| SooperKanoon Citation | sooperkanoon.com/1144187 |
| Court | Mumbai High Court |
| Decided On | Jun-11-2014 |
| Case Number | Testamentary Suit No. 60 of 2011 In Testamentary Petition No. 1164 of 2010 |
| Judge | R.D. DHANUKA |
| Appellant | Maki Sorabji Commissariat and Others |
| Respondent | Homi Sorabji Commissariat |
1. By this petition which is converted into a suit, the plaintiffs have prayed for a probate of the last will and testament dated 16th June, 1999 and a codicil dated 23rd July, 2001 of the deceased Sorabji Hormusji Commissariat (hereinafter referred to as the said deceased) who died at Mumbai on 15th August, 2009.
2. Some of the relevant facts for the purpose of deciding this suit are as under:
(a) It is the case of the plaintiffs that on 16th June, 1999, the said deceased executed the will and testament thereby appointing six executors/excutrixes and trustees of his will including the plaintiffs herein and three other executors/executrixes. Under the said will and testament, the said deceased has bequeathed properties to plaintiff no. 1 who is widow of the said deceased, to his daughter Mrs. Syloo K. Mehta and to his son, the caveator herein partly. It is the case of the plaintiffs that the said will was attested by Dr. Zarir F. Udwadia and Mr. Zarir M. Bhatena.
(b) It is the case of the plaintiffs that the said deceased executed a codicil on 23rd July, 2001 and made some of the changes in the will and testament dated 16th June, 1999. The said codicil was attested by Mr. Lalit Khanna and Dr. A.S. Chitnis. On 15th August, 2009 the said deceased expired leaving behind him plaintiff no. 1 who is widow of the said deceased, defendant caveator who was son of the said deceased and Mrs. Syloo Keki Mehta who was daughter of the said deceased. The father and mother of the deceased has predeceased the deceased. According to the plaintiffs no son or daughter of the deceased had predeceased him and there were no lineal descendants of any predeceased son or daughter.
(c) On 8th September, 2010 plaintiffs herein filed a Testamentary Petition for seeking probate of the will and codicil of the said deceased. Out of six executors of the will, three of the executors filed the testamentary petition whereas remaining three executors namely Mr. Khershed Maneck Powvala, Ms. Shireen Jamsetjee Jijeebhoy and Mrs. Deena J. Jijeebhoy renounced their status as executors of the said will and codicil and their right to apply for probate. The plaintiffs filed the affidavit of Dr. Zarir Farokh Udwadia dated 9th August, 2010 who was one of the attesting witness to the will dated 16th June, 1999 and affidavit of Mr. Lalit Khanna dated 11th August, 2010 who was one of the attesting witness to the codicil of the said deceased. All these affidavits were filed along with the petition. Plaintiffs also filed affidavits of other three executors who renounced their right to act as executors/executrix of the will and codicil of the said deceased.
(d) The daughter of the said deceased did not file any caveat and affidavit in support. The son of the said deceased filed caveat and affidavit in support upon which the testamentary petition was converted into a suit. In the affidavit in support of the caveat the defendant raised following issues/allegations:
(i) petition is filed after one year of the death which creates a doubt about the authenticity of the alleged will and codicil.
(ii) Doctors have not certified that the deceased was sound and physically capable for the execution of the alleged will and codicil. The deceased was 88 years old at the time of executing will and was not physically and mentally sound at the time of execution of the will.
(iii) The authenticity of the signature of deceased on the alleged will and codicil is disputed or in the alternative the same may not be of the free will of the deceased and was under pressure of the plaintiffs for execution of such alleged will and codicil by taking undue advantage of old age and ill health of the deceased.
(iv) Signature of the attesting witnesses on the alleged will is disputed,
(v) the witnesses are the close friends of the petitioners and not even known to the deceased;
(vi) the alleged will and codicil are not genuine documents and are forged, fabricated documents.
(vii) The deceased was suffering from Alzheimer and Parkinson's disease.
There was undue influence put upon the deceased by the petitioners. The defendant was attached to the deceased and had taken his care.
(e) On 21st June, 2012, this court framed issues which are substituted by consent of parties and which are answered in the later part of this judgment:
| (a) Whether the last Will and Testament of the deceased Sorabji Hormusji Commissariat dated 16th June, 1999 and codicil dated 23rd July, 2001 were validly executed ? | In the affirmative |
| (b) Whether the deceased was in sound state of mind at the time of execution of the Will and Codicil? | In the affirmative |
| (c) Whether the Will and Codicil were obtained by pressure or by undue advantage of his old age? | In the affirmative |
| (d) Whether the Will and/or the Codicil was forged or fabricated? | In the negative |
| (e) What relief, if any, if the plaintiff is entitled to ? | As per final order. |
3. Mr. Behramkamdin, learned counsel appearing on behalf of the plaintiffs invited my attention to the pleadings and various parts of the affidavits and oral evidence led by parties in support of his submissions that the plaintiffs have proved the existence of the will and that the same was validly executed, the deceased was of sound state of mind at the time of execution of the will and the codicil and that the will was not obtained by pressure or by undue advantage of his old age. After relying upon various parts of the affidavit, it is submitted by the learned counsel for the plaintiffs that the deceased was 78 years old when the will was executed and was 89 years old at the time of his death. It is submitted that the will was validly executed and attested which is duly proved by the plaintiffs and the attesting witnesses examined by plaintiffs. It is submitted that the cross examination of the witnesses examined by the plaintiffs by the defendants also support the case of the plaintiff and proves that the will was duly executed and was attested in accordance with law.
4. Learned counsel submits that though certain questions were asked to defendants in the cross examination of plaintiff or to other two witnesses on the issue as to whether the said deceased was suffering from Alzheimer and Parkinson for some time, even if the deceased was suffering from any of such diseases, it did not affect the sound and mental condition of the deceased in any manner whatsoever. Learned counsel submits that the onus was on the defendant to prove that the deceased was not in a sound state of mind at the time of execution of the will or codicil. Learned counsel placed reliance on section 59 of the Indian Succession Act, 1925 which reads thus:
œ59.Person capable of making Wills:- Every person of sound mind not being a minor may dispose of his property by Will.
Explanation 1 “ A married woman may dispose of Will of any property which she could alienate by her own act during her life.
Explanation 2- Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
Explanation 3 “ A person who is ordinarily insane jay make a Will during interval in which he is of sound mind.
Explanation 4 “ No person can make a Will while he, is in such a state of mind, whethr arising from intoxication or from illness or from any other cause, that he does not know what he is doing.?
