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2009 E-Juris(Bom) (3) 188

HIGH COURT OF BOMBAY
R Y Ganoo, J
Kumud Subhash Jadhav :- Petitioner
versus
Padmakar Hiroo Jadhav :- Respondent
Testamentary Petition No 603 of 1990 - Decided on : 25 March, 2009

Appeal Type :-

Final Verdict :- Order accordingly

Equivalent Citation :- 2009 HLR (2) 246, 2009 E-Juris(Bom) (3) 188, 2009 AIR(Bom) (5) 529,
2010 RCR(Civil) (7) 1686, 2009 MhLJ (4) 266, 2009 AIR(Bom) (0) 3004

Advocates :- K. C. Nichani, H. S. S. Murthy, D. R. Mishra

[+] Cases Referred (6)

H. Venkatachala Iyengar Versus B.N. Thimmajamma, AIR 1959 SC 443
Rani Purnima Debi Versus Kumar Khagendra Narayan Deb, AIR 1962 SC 567
Malkani Versus Jamadar, AIR 1987 SC 767
Ram Piari Versus Bhagwant, AIR 1990 SC 1742
Kalyan Singh Versus Chhoti, AIR 1990 SC 396
Kanakku Veettil K.P. Sankarankutty Menon Versus Malathy Amma And Ors., AIR 1991 Ker 123 <

Referred Acts:
(A)Succession Act, 1925, S.63

Headnote :
(A) He also relied upon the judgment in the case Rani Purnima Debt and anr vs Kumar
Khagendra Narayan Deb and anr , 1962 AIR(SC) 567 (V 49 C 86) to bring to the notice of the

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Court the concept of the unnatural Will as Hiscussed in paragraph No 5 and the role to be
played by the Registering authority as discussed in paragraph No 23 He also relied upon
judgment in the case of Ram Piari vs Bhagwant and ors , 1990 AIR(SC) 1742 which deals
with a situation when disinheritance is amongst heirs of equal decree and no reason for
exclusion is disclosed.

(B) At this juncture itself, it would be convenient to point out that learned Counsel Mr
Murthy relied upon the judgment in case of H Venkatachala Iyengar vs B N Thimmajamma
and ors , 1959 AIR(SC) 443 (V46 C56) and drew my attention to paragraph Nos 18 to 21 As
per paragraph 18 the Court is required to consider the record as regards execution of the
Will. Considering the case law developed in the matter, it became necessary for the Court
to consider certain circumstances, which in the submission of the Counsel for the
defendants could be termed as suspicious circumstances as regards making of the Will and
it became necessary for this Court to consider the evidence from that angle.

(C) ISSUES FINDINGS 1 Whether the Will dated 3rd December, 1988 is In the affirmative
the last Will and testament of Hiroo alias Hiraji L Jadhav and the same is legally and
validly executed by him?.

(D) The original Will which was produced before the Court in the Course of hearing is
ordered to be returned to the department.

Judgement :

1. One Mr. Subhash Hiraji Jadhav and Mrs. Kumud Subhash Jadhav filed
petition No. 603 of 1990 for Letters of Administration with a Will annexed in
regard to the Will purported to have been executed by Hiroo alias Hiraji
Laxman Jadhav on 3rd December, 1988. After the filing of the petition,
citations were served upon the heirs of said Hiroo alias Hiraji Laxman Jadhav
(hereinafter referred to as the "said deceased"). In all four persons i.e.
Padmakar, present defendant, Smt. Indira, Mrs. Sumitra and Mrs. Meghana
filled caveat jointly. Present defendant No. 1 Mr. Padmakar filed affidavit in
support of the caveat for himself and on behalf of other caveators. It is in these
circumstances, office while converting the testamentary petition in the suit
showed the name of Padmakar H. Jadhav and others as the defendants.

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Hence, to the present suit Padmakar Hiraji Jadhav would be defendant No. 1,
Smt. Indira Jadhav (since deceased) would be defendant No. 2, Smt. Sumitra
(correct name Sunetra S. Surve) would be defendant No. 3 and Mrs. Meghana
Vasant Shinde would be defendant No. 4.

2. In the affidavit in support of the caveat, with a view to oppose the grant of
the petition following points were raised.

(i) The purported Will is not the Will as per the law. (ii) The deceased was not in
sound state of mind. (iii) The deceased was controlled by Subhash Jadhav and
present petitioner No. 1 Mrs. Kumud. (iv) The Will was executed under force and
coercion. (v) There was no reason to deprive Smt. Indira and unmarried daughter
Shubhangi who is now known as Mrs. Sunetra. (vi) The Will is forged and
fabricated.

3. It is required to be mentioned that during the pendency of this suit,

Subhash Jadhav, original petitioner No. 1 expired. He left behind him Mrs.
Kumud and Akhilesh his son. Consequently, name of Akhilesh was brought on
record as petitioner. Based on the text of the petition as well as affidavit in
support of the caveat, following issues came to be framed on 19th December,
2007.

ISSUES FINDINGS

1. Whether the Will dated 3rd December, 1988 is In the affirmative the last Will
and testament of Hiroo alias Hiraji L. Jadhav and the same is legally and validly
executed by him?

