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2019 Supreme(Bom) 429
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S. Patel, J.
SULOCHANA DINANATH TARKAR - Appellant
Vs.
ANIL DINANATH TARKAR - Respondent
Testamentary Suit No. 23 of 2003, Testamentary Petition No. 667 of 2002
Decided On : 29-01-2019
B.G. Saraf, Jessie Misquitta, Farkhan Khan, R. Sathyanarayan.
Headnote:
Indian Succession Act, 1925 - Sections 63, 61 and 59 - Evidence Act - Sections 68 and 69 – Death - Attesting Witness Alive - Plaintiff examined pw1 and pw2 - Defendants only led evidence affirmed an affidavit in lieu of examination-in-chief - Her sons were brought on record as plaintiffs pursuant to an order of prothonotary & senior master - Sunil adopted and re-affirmed affidavit in his own affidavit in lieu of examination-in-chief annexing earlier affidavit to his own - Plaintiff introduced documents in evidence - I will refer to these documents to extent necessary while discussing evidence - Not all of these documents are relevant to prove due execution of will - I have heard for plaintiffs and for defendants with their assistance I have considered record authorities cited and their respective written submissions - Held, There is evidence to show that he was meticulous he ensured nominations in favour of his flat and his service dues for instance says he was overbearing domineering introverted and a disciplinarian and there is no reason or material to refute this - He remained active after his retirement setting up a private practice and was in good health - He took his daily walks and while in service used public transport - This is actually portrait of quintessential traditional man self-contained and intact with inflexible and fixed ideas and rhythms to his life strict in his daily routine and demanding conformity to his norms and notions - None of this makes him a bad husband or a poor father to contrary - He may not have voiced his appreciation of his wife to her in his lifetime that was probably not in his nature and to his children he may have seemed stern and even forbidding - But his concern for his family was true and genuine within bounds of his beliefs and standards - He saw both daughters to their marriages and educated his sons with defendant he struggled and despaired at his sons truancy and educational failings but this is not proof of exceptional affinity or favoritism but rather a demonstration of even-handedness and concern that any parent might have for a difficult child - There is nothing therefore adduced in nature of proof by defendants - Merely alleging suspicion is not enough - This is a jurisdiction of circumspection not suspicion - Petition Is Allowed.
G.S. Patel, J.
A. BACKGROUND; PARTIES:
1. Dinanath Harishchandra Tarkar ("Dinanath"; "the testator"; "the deceased") died on 20th January 2001. He left a Will dated 9th March 1981. (Exhibit B, pp. 9-11)
The original Plaintiff, Sulochana Dinanath Tarkar ("Sulochana"), sought Letters of Administration with this will annexed. She was Dinanath's second wife and the sole beneficiary under his Will.
2. Dinanath's first wife was also named Sulochana, the name she was given after marriage. Her maiden name was Sumati Poyrekar. She died on 11th November 1954. She and Dinanath had two children, Anil Dinanath Tarkar ("Anil") and Savita Chandrakant Naringrekar ("Savita"; Snehalata before marriage). Anil was an infant a few days old and Savita a child of three when their mother passed.
3. Dinanath then married the original Plaintiff, his second wife, also named Sulochana, in May 1955. (References in this judgment to 'Sulochana' are, therefore, to Dinanath's second wife.) The original Plaintiff's maiden name was Godavari Ganpath Birje. She was given the name Sulochana on marriage. They had three children, Sunil Dinanath Tarkar ("Sunil"), Harish Dinanath Tarkar ("Harish") and Nisha Dilip Shivalkar ("Nisha"; Alka before marriage). Dinanath and both his wives came from Devgad taluka in Sindhudurg district.
4. The Petition for Letters of Administration with Will annexed was filed on 4th September 2002. Sunil, Harish and Nisha filed their consent affidavits to this petition. (Compiled record, pp. 17-22) Citations were served in 2003. On 10th April 2003, Anil and Savita each filed Caveats and identical Affidavits in Support. (Compiled record, pp. 117-135)
5. Upon the Caveats being filed, the Petition was renumbered as Testamentary Suit No. 23 of 2003.
B. THE DISPUTED WILL:
6. Dinanath's Will is a two-page document typed in English. Dinanath is said to have put his signature at the foot of the Will. Below his signature, are the signatures of the two attesting witnesses, one Shatrughna Mahadev Hirlekar ("Hirlekar") and one Ramakant Ganpat Sakpal ("Sakpal"). The Will was registered on 9th March 1981 under No. 612 of 1981 of Book No. III. The Will is simple and straightforward. In it, Dinanath makes an absolute bequest of his assets in favour of his second wife, Sulochana. He states in the last paragraph that none of his children shall have any right or claim against Sulochana. He does not appoint an executor for the Will.
7. In their Affidavits, the Defendants say that the signature on the Will is not Dinanath's; and if it is genuine, it was made under undue influence; that the Will was not duly attested; that the Will is unnatural; that the Will was fabricated, and obtained by fraud and coercion; and that the attesting witness have not witnessed execution and merely signed it. Specifically, the Affidavits say that the Will does not reflect Dinanath's true last wishes. They claim that in his lifetime the deceased personally told Anil and Savita that after his death his property would be equally distributed amongst Anil, Savita, Sulochana, their step-brothers, Sunil and Harish and their step-sister, Nisha. In the Will, however, Dinanath bequeaths his entire property to the Defendants' step-mother, Sulochana. They say that the Will is suspicious: it does not appoint an executor. It is also uncharacteristic: the document is typed, whereas Dinanath was in the habit of personally writing his documents.
C. ISSUES:
8. On 17th March 2005, S.K. Shah, J, framed issues in the present proceedings. (Compiled record, p. 135) These are reproduced below with my findings against each.
| Sr. No. | Issue | Findings |
| 1. | Whether the alleged Will dated 09-03-1981 was validly executed by the deceased Dinanath Harishchandra Tarkar? | Yes |
| 2. | Whether the deceased Dinanath Harishchandra Tarkar was of sound and disposing state of mind at the tim | |