5. It is submitted that every person of a sound mind who is not a minor may dispose of his property by will. Reliance is placed on explanation 4 and it is submitted that the said condition mentioned in explanation 4 was not satisfied in this case. It is submitted that illness of the testator should be such that it affects his mind and he does not know what he was doing. It is submitted that under explanation 3, a person who is ordinarily insane may make a will during interval in which he is of sound mind. Learned counsel submits that it is proved by the plaintiffs that the said deceased was in various committees of hospital and other organizations even after execution of the will and was participating in the administration of such organizations. It is submitted that even defendant in his evidence admitted that the said deceased was discussing with defendants on various issues even five months before his death. It is submitted that there is no evidence of any undue influence or pressure on the deceased by the plaintiff no. 1 or by his daughter and son in law and thus conditions of section 61 of the Indian Succession Act, 1925 are not satisfied and or proved.
6. It is submitted by the learned counsel that the will and codicil were attested by two doctors and two Chartered Accountants. Mr. Behramkamdin placed reliance on the judgments of Supreme Court in case of Savithri and others Versus Karthiyani Amma and Ors (2007) 11 SCC 621 in support of his submission that the onus is on the party to prove who has alleged undue influence or coercion which in this case was on the defendants who has failed to prove such onus. The said judgment is also relied in support of the submission that the defendant was rightly disinherited substantially by the said deceased because of his peculiar behaviour with the said deceased and plaintiff no. 1. Paragraphs 15 to 18 and 22 of the said judgment read thus:
œ15. Submission of the learned Counsel that if both Krishnan Nair and Sankaran Nair were to bequeath their entire right, title and interest in the properties in favour of the respondents herein, by way of family arrangement or otherwise, no deed of partition was required to be executed, cannot be accepted as thereby they would have lost their interest in the property during their life time. They evidently intended to have life interest in the property, bequeathing the same in favour of the respondents. It must also be borne in mind that the parties are governed by Marumakkattayam School of Hindu Law. The sisters in the family have a role to play. The fact that the testator was totally dependent on his nephew and nieces is beyond any dispute. He lost his employment in the year 1959. Apart from the properties which were subject-matter of the Will, he had no other independent source of income. Being totally dependent on the respondents having been suffering from cancer, he was bound to place implicit faith and confidence only upon those who had been looking after him. The Will was admittedly registered. The testator lived for seven years after execution of the Will. He could change his mind; he did not. The very fact that he did not take any step for cancellation of the Will is itself a factor which the Court may take into consideration for the purpose of upholding the same. The question as to whether the Registrar was brought to the house of the propounder or he had gone to the Registrar's office is not a matter which requires serious consideration. But we may notice that the witness examined on behalf of the respondents, Raveendran (DW-2), categorically stated that he had gone to the Registrar's office to get the same registered. Execution of the will might have taken place at the house of Nanikutty Amma, but according to DW- 2 he came to his office even after registration. Even the other Will was also scribed by him and he was an attesting witness therein also.
16. It is not correct to contend that DW-2 could not have been the attesting witness. He in his deposition categorically stated that he had seen the Will being read over to the propounder. The witnesses and he had seen Sankaran Nair putting his signature on the Will. Sankaran Nair had also seen the witnesses putting their signatures. This satisfies the requirements of the provisions of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872. [See Apoline D'Souza v. John D'Souza MANU/SC/7718/2007 : AIR2007SC2219 .
17. The legal requirements in terms of the said provisions are now well- settled. A Will like any other document is to be proved in terms of the provisions of the Indian Succession Act and the Indian Evidence Act. The onus of proving the Will is on the propounder. The testamentary capacity of the propounder must also be established. Execution of the Will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the Will. It is required to be shown that the Will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the Will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exist suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before it can be accepted as genuine.
18. We may, however, notice that according to the appellants themselves, the signature of the testator on the Will was obtained under undue influence or coercion. The onus to prove the same was on them. They have failed to do so If the propounder proves that the Will was signed by the testator and he at the relevant time was in sound disposing state of mind and understood the nature and effect of disposition, the onus stands discharged. For the aforementioned purpose the background fact of the attending circumstances may also be taken into consideration. [See B. Venkatamuni v. C.J. Ayodhya Ram Singh and Ors. MANU/SC/4692/2006: AIR2007SC311.
22. Deprivation of a due share by the natural heirs itself is not a factor which would lead to the conclusion that there exist suspicious circumstances. For the said purpose, as noticed
hereinbefore, the background facts should also be taken into consideration. The son was not meeting his father. He had not been attending to him. He was not even meeting the expenses for his treatment from 1959, when he lost his job till his death in 1978. The testator was living with his sister and her children. If in that situation, if he executed a Will in their favour, no exception thereto can be taken. Even then, something was left for the appellant.?
7. In support of the same submission learned counsel placed reliance on the judgment of Supreme Court in case of E. Madhavi Pallikaramma and another Vs. K.V. Prabhakaran Nair and Others reported in (2001) 9 SCC 726 and more particularly paragraphs 5 and 8 which read thus:
œ5. Learned senior Counsel for the Appellants, however, vehemently contended that the said Will gave legacy which prima facie was unnatural in character. He submitted that Kunhiraman Nair had totally disinherited his wife who was staying with him for number of years and bequeathed nothing in her favour. Similarly, the other co-testator Ummamma Amma had given nothing to her husband in the Will. These are suspicious circumstances.
8. So far as the grievance regarding disinheritance of the husband of another co-testator Ummamma Amma was concerned, it has to be noted that even though she was suffering from cancer it could not be said that she was not in a sound disposing state of mind at the time of the Will. Even the husband had made no grievance at any stage nor was he staying with the wife who was living with her brother, the other co-testator. Secondly even though in probate proceedings public notice would have been issued the husband never had made such a grievance regarding this alleged disinheritance by his wife. The caveat or-wife of the other co-testator could not make a grievance on his behalf.?
