ORDER
J.A. Patil, J.
1. The petitioner has filed this petition under Section 280 of the Indian Succession Act and prayed for grant of probate of the last Will and testament of deceased Ajit Baran Pal, a Hindu, resident of Bombay, who died on 5-12-1994, leaving behind him a married daughter by name Suparna (defendant) and a son by name Alok. According to the petitioner, the deceased had made his last Will on 26-11-1994 and appointed him as the sole executor. The deceased owned three tailoring shops on ownership basis and one shop on tenancy basis, all situated in Kamal Kunj Co-operative Housing Society building at Bandra, a residential flat and bank accounts as described in Schedule 1 annexed to the petition. Under the Will the deceased purports to have bequeathed all his estate to his son Alok only.
2. The defendant filed her caveat opposing grant of probate to the petitioner. In view of the objection, the petition was converted into a suit. In the affidavit filed in support of the caveat it was pointed out that the deceased has been survived by herself and her brother Alok. She has further stated that the deceased was carrying on a tailoring business in his three shops as sole proprietor thereof. Sometime in April 1978, the deceased had taken his son Alok as a partner in his business 'Perfect Tailors' but the said partnership was terminated and/or the said Alok retired from the partnership from 27-4-1992, as his relations with the deceased were strained. The said Alok got married on 17-1-1993, with one Shalu Khanna but without approval of the deceased. It is further averred that even prior to this marriage, the relations between the deceased and Alok had become worst on account of the bad behaviour of Alok. It is alleged that, on several occasions Alok used to quarrel with the deceased and insult and abuse him. Ultimately on 8-9-1993, the behaviour of Alok became so unbearable that the deceased left his residential house and started staying with the defendant for about 2 and 1/2 months. According to the defendant, the deceased had even lodged a police complaint through her against Alok.
3. It is further averred that, during the said period the deceased was seriously ill with cirrhosis of liver and he used to vomit blood and also pass blood through his urine and stools. The defendant has alleged that taking undue advantage of the tailoring business of the deceased and his absence from the earlier business Alok took charge of the business. According to the defend ant, during that illness of the deceased. It was she who used to look after him. It is further stated that on 16-10-1994, the de ceased again started vomiting blood profusely and was required to be admitted in Shruti Nursing Home at Bandra (W). On 18-10-1994 his condition became critical and he was admitted in Intensive Care Unit of Bhatia General Hospital, at Tardao, where Dr. Amit Maydeo was attending him. On the very day, the deceased underwent an operation called Endoscopy in Bhatia Hospital but he did not show any improvement despite of the treatment given to him. The deceased was, therefore, shifted to Holy Family Hospital at Bandra on 28-10-1994. According to the defendant, the deceased was in a state semi-coma, since he was admitted to Hospital, According to the doctors who were attending him, due to excessive loss of blood, it was not reaching his brain. The defendant has further averred that on 29-10-1994, the deceased suffered paralytic stroke due to which left side of his body was totally affected and become numb. He was therefore, taken to Bombay Scan Research Centre for scan and it was revealed that the deceased had developed a brain tumor in the right side of his brain. It was further realised that all efforts to help the deceased to recover were useless and he became a terminal case. The defendant has averred that the deceased was then in a terminal state of delirium and semi-coma. On 14-11- 1994, the deceased was discharged from Holy Family Hospital and brought to his residence.
4. It is stated that on the same evening, the deceased again started vomiting blood profusely and that he was again admitted to Holy Family Hospital. He was once again operated for Endoscopy. According to the defendant there, was extensive loss of blood by the deceased due to which he started losing his sense and consciousness. He was discharged from the Holy Family Hospital on 22-11-1994 and brought back home. His condition was however, sinking day by day and on 2-12-1994, he was taken to St. Martins Nursing Home at Bandra (W) for removal of water accumulated in his stomach. He was brought home on the same day evening. On 3-12-1994, his condition became severe unstable and he was admitted to Ramkrishna Mission Hospital at Khar (W), where he breathed his last on 5-12-1994.
5. The defendant has contended that the Will set up by the plaintiff is false and bogus document made in collusion with her brother Alok to deprive her rightful share in estate of the deceased. She has alleged that both the petitioner and Alok prevailed upon the deceased to bequeath his entire estate to Alok only and therefore, the said bequest is void. According to the defendant, the deceased was not in a fit mental condition to make a Will as he was in continuous state of delirium of account of paralytic stroke. The defendant has further contended that there are some suspicious circumstances which create a doubt about due execution of the alleged Will by the deceased. She has pointed out that the Will does not disclose all the properties of the deceased. She has pointed out that the deceased was a qualified man who could write and sign with his right hand. However, Will set up by the plaintiff bears thumb impression of the left hand of the deceased. According to her, the deceased could have very well put his signature on the Will by his right hand. The defendant has further contended that the dispositions made in the alleged Will are unnatural, unfair and improper. According to her on several occasions the deceased had expressed his disliking and anguish towards his son Alok and expressed his unwillingness to give everything to the defendant Alok. The defendant has stated that the alleged Will was not disclosed to her nor was she informed about the same prior to the death of the deceased. She therefore , filed Suit No. 2648 of 1995 against her brother Alok for administration of the estate of the deceased and also took out a Notice of Motion for certain interim reliefs. It was at that time that Alok (defendant in that suit) for the first time disclosed the execution of the alleged Will by the deceased. In short, according to the defendant the Will propounded by the plaintiff is not the true Will of the deceased and that the deceased was not in a fit mental condition to make a will. She has therefore, contended that the plaintiff is not entitled to grant of probate and petition/suit is liable to be dismissed.
