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2011 DIGILAW 366 (BOM)

Gouri Banerjee v. Neena Amar Chaudhari

2011-03-21

ROSHAN DALVI

body2011
JUDGMENT : 1. The Plaintiff has sought to probate the Will of his mother Gouri Banerjee dated 30th July 1978 as the last Will and testament executed by the deceased on that day. The deceased died on 11th February 1996. The Plaintiff is the son of the deceased. The Plaintiff’s sister was the other heir of the deceased. She died soon after the deceased on 23rd February 1996 leaving behind her daughter as her only heir and legal representative. The said daughter is the Defendant in this suit. 2. The only essential property of the deceased is a flat in which she resided being Flat No.1A, Evergreen, 1st floor, Perry Co-op. Hng. Society Ltd., Perry Road, Bandra, Mumbai-400 050. There is a dispute with regard to the title of the flat in the Civil Court between the parties with which this suit is not concerned. 3. It is the Plaintiff’s case that the deceased bequeathed the said flat and all her other movable and immovable properties to him under the aforesaid Will. The Plaintiff is appointed executor under the Will. The Plaintiff was married to a German National. He was residing with the deceased initially in Mumbai and thereafter in a separate premises in Mumbai. Later he was the Non Resident Indian (NRI) residing in Germany along with his family. 4. The Defendant was the niece of the Plaintiff and the granddaughter of the deceased (daughter of the daughter of deceased). The Defendant resided with the deceased since prior to her marriage in 1989. After her marriage her husband also resided with the deceased. 5. It is the case of the Plaintiff that because he was resident in Germany he had requested his niece to live with his mother to take care of his mother as her companion. After the death of the mother he told his niece to leave the flat, but she continued to stay therein unlawfully. The parties have had litigation in the Civil Court in that behalf. 6. It is the case of the Defendant that the deceased herself had wanted and requested her to live with her since long prior to her own marriage, which she did, because her son was married and lived separately in Mumbai and thereafter, in Germany. The parties have had litigation in the Civil Court in that behalf. 6. It is the case of the Defendant that the deceased herself had wanted and requested her to live with her since long prior to her own marriage, which she did, because her son was married and lived separately in Mumbai and thereafter, in Germany. It is also her case that after residing in Germany the Plaintiff rarely came to meet his mother and had not come for a number of years prior to her death. He also did not attend his mother’s funeral. 7. The Defendant has challenged the Will being fabricated on the ground that it could never have been so executed by the deceased in view of the circumstances that prevailed between the parties. It is claimed by the Defendant that the signature of the deceased has been obtained by the Plaintiff under undue influence or by importunity or in collusion and conspiracy with the Chairman of the Society who was the trusted person of the Petitioner. 8. Upon these respective cases of the parties the following issues are framed and are answered as follows: 1. Whether the last Will and Testament of the deceased Gouri Banerjee dated 30th July 1978 was validly executed. - No 2. Whether the said Will has been fabricated or obtained by the Plaintiff under influence, or in collusion and conspiracy with the attesting witness to the Will who was the trusted person of the Plaintiff. - Yes 3. What relief, if any, is the Plaintiff entitled to ? - As per final order 9. The Plaintiff has sought to prove the Will upon his own evidence of being present at the time of its execution and upon the evidence of one of the attesting witnesses. The Defendant has sought to disprove the Will upon her evidence with regard to the relationship of the Plaintiff with his mother as also her relationship and her stay with her grandmother, the deceased, which made it improbable that the deceased would have executed such a Will. The Defendant has examined herself and produced certain documents to show the state of affairs. 10. The Defendant has examined herself and produced certain documents to show the state of affairs. 10. Based upon such oral and documentary evidence it is to be seen whether the aforesaid Will was a natural Will of the deceased or whether it is besotted with several suspicious circumstances as would render it improbable and incapable of due execution. 11. Issue Nos. 1 & 2: The Will of the deceased has to be initially seen. It is a typewritten document running on a single side of a ledger paper. It is titled “the Last Will and Testament of Mrs. Gouri Banerjee”. The deceased is shown to be 62 years of age. She has set out details of her residential flat which is shown to be her ownership property. She has also set out facts about the money lying in a savings bank account and other movables as her other properties. She has appointed the Plaintiff as her sole executor. She has bequeathed the entire of her estate to her son, the Plaintiff exclusively. She has also bequeathed the residue to her son. She has signed in English. The signature shows the handwriting of a person who is not a man of letters. The date and the month in the date of the Will just above the signature are put in handwriting of the same person who has put the signature. This handwriting also shows the handwriting of a person of less than sufficient education or erudition of writing. The month of July shows 3 capital letters “JUL” and one small letter “y”. 