8. Mr. Behramkamdin, learned counsel placed reliance on the judgment of Division Bench of this court in case of Smt. Pushpa Prabhaschand Jain and Ors. Vs. Rakesh Phoolchand Jain (Adopted son) reported in 2007 (2) Bom.C.R. 92 in support of his submission that even if it is held that the said deceased was suffering from Parkinson's disease, it would not indicate that the said deceased did not understand what he was doing or that he was not capable of disposing his property. Paragraphs 4, 5, 12, 18 and 19 of the said judgment read thus:
œ4. The caveatrix -Asha V. Jain, the Appellant No.2, herein, is one of the married daughters of Kusumbai. She resisted the respondents petition for grant of letters of administration by filing the caveat on 8th December, 1989. She was thus treated as a defendant. Her main contentions in the caveat were that the respondent is not the adopted son of the Testatrix and that there are suspicious circumstances surrounding the execution of the Will, namely, that the deceased was bedridden since 1984; she was illiterate and had no intention to bequeath all the property in favour of the petitioner. Further, according to the caveatrix, the respondent was inducted as a partner in the business by the deceased after the death of her uncle Shri Shekharchand Pyarelal Jain and did not pay her share of profits to the deceased. The deceased then fall seriously ill, having contracted Parkinsons disease. The respondent did not take care of the deceased and his conduct seriously affected her health adversely. The deceased then lost her eye -sight due to cataract and her senses such as her understanding and her memory suffered progressively. Since she was totally bedridden from 1984 onwards, she was not capable of understanding and making or executing any legal document such as the Will in question.
5. The caveatrix specifically alleged that the signature of the deceased on the Will was not voluntarily made in the sense that it appears to have been taken by guiding her hand on the alleged document. Similarly, according to the caveatrix, the thumb impression of the deceased was taken on the document involuntarily. For the reasons stated above, the Will was not a Will of the deceased and is null and void.
12. This brings us to the condition of the testatrix and the consideration of whether she was in a disposing state of mind. The evidence on record shows that the deceased was capable of movement on her own. She was not bed-ridden before her death even according to the family doctor. She had undergone an operation to remove cataract from her eyes and she wore thick glasses after operation. She appears to have had suffered from impaired memory, apparently due to the Parkinsons disease and her senses such as vision, hearing and understanding were impaired. However, none of these appear to us as indicative or proof of the allegations that she did not understand what she was doing or she was not capable of disposing her property.
18. In this regard, it may be noted that the Supreme Court has, in AIR 2002 Supreme Court 317, held that the uneven distribution of assets between the children cannot be taken as suspicious circumstance. Nor, as held by the Supreme Court in AIR 2005 Supreme Court 4362, the depriving of natural heirs must be treated as suspicious because it is normally the intention of a testator to interfere with normal line of succession while making a Will.
19. In a leading case on the construction and proof of Wills in H.Venkatachala Iyenger vs. B.N.Thimmajamma and Ors., reported in A.I.R. 1959 Supreme Court 443, the Supreme Court observed in paragraphs 18, 19 and 20 as follows:-
"(18) What is the true legal position in the matter of proof of wills? It is well known that the proof of wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents.
Sections 67 and 68, Evidence Act are relevant for this purpose. Under S.67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that 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 and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. 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 decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S.63 of the 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 expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
(19) However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testators mind and his signature as required by law. Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
(20) There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounders case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testators mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testators free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter."
We have arrived at the conclusion in this case after having borne in mind the above observations of the Supreme Court.?
9. Mr. Saraf learned counsel appearing on behalf of the defendant on the other hand invited my attention to some part of the evidence led by both the parties and submits that plaintiff herself has admitted that the said deceased was suffering from Parkinson's disease and that he was taking treatment for such disease since the year 1995. It is submitted that no doctor certificate certifying the physical and sound mental condition of the deceased is issued by any doctor in respect of the said deceased nor is relied upon by the plaintiffs. It is submitted that the deceased had though cordial and good relations with the defendant, the same was strained because of the sister and brother in law of the defendant who pressurized and coerced the said deceased to disinherit the defendant. It is submitted that Mr. Lalit Khanna was friend of the deceased and was giving him advice. He was not even aware of the contents of the will. It is submitted that in view of the said deceased suffering from Parkinson's disease for quite some time, he was not of a sound and disposing mind at the time of execution of the alleged will and codicil and thus such alleged will cannot be probated by this court. It is submitted that the will is also caused by undue influence or coercion and is thus void under section 61 of the Indian Succession Act, 1925.
10. Mr. Saraf, learned counsel appearing for the defendant placed reliance on the judgment of Delhi High Court in the case of Stya Paul Vs. State and Others, delivered on 25th March, 2011 in Income Tax Appeal No. 10287 of 2010. The reliance is placed on the said judgment in support of the submission that Delhi High Court had accepted the doctor's certificate certifying that the party was suffering from Alzheimer disease and ordered further scrutiny by the hospital and to give a specific finding on the issue as to whether that party was suffering from Alzheimer disease and consequences thereof. Paragraph 8, 9, 10, and 63 of the said judgment read thus:
œ8. The present application being IA No.10287/2010 has been filed thereafter on or about 2nd August, 2010 under Order 32 Rule 3 and Order 32 Rule 15 of the CPC by Ms. Sushma Berlia inter alia contending that consequent upon the death of her husband, Smt. Rajeshwari Paul is under serious depression. It is further stated that she was suffering from the Alzheimers disease which has deteriorated her physical and mental condition; the same has worsened and she is therefore unable to grasp matters. It is submitted that on account of her inability to take a decision in relation to the matter, it is necessary to appoint a guardian ad litem for her.
9. To support her prayer Ms. Sushma Berlia, daughter of the petitioner has also stated that she is staying with her mother Smt. Rajeshwari Paul since the last more than two decades and that Smt. Rajeshwari Paul is under her care; that Ms. Sushma Berlia has no interest adverse to that of Smt. Rajeshwari Paul and is consequently fit to be appointed as her guardian ad litem. IA No.10287/2010 in Test Case No.56/2009 Page No.3 of 29 On these averments, Ms. Sushma Berlia has prayed in the present application that she should be appointed as guardian ad litem of Smt. Rajeshwari Paul. An alternative prayer is made that in case this court adjudicates that the applicant is not a proper person to be appointed, such other person as may be deemed fit by this court, may be appointed as guardian ad litem of Mrs. Rajeshwari Paul.
10. It is noteworthy that the application is supported by a certificate dated 30th July, 2010 issued by Dr. Vijay Chandra, M.B.B.S. (AIIMS), M.D. Neurology (U.S.A.), Ph.D. Johns Hopkins University (U.S.A.), Certified Diplomate of the American Board of Psychatry and Neurology. Dr. Chandra has issued the certificate to the following effect:-
"Mrs. Rajeshwari Paul, 86 years, is suffering from Lewy Body Dementia, which is a variant of Alzheimer's disease. In this condition, there is impairment of cognitive (intellectual) function. The patient is unable to grasp, analyze or understand situations. She is thus unable to make informed and appropriate decisions. The demise of her late husband has aggravated her condition. She requires regular medical and nursing care."?