6. On the above pleadings of the parties, the following issues were framed :--
ISSUESFINDINGS
1. Whether the petitioner proves that deceased duly executed the Will annexed at Exh. 'A' to the petition at Bombay on 26th November 1994 in the manner prescribed by law ?
No.2. Whether the petitioner proves that the deceased was of sound mind and understanding when he executed the said Will ?
No3. Whether the defendant proves that the alleged Will is bogus and got up as alleged ?
Yes4. Whether the defendant proves that the deceased at the time of his death or prior to the time of his death was critically 111 and his condition of health and mind was bad and he was under complete control and Influence of the brother of the defendant i.e. the sole beneficiary of the alleged Will ?Yes5. What order ?Petition dismissed
REASONS
7. In support of their respective cases, both the parties have adduced oral and documentary evidence. On behalf of the petitioner, the petitioner himself has examined as P.W. 1, and stated about the execution and attestation of the Will besides three more witnesses have been examined. P.W. 2 is Dr. P.D. Modhok, opines about the mental and physical conditions of the deceased at the relevant time. P.W. 3 is Jairam Salian who was working in the Syndicate Bank as a Collecting Agent and he states about certain withdrawals of amounts made by the deceased in Oct. 1994. P.W. 4 is Advocate R.K. Midha who claims to have drafted and signed the Will. The defendant has on the other hand examined herself as D.W. 1 and Dr. B.N. Vakil (D.W. 2) who state about the physical and mental condition of the deceased. In addition both the parties have produced and proved certain documents to which reference will be made in due course of this judgment as and when necessary.
8. Shri Merchant the learned counsel for the plaintiff made a threefold submission before me i.e. (i) the deceased is not proved to have been (sic) was not in a fit mental condition to make a Will (ii) that proper execution and attestation of the Will is not proved and (iii) there are several suspicious circumstances concerning the execution of the Will which have not been properly explained by the plaintiff. It will be proper to deal separately with each part of this submission. So far as the first part of the submission is concerned. Section 59 of the Indian Succession Act is relevant and it states as to who is capable of making a Will. It states that every person of sound mind, not being a minor, may dispose of his property by Will. Explanation 4 of Section 59 states that no person can make a Will while he has in such a state of mind. Whether there is no (sic) very intoxication or from illness or from any other causes, that he does not know what he is doing illustration (iii) to Section 59 reads 'A. being very feeble and debilitated, but capable of exercising judgment as to the proper mode of disposing of his property, makes a Will. This is a valid Will. In the light of the requirements laid down by Section 59, it will be proper to see whether the deceased could be said to be a man of sound mind, within the meaning of the term as given under Section 59, at the relevant time when he made his Will.
9. The Will in question purports to have been made on 26-11-94 and according to the plaintiff the deceased executed the same while he was admitted in a Holy Hospital at Bandra. It appears from the Will that at the relevant time he was 63 years old. The deceased died on 5-12-94 i.e. nine days after the execution of the Will. The evidence on record shows that during the period from 16-10-94 till his death on 5-12-94, the deceased was in the hospital for most of the time, excluding a short period. The plaintiff P. Ramchandran Nair (P.W. 1) who claims to be the sole executor appointed under the Will has stated that the deceased had liver problem i.e. cirrhosis. The evidence of the defendant Suparna (D.W. 1.) shows that since before his death, the deceased was not keeping well and was required to be hospitalized on several occasions. Some time in the middle of October 1994, the deceased was admitted to Shruti Nursing Home where he was for about 3 or 4 days and thereafter he was shifted to Bhatia General Hospital whore he remained for about a week. Thereafter, he was admitted to Holy Family Hospital where the remained for about 3 weeks. It appears that, thereafter, for about a week the deceased was at home but he was again required to be admitted to St. Martins Nursing Home on 2-12-1994. from where he was taken to Ramkrishna Mission Hospital. He was there for about 3 days only and on 5-12-94 the deceased breathed his last in the said hospital. There is no dispute about these facts having regard to the nature of the illness of the deceased as well as the frequency with which he was required to be admitted to various hospitals speaks only about the seriousness of his illness. It is also not in dispute that the deceased suffered a paralytic attack of left side of his body.
10. Shri S. Kavi the learned Advocate for the petitioner submitted before me that despite the said illness, the deceased was at the relevant time had a sound mind and fit mental condition to execute the Will. According to him, the illness had not affected the capacity of the deceased to exercise a judgment as to the dispositions of his property. Obviously the burden of proof that the deceased was of sound mind at the relevant time, lies upon the plaintiff who is propounding the Will in question.
11. The plaintiff who himself is one of the attesting witnesses, has stated that at the time of execution of the Will, the mental condition of the deceased was good and he was in a position to understand the contents of the Will which were explained to him by Advocate Midha P.W. 4. The petitioner claims to have visited the deceased whenever he was admitted to hospital. It appears from his evidence that when the deceased was in Bhatia Hospital he expressed his desire to make a Will and give instructions to Advocate Midha (P.W. 4) for preparing a draft of his Will. The petitioner has stated in para no (sic) of his deposition that at that time the deceased had already a paralytic attack but he was mentally sound though his physical condition was not good. He further admitted that the deceased had a brain tumor and he was required to be given blood transfusions on and off.
