Research › Search › Judgment

Bombay High Court · body

2010 DIGILAW 724 (BOM)

Girdhari N. Melwani v. Veena Chandru Melwani

2010-05-07

ROSHAN DALVI

body2010
Judgment 1. The Plaintiffs are two brothers who are two of the 4 sons and 3 daughters of the testatrix, their mother, who executed her last Will and Testament dated 20th March 1991, which is sought to be probated. The Defendants are her daughter-in-law and grand-children. They have sought to challenge the Will pursuant to the Caveat filed by them, which shows their defence in the suit. It is their case that the flat in Belfer Cooperative Housing Society at 147, Waterfield Road, Bandra (West) Mumbai-400 050 (the Belfer flat), which is essentially the only property left by the testatrix, was purchased out of the earnings of her husband and a bogus Will was prepared to usurp her husband’s property. Defendant No.1 has claimed that the testatrix suffered from various ailments, for which she was hospitalised and was not in a sound and disposing state of mind. The Will was executed under duress and does not appear to be voluntary and is unnatural as it excludes her grand-children from her estate. 2. The testatrix has essentially bequeathed the Belfer flat being flat No.11 to Plaintiff No.1 who is one of the executors of her Will. The testatrix had earlier nominated the said flat in favour of both the Plaintiffs herein who are the executors under her Will. The nomination was executed on 1.8.1984. Thereafter the husband of Defendant No.1, who was serving in Nigeria, returned to India. He resided along with his family consisting of the Defendants in the Belfer flat, though it stood in the name of the testatrix, his mother. The testatrix, her husband and her other sons continued to live in another flat in which the Plaintiffs now reside being flat No.7, Dhoop Chhaon Co-operative Housing Society, 28th Road, Bandra (West), Mumbai-400 050 (the Dhoop Chhaon flat). 3. The husband of Defendant No.1, Chandru expired on 2nd April 1988. 4. The testatrix executed her Will on 20th March 1991, which came to be registered by her on 21st March 1991. She died on 5th January 1992. The Belfer flat was transferred in the name of Plaintiff No.1 by the Society. He was also one of her nominees in the records of the Society. He filed Suit No.2475 of 1995 against the Defendants herein for recovery of possession of the flat consequent upon he being the sole owner upon being nominated and bequeathed the said flat. The Belfer flat was transferred in the name of Plaintiff No.1 by the Society. He was also one of her nominees in the records of the Society. He filed Suit No.2475 of 1995 against the Defendants herein for recovery of possession of the flat consequent upon he being the sole owner upon being nominated and bequeathed the said flat. He annexed the copy of the Will to the Plaint filed under the said suit. 5. All the sons and daughters of the testatrix relinquished their rights, if any, in the Belfer flat in favour of Plaintiff No.1 to honour the last wish of their mother. An unregistered family settlement deed has been executed which is inconsonance with the letters of consent filed by the other heirs of the testatrix in the above Petition. Based upon the respective cases of the parties Justice S.C. Dharmadhikari framed the following issues on 11th April 2008 which are answered as follows:- (1) Does the Plaintiff prove that the deceased has executed a last Will dated 20th March 1991? (2) Does the Defendant prove that the deceased had revoked her last Will dated 20th March 1991? (3) Any other and further issues as the nature and circumstances of the case? 6. The Plaintiffs led evidence by way of Affidavit of examination-in-chief of Plaintiff No.1 as P.W.1, the Lawyer who drafted the Will and attested it as P.W.2 and another relative who also attested the Will as P.W. 3. They have been cross-examined. The Defendants have not led any evidence. 7. It may be mentioned that neither the Caveat nor the tenor of the cross-examination of the Defendants show the revocation of the Will dated 20th March 1991 by the testatrix. The case made out by Defendant No.1 in the Affidavit-in-support of the Caveat filed by her was, as aforesaid, that the properties belonged to her, the Will was bogus and unnatural, prepared under duress and the testatrix was not in a sound and disposing state of mind. The aforesaid issue Nos.(2) and (3) are, therefore, required to be amended under Order XIV Rule 4 of the Code of Civil Procedure as follows:- ISSUES (2) Whether Defendant No.1 was in a sound and disposing state of mind at the time of the execution of the Will dated 20th March 1991. (3) Whether the Will was prepared under duress, coercion or undue influence and is accordingly void. (3) Whether the Will was prepared under duress, coercion or undue influence and is accordingly void. (4) Whether the Will is unnatural. (5) What reliefs, if any, are the Plaintiffs entitled? 