63. In view of the above, it is directed as follows:- (i) The Medical Superintendent of AIIMS shall constitute a Board consisting of one psychiatrist, one neurologist and one neuropsychiatrist for the purposes of conducting an examination of Smt. Rajeshwari Paul and submitting a report to this court with regard to her mental status.
(ii) Such Board shall be constituted within a period of one week of the receipt of the order and the date and time of its proceedings shall be intimated to the Registrar (Original) of this court who shall inform the counsel for the parties. IA No.10287/2010 in Test Case No.56/2009 Page No.27 of 29 (iii) It shall be open for the Board to conduct such test(s) as may be required for arriving at a definite conclusion with regard to ailment of Smt. Rajeshwari Paul as well as her mental condition.
(iv) Ms. Sushma Berlia shall be responsible for all expenses incurred in the examination and tests performed on Smt. Rajeshwari Paul which shall be communicated to her by the said Board and are payable to the AIIMS for the conduct of such tests.
(v) The amounts shall be deposited by Ms. Sushma Berlia within three days of the communication of the said expenses.
(vi) The Board shall give a specific finding on the issue as to whether Smt. Rajeshwari Paul is suffering from Alzheimers disease, consequences thereof and her physical and mental condition and ability.
(vii) In case necessary, it shall be open for Ms. Sushma Berlia to utilize the facility of an ambulance and to cause the production of Smt. Rajeshwari Paul before the Board and for AIIMS for performance of the tests. She is permitted to make a request in writing in this behalf to the Medical Superintendent of the All India Institute of Medical Sciences who may permit the same against payment of charges by her.
(viii) It shall be open for the Board to join the treating doctor(s) of Smt. Rajeshwari Paul in their deliberations whose names shall be informed by Smt. Sushma Berlia to the Board. She shall also bear their expenses.
(ix) The Board shall complete its examination and proceedings within four weeks of its constitution and submit a report. The report by the Board shall be forwarded to this court within six IA No.10287/2010 in Test Case No.56/2009 Page No.28 of 29 weeks of the receipt of the order passed by the Medical Superintendent.
(x) The Registry shall forthwith communicate this order to the Medical Superintendent of the All India Institute of Medical Sciences.
This application is allowed in the above terms.?
11. I will now deal with each of the issues framed by this court and also the relevant part of the evidence issue-wise, the submissions advanced by the learned counsel and also the judgments relied upon by both the parties in the later part of this judgment. Issue no. 1 and 4 are taken together as the same are interconnected with each other.
(a) Whether the last Will and Testament of the deceased Sorabji Hormusji Commissariat dated 16th June, 1999 and codicil dated 23rd July, 2001 were validly executed?
(d) Whether the Will and/or the Codicil was forged or fabricated?
12. In the affidavit of evidence of plaintiff no. 1 who is widow of the said deceased, it is deposed by her that the will was executed in her presence and the attesting witnesses by the said deceased. She has identified the signature of the deceased and of the attesting witnesses. The deceased had discussions with partner of Gagrat and Co. regarding the making of his will. The witness had accompanied the deceased on all the occasions when he met Mr. Gagrat, partner of M/s. Gagrat and Co. In her cross examination, the witness was asked whether she was present at the time when the will was executed, the witness answered in affirmative. Witness was asked to name the people who were present at the time when will was signed. The witness disclosed the name of Dr. Zarir Udwadia and Mr. Zarin Bhatena. The witness was asked whether the deceased informed her that he wanted to make a will, the witness answered in affirmative. Witness also answered that the deceased had consulted her while preparing the will but the final decision was his. Witness was put a suggestion that the witness and her daughter had prepared the will and the said deceased had signed the same which suggestion was denied by the witness.
13. In the affidavit in lieu of examination in chief of Mr. Zarir M. Bhatena (PW 3) who was one of the attesting witness to the will, it is deposed that plaintiff no. 1 had approached him and requested if he could be present in the consulting room of Dr. Udwadia as an attesting witness on 16th June, 1999 when the said deceased wished to execute his will in the presence of Dr. Udwadia. The said witness in his affidavit has deposed that he was present at the time of signature of the said deceased on the will and had also identified the signature of the deceased and also the attesting witnesses.
14. In cross examination of PW 3 the witness was asked to disclose the reasons as to why the said will was executed in consulting room of Dr. Zarir Udwadia. The witness deposed that he was not aware but was only told that he had to attend the clinic of Dr. Udwadia where he would sign on the will in presence of Dr. Udwadia and the PW 3. The deceased denied the suggestion put by the defendant that he was not present at the time of the execution of the will.
15. Mr. Lalit Khanna who was attesting witness to the codicil filed his affidavit in lieu of examination in chief dated 6th July, 2012. He was a Chartered Accountant by profession and knew the deceased since the year 1961. The witness has deposed that the deceased had informed him that he wanted to make a codicil and wanted him to attest the same which he agreed to do so. The witness has deposed that the deceased along with his wife came to his office on 23rd July, 2001 to execute the codicil when Dr. A.S. Chitnis also came to his office to attest the said codicil. The witness has deposed about the attestation of codicil by himself and Dr. A.S. Chitnis and has identified the signature of deceased and attesting witnesses on the codicil.
16. In his cross examination, the witness was put a suggestion that the alleged will was prepared by him and he obtained the signature of the deceased under pressure which suggestion was denied by the witness. Witness also denied the suggestion that he wanted to oblige the wife and daughter of the deceased and accordingly had obtained the signature of the deceased on the codicil by force.
17. Defendant examined himself who filed his affidavit in lieu of examination in chief on 8th November, 2013. In his affidavit it is deposed that he was disputing the alleged will and codicil and the authenticity of the signature thereon on the ground of the said deceased allegedly having developed Alzheimer and Parkinson's disease from the year 1995 to 2001 and was under the treatment of Dr. Noshir Wadia who was a neurologist. It is deposed that the said will and codicil were prepared and executed under undue influence and pressure of the sister and mother of the defendant. It is deposed that the plaintiff no. 1 and his sister had prepared the alleged will and codicil to deprive the right and share of the deceased in the estate of the deceased. The defendant was alleged to be very much attached with the deceased and was taking care of the deceased.
