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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
R.D. DHANUKA, J.
REBENDRA DATTA - Appellant
Versus
SEEMA PARAB - Respondent
Testamentary Suit No. 58 of 2009; Petition No. 695 of 2008
Decided on : 02-05-2019
Indian Registration Act – Indian Succession Act, 1925 – Section 281 – Bombay High Court (OS) Rules – Rules 374C and 384 – Will – Grant of probate – By Testamentary Petition, which is converted into Testamentary Suit Mr. Prasad Tendolkar who claims to be the executor of the alleged last Will, alleged to have been executed by the deceased seeks grant of probate – Held, Since there are several suspicious circumstances surrounded in execution of the Will which has created doubt on the veracity of the Will, and since there are glaring contradictions and discrepancies in the evidence of the witnesses of the plaintiff, such a Will cannot be probated by the Testamentary Court. – The onus was on the plaintiff to dispel all the suspicious circumstances created in the mind of the Court by the defendants, which onus the plaintiff has failed to discharge. – A perusal of the record clearly indicates that the plaintiff, his father and his wife who had claimed to be the consultants of the deceased, have colluded together in forging and fabricating the Will of the deceased. – Though none of the defendants have stepped into the witness box in this case, by cross examining the witnesses examined by the plaintiff, they have totally shattered the case of the plaintiff and have proved that the alleged Will was surrounded by various suspicious circumstances and is forged and fabricated. – The evidence led by the plaintiff does not inspire confidence and, thus, cannot be accepted by this Court. – In so far as the submission of Mr. Kanade, learned counsel for the plaintiff that in so far as issues No.3, 4 and 5 are concerned, the onus was on the defendants to prove that the alleged Will was fraudulent, forged or was procured by undue influence and coercion is concerned, defendants have discharged the onus by shattering the evidence of the witnesses examined by plaintiff. – In so far as issue no.5 is concerned, since the plaintiff has failed to prove execution of the alleged Will, and whether plaintiff proved that the deceased was of sound and disposing state of mind, memory and undertaking on the date of the execution of the alleged Will and has failed to dispel the suspicious surrounding circumstances, the plaintiff has failed to discharge the burden cast on him in respect of those issues. – Since the plaintiff has failed to discharge the onus in so far as issues no.1 and 2 are concerned, the defendants are not liable to prove that the Will was procured by undue influence of coercion. – Court have perused the provisions of the Indian Registration Act and also the Maharashtra Registration Manual, Part I, relied upon by the caveatrixes in support of their submission that the alleged Will propounded by the plaintiff which was allegedly registered with the Registrar of Assurance and collection of the alleged original Will by the father of the plaintiff is ex facie in violation of those provisions already referred to aforesaid. In find substance in the submission made by the defendant no.2. – Testamentary Suit Dismissed
R.D. DHANUKA, J.
1. By Testamentary Petition No.695 of 2008, which is converted into Testamentary Suit No.58 of 2009 Mr. Prasad Tendolkar who claims to be the executor of the alleged last Will dated 21.10.2006, alleged to have been executed by the deceased Mr. Rebendra Narayan Datta ( hereinafter referred to as the said deceased ) seeks grant of probate.
2. The said deceased had four issues i.e. Rajiv Rebendra Datta (son) and three daughters i.e. Mrs. Seema Rebendra Datta alias Mrs. Seema Parab, Mrs. Rebecca Datta alias Mrs. Rebecca Dey and Mrs. Diana Datta alias Mrs. Diana Virwani. The three daughter filed the caveats in Testamentary Petition No.695 of 2008. Mr. Prasad T. Tendolkar claims to be the executor of the alleged Will dated 21.10.2006 of the said deceased and filed the said Testamentary Petition No.695 of 2008 inter alia praying for probate in respect of the said Will dated 21.10.2006. The said Prasad Tendolkar also claims to be an executor under a separate alleged Will dated 16.10.1996 alleged to have been executed by Catherine Rebecca Datta who was the mother of the aforesaid four parties. The daughters had filed caveats in the said Testamentary proceedings No.695 of 2008 which was converted into Testamentary Suit bearing No.65 of 2009. The said Catherine Rebecca Datta was the wife of the said Rebendra Datta. Both the testamentary suits were heard together.
3. By a separate order passed by this Court in the said Testamentary Suit No.65 of 2009, the said Testamentary suit has been disposed of. In so far as the said Testamentary Suit No.58 of 2009 is concerned, it is the case of the Plaintiffs that the said deceased had left his Will testament dated 21.10.2006 by which the Plaintiff was appointed as a sole executor. The said deceased died on 28.10.2006. The wife of the said deceased had already pre deceased the said deceased. The parents of the said deceased also pre deceased of the said deceased. On 16.07.2008, the plaintiff filed the said Testamentary Petition No.695 of 2008 inter alia praying for grant of probate in respect of the alleged Will dated 21.10.2006. In the said Testamentary Petition, all the three daughters referred to above filed their caveats in support of their caveats on various issues. Those affidavits in support of caveats are taken on record. The said Petition No.695 of 2008 was accordingly converted into Testamentary Suit No.58 of 2009.
4. It is the case of the plaintiff that by the said Will dated 21.10.2006, the said deceased was keeping sound health. It is the case of the plaintiff that under the said Will, the said deceased had bequeathed the flat No.A-2, at Rajgol Park, Lonavala, Taluka Mawal, District Pune, in favour his daughter Rebecca Datta @ Rebecca Dey. In so far the flat no.G-1 of the Chaitanya Co-Operative Housing Society at Bainginim, Goa in Navelkar Estate is concerned, the said flat was bequeathed in favour Seema Datta @ Seema Parab, another daughter of the said deceased. In so far as the flat in 'Maya Enclave" Plot No.163, Lulla Nagar, Pune 411040 is concerned, the said flat is bequeathed in favour of daughter Diana Datta @ Diana Virwani. In so far as the flat No.13, Mistry Park, Bhulabhai Desai Road, Mumbai 400 036 is concerned, it is the case of the plaintiff that under the said Will, 50% share in the said flat belongs to the said deceased is bequeathed in favour of son of the said deceased namely Rajiv Datta.
5. It is also the case of the plaintiff that remaining 50% share in the said flat belongs to the wife of the said deceased has been already bequeathed by her by a separate Will in favour of son Rajiv Datta which is the subject matter of the Testamentary Suit No.65 of 2009. The said deceased testator also allegedly bequeathed a garage in the Mistry Park viz. Garage No.19 in favour of the said Rajiv for parking his vehicle. The said deceased has also allegedly
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