12. The petitioner has mainly relied upon the evidence of Dr. Madhok (P.W. 2) who has certified about the sound mind of the deceased. At the relevant time, Dr. Madhok is a practising Surgeon in Bombay for the last 38 years and his qualifications are M.B.D.C.M. (Bombay). F.R.C.S. (U.K.) and F.C.C.P. (U.S.A.). In the cross-examination he admitted that he is a General Surgeon and that he does not perform operations in respect of brain tumor. But he has performed operations of liver. Dr. Madhok suited that at the request of Alok, the son of the deceased, he visited his house and examined the deceased on 29-11-94, i.e. 3 days after the making of the Will. According to him the general condition of the deceased was poor and he had a mild jaundice and as cites i.e. accumulation of fluid in the abdomen. He further stated that the deceased had a catheter in the urinary track. Dr. Madhok has stated that he went through the medical papers of the deceased which showed that he had brain tumor of the right side. He also stated that the deceased had left side paralysis. According to him during the examination the deceased was inquiring with him whether operation can be performed on him to improve his condition. Dr. Madhok has stated that looking to the condition of the deceased he told his family members that it was not possible to perform any operations of the deceased. He further stated that on going through the case papers, he did not find any history that the deceased was going into coma or semi-coma. According to him he found that the mental condition of the deceased was sound and he was talking rationally. Dr. Madhok has produced and proved the certificate dated 28-9-95 Exh. B. issued by him regarding the physical and mental condition of the deceased which he found on 29-11-94 i.e. after a period of merely 10 months. The third line of the certificate reads 'Patient was bleeding through vomit and stool' Dr. Madhok however, stated that the word 'not' is missing after the words patient'. According to Dr. Madhok, the combination of brain tumor with cirrhosis was an exceptional fact. Dr. Madhok claims to have maintained a diary in which he had recorded the symptoms of the deceased. According to him he keeps a record of all rare and exceptional cases because they are helpful to him in writing academic papers and books. It is however, material to note that the diary on the basis of which the certificate Exh. B. is issued 10 months after the examination of the deceased is not at all produced for the reasons best known to Dr. Madhok himself.
13. In the cross-examination Dr. Madhok was shown certain medical papers including discharge cards of the deceased and his opinion about the findings and observations made therein was sought. One of such documents was the laboratory report (electrolyse of Holy Hospital dated 31-10-94). Dr. Madhok stated that the report is abnormal and the electrolyse count is low under 2 headings i.e. Sodium and chloride. He further stated that the effect of low sodium count shows that it may cause listless (lack of interest in surroundings intentionally poor (functions) in para 5 of his cross-examination Dr. Madhok stated that the function of liver is to break down protein and if that does not do so then there is a accumulation of Ammonia. He further stated that effect of accumulation cause confusion and mental hallucination. Dr. Madhok was shown the discharge cards of the deceased issued by Shruti Nursing Home and Holy Family Hospital and the same were marked as Exs. C.D. and F with the common consent of the parties. He was also confronted with a medical book 'Conn's Current Therapy, 1997' and in particular page 454 with a heading 'Hepatic, Encphalopath'. He stated that it means effect of damage to the liver and brain. Dr. Madhok opined that if the liver is damaged, it can effect the brain. He further stated that, if the patient is (in) advanced stage of Cirrhosis, the patient can go in coma or semi coma. He admitted that the deceased was in advance state of cirrhosis of liver which was basically a fetal condition.
14. Shri Merchant pointed out that the Will in question is dated 26-11-94 whereas Dr. Madhok examined the deceased on 29-11-94 i.e. three days after the making of the Will. He therefore, submitted that the evidence of Dr. Madhok does not show as to what was the actual mental condition of the deceased on 26-11-94.
15. As against this evidence the defendant Suparna has made her, oral statement and stated about the previous illness of the deceased. According to her sometime in September 1993, the deceased had fallen seriously ill and started vomiting blood and passing blood through stools. She has stated that at that time the deceased was residing with her for about 2 and half months and during that period she consulted Dr. Bharat Vakil D.W. 2, who advised her to contact a Gastro entrelogist. She further stated that, the deceased was thereafter, admitted to the Nursing Home of Dr. Chanda. The defendant has stated that the deceased wag suffering from cirrhosis of liver. She stated that the deceased used to drink alcohol and doctor had told that his liver was therefore, affected. She further stated that for a few weeks the deceased enjoyed good health but later on again started feeling unwell. The defendant has then stated about the admission of the deceased to various hospitals namely Shruti Nursing Home, Bhatia Hospital, Holy Family Hospital, St. Martin Nursing home and Ramkrishna Mission Hospital, it appears that during the relevant period the defendant was residing with her husband at Santacruz but she used to see the deceased by visiting the hospital wherever he was admitted, The defendant has stated that after 22-11-94 the deceased was brought home but his health was falling day by day. She stated that the backside of the deceased was paralysed and became numb. She further stated that, his Speech could not be understood and sometimes he used to tell irrelevant things. He also could not sometimes recognize the persons. The defendant has also stated that the deceased suffered paralytic stroke on 28 or 29-10-1994, 'and his left side was affected. On C.T. scan it was found that there was a brain tumor.