8. It may be mentioned that though it is the case of Defendant No.1 and that may be substantiated by oral or documentary evidence, that the flat was purchased from the earnings of her husband, in this suit only the execution of the Will would have to be considered. The source of funds for the purchase of the Belfer flat may be relevant evidence for proving or disproving the execution of the Will. However, the title to the flat has not to be considered in the Testamentary Suit in which only probate has to be granted or refused. Issue to that effect cannot be framed. The aforesaid issues will have to be considered only taking into account whether the testatrix validly executed the aforesaid Will sought to be probated. 9. Issue No.(1 ) : Plaintiff No.1 has examined himself. He has identified the signature of the deceased in Gurumukhi language on the Will dated 20th March 1991. He has shown the registration of the Will by the deceased who went to the Registrar’s office along with her Advocate and another attesting witness. He identified her signature at two places endorsed by the Sub Registrar at two places. He deposed that his mother was physically and mentally fit and active to understand what she was signing when she executed the Will and that she was very active at her residence doing domestic work, including cooking. 10. He has sought to prove the unregistered family settlement dated 4th October 2001 executed by and between the children of the testatrix. 11. He has been cross-examined with regard to his educational qualification, his matrimonial separation, his relationship with the Advocate who is the attesting witness, his mother’s physical and mental capacity at the time of the execution of the Will, the delay in filing the Petition for probate, his mother’s education, the residence of the testatrix as well as the parties to the suit, his behaviour with his mother, the transfer of the flat bequeathed to him, the nomination in respect thereof, the family settlement and the execution of the Will. 12. 12. The relevant aspect of the cross-examination shows that the nomination made by the testatrix has been shown to the witness and a case has been put that it was not signed by the testatrix. The nomination shown to the witness dated 1st October 1984 is signed by the testatrix in Urdu script. It is witnessed by two witnesses. The nomination is made in favour of both the Plaintiffs, though the bequest is made to Plaintiff No.1 alone. 13. The cross-examination has shown inter alia that 2 other suits being BCCC Suit Nos.2858 and 2859 of 1989 are filed by the Defendants herein against a Firm as well as several family members of the testatrix, including the testatrix herself as Defendant No.9 in that suit. The vakalatnama in the suit has also been filed by the testatrix in Urdu script. Upon a comparison made between the two signatures on the nomination form and on the two vakalatnamas of Defendant No.9 in the two suits filed by the Defendants under Section 73 of the Evidence Act, it can be seen that the signatures are identical and of the testatrix. Nomination is made on 1.8.1984, 6 years prior to the execution of the Will and about 7 years prior to her death. The Defendants resided in the Belfer flat before and after the death of the husband of Defendant No.1 whilst the nomination remained in force. It may be mentioned that the language in which the nomination is sent has not been disputed in the cross-examination of Plaintiff No.1. The nomination relied upon by the Defendants themselves in the cross-examination is shown to be in force during her life time. The Defendants have not challenged the nomination, their case of the flat belonging to the husband of Defendant No.1 notwithstanding. 14. The execution of the Will has been essentially challenged on the ground that it is signed in Gurumukhi language whereas the testatrix signs in Urdu. The fact that she always signs in Urdu is sought to be shown by the nomination of the shares of the Belfer flat and the aforesaid two vakalatnamas. There is no cross-examination of Plaintiff No.1 in relation to the two vakalatnamas, though they have been produced in evidence by the Defendants. These are essentially used in the cross-examination of the Advocate of the testatrix. There is no cross-examination of Plaintiff No.1 in relation to the two vakalatnamas, though they have been produced in evidence by the Defendants. These are essentially used in the cross-examination of the Advocate of the testatrix. These vakalatnamas in fact show disputes between the testatrix and the Defendants herein. 15. The cross-examination of Plaintiff No.1 with regard to the signatures of the testatrix in her Will is made at some length upon the education of the testatrix. The evidence that has emerged shows that the testatrix had some education. Though she has not gone to English school, she knew some English, was able to speak, write and read in Sindhi, followed by the case of the Defendants that she did not know English or Gurumukhi languages. A case has been put to P.W.1 that the signature on the Will was not hers. There is no cross-examination with regard to the script and the language Gurumukhi and how the testatrix was well versed therein. So much for the execution of the Will by the testatrix upon her signature. 