2. Do the defendants prove that the subject Will is In the negative forged and
fabricated by the plaintiffs ?

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3. What order ? As per final Decree My answer to each of the issue is mentioned
as against the respective issues.

4. At trial on behalf of the plaintiffs, Smt. Kumud S. Jadhav plaintiff No. 1 gave
evidence. Attesting witness of the said Will dated 3rd December, 1988 by name
Mr. Jayant C. Kamani gave evidence as PW-2. No other witness was examined
on behalf of plaintiffs. On behalf of the defendants, defendant No. 1 Mr.
Padmakar H. Jadhav son of the deceased gave evidence as DW-1. Mrs. Sunetra
S. Surve daughter of the deceased gave evidence as DW-2. Mrs. Sunetra was
unmarried in December, 1988 and her maiden name was Shubhangi and a
reference to her is found in the text of the Will. No other witness was examined
on behalf of the defendants.

5. Before I proceed to deal with the issues, it would be convenient to narrate

certain persons who figure in, the entire matter. Subhash H. Jadhav original
plaintiff No. 1 and defendant No. 1 Padmakar H. Jadhav are the sons of the
deceased, out of which Subhash died during the pendency of the suit. Smt.
Indira was wife of the deceased who died after the deceased during the
pendency of the suit. Mrs. Meghana is the married daughter of the deceased,
Mrs. Sunetra (nee Kum. Shubhangi) is the daughter of the deceased. Mrs.
Kumud, present plaintiff No. 1 is the daughter-in-law of the deceased and
Akhilesh plaintiff No. 2 is the grand son of the deceased. Advocate Mr. A. G.
Shah who is referred to in the evidence is the advocate who is said to act as an
attested witness and who is said to have prepared the Will at the instance of
the deceased. Mr. Jayant Kamani an attesting witness has been family friend of
deceased.

6. I have extensively heard learned Counsel Miss Nichani on behalf of the

plaintiffs and Mr. Murthy on behalf of the defendants. Since the dispute
between the parties relates to the suit Will, it became necessary for the Court
to appreciate the evidence and ascertain whether the plaintiffs have been able
to prove the Will in accordance with the provisions of law and whether the
plaintiffs have been able to show that the said Will dated 3rd December, 1988

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is the last Will and testament duly executed by the deceased. Considering the
case law developed in the matter, it became necessary for the Court to consider
certain circumstances, which in the submission of the Counsel for the
defendants could be termed as suspicious circumstances as regards making of
the Will and it became necessary for this Court to consider the evidence from
that angle. At this juncture itself, it would be convenient to point out that
learned Counsel Mr. Murthy relied upon the judgment in case of H.
Venkatachala Iyengar vs. B. N. Thimmajamma and ors., 1959 AIR(SC) 443
(V46 C56) and drew my attention to paragraph Nos.18 to 21. As per paragraph
18 the Court is required to consider the record as regards execution of the Will.
As per paragraph No. 19 the Court is required to ascertain the mental and
physical condition of the testator. Paragraph 20 lays down the law as regards
the various suspicious circumstances and how to appreciate the evidence.
Paragraph 21 deals with the point viz. propounder of the Will taking prominent
part in the execution of the Will and related aspects. He also relied upon the
judgment in the case Rani Purnima Debt and anr. vs. Kumar Khagendra
Narayan Deb and anr., 1962 AIR(SC) 567 (V 49 C 86) to bring to the notice of
the Court the concept of the unnatural Will as Hiscussed in paragraph No. 5
and the role to be played by the Registering authority as discussed in
paragraph No. 23. He also relied upon judgment in the case of Ram Piari vs.
Bhagwant and ors., 1990 AIR(SC) 1742 which deals with a situation when
disinheritance is amongst heirs of equal decree and no reason for exclusion is
disclosed. He also relied upon judgment in case of Kalyan Singh vs. Smt.
Chhoti and ors., 1990 AIR(SC) 396 which redeclares the law as regards
appreciation of various circumstances which could be termed as suspicious
circumstances. He also relied upon the judgment in the case of Kanakku
Veettil K.P. Sankarankutty Menon vs. Malathy Amma and ors., 1991 AIR(Ker)
123 which equally deals with various points discussed in earlier judgments.
The learned Counsel Miss. Nichani relied upon the judgment Smt. Malkani vs.
Jamadar and ors., 1987 AIR(SC) 767 (Punjab and Hariyana) wherein the
Supreme Court indicated that the testamentary capacity of the testatrix and
the genuineness of the Will cannot be doubted only because the beneficiaries
under the Will took active part in its execution.