16, The defendant has also relied upon the evidence of Dr. Bharat Vakil D.W. 2 who is a medical practitioner with qualifications of M.B.B.S. D.R.M. and D.H.A. It appears that, he was working with Western Railways as I.R.M.S. Officer since August 1968, and he retired on 13-12-1997. Dr. Vakil claims to be well acquainted with the defendants husband Shri Tapan Das who is a office bearer of the Maharashtra Amateur Boxing Association (M.A.B.A.). According to him, he himself was associated with the activities of M.A.B.A. as doctor for a long time, Dr. Vakil has further, stated that sometime in the month of September or October 1993 he met the deceased at the defendants residence at Santacruz and examined him at the request of the defendant and her husband, He has stated that he was informed that the deceased had developed loss of appetite, fatigue, occasional itching, blood vomiting and block stools. He has stated that after discussing the symptoms he came to the primary conclusion that the deceased was suffering from cirrhosis of liver and therefore, advised him a detailed investigation and consult a General Physician or a Gastro entrelogist. He further stated that thereafter, the deceased was admitted to Dr. Chanda Nursing Home and he paid a courtesy visit to the deceased while he was in the said hospital, dr. Vakil has stated that one of the commonest cause of cirrhosis of liver is alcohol. He has explained that in the course of time liver of a person having regular drinking habit, Shrinks and nodular reflects both a loss in the cell mass and increase in the connective tissues which result in disorganization of homodynamic and functional activity. He stated that they develop further serious complications like jaundice, variceal haemorrhage, ascites, and encephalopathy. Dr. Vakil has stated that after his discharge from Dr. Chanda Nursing Home, the deceased again suffered a severe bout and blood vomit and acute pain after some months and was admitted to Shruti Nursing Home. He further stated that in October 1994, the deceased was admitted to Bhatia Hospital and at that time he visited that hospital. Dr. Vakil claims to have read the case papers of the deceased and discussed the same with the doctors. Dr. H.G. Desai and Dr. Amit Maydeo. He stated that after the deceased was admitted in Intensive Care Unit of Bhatia General Hospital. Dr. Maydeo performed endoscopes obliteration of esophageal varies for controlling the haemetenesis i.e. uncontrolled bleeding. Dr. Vakil has stated that the condition of the deceased when he was in Bhatia General Hospital was very critical and he was in drowsy state. According to him the deceased was having hepatic encephalopathy of grade II to grade III which is sometimes like drowsiness, lethargy and disori-entation. He has stated that this was particularly because of the advanced stage of his illness and also because of the effect and the disease low haemoglobin, medication administered to him and over all general condition. According to him the liver of the deceased was seriously damaged and he was in a hepatic failure. He also stated that the fate of the deceased was appeared to be certain but it was prolonged by medication. He has stated that he checked the medical record of the deceased and came to know that there was almost no chance of his recovery.
17. Dr. Vakil has explained as to what is meant hepatic encephalopathy. He has stated that it is a neuro psychiatric syndrome whose manifestation ranges from subtle personality changes to COma. According to him several factors may precipitate hepatic encephalopathy such as infection and gastro intestinal bleeding which the deceased was suffered from. Dr. Vakil has further stated that the deceased suffering from paralytic stroke which paralysed his left side completely because of glioma already present in right side of his brain.
18. On seeing the laboratory report dated 31-10-1904 and discharge cards of the deceased from Bhatia General Hospital as well as Shruti Nursing Home, Dr. Vakil has stated that he could see that the deceased was given Aldactont 100 mg which was reducing in sodium level which, normally results in drowsiness. He further stated that since the liver of the deceased was falling, it could not break down protein and therefore, there was accumulation of Ammonia, According to him accumulation of Ammonia caused confusion and mental hallucination of the deceased. Dr. Vakil has also referred to the book 'Conn's Current Therapy' and particularly table 5 on page 454 therein. He has opined that from the reports of the deceased it was found that he was in a very bad physical and mental condition in October/November 1994 and was not in a position to understand the activities put forward before him as there would be mental imbalance due to medication, tumor and advance stage of cirrhosis of liver.
19. There is no effective cross-examination of Dr. Vakil to rebut his opinion regarding physical and mental condition of the deceased which is based on the reports perused by him. It must be suggested to him that he was not qualified to give opinion or report regarding a person suffering from mental illness or neurological problems and that he is not qualified to treat the patient suffering from cirrhosis of liver. It was further suggested to him that he being personal friend of the defendant and her husband, was giving favourable opinion about the mental condition of the deceased, it was also suggested to Dr. Vakil that he had no occasion to examine and treat the deceased. It may he noted that Dr. Vakil does not claim to have treated the deceased but being a friend of the defendant's husband he examined the deceased at his residence and also went through the medical reports of the de-ceased from time to time. There is no dispute of the feet that during the months of October/November 1994, the deceased was seriously suffering from cirrhosis of liver and that he had also developed a brain tumor. In addition the deceased also suffered a paralytic stroke of his left side, it is material to note that even plaintiff's witness Dr. Madhok (P.W. 8) has admitted that the function of liver is to break down protein and if it does not do so then there is accumulation of ammonia which has effect of causing confusion and mental hallucination. He has also admitted that if liver is damaged it can affect the brain, it is true that neither Dr. Madhok nor Dr. Vakil had treated the de ceased but both of them are medical experts with a long standing. Both of them had perused the medical papers of the deceased. Considering these facts and the serious nature of the illness of the deceased which ultimately resulted in his death, there appears to be much substance in the defendants contention that the deceased was not having fit mental health at the relevant time when he is said to have made a Will in question. It is important to note that the deceased died nine days after the making of the said Will. He was seriously ill continuously for about two months prior to his death and had undergone treatments at 4 or 5 hospital. At the background of these facts the plaintiff's claims that the deceased was being a sound mental condition at the time of making the Will, becomes he will doubtful and again therefore, satisfy the conscience of the Court (sic).