18. In cross examination of the defendant, the witness admitted that the said deceased was always very busy and in view of his responsibilities and various activities he never had time. Witness admitted that except for exchanging pleasantries and supporting each other's requests, there were no other interactions as he had no time. Witness also admitted that he came to know about the will and codicil when it was executed or made. He was told about making of the will and codicil by a senior partner of Gagrat and Co. and not by the deceased or by the plaintiff no. 1 or anybody else in the family. Witness was asked whether he was told about the contents of the will and codicil and he must have realized that the deceased had left most of his estate to his sister and mother and not to him, the witness answered that all his estate and nothing was left to him and he was not upset when he realized that. When witness was asked whether he confronted his father and asked him as to why he had made the will and codicil in the manner in which it was made, the witness deposed that he was asked to maintain full confidentiality and say nothing. Witness also answered that during nine years till the death of the said deceased, he never spoke to the deceased about the will and codicil since defendant being a gentleman and once he gave his word he did not break it. The defendant also did not ask his mother or sister about making of the will. In reply to question no. 71 when witness was confronted with paragraph 4A of his affidavit in which it was stated that Dr. Zarir Udwadia was treating the deceased and at the same time in paragraph 4D of the affidavit, it was deposed that the attesting witnesses who were not even not known to the deceased, the witness answered that his statement in his affidavit that they were not even known to the deceased was a typographical error.
19. Perusal of the evidence highlighted aforesaid clearly indicates that the will was executed by the deceased in presence of two witnesses i.e. Dr. Zarir Udwadia and Mr. Zarir M. Bhatena. In the evidence of the plaintiff no. 1, it is proved that Mr. Zarir M. Bhatena and Dr. Zarir Udwadia both the witnesses were present at the time of execution of the will and have attested the signature of the deceased. She has identified the signature of the deceased and of the attesting witnesses. In the cross examination of the plaintiff no. 1 defendant himself had asked question as to whether she was present at the time when the will was executed. The witness was also asked to disclose the name of the people who were present at the time when the will was signed. The plaintiff no. 1 was put a suggestion that when the will and codicil was signed, the said deceased was forgetting things, which suggestion was denied by the witness. The plaintiff was also put a suggestion that she and her daughter had prepared the will and the said deceased had signed the same. The defendant himself has admitted in his cross examination that he was informed about the will and codicil by a partner of Gagrat and Co. and he was aware that he was substantially excluded from the entire estate by the deceased. He however, on the ground of alleged confidentiality did not speak to his father in last nine years from the date of execution of the will and the date of his death about the will and codicil. He was not even upset when he came to know about such will excluding him from the estate substantially by the deceased.
20. Mr. Saraf, learned counsel appearing for defendant submits that defendant is not disputing the execution of the will as such but is disputing the validity of such will in view of the deceased suffering from the Alzheimer and Parkinson's disease and was forgetting things when the will and codicil was signed. Cross examination of the witnesses examined by the plaintiff by the defendant, also clearly indicates that execution of will was not in dispute. The questions asked to the witnesses in cross examination clearly shows that the will was duly executed and attested in accordance with law. The will and the codicil are accordingly marked as exhibits A and B respectively.
21. In so far as issue raised by the defendant that the will or codicil was forged or fabricated, the onus was on the defendant to prove that the will and/or codicil was forged or fabricated. Mr. Lalit Khanna who was one of the attesting witness to the codicil is chartered accountant and knew the deceased since 1961. The defendant has not led any evidence on this issue and has failed to prove the onus cast on him. Issue no. 1 is accordingly answered in affirmative. The plaintiff has proved that the will and testament dated 16th June, 1999 and codicil dated 23rd July, 2001 of the deceased were validly executed. Issue no. 4 is answered in negative. The will or codicil was not forged or fabricated as alleged by the defendant.
ISSUE NO. 2 : Whether the deceased is in sound state of mind at the time of execution of the Will and Codicil?
22. The caveator in support of the caveat has alleged that the doctors had not certified that the deceased was in a sound and physically capable for the execution of the alleged will and codicil. The deceased was 88 years old at the time of executing the alleged will and was not physically and mentally fit at the time of execution of the alleged will. It is alleged that the deceased was suffering from Alzheimer and Parkinson and was not physically and mentally fit at the time of execution of the will.
23. In the affidavit of evidence of plaintiff no. 1 (PW 1), it is deposed that right till the death of the said deceased on 15th august, 2009 the deceased was physically and mentally healthy and functioning. He was capable of understanding the effect and consequences of his actions. He was consultant in respect of Craft World Foundry Body and worked till his last days. He used to look after his bank affairs account etc., used to watch television, read newspapers and kept himself updated with all the current events. Till his death he was a trustee in many trusts such as Homi Wadia Charities, Parsee General Hospital, Banoobai trust etc. It is deposed that the said deceased was in a sound state of mind on 16th June, 1999 when the will was executed as well as on 23rd July, 2001 when the codicil was executed and was of sound mind till his death. He was fully capable of understanding the effect and consequences of his actions when he made his will and codicil. He had control over his senses and was able to understand the contents of the will and the codicil when he had executed those documents and the effect thereof. He was sound, coherent and capable of understanding the effect of his acts at the time of execution of the will and codicil.
24. In cross examination of PW 1 witness deposed that the said deceased died at the age of 89 and cause of his death was his age. He died at Parsee General Hospital. He was ill at home so he was advised to go to hospital. In reply to question no. 38 the witness when asked as to what was his general illness during the last 15 to 20 years, preceding his death, PW No. 1 answered that there was no illness. In reply to question no. 40, when a suggestion was put to the witness that somewhere in the year 1995 till 2001, the said deceased developed Alzheimer and Parkinson's disease, the witness answered that amongst parsees after certain age several person suffer with Alzheimer and/or Parkinson's disease, probably he also suffered from mild version of the same. When witness was asked whether it was proved that the said deceased suffered from Alzheimer and Parkinson's disease since 1995 the witness answered in negative and deposed that the said deceased travelled all over the world till 1997.
25. In reply to question no. 53, when witness was put a suggestion that in 15 to 20 years prior to his death, the deceased was forgetting things, the witness answered that œnot to her knowledge?. In reply to question no. 64 when the witness was put a suggestion that the will and codicil was signed by the deceased when he was forgetting things, the witness denied the said suggestion.
26. In the affidavit of evidence of Mr. Lalit Khanna one of the attesting witness to the codicil (PW 2) it is deposed that the deceased was of sound mind and he executed the codicil and he knew the consequences of his said act. In his cross examination, when he was put a suggestion that since 1995 till 2001 the deceased had developed Parkinson, the said witness answered in affirmative and deposed that he had noticed a tremor in his hand. In reply to question no. 29, the witness answered that during his interaction with the deceased for his tax matters, from the year 1995 to 2001, his response was clear to all his questions.