7. I have perused the aforesaid judgments and I have appreciated the evidence

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in the light of the principles discussed in the said judgments. The three issues
as above can be discussed together keeping in view the nature of the evidence
placed before the Court. Now, I proceed to appreciate the evidence from the
stand point of deciding whether the plaintiffs have proved the due execution of
the Will. Learned Counsel Miss Nichani appearing on behalf of the plaintiffs
pointed out to the Court that the Will came to be drafted by advocate Mr. A. G.
Shah (hereinafter referred to as the "said advocate") and the said Will came to
be executed at the residence of the deceased on 3rd December, 1988 in the
presence of Mr. Subhash Jadhav, Mrs. Kumud S. Jadhav PW-1 and the said
advocate and Mr. Jayant PW-2. It was pointed out that the evidence placed
before the Court through Kumud PW-1 and Jayant PW-2 if perused carefully
would go to show that these two witnesses have given cogent evidence as
regards the execution of the Will in all respect i.e. signature of testator and
signature of two attesting witnesses. She had also drawn my attention to the
evidence of Padmakar H. Jadhav, DW-2 in cross-examination where Padmakar
DW-1 has conceded that the Will was properly executed and he (Padmakar
DW-1) was challenging the legality of the Will. The Counsel for defendants Mr.
Murthy had opposed the submission made by learned Counsel Miss Nichani
and had tried to submit that the plaintiffs have failed to prove the Will in
accordance with the provisions of law.

8. With the assistance of the Counsel of both the sides, I have perused the
evidence. Since Subhash H. Jadhav expired before commencement of recording
of evidence, Subhash has not been examined. According to plaintiffs, at the
time of execution of the Will, Mrs. Kumud PW-1, said advocate and Jayant PW-
2 were present. Plaintiffs have examined Mrs. Kumud and Jayant PW-2. I have
gone through their evidence. Mrs. Kumud PW-1 states in her cross-
examination that deceased had instructed Subhash to get advocate Mr. A, G.
Shah for the purposes of drafting the Will. Evidence of Mrs. Kumud PW-1
clearly shows that the deceased knew Mr. A. G. Shah. It is required to be noted
that the deceased was working as a Clerk in the Municipal Corporation and
had retired. After having considered the Kumud PW-l's evidence, I am inclined
to observe that Mr. A. G. Shah acted as an advocate for preparation of the Will.
I am also inclined to accept the case of the plaintiffs that the said advocate and
Jayant PW-2 were present in the house of the deceased on 3rd December, 1988

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and the Will was executed on 3rd December, 1988 and that said advocate and
Jayant PW-2 tendered their signatures as attesting witnesses. Jayant PW-2 in
his evidence has stated that said advocate had shown the original Will to the
deceased on 3rd December, 1988 and the deceased went through it and
thereafter tendered his signature and given to Mr. A. G. Shah for his signature
as an attesting witness and after Mr. A. G. Shah signed, it was given to Jayant
PW-2 for his signature as an attesting witness and Jayant did tender his
signature. Mrs. Kumud PW-2 has also stated in her evidence as to how the Will
was executed. It is required to be mentioned that all suggestions given to Mrs.
Kumud as well as Jayant PW-2 so as to disprove the execution of the Will came
to be denied. Apart from the aforesaid evidence, the Padmakar DW-1 in the
cross-examination has given evidence as follows :-

"It is true that my father has executed this Will now shown to me. It is true that
the Will has been attested by two attesting witnesses. I am challenging the
legality of the Will".

9. After having gone through the aforesaid portion of the evidence of Padmakar
DW-1, the stand of the defendants as regards the execution of the Will cannot
stand. Mr. Padmakar DW-1 had admitted that deceased had executed the Will
and it was duly attested by two attesting witnesses. Since no other witness
came to be examined on behalf of the defendants to challenge the said
execution of the Will. I hold that the plaintiffs have proved execution of the
Will. According to learned Counsel for the defendants, the plaintiffs should
have examined advocate Mr. A. G. Shah to dispel all doubts regarding the
execution of the Will. Learned Counsel Miss. Nichani has submitted that if the
evidence of Jayant PW-2 and Mrs. Kumud PW-1 was led in such a fashion that
these two witnesses have been able to prove the case of the plaintiffs, it was
not necessary for the plaintiffs to examine the said Mr. A. G. Shah and no
adverse inference should be drawn for non-examination of said Mr. A. G. Shah
and it cannot be considered as a suspicious circumstance. I have considered
the rival submission. Evidence of Mrs. Kumud PW-1 clearly indicate that Mr.
A. G. Shah had acted as an advocate in the matter of preparation of the Will.
She has stated that her father-in-law had instructed Subhash to get Mr. A. G.

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Shah for the preparation of the Will. Her evidence also goes to indicate that Mr.
A. G. Shah knew the deceased. In my view, there is no specific challenge to the
fact that Mr. A. G. Shah and the deceased knew each other. In any case,
reading the evidence as a whole the case put up by the plaintiffs that the
deceased knew Mr. A. G. Shah cannot be doubted. Mr. A. G. Shah is a
practicing advocate in Bombay. There is nothing to doubt the word of Kumud
PW-1 whose evidence shows that Mr. A. G. Shah was involved in the
preparation of Will. Jayant PW-2 who is a third party so far as the entire
matter is concerned and he has made out the presence of Mr. A. G. Shah in the
house of the deceased on 3rd December, 2008. In my view, Jayant had no
reason to give false evidence as regards the presence of Mr. A. G. Shah. It is
well known that services of an advocate are availed of in the matter of
preparation of Will and it is not necessary that in each and every case an
advocate who prepared the Will is required to be examined. The plaintiffs after
having gone through the evidence of Kumud PW-1 and Jayant PW-2 appear to
have taken a decision of not examining the said Mr. A. G. Shah. Their decision
was proper. In my view, non-examination of said Mr. A. G. Shah cannot be
termed as suspicious circumstance. Similarly, no adverse inference is required
to be drawn against the plaintiffs