20. Coming to the second submission of Shri Merchant, it is to the effect with proper execution and attestation of the Will is not proved. According to the plaintiff the will was provided by Advocate Midha P.W. 4 and it was signed by the deceased on 26-11-94, while he was admitted in Holy Hospital. The Will is produced at Exh. A and it purports to have been signed by the plaintiff himself and one Israel Mozes. The will also bears a endorsement or Advocate Midha to the effect that the same has been provided as per the instructions given by the deceased who was in perfect senses and that the Will has been explained to the deceased. Advocate Midha thus however, not attesting witness. The plaintiff seeks to prove execution and attestation of the Will by his evidence alone-Turning to his evidence it would be necessary to refer to the provisions of Section 63 of the Indian Succession Act which deals with execution of unprivileged Will, Sub-Clauses (a) (b) and (c) of Section 63 which relevant and they are as under ;
(a) The testator shall sign or affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign, or affix his mark to the Will or has seen some other person sign the Will. In the presence and by the direction of the testator, or has received from the testator, a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attention shall be necessary.
21. Having regard to the provisions of Sections 59 and 63 of the Indian Succession Act coupled with the provisions of Sections 67 and 68 of Evidence Act it will be seen that they prescribe the requirements and nature of proof which must be satisfied by the party who relies on a document in the Court of law. Thus the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of Indian Succession Act. As in the case of proof of other documents so in the case of proof of Wills, it would be idle to except proof with mathematical certainty. The test to be applied would be usual test of the satisfaction of prudent mind in such matters (vide H. Venkatchala Iyengar v. B.N. Thimmajama Iyengar, : AIR1959SC443 and Ramchandra v. Champabai, : [1964]6SCR814 ).
22. Shri. Merchant contended that there is no proper pleading regarding execution and attestation of the Will. He further submitted that there is no evidence to indicate that attesting witnesses signed the Will in the presence of the deceased. Shri. Merchant referred to the decision in Rangu Vithoba v. Rambha Dina, : AIR1967Bom382 wherein the learned single Judge of this Court held that in a case which is based upon the Will, the propounder must plead that the document was properly executed and duly attested and was the last Will of the testator. It was further held that he cannot say that the defendant has not denied this fact. In order to appreciate the submission of Shri Merchant, it is necessary to look to the relevant averments made by the plaintiff in the petition. In paragraph 3, the plaintiff has stated that deceased left a writing which is his last Will and testament. Paragraph 4 of the petition reads 'That the said Will was duly executed at Bombay on 26th November 1994'. There is no averment in the petition regarding clue attestation of the Will, The petition does not mention the names of the persons who attested the Will. However, as required by Rule 374 of the Original Side Rules, the plaintiff has filed the original Will and annexed a copy thereof to the petition which mentions the names of two attesting witnesses. But that does not satisfy the requirement of proper pleadings regarding the Will having been duly attested. It is not enough to aver in the petition that Will was duly executed but it must be averred specifically that Will was duly executed. Execution of document and attestation thereof are two different things. Execution of a document consists of signing a document written of, read over and understood. It does not consist of merely signing a paper or document which are not required to be attested but only those documents which law requires, are required to be attested by witnesses. For example, a mortgage deed and a Will. These documents cannot merely be executed but they have necessarily to be attested by witnesses. Attestation means the act of witnessing the executant, signing the document and subscribing the name of witnesses in testimony of such fact. By attestation it is meant that signing of the document to signify the attestor and his witness to the execution of the document. An attesting witness is one who signs the document in the presence of the executor after seeing the execution of the document and after receiving a personal acknowledgment from the executant as regards the execution of the document. In this connection reference should also be made to Section 3 of the Transfer of Property Act which defines the term 'attested' as meaning the instrument having been attested by two or more witnesses, each of whom as seen the executant signing or affixing his mark to the instrument or has seen some other person signing the instrument in the presence and by direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of them has signed the instrument in the presence of executant, but it shall not be necessary that more than one of such witnesses shall be present at the same time, and no particular form of attestation shall be necessary. Clause (c) of Section 63 of Indian Succession Act which deals with the attestation of the Will, is almost similar to the definition of the term 'attested' as given in Section 3 of the Transfer of Property Act. In short, execution of a document and attestation of a document are two different things and therefore, where a document is by law, requires to be attested by one or more witnesses, at least one witness is required to be examined to prove the execution thereof. It is necessary for the party relying upon the said document to plead specifically both the execution and attestation of it. Section 68 of Evidence Act inter alia states that if a document is required by law to be attested. It shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if the attesting witness is alive and subject to process of Court and capable of giving evidence. It is basic law that what is sought to be proved, must first be pleaded. A fact cannot be allowed to be proved unless it is first pleaded. As stated earlier there is absolutely no pleading regarding the attestation of Will in question.
23. Apart from the requirement of production of the original Will together with a copy thereof. Rule 374 of Original Side Rules further requires the petition for probate to be accompanied inter alia by the affidavit of one of attesting witnesses, if available, in Form No. 102. The Petitioner has annexed his own affidavit as being the sole executor appointed by the deceased under his Will. The said affidavit dated 10-3-1995 does not make any reference to the plaintiff of his having attested a Will. However, a separate undated, unsigned and un-affirmed affidavit of Advocate R.K. Midha has been annexed to the petition, presumably to comply with the provisions of Rule 374 of Original Side Rules. I shall deal with this aspect a little later because Advocate R.K. Midha (PR 4) has specifically stated that he has not attested the Will but he has only drafted it. It will thus be seen that the plaintiff did not comply with the provisions of Rule 374 of Original Side Rules.