27. In the affidavit of evidence of Mr. Zarir M. Bhatena who was attesting witness to the will (PW 3), he deposed that at the time of execution of his will, the deceased was of sound and disposing mind and executed his will of his free will and pleasure. In his cross examination, the witness answered that he was joint secretary of B.D. Petit Parsee General Hospital where the said deceased was on the committee with the witness as a committee member. He was elected as a committee member in the year 1986 and after two years, he became the joint Hon. Secretary. The witness knew the deceased when he joined the hospital committee.
28. In reply to question no. 17 and 18, the PW 3 when asked whether he was aware whether the deceased was suffering from Alzheimer and/or Parkinson's disease, the witness answered that he was not aware whether he was suffering from Alzheimer because in all the hospital committee's discussions, the said deceased was equally participating with all the other members for the full year of 1999. As far as Parkinson's disease was concerned, it was a starting point in the year 1999. The witness denied the suggestion of the defendant that the deceased was not of a sound mind at the time of execution of the alleged will. In reply to question no. 25, the witness answered that being on the committee, the witness and the said deceased used to discuss matters regarding the hospital and some times the said deceased used to ask him queries regarding tax. In reply to question no. 26, when witness was asked whether he was aware as to whether the deceased was suffering from memory loss and was taking treatment during the period 1995 to 2001, the witness answered in negative and further deposed that in committee meeting there was no occasion to see that he had any memory loss as he was actively participating in all the discussions. The witness denied the suggestion of the defendant that the deceased was forgetful.
29. In the affidavit of evidence of the defendant, it is deposed by him that the deceased was not sound and physically capable at the time of execution of the will and the doctors certificate is also not attached to the alleged will and codicil. It is alleged that the deceased was very old and was not in a position to execute any documents as referred in the petition. From the year 1995 to 2001, the deceased developed Alzheimer and Parkinson 's disease and during that period he was treated by Dr. Noshir Wadia who was a neurologist. In cross examination of the defendant, in reply to question no. 14, when witness was asked whether after he started staying in Pune he had ever any social outings with the said deceased, the witness answered that having been in a very advanced stage of Parkinson and Alzheimer disease on many occasions, he invited him to Willington club for meals and dinner which he happily accepted along with plaintiff no. 1. The witness answered that on such occasions, he had conversations with the deceased only in motor cars and all help and support that the plaintiff no. 1 was making demands for supporting the lifestyle of the sister of defendant. Witness admitted that the said deceased had knowledge about the motor cars and he must have kept himself abreast with the latest developments in cars.
30. In reply to question no. 19 when witness was asked on what basis, did he say that the said deceased was suffering from Alzheimer disease, the witness answered that the same may be verified with Dr. Noshir Wadia, Dr. Jamshed Lalkaka and Dr. Nowroz Lalkaka. When witness was asked whether he would examine any of the doctors as his witnesses, the witness replied that when he asked those doctors to lead evidence, they said no. None of those doctors wanted to be involved. None of those doctors have certified that the said deceased was in normal health. The witness however, admitted that he was aware that if the person having relevant information, refuses to lead evidence, the court can be requested to issue witness summons to them.
31. When witness was asked whether he had in his possession even a single document, whether by way of medical prescription or medical report or any other document indicating that the said deceased suffered from Alzheimer or Parkinson's disease, in reply to question no. 23, the witness answered in negative. In rely to question no. 24, the witness deposed that upto approximately the year 2005, the defendant and the said deceased had dinner at Willington club together.
32. In reply to question no. 84 and 85 the witness answered that he was aware of the fact that the said deceased and Mr. Zarir Bhatena were on the executive committee of the Parsee General Hospital during 1999 and few years thereafter. Witness also admitted that the said deceased was on the board of N.M. Wadia Charities for long time and was also there on the Parsee General Committee and on the Atash Behram Committee. In reply to question no. 100, the witness answered that since 1984, till 1996, he had repeatedly requested the said deceased to purchase his share on many occasions. All property matters were only discussed with the said deceased by him and close common friend late Dr. C. Rossi. In reply to question no. 102, when witness was asked that if the witness felt that the said deceased was not giving response because he was incapable of responding then why did he make repeated requests for the period of 12 years from 1984 to 1996, the witness answered that because the said deceased was his father.
33. In reply to question no. 109, when witness was asked that since Mr. Homi Commissariat was a co-owner of 1/3rd share in the property of Sylmoyne why he did not offer his undivided 1/6th share in the said property to the deceased father, the witness answered that because he always discussed all matters with his father. Even when they had meetings, the deceased father would represent him. In reply to question no. 110, when witness was asked to tell approximately when was the last time he had a discussions with the said deceased about any of the family properties whether they were shares and securities or relating to any immovable properties, the witness answered that it may be 4/5 months before he passed away. When witness was asked as to why he has not called the three doctors as his witnesses in the matter, the witness answered that he had left that matter to his advocate.
34. Supreme court in case of Savithri and others (supra), has held that a will like any other document is to be proved in terms of the provisions of the Indian Succession Act and the Indian Evidence Act. The onus of proving the will is on the propounder. The testamentary capacity of the testator must also be established. It is required to be shown that the will has been signed by the testator with his free will and that the at the relevant time, he was in sound disposing state of mind and understood the nature and effect of the disposition. It is required to be established that he had signed the will in the presence of two witnesses who had attested the signature in his presence or in the presence of each other. It is held that if sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. In the case of proof of a will, signature of the testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated.
35. Supreme Court in case of E. Madhavi Pollikkaramma (supra), has held that even though th testator was suffering from cancer, it could not be said that she was not in the sound disposing state of mind at the time of the will.
36. Division Bench of this court in case of Smt. Pushpa P. Jain (supra), had considered the facts that the deceased had undergone an operation to remove cataract in one of her eyes and she wore thick glasses after operation. She appeared to have had suffered from impaired memory apparently due to the parkinson's disease and her senses such as vision hearing and understanding were impaired. However, none of those appeared to the court as indicative or proof of allegations that she did not understand what she was doing or she was not capable of disposing her property.
37. A perusal of evidence on record in this case indicates that the deceased expired after ten years of the execution of the will and about 8 years of execution of codicil. The onus was on the defendant to prove that the said deceased was not of sound and disposing mind at the time of execution of the will and codicil. Plaintiff No. 1 (PW No.1) in cross examination deposed that the cause of the death of the said deceased was due to age. He was 89 years old at the time of his death. He had no illness during the last 15 to 20 years preceding his death. The plaintiff no. 1 and one of the attesting witness in cross examination, deposed that the said deceased suffered from mild version of Parkinson's disease. PW 1 in her cross examination had stood by her deposition in examination in chief that the deceased was capable of understanding of effect and consequences of his actions when he made his will and codicil and was physically and mentally healthy and functional. In evidence of the attesting witness Mr. Zarir M. Bhatena who was attesting witness to the will, in cross examination the witness deposed that the said deceased was in various committees and used to participate in various discussions in those committee meetings even after the date of execution of the will and codicil. In the cross examination of the defendant himself he has admitted that he had taken the said deceased for dinner at Willington Club with him upto approximately year 2005 and used to discuss all his matters including property matters with him. The said deceased used to represent him in the discussions of property matters. The witness admitted that at last time he had discussions with the deceased about the family properties whether they were shares and securities or relating to any immovable properties 4 or 5 months before the death of the said deceased.
