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2017 Supreme(Bom) 2638
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.G. KETKAR, J.
Surendra T. Malik - Plaintiff
Versus
Neha V. Malik and others - Defendants
Testamentary Suit No.83 of 2000 in Testamentary Petition No.175 of 1999
Decided On : 26-09-2017
For the Plaintiff : Ms. Jahan-ara Sarkhot.
For the Defendants : Mr. G.S. Bhat.
The plaintiff failed to prove due execution and attestation of the Will and did not clear the suspicious circumstances surrounding the Will, leading to the dismissal of the Suit.
Headnote:
WILL - Grant of Letters of Administration - Indian Succession Act, 1925 - Hindu Succession Act, 1956 - Calcutta High Court decision - Allahabad High Court decision - due execution and attestation of the Will not proved - suspicious circumstances surrounding the Will not explained - Will surrounded by suspicion - plaintiff failed to prove due attestation of the Will - Will not validly executed - plaintiff failed to clear the suspicious circumstances - Suit dismissed
Fact of the Case:
The plaintiff filed a petition for the grant of Letters of Administration with the Will annexed to the property and credits of the deceased, contending that the deceased had left a Will duly executed at Mumbai on 28.08.1998, leaving all her property to the plaintiff. The defendant filed a Caveat, contending that the Will was false, manipulated, and fabricated, and that the deceased was not in a mentally fit condition to execute the alleged Will.
Finding of the Court:
The court found that the plaintiff failed to prove due execution and attestation of the Will, and the Will was surrounded by suspicious circumstances that were not explained. The court concluded that the Will was not validly executed and the plaintiff failed to clear the suspicious circumstances, leading to the dismissal of the Suit.
Issues: The issues included whether the plaintiff established the valid execution and attestation of the Will, whether the Will was surrounded by suspicious circumstances, whether the Will was manipulated and fabricated, and whether the deceased executed the Will under undue influence and pressure.
Ratio Decidendi: The court held that the plaintiff failed to prove due attestation of the Will and did not clear the suspicious circumstances surrounding the Will, leading to the conclusion that the Will was not validly executed. The court also found that the defendant did not substantiate the allegations of manipulation, fabrication, and undue influence in the execution of the Will.
Final Decision: The Suit was dismissed, and no order was made as to costs.
1. Heard Ms Sarkhot, learned Counsel for the plaintiff and Mr. Bhat, learned Counsel for defendants at length.
2. The plaintiff has instituted Petition No.175 of 1999 for the grant of Letters of Administration with the Will annexed to the property and credits of Smt Shobhana Tukaram Malik (for short 'deceased) inter alia contending that the deceased had died at Mumbai on or about 02.11.1998. The deceased had a fixed place of abode at Sainath Vijay Nagar, 1st floor, 91, R.H.B. Road, Mulund (W), Mumbai 400 080 and had left the property within Greater Mumbai in the State of Maharashtra. The deceased had left a writing, which is her last Will and Testament. The Will was duly executed at Mumbai on 28.08.1998. The plaintiff is a sole legatee named in the Will of the deceased. The plaintiff has set forth in Schedule I, all the property and credits which the deceased possessed of or entitled to at the time of her death. It is further contended that so far as the plaintiff is aware of or is able to ascertain, there are no other properties and credits other than what is specified in Schedule I annexed to the petition. The deceased had left her surviving as her only heirs and next-of-kins according to Hindu Succession Act, 1956, the following persons, who are residing at the addresses set out against their respective names:
Name of the heirs
Relationship with the deceased
Addresses
1
Surendra Tukaram Malik
Son (petitioner)
Sainath Vijay Nagar, 1st Floor, 91, R.H.B.Road, Mulund (West), Mumbai 400 080.
2
Prakash Tukaram Malik
Son
-do-
3
Neelam Arun Narvekar
Daughter
Garden View Bldg., 4th floor, Thakur Complex, Kandivli (E), Mumbai 67.
4
Shradha Ulhas Sirsat
Daughter
Sneha Bungalow, Shanti Niketan Road, Opp. Vasant Dada Patil Sugar Factory, Sangli, Maharashtra.
5
Neha Vijay Malik
Daughter-in-law (widow of the deceased son of the deceased)
Sainath Surendra Niwas, 3rd floor, 91, R.H.B. Road, Mulund (West), Mumbai 400 080.
3. Plaintiff, therefore, prayed for issuing Letters of Administration with the said Will annexed to him having effect throughout Maharashtra State. Along with the Petition, plaintiff annexed supporting affidavit of Sakharam Mhatarba Shelke, one of the attesting witnesses dated 02.02.1999. In paragraph 1 of the affidavit, it is stated that he knew and was well acquainted with the deceased. On 28.08.1998, he was present along with Y.G. Chaudhari (another attesting witness) at the place of the deceased and they did then and there see the deceased set and subscribe her thumb impression at the foot of the testamentary paper in Marathi language and character. Thereupon, he and Y.G. Chaudhari did, at the request of the deceased and in her presence and in the presence of each other all being present at the same time, set and subscribe their respective names and signatures at the foot of the said testamentary paper as witnesses thereto. In paragraph 5, it is stated that thumb impression of the deceased appearing at the foot of pages 1 and 2 of the Will did exist before the execution of the Will.
4. Defendant filed Caveat on 12.10.2000 and also filed affidavit in support thereof on 19.10.2000. Defendant inter alia contended that the Will of the deceased is totally false, manipulated and fabricated. The deceased always used to sign in vernacular on all the papers and rent receipts issued by her to the tenants of her property, whereas her thumb impression has been got affixed at the foot of her alleged Will. This very fact indicates that the alleged Will is a fabricated one as there is no explanation in the alleged Will as to why she is affixing her thumb impression and not her signature thereto. Defendant furthe