24. Despite any specific pleading regarding attestation of the Will, the plaintiff has adduced evidence on that point. Strictly speaking, the evidence which is apart from the pleadings, cannot be admitted and relied upon. I shall now deal with the plaintiffs evidence regarding execution of the will excel. The plaintiff has stated that on 20-11-1994 he accompanied Advocate Midha to the hospital where the deceased was admitted and there the deceased gave instructions to Advocate Midha to draft his Will. The plaintiff has stated that he was asked to go out of the room by the deceased to enable him to give instructions to Advocate Midha. The plaintiff has further stated that on 26-11-1994 he received a telephone message from Advocate Midha to the effect that Will was ready and it was to be executed in the evening. He has further slated that nearly about 6.00 p.m. he went to the office of Advocate Midha from where both Of them went to the residence of the deceased. It appears that by that time the deceased was discharged from the hospital. The plaintiff has stated that when they went to the house of deceased, his son Alok, the other attesting witness and other family members were present in the house. He has further stated that Advocate Midha had brought the Will with him and he explained the contents thereof to the deceased in Hindi in the presence of all persons present there. The plaintiff has stated that thereafter Advocate Midha put his endorsement and seal on the third page of the Will and signed the same after putting the date. According to the plaintiff thereafter Advocate Midha requested deceased to execute the Will and he himself left the residence. The plaintiff has stated that thereafter the deceased requested him to help him in putting his thumb impression on the document as he was weak. The plaintiff claims to have helped the deceased in putting his thumb impression on the will. He has stated that thereafter he signed the will as an attesting witness No. 1 and Israel Moses signed the will as attesting witness No. 2 and put the date below his signature, The plaintiff has identified the signature of deceased on the Will as well as his own signature and that all other attesting witnesses. He has further added that he and other attesting witnesses signed the will on the same day in the presence of each other. Shri. Merchant however pointed out that there is nothing in the evidence of the plaintiff to indicate that attesting witnesses put their signatures on the Will in the presence of deceased. I do not find much force in this submission. On perusal of the paragraph 2 of the evidence of the plaintiff, it is clear that deceased was bed ridden at the time of signing the Will and that both the plaintiff and other attesting witness Israel Moses were in the said room with the deceased. It cannot be said that both the attesting witnesses went in other room and signed the will in the absence of the deceased. There is no reason to imagine such a thing having taken place.
25. Shri. Merchant submitted that there are 2 suspicious circumstances which surround the execution and attestation of the Will and they are :
(1) Obtaining of the thumb impression of the left hand of the deceased on the Will when he could have signed it by his right hand, and
(ii) Annexing to the petition un-affirmed affidavit of Advocate Midha purporting to be that of attesting witness.
As observed in case of H. Venkatchala Iyengar (supra) the propounder of Will has to prove due and valid execution of the Will and that if there are any suspicious circumstances surrounding the execution of the Will, the propounder himself has to remove such suspicion from the mind of the Court must by cogent and satisfactory evidence. So far as the first circumstance is concerned, it may be noted that Will Excel to the petition, bears the thumb mark of the left hand of the deceased. It is not that deceased was an illiterate person, The defendant Suparna has stated in her evidence that deceased had appeared for his S.S.C. examination and he was familiar with English, Bengali and Hindi, She has further stated that deceased could read, write and understand these languages. According to her deceased was horacious reader. This part of defendant's evidence has not at all been controverted in the cross-examination. Therefore, it would be reasonable to believe that under normal circumstances deceased would have put his signature on the Will. Shri. Ravi, learned Advocate for the plaintiff, however, pointed out that admittedly at the time of making of the will physical condition, of the deceased was very weak and that he was therefore, not in a condition to make his signature. As discussed above, deceased, was suffering from serious illness for more than one month prior to the making of the Will. He had cirrhosis of lever and also a tumor in his brain. In addition, he had suffered a paralytic stroke which affected the left side of his body. Therefore, according to Shri. Ravi, there is nothing suspicious or unusual if the deceased put on the Will thumb impression of his left hand. In this respect Shri, Ravi relied upon two decisions, the first of which is Amulya Kumar Bose v. Noresh Chander, 1998 (2) CWN 649, wherein the testator was 111 of meningitis of which he died. He executed a Will by putting his thumb mark and in doing so he was assisted by some other persons. It was held that if a testator while making his mark upon the Will to execute the same, is assisted by other person who guides his hand, and he acquiesces and adopts it, it is just the same as if he had made it without any assistance. The second decision relied upon by Shri. Ravi is Sushila Bala Shah v. Saraswati Mondia reported in : AIR1991Cal166 wherein the expression 'sign or affix mark' occurring in Section 63(a) of Indian Succession Act was interpreted and it was held that even if the testator is capable of writing but on account of weakness he is unable to put his signature, he can execute the Will by affixing his mark. In the instant case the deceased was an literate person capable of making his signature. It is true that at the relevant time he was seriously ill and had suffered paralytic attack of left side of his body but he was conscious and in a fit mental condition then there is no reason as to why he did not put his signature on such an important document by which he was making a bequest of all his estate, he would have surely preferred to put his signature because paralytic attack had not affected the right side of his body and therefore, there would not have been much difficulty for him to sign it.
26. The Will was drafted by Advocate Midha PR 4, It is a typed document and attestation below the thumb impression of the deceased reads 'signed and acknowledged by the said Ajit Baranpal, affixing his left thumb mark as his last will and testament in the presence of both of us and in presence at the same time.....' It is not known how Advocate Midha who prepared the Will and got it typed knew before hand that deceased would not be in a position to put his signature on the Will, The above mentioned endorsement appears to have been made by Advocate Midha on his assumption that deceased would put his left thumb mark on the Will. In the normal course signature of deceased on the will would have been attempted to be taken and if for some reason the deceased would have been unable to do so, then his left hand thumb mark would have been obtained on the Will after making endorsement that on account of physical illness and weakness the deceased was unable to put his signature. However, nothing of this sort appears to have been done and this creates a suspicion about the execution of the will.