38. The defendant also admitted in cross examination that the said deceased was in various committees such as Parsee General Hospital during the year 1999 and even thereafter, Atash Behram Committee etc. When witness was called upon to produce the documents such as medical prescription, medical report, or any other document to indicate that the said deceased was suffering from Alzheimer or Parkinson, the witness could not produce any such document. A perusal of the evidence referred to aforesaid clearly indicates that the deceased was active and used to participate in the executing committee meetings of various organizations at the time of execution of will, codicil and till the date of his death. It is proved beyond reasonable doubt that the deceased was of sound and disposing mind at the time of execution of both the documents and was capable of understanding what he was doing. The defendant has failed to prove that the deceased was not of sound and disposing mind as alleged in the affidavit in support of caveat.
39. In my view even if the said deceased was suffering from Parkinson's disease for any part of the period as canvassed by the defendants, question that arises for consideration is that whether such disease even if deceased was suffering from, whether would have affected sound and disposing mind of the deceased at the time of execution of will or codicil. A perusal of the evidence on record clearly indicates that the witness was active in various activities including taking decisions in property matters which is an admitted fact even according to he defendant and was participating in committee meetings. In my view even if it is considered that initially the said deceased had suffered from Parkinson disease, it would not indicate or prove the allegations of the defendant that it had affected the sound and disposing mind or capacity of the said deceased testator to execute a will or codicil or that he was not capable of disposing his property. Unless the disease is of such a nature that it would affect the sound and disposing mind of the testator, such disease cannot be a ground to refuse a probate or letters of administration. In my view, the defendant has failed to prove the allegations made by the defendant in this regard in the affidavit in support of the caveat or in evidence.
40. In so far as submission of Mr. Saraf for the defendant that there was no doctor's certificate certifying the good health and about the sound and disposing mind of the deceased and thus the will shall not be probated is concerned, in my view there is no requirement in law that any such medical certificate is required to be annexed along with a will and testament or any other testamentary document. One of the leading doctor i.e. Dr. Zarin Udwadia who was one of the attesting witness to the will of the said deceased in his affidavit dated 9th August, 2010 filed along with petition has averred that at the time of execution of the will, the said deceased was of sound and disposing mind, memory and understanding and to the best of his knowledge and belief made and published the same on his free will and pleasure. It is not disputed by the defendant that the said Dr. Zarir Udwadia was being consulted by the said deceased and was a family doctor. PW-1 and PW-3 have proved that Dr. Zarir Udwadia has attested the signature of the deceased on the will.
41. In so far as judgment of Delhi High Court in case of Stya Paul (supra) relied upon by the learned counsel for the defendant is concerned, the Delhi High Court was considering an application under order 32 rule 3 and order 32 rule 15 of the Code of Civil Procedure for considering appointment as fit and proper person as a guardian ad litem for a person who is alleged to be suffering from Alzheimer disease. The applicant had annexed a copy of the doctor's certificate to the said application certifying that the said party was suffering from Alzheimer's disease and required regular medical and nursing care. The Delhi High Court directed the All India Institute of Medical Science to constitute a board consisting various doctors and submit a report regarding mental status of that party and to give a specific finding on the issue as to whether the said person was suffering from Alzheimer disease. In my view the judgment relied upon by the learned counsel for defendant in case of Stya Paul (supra) is not at all relevant to the facts of this case. Though the defendant could have examined a doctor to prove his case whether in view of the deceased suffering from the Parkinson's or Alzheimer, such disease would have affected the sound and disposing mind of the deceased or not which the defendant failed. If the concerned doctors were not willing to depose as deposed in the cross examination, defendant could have got the witness summon issued against those doctors for the purpose of recording evidence on the relevant issues which the defendant failed. Issue no. 2 is accordingly answered in affirmative. It is proved that the deceased was of sound and disposing state of mind at the time of execution of will and codicil.
Issue No. 3 : Whether the Will and/or the Codicil were obtained by pressure or by undue advantage of his old age?
42. In the affidavit in support of caveat the defendant, it is alleged by the caveator that the alleged will would not be free will of the deceased and the petitioners have put pressure on the deceased for execution of the alleged will as well as codicil by taking undue advantage of old age and ill heath of the deceased. It is alleged that the alleged will and codicil produced by the petitioners were made by putting undue influence on the deceased.
43. Plaintiff No. 1 in her affidavit of evidence has deposed that the said deceased was disappointed with the defendant and saddened by his behaviour over the years. Defendant did not go along with the said deceased and had been staying at Pune since the year 1987. In the year 1998, the deceased came to know that the defendant had prepared to sell of his undivided share in the family property at Altamount Road to Govani Builders Pvt. Ltd. The said deceased was very upset when he came to know about the said transfer which was signed by the defendant behind the back of the said deceased when he was abroad. In cross examination of plaintiff no. 1 (PW no. 1), the witness deposed that the defendant went to Pune on his own. When the witness was asked what was meant by her deposition that the said deceased was saddened by the behaviour of the defendant, the witness answered that because the defendant sold his 1/6th share inherited from his grandmother in the property situated at Carmiachal Road, it was unknown to the said deceased and while he was in Europe with plaintiff no. 1. The witness also answered that when defendant did not furnish his formal education, the said deceased could not live with the said fact and there were always arguments on that issue. In reply to question no. 18, when the witness was asked whether according to her there was any change in the behaviour of the defendant after he shifted to Pune, the witness answered that she did not believe that the defendant ever thought of his parents.
44. When the witness was put a suggestion that the alleged will and codicil were executed under the coercion and pressure of plaintiff no. 1 and her daughter, the witness answered in the negative. The witness also denied the suggestion of the defendant that plaintiff and her daughter had prepared the will and the said deceased had signed the same.
45. In the cross examination of the attesting witness Mr. Lalit Khanna, he denied the suggestion that the alleged will dated 16th June, 1999 was prepared by him and he obtained signature of the deceased under pressure. The suggestion was put to the attesting witness that since he wanted to oblige the plaintiff and daughter of the plaintiff and the deceased, the witness obtained signature of the deceased on the codicil by force, the witness denied the said suggestion and deposed that the same was absolutely false.