10. Considering the aforesaid discussion and in particular the evidence of

Padmakar DW-1, discussed above, I am inclined to observe that the plaintiffs
have proved the execution of the Will by the deceased and that plaintiffs have
also proved that two attesting witnesses namely said Mr. A. G. Shah and
Jayant PW-2 did their job as attesting witnesses. At this stage itself, it is
required to be mentioned that a stand was taken by the defendants that
Jayant PW-2 is an outsider to the entire family and his acting as an attesting
witness is unnatural. So far as this aspect is concerned, defendants could not
bring on record any material to show that Jayant PW-2 was a got up witness.
Mr. Jayant PW-2 is reported to be a friend of Subhash and he used to visit the
house of the deceased and eventually Jayant PW-2 is a family friend. The two
photographs of Exhibit D-4 and D-5 came to be produced. In these two
photographs, Jayant is seen. These photographs pertain to birthday
celebration of Subhash's son and in the cross-examination of Padmakar DW-1,
Padmakar had to accept that Jayant was present at the time of birthday

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celebration in the two photographs of Exhibit D-4 and D-5 and eventually he
knows Jayant PW-2 and that Jayant PW-2 was family friend.

11. In view of the aforesaid discussion, I hold that the plaintiffs have been able
to prove the due execution of the Will.

12. Learned Counsel Mr. Murthy had tried to place before the Court some
points as suspicious circumstances and wanted this Court to discard the Will
in question.

13. The first circumstance placed before the Court is viz. the Will is unnatural.
The learned Counsel Mr. Murthy drew my attention to the original Will Exhibit
D-1 and submitted that Smt. Indira wife of the deceased, Shubhangi now
known as Sunetra and Mrs. Meghana being daughters of deceased have been
excluded. According to Mr. Murthy, there was no reason for the deceased to
exclude his wife as well as unmarried daughter Shubhangi. According to Mr.
Murthy, Subhash and Kumud controlled the deceased and managed to get the
Will executed in their favour. He pointed out that no bequest is made in favour
of any relatives other than Subhash and Kumud or Akhilesh son of Subhash
and Kumud, which goes to show that the Will is unnatural. He further pointed
out that Kumud PW-1 admits that there were no disputes between Smt. Indira
and the deceased as husband and wife and if that be so there was no reason
for the deceased to exclude Smt. Indira. Insofar as this aspect is concerned, I
would like to reproduce the relevant portion of the Will by which the deceased
has given explanation as to why he does not wish to give anything to Smt.
Indira, Shubhangi and other daughter Mrs. Meghana. The relevant portion is
as under:-

"1. I have in my family my wife Indira, eldest son Padmakar, Younger Son
Subhash and two daughters i.e. Mangal (married) and Shubhangi. However my
eldest Son with his family has separated and my wife and my daughter
Shubhangi stay with him separate from me against my wishes. They have chosen
not to look after me or take care of me even though I am not keeping well. I

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therefore do not desire to bequeath anything to them under my this Will. I have
given enough to my married daughter Mangal at the time of her marriage, I
therefore do not desire to bequeath anything under this Will to her".

14. A reading of this paragraph would clearly go to show that the deceased has
clarified as to why he did not wish to give any property to Smt. Indira,
Subhangi and Mrs. Meghana. A reading of the above paragraph would clearly
go to show that Smt. Indira i.e. wife of the deceased left the house along with
Padmakar DW-1 and started staying along with Padmakar against wishes of
the deceased. Same is the position insofar as Shubhangi is concerned. The
deceased has laid emphasis on the fact that Smt. Indira as well as Shubhangi
have not looked after or taken his care even though he was not keeping well. It
is admitted by both the sides that deceased in the year 1981 had paralysis and
naturally being a paralytic person, he required care and assistance. Insofar as
Mrs. Meghana who is referred to as Mangal in the Will is concerned, the
deceased has clarified that he had given enough to her at the time of her
marriage and that is why he was not willing to give anything to her. Paragraph
2 of the said Will also goes to indicate as to how the deceased wanted to
bequeath his property to Subhash and his

family. The relevant portion of the Will is as under :-

"2. My other Son Subhash and his family have looked very well after me and are
taking proper care. I therefore desire to bequeath to him and his family my
present and residue property at the time of my death as stated hereafter".