16. Ms.Manjiri Shah on behalf of the Defendants relied upon a judgment in the case of Ramchandra Rambux vs. Champabai & ors., AIR 1965 SC 354 wherein the Apex Court held that propounder should remove the suspicion in respect of a Will prepared under suspicious circumstances. That is stated to be a case in which the signatures differed. The judgment shows that various surrounding circumstances have to be taken into consideration. In that case the testatrix though could speak Urdu, was not shown to be able to read or write in Urdu. The Will was inscribed on a flimsy paper in a Urdu language with an admixture of Persian words and having signature in Modi script. It is well-known that Urdu is a Court language. Modi script is essentially is the script of the unlettered men. There is an observation in the judgment that the signature would not have been in Modi script if the testator was well versed in Urdu. There was no surrounding circumstance to show that the testator signs otherwise in Urdu on any document during his lifetime. In this case, Gurumukhi was the mother tongue of the testatrix, she being a Sindhi lady. The Will in English was explained to her. She understood the contents perfectly. She stated so. She has herself given instructions to her Lawyer. There was no surrounding circumstance to show that the testator signs otherwise in Urdu on any document during his lifetime. In this case, Gurumukhi was the mother tongue of the testatrix, she being a Sindhi lady. The Will in English was explained to her. She understood the contents perfectly. She stated so. She has herself given instructions to her Lawyer. Mere signature in her mother tongue even if she did not sign in that language the other document, does not lend itself to suspicion at all. She may have known the two languages i.e. Urdu and Gurumukhi. Since Urdu is a better known language, she could have signed the Court papers and the Society papers in Urdu language. That would not prevent her from signing her own Will in Gurumukhi. There is nothing suspicious which can be further explained by the Plaintiffs. 17. The cross-examination of Plaintiff No.1 with regard to the physical and mental capacity of the testatrix shall be considered in answer to Issue No.2. 18. Plaintiff No.1 was cross-examined with regard to his relationship with the Advocate who attested the Will. He refuted the suggestion that the Will was got prepared by him though the said Advocate. He, however, agreed that that Advocate was his Advocate in a suit filed by him against the Defendants being Suit No.2475 of 1995. He has, however, refuted that he was in contact with the said Advocate before and after the Will was signed by his mother. This would be the period immediately prior to and after the execution of the Will. The Will has been executed in 1991. The Suit was filed in 1995. Hence he refuting that charge stands to reason. 19. With regard to the accommodation of the parties, it has been brought in evidence that the Defendants resided in the Belfer flat after the husband of Defendant No.1 came to India from Nigeria. The other family members resided in Dhoop Chhaon flat. The Belfer flat admittedly stood in the name of the testatrix and nomination was made by her whilst they resided therein. Plaintiff No.1 has clarified that that was a gratuitous licence. The temporary period for which the husband of Defendant No.2 was allowed to live with his family in the flat was extended till after his death. P.W.1 has explained that that was because he was not able to get another accommodation which he wanted. Plaintiff No.1 has clarified that that was a gratuitous licence. The temporary period for which the husband of Defendant No.2 was allowed to live with his family in the flat was extended till after his death. P.W.1 has explained that that was because he was not able to get another accommodation which he wanted. It may be remembered that the parties are in near relation. Whilst the son lives in the flat with his family, the mother is not expected to recover possession from him. However, that does not disentitle her from bequeathing her flat to another son. 20. Plaintiff No.1 has been cross-examined on his atrocious behaviour with the mother, which included abuses and slapping the mother, charges which he has refuted and which are not corroborated by any other evidence. 21. Cross-examination with regard to the transfer of the shares in the flat by the Society in the name of Plaintiff No.1 as well as the execution of the family settlement do not take the Defendants’ case any further. 22. Plaintiff No.1 has explained in his evidence how and why the filing of the Probate Petition was delayed. The dispute is between the family members. The suit with regard to the recovery of the possession of the Belfer flat upon gratuitous licence was already filed. The parties need not apply for probate, if the dispute can be amicably settled. A photo copy of the Will was relied upon and annexed to that Plaint. The original was misplaced in a cupboard. It is stated to have surfaced many years after the death of the testator. It is important to note that there is no limitation period for filing a Probate Petition and consequently, only delay in filing the Petition after 3 years is to be explained. The delay is not inexplicable. 