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2016 Supreme(Bom) 2192
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S. PATEL, J.
Bhavesh Vinodrai Doshi of Indian Inhabitant - Plaintiff
Versus
Smt. Hansaben Vinodrai Doshi - Defendant
Testamentary Suit No. 37 of 1995 in Testamentary Petition No. 242 of 1994
Decided On : 22-07-2016
For the Plaintiff : Mr. Naresh Ratnani, with Mr. A. Sharma, i/b Ashwin Ankhad & Associates.
For the Defendant :Mr. Yogesh Yagnik, Advocate.
The judgment emphasizes the importance of establishing the due execution and attestation of a Will, the soundness of the testator's state of mind, and the need to address suspicious circumstances surrounding the Will. It also underscores the court's discretion to draw adverse inferences when critical evidence is withheld or unexplained.
Headnote:
Will - Testamentary Writing - Indian Succession Act, 1925 - Section 63, Section 59
Fact of the Case:
The Plaintiff propounded a testamentary writing as the Last Will & Testament of his father. The Will was dated 7th January 1993, and the Plaintiff sought Letters of Administration with Will Annexed. The Will left various properties to the Plaintiff, and the Plaintiff's mother and sister opposed the Petition, alleging that the Will was unnatural and executed under undue influence.
Finding of the Court:
The court found that the Plaintiff failed to establish the due execution and attestation of the Will as required by Section 63 of the Indian Succession Act, 1925. The court also found that the deceased was not of sound and disposing state of mind, memory, and understanding at the time of the alleged Will. The court further held that the alleged Will was unnatural and dismissed the Suit.
Issues: The issues framed were whether the Plaintiff proved the due execution and attestation of the Will, and whether the deceased was of sound and disposing state of mind at the time of the alleged Will. The court recast the issues to reflect the understanding and basis on which the parties proceeded to trial.
Ratio Decidendi: The court emphasized the necessary components that must be established for a Will to be duly proved, as covered by Section 63 and Section 59 of the Indian Succession Act, 1925. The court also highlighted the suspicious circumstances surrounding the Will and the failure of the Plaintiff to explain them, leading to an adverse inference against the Plaintiff.
Final Decision: The Suit was dismissed, and costs were awarded against the Plaintiff in favor of the 2nd Defendant.
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G.S. PATEL, J.
1. The Plaintiff (“Bhavesh”) propounds a testamentary writing that he claims says was the Last Will & Testament of his father Vinodrai Bachubhai Doshi (“Vinodrai”). Paper book, p. 6, The Will is said to be dated 7th January 1993. Vinodrai died on 23rd January 1993. Bhavesh says his father made the Will at home, 905, Chandanbala Apartments, 4, Ratilal Thakker Marg, Malabar Hill, Mumbai 400 006. The Petition is for Letters of Administration with Will Annexed.
2. Vinodrai’s only heirs were his son, the Plaintiff (“Bhavesh”); his widow, the 1st Defendant, Smt. Hansaben Vinodrai Doshi (“Hansaben”); and their married daughter, Mrs. Rita Amit Shah, the 2nd Defendant (“Rita”). After her marriage, Rita lives not far from the Chandanbala Apartments flat at Walkeshwar Road.
3. The Petition was initially opposed by both Hansaben and Rita. It seems that Hansaben later attempted to withdraw her Caveat. Paper book, pp. 37 & 40 Rita opposed the Petition to the very end.
4. The Will in question, marked in evidence as Exhibit “A”, is a holograph, i.e., a handwritten Will in Gujarati. It has two pages. Vinodrai is said to have signed it at the foot of its second page. His name is written in English beneath his signature. To the left of his signature are the signatures of the two persons said to be witnesses. The first is one Manish Doshi. The second is one Dr. Mahesh J. Kapadia, a physician. There is an official translation of the Will on record Paper book, p. 8.
5. In the Will, the testator left his residential flat at Chandanbala Apartments to Bhavesh. He also left to Bhavesh his office premises at 50, Nagdevi Street, First Floor, Bombay 400 003. In Clause 3, the deceased divided his ornaments equally between Bhavesh and Rita. Clause 4 said that all other wealth was to be divided equally between Hansa, Bhavesh and Rita.
6. The next Clause, with no number, lists five separate properties in Navi Mumbai and Ahmedabad. These are said to be in the names of Vinodrai with either Hansaben or Bhavesh. These are all left to the person whose name appears second. Here again it seems that Bhavesh has a share in all five properties and an exclusive title in three of these five. In the other two, Hansaben has an interest.
7. Hansaben filed a caveat and an Affidavit in Support. Paper book, p. 24. Rita adopted it. The Affidavit in Support has several allegations. The Defendants say that the Will is unnatural; that the signature on the Will is not Vinodrai’s; and that if it is genuine, it was made under undue influence at a time when Vinodrai wholly lacked testamentary capacity. Specifically, the Affidavit in Support of the Caveat says that on the day on which the alleged Will was executed, both Rita and Hansaben were in the house, Affidavit in Support of Caveat, paragraph 6, p. 26 They have no knowledge of any such execution. The Testator did not mention any such execution either, Affidavit in Support of Caveat, paragraph 3, p. 25. They deny that either of the witnesses, or anybody else, ever visited the house on 7th January 1993. As to the first attesting witness, Manish Doshi, the Defendants say that not only is he Bhavesh and Rita’s first cousin (Manish Doshi’s father, Umedbhai, and Vinodrai were brothers), but that he is particularly close to Bhavesh. The Defendants also say that the Will is entirely suspicious: though written in Gujarati, it is allegedly signed in English, but there is no mention that the Will was ever read over and explained to Vinodrai, Affidavit in Support of Caveat, paragraph 6, p. 27. There is also no explanation as to how Bhavesh came upon the Will, or when.
8. More importantly, the Affidavit says that at that time, and ever since 1988, Vinodrai suffered from cirrhosis. He had extensive liver damage. He contracted malarial fever in December 1998. This led to jaundice. On 22nd December 1992, he was admitted to