15. In my view, contents of paragraph 1 and 2 throw light on the mental frame
of the deceased as to why he wanted to exclude Smt. Indira, Padmakar,
Shubhangi and Mrs. Meghana and why he wanted to give property to Mrs.
Kumud and Subhash. It is true that Mrs. Kumud PW-1 states in her evidence
that relations between Smt. Indira and deceased were good. It is required to be
mentioned that Mrs. Kumud PW-1 has stated in her evidence that on 29th
September, 1988 certain dispute as regards use of water took place between

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Smt. Indira and Subhash and that in the morning of 30th September, 1988, a
quarrel took place between Subhash on one hand and Padmakar DW-1 and
Mr. Vasant Shinde on the other. It is seen that a police complaint came to be
filed by Subhash. Padmakar DW-1 has not accepted this incident and he
claims that this incident is false. Statement of the deceased came to be
recorded by the Police on 30th September, 1988 and that statement is at
Exhibit D-2. Said statement was read in evidence at the request of both the
Counsel. The said statement clearly goes to show that in the morning of 30th
September, 1988 exchange of words and a quarrel took place between Subhash
and one Mr. Shinde, Padmakar DW-1 and Subhash was injured. The deceased
has stated about such a quarrel and the deceased has also stated in his
statement that because he was paralytic, he just kept himself aloof. The
deceased has narrated about the said incident and has farther stated that
Subhash and Kumud went to the hospital. The deceased in the earlier part of
the statement has stated that relations between Padmakar DW-1 and Mrs.
Indira on one hand did not go well with Subhash and his wife Kumud and he
does not take part in that. It is admitted by both sides that the deceased was
residing in the house namely flat No. B-15, Swapna Saphyalya CHS Ltd., J.B.
Temkar Road, Prabhadevi, Mumbai-25. Evidence of Mrs. Kumud PW-1 as well
as Padmakar DW-1 goes to show that all was not well between Subhash and
Padmakar DW-1. Evidence on record also go to show that Padmakar and his
family members, Smt. Indira and Shubhangi left the house on 30th September,
1988. Even Padmakar DW-1 has stated that he along with his family members,
Smt. Indira and Shubhangi left the house and got accommodated himself
finally in the quarters provided to him. From the evidence on record, it is clear
that Smt. Indira and Shubhangi left deceased without any justification.

16. It is to be noted that if relations between the deceased and the said Smt.
Indira were good naturally, the deceased expected that Smt. Indira should stay
with him. So far as Shubhangi is concerned, she has given evidence as DW-2
in the name of Mrs. Sunetra S. Surveand she has admitted that her relations
with Subhash and Mrs. Kumud were cordial. If that is so, she had no reason to
leave the house where the deceased was living. The deceased was not very
happy with Smt. Indira and Shubhangi leaving his place and hence the
deceased did not give any property to Smt. Indira and Shubhangi. Insofar as

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Mrs. Meghna is concerned, deceased is very much clear that he had made
enough arrangement for her at the time of her marriage and, therefore, he was
not inclined to give anything to her. There is no reason to challenge the
statement of the deceased made in the Will that he had provided enough
money to Mrs. Meghna at the time of her marriage. It is pertinent to note that
when such statement is appeared in the Will, that should have been contested
by Mrs. Meghna. Mrs. Meghna has not given any evidence to contest the
statement made by the deceased in the Will viz. enough provisions were made
by him during the marriage ceremony of Mrs. Meghna The record clearly goes
to show that the deceased was conscious of the fact that there is dispute
between Mrs. Indira and Kumud. The statement recorded clearly indicates that
on 30th September, 1988, some dispute took place betwen Subhash and
Padmakar DW-1 and that lead to such a situation that Padmakar thought of
leaving the house and staying somewhere else. The statement made by the
deceased that quarrels used to take place everyday goes to show that the
deceased was not happy with the quarrel between Padmakar DW-1 and
Subhash.

17. Considering the text of the Will and the evidence of Padmakar DW-1 as
well as Mrs. Kumud PW-1, it is clear that the deceased was not in favour of the
Padmakar DW-1. It is seen that the deceased was convinced that Subhash and
Mrs. Kumud are taking his care and attending to him. In fact, after Smt. Indira
and Padmakar DW-1 left the house in September, 1988, the deceased was
looked after by Subhash and Kumud and mother of Kumud who is said to be
residing little away from the residence of the deceased. In my view, the
deceased was impressed by the fact that the Subhash and Kumud are taking
his care and, therefore, property was bequeathed to them. In my view, the
frame of mind of the deceased was in consonance with the terms which are set
out in the Will and there is no reason to treat exclusion of Smt. Indira and
others as suspicious circumstance.

18. There is a provision in the Will whereby if son is born to Subhash and
Kumud in addition to Akhilesh, l/3rd share coming to Akhilesh be divided
equally amongst them. Some arguments were advanced by the Counsel for the

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defendants to show that the said part of the bequest is not in consonance with
the provisions of law. However, no specific provision of law was quoted by
Counsel for the defendants. In my view, the said bequest was in the nature of
an explanation if one more son was to be born to Subhash. Record shows that
Subhash had only one son Akhilesh as such the bequest to Akhilesh will
operate. In any case, as no specific provision was shown to treat that bequest
as void, the said argument is rejected.

19. Another suspicious circumstance in the submission of the Counsel for the
defendants was non-examination of Mr. A. G. Shah, advocate. I have already
discussed the effect of non-examination Mr. A. G. Shah. However, it will be
proper to discuss some of the aspects with reference to the evidence which are
on record whereby plaintiffs wanted to show that Mr. A. G. Shah acted as
attesting witness. Learned Counsel Mr. Murthy has drawn my attention to the
following portion of cross-examination of Kumud PW-1 :-

"I do not know whether my father-in-law had met Mr. A. G. Shah advocate any
time prior to the date of the Will".

