talegawkar” and not as “Issac I. Talegawkar”? 8. Whether the petition was filed without affidavit of attesting witness? 9. Whether the plaintiff is entitled to the grant of probate?
Ratio Decidendi: The Court held that the plaintiff had discharged the burden of proof in respect of the issues for which the burden was on him. The defendants had failed to prove the allegations made by them in the affidavit in support of caveat or by the father of the defendant no.3 in his affidavit in support of the caveat. The objections raised in those affidavits were raised merely for the sake of raising it in order to delay the outcome of the testamentary petition filed by the plaintiff. Those objections thus deserved to be dismissed with exemplary costs and the plaintiff be granted probate in respect of the said Will and Codicil both dated 26.4.1990 expeditiously.
Final Decision: The Court decreed the testamentary suit as prayed and directed the office to issue probate in favour of the plaintiff for the Will and Codicil dated 26.4.1990 executed by Late Simha Issac Talegawkar, having effect throughout the State of Maharashtra, expeditiously. The suit was decreed with costs.
1. By Testamentary Petition No.787 of 2001 which is converted into Testamentary Suit No.75 of 2002, the plaintiff (original petitioner) seeks probate of alleged Will and Codicil both dated 26.4.1990 alleged to have been executed by Simha Issac Talegawkar, who died at Mumbai on 18.8.1996. Some of the relevant facts for the purpose of deciding this suit are as under:
2. It is the case of the plaintiff that by an alleged Will and Testament dated 26.4.1990, Simha Issac Talegawkar (for the sake of convenience, the said Simha Isaac Talegawkar is referred as “the said deceased”), made a bequest in respect of Plot of land bearing No.312, First Road, Khar, Bombay-400052 together with building thereon including furniture, fixtures, and articles lying in the plot to his son Mr.Albert Talegawkar absolutely.
3. It is the case of the plaintiff that in the said Will, the said deceased directed the said Mr.Albert Talegawkar to give his three daughters i.e. Mrs.Daisy, Mrs.Rosy and Mrs.Annie and another son Mr.Benjamin a sum of Rs.1,00,000/- each within a period of two years from the death of the deceased, provided that such of her children as have migrated at the time of her death, will avail of the said legacy in India subject to the prevailing law. According to the said alleged Will, all of movables and personal jewellery of the said deceased had been already given away to the children. It is provided in said Will that the residue of her estate of whatsoever nature, was given to her son Mr.Albert Telegawkar absolutely. It is the case of the plaintiff that under the said Will and Testament dated 26.4.1990, the said deceased had appointed the plaintiff and Mr.Hasmukh B. Gandhi both Advocates by profession as her joint executors of the said Will.
4. The said deceased had three daughters and two sons. It was provided in the said alleged Will that her oldest daughter Mrs.Daisy was married to Mr.Sayed Dadarkar and she was staying in Mumbai. The second daughter was married to Mr.Gedaliah Solomon and had settled down in Israel with her family. The last daughter Mrs.Annie was married to Mr.Samuel Malekar and was in Mumbai. Her son Mr.Benjamin was working in the Customs Department in Mumbai and was living separately from her for last several years. It was further provided in the said alleged Will that except Mr.Benjamin's son Hillel, the other children and his wife had already migrated to Israel.
5. It is the case of the plaintiff that on 26.4.1990, the said deceased also executed a Codicil and modified the part of the Will dated 26.4.1990. According to the said alleged Codicil, the said deceased directed Mr.Albert Talegawkar to give Rs.1,50,000/- instead of Rs.1,00,000/- to her other children i.e. Mrs.Daisy, Mr.Benjamin, Mrs.Rosy and Mrs.Annie.
6. It is the case of the plaintiff that the said Will and the said Codicil both dated 26.4.1990 were duly witnessed by Dr.P.H.Udhas and also by plaintiff himself as attesting witnesses. On 18.8.1996, the said deceased expired living behind her five heirs and nextofkin according to the Indian Succession Act, 1925 i.e. (1) Mrs.Daisy Sayed Dadarkar – relation daughter, (2) Mr.Benjamin – relation son, (3) Mrs.Rosy Gedaliah Soloman – relation daughter, (4) Mr.Albert Issac Talegawkar – relation son and (5) Mrs.Annie Samuel Malekar – relation daughter. The husband of the said deceased predeceased her.
7. On 11.10.2001, the plaintiff herein filed the Testamentary Petition No.787 of 2001, interalia, praying for Probate for alleged Will and Codicil both dated 26.4.1990. The plaintiff had also impleaded Mr.Hasmukh B. Gandhi as petitioner No.2 to the said Testamentary Petition. Along with Testamentary Petition, plaintiff filed an affidavit of oath dated 11.10.2001. The original petitioner No.2, Mr.Hasmukh B. Gandhi also filed affidavit of oath along with the Testamentary Petition. The citation was served upon al