27. Coming to the second suspicious circumstances, which is related to the attestation of the will. As pointed out earlier the plaintiffs own affidavit which is annexed to the petition is totally silent of his having attested the Will. On the contrary the undated, unsigned and un-affirmed affidavit of advocate Midha purporting to be that of an attesting witness was filed to comply with the requirement of Rule 374 of Original Side Rules. The original Will purports to have been attested by the petitioner and one Israel Moses below their signatures on page 2 of the Will. There is following endorsement which continues even on page 3 of the Will 'The above Will has been drafted, by undersigned on the instructions of Shri Ajit Baranpal who was in his perfect sense when he gave the said instructions. The contents of the Will after the same was drafted have been explained by the undersigned to the said maker of the will Ajit Baranpal.
Sd/-
26-11-1994
R.K. Midha
Advocate, Supreme Court
4. Surya Kiran, Khar, Bombay 58
Tel. 546110'
The plaintiff has been cross-examined in connection with un-affirmed affidavit of Advocate Midha annexed to the petition. In para 9 of the cross-examination, the plaintiff admitted that deceased had not insisted on Advocate Midha to wait till the Will was executed. He further stated that at the time when petition was filed the un-affirmed affidavit of Advocate Midha was not seen by him and he came to know for the first time when objection was raised by the office. He further stated that thereafter he read the un-affirmed affidavit of Advocate Midha and discussed with his Advocate Shri Menon in that respect. The plaintiff has stated that at that time there was some dispute on this point between him and Mr. Menon and the latter got angry with him and told him not, to teach him. The plaintiff has added that thereafter he took away the papers from Advocate Menon. It is seen from the plaintiffs evidence that petition has been prepared by Advocate Menon. The plaintiff has stated that while giving instructions to Advocate Menon he had not instructed him that Advocate Midha was one of the attesting witnesses. The cross-examination of the plaintiff further shows that Advocate Midha represented Alok Pal in Suit No. 2648/1995 filed by the defendant for administration of the estate of the deceased. The filing of un-affirmed affidavit of Advocate Midha as being one of the attesting witnesses is itself a suspicious circumstance. When the plaintiff and his Advocate Mr. Menon were aware that Advocate Midha who drafted the Will, did not attest, then there is no reason as to how such un-affirmed affidavit of Advocate Midha came to be annexed to the petition. It clearly indicates that Advocate Midha was initially sought to be relied as an attesting witness. Shri Ravi submitted before me that Advocate Midha is only the draftsman of the Will and not an attesting witness. He further submitted that generally the Advocates do not get involved in attesting any document. If that is true than there is no explanation as to what made Advocate Midha to put below the Will the above mentioned endorsement is not written in hand at the relevant time and it was already typed below the Will. This again creates a suspicion about the said endorsement. The evidence of Advocate Midha PR 4 shows that he was aware about serious illness of deceased. But even then he did not advise the deceased that an endorsement of a doctor certifying that deceased was in a fit mental condition to understand the things, should be obtained. On the contrary he preferred to have his ready made typed certificate below the Will certifying that contents of the will were explained by him and the deceased understood the same. He has categorically stated that he does not attest the will as a matter of policy. According to him on the relevant day he explained the contents of the Will in Hindi to the deceased who found the same to be alright. Advocate Midha has further stated that thereafter he put his signature at the end of the Will recording the fact that will was drafted under the instructions of the deceased and was read over and explained to him. As a matter of fact this endorsement was already there on the will. Advocate Midha has further stated that thereafter he told the plaintiff and other attesting witnesses Moses to go ahead with the execution of the Will and he himself left the place. The evidence of Advocate Midha instead of clarifying and satisfying the reasonable doubt in connection with the execution and attestation of the will, adds to further suspicion in that respect.
28. One small but important thing which has to be noted is that the signature of other attesting witness Israel Moses does not appear against his name but at the bottom of page. The names of both the attesting witnesses are typed and normally one would expect their signatures against their respective names. However, the signature of Israel Moses appears against part of typed endorsement appearing at the bottom of page 2 of the will. There is no explanation as to why he did not put his signature against his name. The mariner in which the endorsement of Advocate Midha on the Will is typed later itself creates a suspicion that it was obtained later on. Thus taking into consideration the above mentioned two facts, I find that there is much substance in the submission of Shri Merchant that there are suspicious Circumstances surrounding the execution of the will and the same have not been satisfactorily explained by the plaintiff.