20. Counsel for the defendants had contended that this would go to show that
Kumud PW-1 could not confirm as to whether Mr. A. G. Shah had met the
deceased. In my view, this evidence cannot be read in isolation as Kumud PW-
1 has stated that the deceased had asked Subhash to get Mr. A. G. Shah as
attesting witness. This would clearly go to show that the deceased had
communication with Mr. A. G. Shah and he was called as attesting witness.
Insofar as this aspect is concerned, I have already held that Padmakar DW-1
has conceded that the said Will is that of the deceased and was attested by two
witnesses. The fact that Mr. A. G. Shah participated in the matter of
preparation of Will is clear on the basis of what is stated by Jayant PW-2 and
the relevant portion is as follows :-

"Advocate Mr. A. G. Shah handed over one paper to late Hiraji, which he read.
After reading, the said paper; late Hiraji told Mr. Arvind G. Shah, advocate that

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the Will has been properly drafted by him. After reading and confirming the
correctness of the Will, late Hiraji signed on his will in my presence and,
thereafter, he requested Advocate A. G. Shah to sign on his Will as an attesting
witness".

21. It is required to be mentioned that Jayant PW-2 stood to the test of the
cross-examination of learned counsel for the defendants. In fact, the aforesaid
quoted portion clearly shows that the Will, which came to be engrossed as
original Will was handed over by Mr. A. G. Shah advocate to the deceased and
the deceased after reading the same and confirming the fact that the Will was
properly prepared by Mr. A. G. Shah tendered his signature. It is required to be
mentioned that the Will is in English language and the deceased was working
as a Clerk in the B.M.C. and there is no reason to hold that the deceased could
not read English.

22. It was faintly argued by learned advocate Mr. Murthy that Kumud PW-1
knew Mr. Shah as her office was close to the office of Mr. Shah and Mr. Shah
had helped Kumud PW-1 and Subhash. Evidence of Kumud PW-1 shows that
her office was at Dalai street and Mr. Shah's office is at Examiner Press
Building. There is no cross-examination to suggest that Mr. Shah favoured
Kumud. Reading the evidence of Kumud PW-1 and Jayant PW-2 it is clear that
advocate Mr. A. G. Shah participated in the process of preparation of Will and
signed as attesting witness. Therefore, merely because the plaintiffs have not
examined Mr. A. G. Shah as a witness in the matter cannot be termed as
suspicious circumstance.

23. Mr. Murthy Learned advocate had raised another circumstance namely the
role of sub-Registrar in the process of registration of Will. The said Will has
undergone the process of registration and the sub-Registrar at Bombay has
participated in the job of registration. On the question of fetching the sub-
Registrar to the place of the deceased, Kumud PW-1 states that while returning
from her office, she had taken sub-Registrar to her house. Jayant PW-2 in the
examination-in-chief has stated that after the Will was executed, he and Mr. A.
G. Shah were requested by late Hiroo alias Hiraji Jadhav to wait for sometime

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and Subhash was asked to get the sub-Registrar. He further stated that sub-
Registrar of Assurance examined the subject Will and found to be corrected. He
further states that the sub-Registrar registered the subject Will and he also
states that at the time of registration again signatures that is to say signature
of Mr. A. G. Shah and his signature were obtained on the reverse page No. 5 of
the Will. He has also identified the signature of Mr. A. G. Shah as also his
signature which was obtained by the sub-Registrar at the time of registration of
the document. The fact that the sub-Registrar's services were secured and the
registration of Will cannot be disputed by the defendants. The endorsement on
the Will goes to show that the job of registration was performed on 3rd
December, 1988 between 5.00 p.m. to 6.00 p.m. at the residence of the
deceased. Now the question whether any specific importance is to be given to
the word of Kumud PW-1 says that she brought the sub-Registrar from his
office while returning from office. No doubt, insofar as this aspect is concerned,
there is little controvet Jayant PW-2 states that as he reached the house of the
deceased, he came acros the deceased advocate Mr. A. G. Shah, Subhash and
Kumud. He further state that after the Will was executed, Subhash was asked
to fetch the sub-Registri Considering the word of Kumud PW-1 as well as
Jayant PW-2, which discussed above, it is clear that Kumud was present when
Will came to be executed. In my view, evidence of Kumud PW-1 that she
brought sub-Registrar appears to be an evidence given out of confusion and in
my view no mud importance can be given. Fact remains that the Will was
registered.

24. Learned Counsel Mr. Murthy appearing on behalf of defendants had drawn
my attention to the judgment in case of Rani Parnima Debi and anr. vs. Kumar
Khagendra Narayan Deb and anr., 1962 AIR(SC) 567 (V 49 C86) and in
particular paragraph 23. He submitted that a duty was cast upon the sub-
Registrar to ascertain that the Will has been executed by the deceased in a
proper manner Reading of paragraph 23 would go to show that if the sub-
Registrar did not comply with requirement quoted therein then the fact that
the Will was registered would not be of much value.