23. Ms.Shah has also relied upon a judgment in the case of Bharpur Singh & ors. vs. Shamsher Singh, AIR 2009 SC 1766 to show that the Will which has not seen light of the day for a long time was a suspicious circumstance. Such contention could be accepted if the Will is produced for the first time after many years for getting it probated. 24. vs. Shamsher Singh, AIR 2009 SC 1766 to show that the Will which has not seen light of the day for a long time was a suspicious circumstance. Such contention could be accepted if the Will is produced for the first time after many years for getting it probated. 24. In this case the Will has been relied upon in the suit filed in 1995 for recovery of possession of the Belfer flat based upon the bequest under the Will itself by Plaintiff No.1. A photo copy of the Will has been annexed to that Plaint. It was, therefore, available and used by the Plaintiffs after the death of the testatrix. It has not been produced for the first time in the Probate Petition only. Of course, the Probate Petition has been delayed. That was because the only estate of the deceased was the flat she bequeathed. A suit was already filed. Parties could have legitimately settled the dispute. Other heirs had consented for issue of the probate and relinquished their rights. Under the circumstances, mere filing of the Petition after much delay is not a suspicious circumstance. 25. The Plaintiffs have examined the two attesting witnesses. The first attesting witness is the Advocate who drafted the Will and got it executed as well as registered. He was known to the parties inasmuch as he had appeared inter alia for the testatrix earlier in two suits filed by the Defendants herein inter alia against her. He lived near her. The testatrix could meet him as she knew him. She went to his residence to give instructions to draft her Will. He is stated to have taken down some notes which she had returned to the testatrix. He drafted the Will which the testatrix took to her residence for approval. She returned it to him stating that it was in order. Thereafter he had gone to her residence to get the Will executed when the other attesting witness was also present. The Will has been attested by the testatrix by signing it in Gurumukhi language. It has been attested by two witnesses. He has identified the signatures of the testatrix, the other attesting witnesses and his own. The execution took place on 20th March 1991. The execution of the Will has been proved inter alia by his evidence. 26. The Will has been attested by the testatrix by signing it in Gurumukhi language. It has been attested by two witnesses. He has identified the signatures of the testatrix, the other attesting witnesses and his own. The execution took place on 20th March 1991. The execution of the Will has been proved inter alia by his evidence. 26. On the next day i.e. on 21st March 1991, the parties attended before the Sub Registrar of Assurances, Bandra to get the Will registered. He has identified the signatures put by the testatrix, the other witness as well as himself at the time of registration before the Sub Registrar also. 27. He has been cross-examined on the premise that he knew Plaintiff No.1 as his client and his services have been procured by Plaintiff No.1 for getting the Will of his mother executed unlawfully. His cross-examination has revealed that Plaintiff No.1 was his client and only one case was pending in the High Court. The evidence has shown that that was the case filed by Plaintiff No. 1 for recovery of possession of the Belfer flat from the Defendants in 1995, 4 years after the execution of the Will. 28. His cross-examination has revealed that he was not introduced to the testatrix by anybody. This also stands to reason because he had appeared for her in the two suits filed by the Defendants herein in this Court being Summary Suit Nos.2858 of 1989 and 2859 of 1989 in which he had filed his vakalanama in October 1989, more than a year prior to the execution of the Will. He has refuted the allegation that he was the Advocate for the siblings of Plaintiff No.1 prior to 1991. He, however volunteered to state that he has appeared as an Advocate for the sister of Plaintiff No.1 in one family Court matter and for them in the aforesaid Summary Suits. The vakalatnama, however, shows that he was appearing only for Rekha Melwani and Kishin Melwani and not for all the siblings of Plaintiff No.1. 29. His evidence further shows that he drafted the family settlement dated 4th October 1981. Though much is made about that document, it is, in fact, innocuous since it is in terms of the consent letters / affidavits required to be filed under the procedure for Testamentary Petitions in our Court. 30. 29. His evidence further shows that he drafted the family settlement dated 4th October 1981. Though much is made about that document, it is, in fact, innocuous since it is in terms of the consent letters / affidavits required to be filed under the procedure for Testamentary Petitions in our Court. 