46. In the affidavit of evidence of the defendant, it is deposed that the alleged will and codicil were prepared and executed under undue influence and pressure by plaintiff no. 1 and daughter of the plaintiff no. 1. It is alleged that the defendant was very much attached to the deceased and had taken the care of the deceased.
47. In cross examination of the defendant, the witness deposed that the deceased was very busy and up to his years with responsibilities and various activities he never had time. The witness deposed that except for exchanging pleasantries and supporting each other's requests, there was no other interaction with the said deceased as he had no time. The witness admitted that he started shifting to Pune in September, 1988 on possession of his apartment in Konark Park, Pune which was handed over to him my his late father with the original nomination certificate registered with the society. In reply to question nos. 8 and 9, the defendant deposed that after his shifting to Pune and till the year 2009, the defendant was visiting Mumbai once a week overnight. The purpose of the said weekly visit was business commitments and just to say hello to the said deceased which he used to do in the morning and then he would have breakfast with his friend advocate Hoshang Lashkari at the Willington Club. He would then attend to his business and then drive off to Pune. When the witness was asked whether besides saying hello, whether he had any other kind of interactions with the parents when he visited Mumbai, the witness answered œnot really?. The witness admitted that his relations with the plaintiff no.1 and the sister were very strained. When the witness was asked whether before the death of the said deceased, he had exchanged any correspondence, emails or greetings with the deceased, he answered in negative.
48. In reply to question no. 115, the witness deposed that he was residing at Pune with his two dogs and two adopted daughters their spouses and grand children. He adopted two daughters because they looked after him whenever he was unwell on many occasions. Defendant is a bachelor. The parents as well as sister were not aware whether defendant had adopted two major girls. When the witness was asked as to why he had never informed the parents about the adoption of these two ladies, the witness deposed that it was his personal business.
49. In reply to question no.135, when the witness was put a suggestion that he had spent very little time with the said deceased, specially after he shifted to Pune, the witness answered in affirmative and deposed that he spent very little time with his father even when he was living in Mumbai. In reply to the suggestion put by the plaintiff's counsel to the defendant that he had never looked after the said deceased in his old age, the witness answered in the affirmative and further deposed that plaintiff no. 1 never allowed it and she always distanced him from the father. In reply to question no. 137, the witness admitted that the father might even surprise when he came to know that the defendant had sold his 1/6th share in Sylmoyne to builder Mr. Gowani. The witness however, further answered that the father knew for a long time that he was trying to amicably separate and on many occasions even though he told that if he did tings independently, he would get a lesser price and so there was no shock to the father.
50. My attention is also invited by the learned counsel appearing for both the parties to the email addressed by defendant on 10th January, 2012 to the plaintiff no. 1 by defendant in which defendant had made various allegations against plaintiff no.1 by using rough and derogatory words and behaved arrogantly. Learned counsel for the defendant submits that though the said email was sent by the defendant, the language used in the said email was not of the defendant but was of his cook. Perusal of the email sent by the defendant to the plaintiff no.1 shows his totally strained relationship with plaintiff no. 1. Perusal of the evidence referred to aforesaid clearly indicates that defendant no.1 was of sound and disposing mind and was taken care of all through by plaintiff no. 1. Defendant no. 1 was staying separately and shifted permanently to Pune in the year 1988 himself i.e. even before the execution of the will and codicil by the said deceased. It is admitted by the defendant in his evidence that he was hardly in contact with the deceased and had not taken any care of the deceased. Defendant had sold his undivided share in one of the property which was not liked by the said deceased. Defendant instead of taking care of his aged father had adopted two ladies and was taking their care at Pune.
51. On perusal of the evidence referred to aforesaid, it would clearly indicate that there was no pressure or undue influence or undue advantage of the old age of the deceased taken by plaintiff no. 1 or her daughter. Plaintiff no.1 admittedly was wife of the said deceased and was all through out taking care of the said deceased till the date of his death. Perusal of the will and codicil indicates that inspite of such behaviour and having strained relationship with the deceased and plaintiff no. 1 by defendant, the deceased has not completely disinherited the defendant. The deceased had nominated the defendant in respect of one of Pune property which is in occupation of the defendant for last several years. In my view, the bequest in favour of Plaintiff no.1 and the daughter of plaintiff no. 1 and the deceased in respect of some of the properties of the said deceased is thus not unnatural. Defendant has failed to prove any pressure or undue influence or alleged advantage having been taken by the plaintiff No. 1 or her daughter. The onus was on the defendant to prove that there was any undue influence or coercion or undue advantage of the old age of the said deceased by plaintiff no.1 or daughter of the deceased which the defendant has failed to prove.
52. The Supreme Court in the case of Savithri and Others (supra) has held that the deceased who was dependent on the respondents having been suffering from cancer, was bound to place implicit faith and confidence only upon those who had been looking after him. The Supreme Court considered the situation where the son was not meeting his father and had not been attending to him. He has not even made expenses for his treatment when the father lost his job. The testator was living with his sister and her children. Considering these facts, the Supreme Court held that if in that situation if he had executed the will in favour of his sister and her children, no exception thereto could be taken. Even then the deceased in that case had left something to his son. In the facts of this case also, it is proved beyond reasonable doubt by the plaintiffs that the defendant was not taking care of his father who was of old age and had starting staying separately even prior to the execution of the will and codicil. He hardly used to visit his father. Inspite of this behaviour of the defendant, father has bequeathed some part of the shares to him. Be that as it may, the bequest in favour of his wife and the daughter cannot be considered as bequest in view of any alleged pressure or undue influence of the wife and daughter on the said deceased. The allegations of the defendants are without any basis or supported by any proof. Issue No. 3 is accordingly answered in the negative. In my view the will or codicil was not obtained by any pressure or by undue advantage of the old age of the deceased by the plaintiff no. 1 or by the daughter.
53. I, therefore, pass the following order:
(a) Plaintiffs have proved the execution and attestation of the last will and testament dated 16th June, 1999 and the codicil dated 23rd July, 2001 and that the deceased was of sound state of mind at the time of execution of the will and codicil. Plaintiffs are thus entitled to be granted probate in respect of the said will and codicil. The suit is accordingly decreed in the aforesaid terms with costs.
(b) The Prothonotary and Senior Master is directed to issue probate in respect of the will and testament dated 16th June, 1999 and the codicil dated 23rd July, 2001 of the deceased Mr. Sorabji Commissariat expeditiously.