25. Learned Counsel Mr. Murthy had submitted that if one peruses the

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endorsement as regards registration, it is clear that the sub-Registrar did not

comply with requirements contained in paragraph 23 of the aforesaid
judgment. Even if for a moment is accepted that the sub-Registrar did not
perform his job as was expected to be done in paragraph 23 of the aforesaid
judgment, once it is observed that the Will is properly executed that is to say it
is executed by the deceased and duly attested by the attesting witnesses that
itself is sufficient and there is no reason to discard the Will merely because the
sub-Registrar has not performed his job properly. To that extent, I am not
inclined to accept the argument advanced by learned Counsel Mr. Murthy.

26. The next circumstance is no doctor was examined to show' the mental
ability to mark the fitness of the deceased. No specific provision was shown to
hold that the doctor should have certified about the mental ability to execute
the Will hence the argument is required to be rejected. It is required to be
mentioned that Counsel for the defendants could not point out any material to
show that the deceased did not possess necessary mental ability to mark the
fitness. It is true that the deceased was suffering from paralysis and he was
bedridden. That in my view, cannot be considered as something which would
make the execution of the Will impossible. The evidence given by Jayant PW-2
and Kumud PW-1 as regards what transpired at the time of execution of the
Will would clearly go to show that the deceased was in a proper frame of mind
at the time of execution of the Will. It is also required to be noted that the
deceased died in the year September, 1990 that is the deceased survived for a
period of 2 years after the Will came to be executed. Hence, the stand of the
defendants that the deceased did not possess proper frame of mind cannot be
accepted.

27. It was argued that the deceased was not well and he was bedridden. Merely
because the deceased was bedridden, it cannot be said that he was not in
sound state of mind. The evidence of Padmakar DW-1 goes to show that he is
challenging the legality of Will. If the defendants wanted to contend that the
deceased was not mentally sound to execute the Will, certainly it was open for
the defendants to examine the doctor who was attending to the deceased. No
such effort was made on behalf of the defendants. Hence, the point raised

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cannot be accepted.

28. Another circumstance placed for consideration relates to changing the

nomination before the execution of Will. Evidence on record goes to show that
initially the nomination in regard to the membership of the Society in which
the suit flat was situated was in favour of Mrs. Indira and before execution of
the Will, the nomination came to be changed in favour of Subhash and
Kumud. Counsel for the defendants submitted that the nomination is changed
little before the execution of the Will. The learned Counsel Miss. Nichani
submitted that the fact that the deceased changed nomination in favour of
Subhash and Kumud and subsequently executed the Will in favour of Subhash
and Kumud clearly shows that the deceased intended to see that the property
should go to Subhash and Kumud and there are no legal impediments in the
matter. Submission of Miss. Nichani is required to be accepted. The fact that
the nomination was changed before execution of Will shows that the deceased
had specific plan to give the flat to Subhash and Kumud. In view of above, the
submission of learned advocate Mr. Murthy is rejected.

29. One more circumstance which were termed by the Counsel for the
defendants as suspicious circumstance viz. Subhash and Kumud kept the
deceased under their control and that is how the deceased executed the Will in
favour of Subhash and Kumud. Padmakar DW-1 has admitted in the cross-
examination that he was not present at the time of execution of the Will. He
also states that he had made a statement on the basis of background
visualized by him and he had no personal knowledge. These answers given by
Padmakar DW-1 in the cross-examination would clearly go to show that
evidence of Padmakar DW-1 in examination-in-chief as regards keeping the
deceased under control by Subhash and Kumud was in the nature of surmises
and no specific evidence is placed before the Court by Padmakar DW-1 in that
behalf. The deceased was staying at his flat and Subhash and Kumud were
also staying in the same flat. In my view, that by itself is not sufficient to come
to the conclusion that Subhash and Kumud controlled the mind of the
deceased. In fact, paragraph Nos.1 and 2 of the Will, which I have quoted
earlier clearly shows that the deceased had a specific frame of mind so far as

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Smt. Indira, Padmakar DW-1, Shubhangi and Mrs. Meghna are concerned. The
evidence of Kumud PW-1 as well Padmakar DW-1 is clearly shows that
Subhash and Kumud played a vital role in taking care of the deceased. That by
itself in my view, would not mean that Subhash and Kumud controlled the
mind of the deceased.

30. One more point was pressed by Counsel for the defendants as regards a
complaint filed by Mrs. Indira to the Police which complaint is at Exhibit D-3.
The said complaint is in the form of a letter addressed to the Commissioner of
Police. In the said complaint, certain allegations have been levelled. It is
pertinent to note that the said complaint is dated 28th October, 1988. This
complaint is filed by Mrs. Indira after she had left the house of the deceased. In
a question Padmakar DW-1 has specifically stated in the cross-examination as

follows:-

"My mother and myself did not approach the Court to obtain order either to seek
custody of my father or to transfer him to my house".

31. Padmakar DW-1 in his evidence says as follows :-

"My mother was not allowed to stay in the house by Subhash. She was beaten
and, ultimately, she was required to stay with my sister. My mother left house in
the year 1988 and my father expired in the year 1990".