30. With regard to the instructions for preparing the Will, his evidence has shown that the testatrix gave him instructions personally at his residence which is near her residence. He prepared the draft on 18th March 1991 which she approved and returned on 19th March 1991 and which she got typed in his office on 19th March 1991. He has deposed that he visited her residence at 10.30 a.m. on 20th March 1991 when the testatrix, Plaintiff No.2, his wife, one child and his sister Rekha Melwani were present. He deposed that the second attesting witness came thereafter and was introduced to him by the testatrix. He further deposed how they went to the office of the Sub Registrar, Bandra in an Auto Rickshaw. He personally collected the original registered Will and handed it over to the testatrix when she visited his office for that purpose. He had not perused the Will when he drafted the Plaint in Suit No.2475 of 1995 filed by Plaintiff No.1 against the Defendants as the photo copy was available with him. He was paid fees for execution of the Will of Rs. 5,000/-in cash. He had signed the receipt for the same. He did not retain a copy of the Will. Upon being asked whether he did not find any need to explain the contents of the Will prepared by him in English to the testatrix, he answered that there was such a need as well as his professional duty to explain it to his client which he did. He explained it to the testatrix and the other attesting witness at the same time and the testatrix told him that she knew the contents of the Will very well. He visited her residence 3/4 times in the morning only. He refuted the charge that he was kept apprised by Plaintiff No.1 about the Will and he interacted with Plaintiff No.1 from time to time. He was familiar with the signature of the testatrix. He deposed that the testatrix was a stranger who requested him to draft the Will. He visited her residence 3/4 times in the morning only. He refuted the charge that he was kept apprised by Plaintiff No.1 about the Will and he interacted with Plaintiff No.1 from time to time. He was familiar with the signature of the testatrix. He deposed that the testatrix was a stranger who requested him to draft the Will. He refuted the charge that the testatrix called him to execute the Will at her residence because she was not in good health and that she had not attended his residence to give him instructions to prepare the Will, but that it was prepared under the instructions of Plaintiff No.1. 31. The evidence of the witness has proved the execution of the Will. The cross-examination has not dislodged the execution. It is common knowledge that initially instructions are given by parties to their Advocate to draft the Will in the Advocate’s office or the residence which serves as his office. However, the Wills are executed usually at the residence of the testator or the testatrix. The testatrix in this case was not introduced to the Advocate. The Advocate represented her a year prior to the execution of the Will. She was nevertheless stranger to him because he did not know her personally. He had met her 5 times during her lifetime. This would include the time when she was sued and he took her signature on the vakalatnama. His cross-examination has shown the place of execution of the Will, the parties’ presence and the mode in which it was executed including the explanation to the testatrix as well as the attesting witness. He was paid his fees for the execution. There is nothing in the cross-examination or any other peripheral evidence to dislodge his evidence about the execution of the Will. 32. The other attesting witness is the sister-in-law of the wife of Kishin Melwani, who is the brother of the Plaintiffs. She is a relative of the testatrix. She would be naturally requested to attest her Will. She attended the residence of the testatrix on 20th March 1991 at Dhoop Chhaon flat. Her deposition shows that P.W.2, the Advocate was present. The Advocate explained the contents of the Will to the deceased in Hindi as well as Sindhi language. She admitted to have perfectly understood and approved the same. She attended the residence of the testatrix on 20th March 1991 at Dhoop Chhaon flat. Her deposition shows that P.W.2, the Advocate was present. The Advocate explained the contents of the Will to the deceased in Hindi as well as Sindhi language. She admitted to have perfectly understood and approved the same. She signed in Gurumukhi language in the presence of the two attesting witnesses who also attested the Will as per procedure. She also visited the Sub Registrar’s office at Bandra on the next day at about 11.30 a.m. The Will was registered in her presence. An officer asked the testatrix whether she knows that that document was the Will and the contents of the Will. The testatrix replied in the affirmative. She signed before the officer and the two witnesses also signed the Will. The execution and registration of the Will are accordingly proved by her. 33. Her cross-examination shows her denial that she was not present when the Will was executed or registered. She has reiterated that she was present when the deceased executed the Will and that she accompanied the deceased for registration of her Will at Bandra. There is no further cross-examination. 