29. Shri Merchant further pointed out two more circumstances and they are : (i) non-mention of all the properties of the deceased in the Will Excel and (if) exclusion of the defendant from any benefit under the will. So far as the first circumstance is concerned, the will Exh. A reference to shop No. 6, shop No. 16 and shop No. 26 all situated in Kamal Kunj Co-operative Housing Society, Bandra, which were owned by the deceased. It also makes a reference to shop No. 11--A in the same society which was acquired by the deceased on tenancy basis. Under the Will, the deceased bequeathed these shops to his son Alok. There is no reference in the will to other properties owned by the deceased: However, it contains a general statement'...... and of other movable and immovable properties, which I may be possessed of or entitled to at the time of my death'. The schedule of property shows that the deceased also owned the flat No. 9 in Oxford Co-operative Housing Society Limited, Bandra (West) and who had huge bank accounts with various banks. However, these do not find mention in the will, Excel. The plaintiff has admitted in para 12 of the cross-examination that the deceased has purchased a property at Virar, but that also does not found any mention in the Will. P.W. 4 Advocate Midha who drafted the will has stated that there is ho specific reference in the will to the ownership flat of the deceased but there is a general reference to all properties. He has admitted that during his discussion with the deceased, he noted down the details regarding the forth shop's and residential address. According to him, the deceased did not give him details or instructions with regard to any other properties. Advocate Midha further stated that he did not ask the deceased about his bank accounts, fixed deposits, shares and jewelleries. It appears that the deceased was also having a safe deposit vault in a bank that also does not find any mention in the bill. According to Shri. Merchant if the Will had not drafted as per the instructions of the deceased then all these properties would have found a mention in the will because the deceased would not have failed to give instructions regarding as other properties. Shri. Ravi, the learned advocate for the defendants on the other hand contended that non mention of some of the properties in the will need not be viewed with suspicion, in view of the fact that the will contains a recital relating to the all other movable and immovable properties which the deceased might be in possession or entitled to at the time of his death. In this respect, he relied upon the decision in Rajeshwarirani v. Nirja Suleri wherein it was felt that no suspicion can be held to emanate from the facts that the details of the property are not mentioned in the Will. It was observed that it is not essential to give details of the property in the testamentary documents. However, in my opinion, wherein omission in the Will of certain properties should be viewed that suspicion or not, depends upon the facts and circumstances of each case for the instant case the deceased is said to have given instructions to Advocate Midha mention the shops in the will. There is no dispute of the fact that the residential flat in Oxford Cooperative Housing Society at Bandra belongs to the deceased. Therefore, normally he would not have failed to make a mention thereof in the Will if at all he wanted to make a bequest of all his property of his son Alok only. It appears that, Alok was residing with the deceased in the said flat. At any rate there is no satisfactory explanation as to why the deceased did not specifically incorporate in the will his other properties when he gave details in respect of the shop property.
30. The next circumstances alleged to be suspicious is the exclusion of the defendant from any benefit under the Will. It may be noted that, the deceased has only two issues namely a son by name Alok and daughter by name Suparna. The wife of the deceased had died long back during the childhood of the two children. The defendants Suparna is married and she resides with her husband at Santacruz. As seen from the Will EXCEL the deceased purports to have bequeathed all his properties to his son Alok only and nothing has been given to the defendant. Shri. Merchant submitted that, as a matter of feet, the relations between the deceased and his son Alok had got strained on account of latter's marriage. The evidence of the defendant shows that Alok got married in January 1993 with one Punjabi girl. It was an inter-caste marriage and the same was not approved by the deceased. The defendant has further stated that there used to be disputes between the deceased and Alok and the deceased had removed him from partnership. The statement made by the defendant in this respect have not been challenged in the cross-examination. Therefore, there is no reason to discard the same. What is more important to note is that the plaintiff did not examine Alok as his witness to state about the relationship between Alok and the deceased. In fact Alok could have been the best witness to speak about his relationship with the deceased. However, there is no explanation for the non-examination of Alok as a witness. It is true that the defendant is a married daughter of the deceased and probably she is well placed. However, it is pertinent to note that the will is totally silent about her. It does not make even mention of her name, leave apart giving reason as to why no benefit has been conferred upon her under the will. The defendant being the only daughter of the deceased, in the normal course she would not have felt to mention her name as well as assign a reason for not giving her any benefit under the will particularly when his relations with his son were not cordial. Under these circumstances, the exclusion of the defendant from any benefit under the will appears to be somewhat suspicious. Shri. Merchant referred to the decision in Ram Piari v. Bhagwant : [1990]1SCR813 wherein the facts were that the father executed the Will bequeathing all his property in favour of one daughter and thus inherited the other property to had no sore relations with him. It was held that, even though it cannot be said to be, hard and fast rule yet when disinheritance is amongst heirs of equal decree and no reasons for exclusion is disclosed, within a standard of scrutiny is not the same. In the instant case it is not in dispute that all the properties of the deceased were his self acquired properties. The defendant and her brother Alok are the sole heirs of the deceased of equal decree. The Will Excel does not contain any reason of non giving of any benefit to the defendant. Under these circumstances, the exclusion of the defendant from any benefit under the will appears to be suspicious.
31. I have thus dealt with all the evidence on record and on consideration thereof, I sum up my conclusions as under:
(i) The Petitioner/Plaintiff has also failed to prove that the deceased was not in a sound mental condition at the time of making the will in question.
(ii) The Petitioner/Plaintiff has also failed to prove due execution and attestation of the Will.
(iii) There is no averment in the petition/ plaint regarding due attestation of the Will.
(iv) There is no evidence to show that the attesting witnesses put their signature on the Will in presence of the deceased.
(v) The following suspicious circumstances surrounding the execution of the Will have not been properly explained to the satisfaction of the Court.
(a) Obtaining of the thumb impression of the left hand of the deceased on the will when he could have signed it by his right hand.
(b) Annexing to the petition un-affirmed affidavit of Advocate Midha to be that of attesting witness.
(c) Total exclusion of the defendant from any benefit under the will without any apparent reason when she is the only daughter of the deceased.
(d) Non-mention of all the properties of the deceased in the Will.
32. In view of the above conclusions, I am of the opinion that the petitioner/plaintiff is not entitled for the grant of probate. Accordingly I record my findings on the abovementioned issues and pass the following order.