32. This evidence given by Padmakar DW-1 is not borne out by any material
whatsoever. In fact, the mother in the complaint, which is marked as Exh.D-3
in the first paragraph itself stated that Subhash is likely to drive her out of the
house. This is a false statement because by this time that is 28th October,
1988 she had left the house of the deceased on her own. I have already
observed as to how Smt. Indira left the house of the deceased on 30th
September, 1988 after a quarrel took place between Subhash on one hand and

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Padmakar. Even reading the text of the complaint at Exhibit D-3 as a whole, it
is clear that the said complaint was filed just to harass Subhash and Kumud.
Smt. Indira has left the house on 30th September, 1988 on her own.
Defendants could not point out that deceased or Subhash drove Smt. Indira
out of the house. It is also required to be noted that this complaint has been
filed 20 days after Smt. Indira left the house of the deceased and no further
action was taken by her. After this complaint, Smt. Indira has not taken any
steps to establish her right to reside in the house of the deceased. There is no
evidence placed before the Court to show that Smt. Indira called upon
Subhash or the deceased through advocate and addressed suitable
communication to Subhash or the deceased placing her intention to re-enter
the house. In my view, all this would clearly go to show that Smt. Indira was
residing away from the deceased on her own and had no mind to go back to the
house of the deceased.

33. The next point which is required to be discussed is whether Kumud PW-1
played a specific role in making of the Will. This is required to be discussed in
the wake of the various cases which are referred to above because Kumud is a
propounder of the Will. It would be necessary to consider what role was played
by Kumud in making of the Will. From the record, it is clear that Kumud had
not played any substantive role in making the Will. Kumud happened to reside
in the company of the deceased. That by itself is not sufficient to say that
Kumud played a vital role in making of the Will. It is true that Kumud gave
evidence to show that she was present at the time when Will was executed.
This presence of Mrs. Kumud at the'house of the deceased cannot be termed as
unnatural because Mrs. Kumud was staying with the deceased after her
marriage with Subhash. To that extent, it would be difficult to say that Kumud
had played vital role which would dominate the Will of the deceased. So far as
the Subhash is concerned, Subhash was son of the deceased and Subhash
also was residing with the deceased much prior to execution of the Will.
Padmakar DW-1 was also residing with the deceased. However, he left the
house on 30th September, 1988. Evidence of Kumud PW-1 shows that
Subhash was asked by deceased to get advocate Mr. A. G. Shah. Mr. A. G.
Shah had participated in the job of preparation of the Will and execution
thereof. If Subhash has made efforts to get advocate Mr. A. G. Shah, that by

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itself cannot be considered as a major role played by Subhash. As the deceased

was bedridden, he must have sought the help of his son who was staying with
him. Subhash was also present when the Will was executed. In my view,
presence of Subhash will have to be treated as natural. In view of the above,
role played by Kumud and Subhash as discussed above, cannot be considered
as objectionable and that also cannot be considered as suspicious
circumstance.

34. For the reasons mentioned aforesaid, I am inclined to observe that the
plaintiffs have been able to show that Will dated 3rd December, 1988 was duly
executed by the deceased Mr. Hiroo alias Hiraji Jadhav and that the said Will
was last Will and testament. This is so because no other Will is produced
before the Court by either party So far as the question of forgery of the said
Will is concerned, I have with reasons held that the Will was duly executed by
the deceased and that the same was not fabricated or forged. No evidence was
placed in support of the said allegation. Issue Nos. 1 and 2 :-

For the reasons mentioned aforesaid I hold that issue No. 1 is required to be
answered in the affirmative and is accordingly answered in the affirmative and
Issue No. 2 is required to be answered in the negative and is accordingly
answered in the negative. Issue No. 3

Keeping in view the answers to Issue Nos. 1 and 2 in the affirmative and in the
negative respectively, plaintiffs suit will have to be decreed. The caveat filed by
Padmakar DW-1, Smt. Indira, Mrs. Meghna and Mrs. Sunetra will have to be
dismissed and the Testamentary petition will have to be granted and appropriate
directions will have to be given to Prothonotary and Senior Master to issue letters
of administration as prayed for.

35. In the facts and circumstances of the case, the defendants are not required
to be saddled with the costs of the proceedings. For the reasons mentioned
aforesaid, I pass following decree.

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ORDER

(i) Caveat filed by Padmakar DW-1, Smt. Indira (since deceased), Mrs. Meghna
Vasant Shinde and Smt. Sumitra (correct name Sunetra) Surve are dismissed.

(ii) It is hereby declared that Will dated 3rd December, 1988 executed by Hiroo
alias Hiraji Laxman Jadhav is the last Will and testament and petition for letters
of administration as prayed for in respect of Will dated 3rd December, 1989 is
required to be granted and accordingly Petition No. 603 of 1990 is made absolute
and is granted.

(iii) Office to issue letters of administration as prayed for. In the facts and
circumstances of the case, there shall be no order as to costs in the suit.

36. After the aforesaid judgment was delivered learned Counsel Mr. Ashutosh
Singh appearing for the defendants submitted that the defendants would like
to go through the text of the judgment and do the needful. He, therefore,
submitted that the operation of the judgment and decree passed abovtl be
stayed for 8 weeks. Plaintiff No. 1 Mrs. Kumud who is present in person the
time of dictation of the aforesaid judgment. She opposed the submission.

37. The request put up by Counsel for the defendants is required to be

granted. In view of the above, the operation of judgment and decree is stayed
till 15th June, 2009. The original Will which was produced before the Court in
the Course of hearing is ordered to be returned to the department.

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