34. The reading of the evidence of the two attesting witnesses clearly shows valid and due execution of the Will of the testatrix. It is inconsonance with her nomination made by her years prior to the execution. It is upon the instructions given to a Lawyer who resided near her and was known to her earlier. It has been drafted on her instructions. It has been approved and thereafter executed and registered by her. Issue No.(1) is, therefore, answered in the affirmative. 35. Issue No.(2 ) : It has been the case of the Defendants in the Affidavit-in-support of the Caveat filed by Defendant No.1 that the deceased was suffering from various ailments, was hospitalised for long duration and was not in a sound and disposing state of mind. There is no evidence led by Defendant No.1 herself. There is no evidence of any other supporting witness like a doctor to prove any hospitalisation or any ailment of the deceased. The cross-examination of Plaintiff No.1 shows that the deceased was continuously in a good state of health at her residence, doing her daily chores, including cooking. 36. There is no evidence led by Defendant No.1 herself. There is no evidence of any other supporting witness like a doctor to prove any hospitalisation or any ailment of the deceased. The cross-examination of Plaintiff No.1 shows that the deceased was continuously in a good state of health at her residence, doing her daily chores, including cooking. 36. With regard to the physical and mental capacity of the testatrix, the evidence has revealed that though her husband expired in 1987, and her son Chandru (the husband of Defendant No.1) expired on 2nd April 1988, her physical, mental and emotional health was not incapacitated and her visits to doctor had not increased. She was not taken to the doctor’s clinic run by BARC at Khar. She did not take medical treatment from time to time or was very unwell and was in a constant need of medical attention for one and half years prior to her death. There is nothing shown by the Defendants to substantiate their claim of the testatrix having taken even discontinuous or intermittent medical treatment. None of the Defendants examined themselves, nor they did examine any doctor of the testatrix. The Defendants have not proved that the testatrix suffered from any physical or mental disability such that she could not have signed her Will after understanding the same. 37. The totality of the evidence with regard to the state of mind of the testatrix does not prove the case of the Defendants, the onus on which was upon the Defendants to prove. Hence issue No.(2) is answered in the negative. 38. Issue No.(3 ) : Aside from the case that the Will is prepared under duress, coercion and undue influence in paragraph 7 of the Affidavit-in-support of the Caveat, there is no further case and no evidence whatsoever led by the Defendants to prove the case. Even the Affidavit-in-support of the Caveat does not show who exerted duress, coercion or undue influence. The onus which remained with the Defendants is not discharged by the Defendants. Hence issue No.(3) is answered in the negative. 39. Issue No.(4 ) : It is sought to be contended that the Will would disinherit the grandsons of the testatrix, which is most unnatural. It is admitted position that the grandsons live in the flat which has been bequeathed to Plaintiff No.1. Hence issue No.(3) is answered in the negative. 39. Issue No.(4 ) : It is sought to be contended that the Will would disinherit the grandsons of the testatrix, which is most unnatural. It is admitted position that the grandsons live in the flat which has been bequeathed to Plaintiff No.1. The Will itself shows allegations of the testatrix that Defendant No.1, her daughter-in-law did not behave properly with the testatrix. It is unnecessary to go into further allegations. It is not unnatural for the testatrix to disinherit her daughter-in-law with whom she did not have cordial relations and against whom she made certain allegations in her Will, the consequences thereof upon her grand children notwithstanding. 40. Evidence in this case has shown the flat belonged to the testatrix and stood in her name despite the case that it was purchased out of the funds of the husband of Defendant No.1. Absolutely no evidence on this score has been produced. It must, therefore, be accepted that the flat was of the testatrix. She had nominated the Petitioners herein in the Society records since 1984. 41. Under the aforesaid circumstances, the Will having been duly and voluntarily executed, it cannot be taken to be unnatural. Hence issue No.(4) is also answered in the negative. 42. Issue No.(5 ) : The Plaintiffs have proved the execution of the Will of their mother late Smt.Devibai Naraindas Melwani, the testatrix in this case executed on 20th March 1991 and registered on 21st March 1991. The Will shall, therefore, be probated. Order accordingly. 43. The Suit is disposed of accordingly. No order as to costs.