12. The Will is shown to be attested by two witnesses. The first witness is one neighbour of the deceased, one B.L. Chaudhary. He has put his signature below which he has written his address. The address shows that he lived in Flat No.5 in the same society. The second witness is one R.K. Menon. He is stated to have been the paying guest of the deceased. He is stated to have signed as the attesting witness No.2. He has not been examined. He has not been known of since some months after the date of the execution of the Will. He is stated to have been residing in the flat of the deceased between 1976 and end of 1978, the Will having been executed in July 1978. He has not been examined. He has not been known of since some months after the date of the execution of the Will. He is stated to have been residing in the flat of the deceased between 1976 and end of 1978, the Will having been executed in July 1978. He is also shown to have written an address below his signature. That is his office address. 13. The mode of attestation is interesting. The first attesting witness has signed with his residential address below his signature. The residential address shows one word “EVERGREEN” in block capitals the rest of the address is in small cursive alphabet. The second attesting witness has also written his office address below his signature. That address shows one word “BOMBAY” in block capitals. The remainder of the address is in small cursive alphabet. The style of the handwriting is the same. The slant of the handwriting is identical. The actual handwriting is identical in both the addresses. The paying guest is shown to have given his work address. Each of the witnesses is stated to have signed one after another. The evidence of the attesting witness with regard to the attestation of the signatures and the writing of the address is thus: “....but I remember my address was written and Mr. Menon address also written” He has not deposed as to who wrote the other address. Keeping the style of writing in the date of the Will as also the aforesaid addresses of the attesting witnesses having one word in block capitals in mind, the evidence of the Plaintiff as well as the attesting witness with regard to the attestation shall have to be appreciated. 14. In para 5 of his affidavit of examination-in-chief he has deposed about the signatures of the attesting witnesses, but not about the address below the signatures. Para 8 of the affidavit of examination-in-chief of the Plaintiff shows that the deceased called both the attesting witnesses to attest the Will when he was present. In para 9 of his evidence he has deposed that his mother signed the Will in his presence. B.L. Chaudhari and R.K. Menon signed as attesting witnesses. He has identified all the 3 signatures. He has not deposed about the handwriting in the address of the witnesses. He has also not deposed about the date put on the Will by the deceased. 15. B.L. Chaudhari and R.K. Menon signed as attesting witnesses. He has identified all the 3 signatures. He has not deposed about the handwriting in the address of the witnesses. He has also not deposed about the date put on the Will by the deceased. 15. Para 44 of his cross examination shows that the Plaintiff had known R.K. Menon, the second attesting witness who was working in Lufthansa Airlines “in the sales”. He was not his close friend, but he had introduced him as a paying guest in his mother’s flat. Even in para 46 in his cross examination he has deposed about the attestation of the Will, but has not mentioned about the handwriting below the signatures of the attesting witnesses. 16. The attesting witness has deposed about the presence of the Plaintiff as well as the other attesting witness along with the deceased when he attested the Will. His cross examination shows that he only knew that the said Menon who was the paying guest of the deceased was working for some Airlines. He had no relation with him. He has no other occasion to meet him except when he attested the Will. He was not able to describe him. His cross examination shows that after he attested the Will the deceased had told Mr. Menon to attest the Will and that is how he came to know his name. 17. The case of the Defendant was that there was no person by name Menon who was the paying guest of the deceased and that no Menon had signed the Will at all. Upon such a case the handwriting assumes importance. 18. Upon seeing the style, more specially the style of writing one word in block capital letters, the case of the Defendant that there was no paying guest called Menon who could have attested the Will stands to reason. If that is so, the Will is not shown to be attested by two persons as required by law. That itself shows the execution to be invalid in law. Further upon seeing the same style in the handwriting stated to be of the deceased being the month July partly written in block capitals (JUL) further throws doubt upon the handwriting and the consequent signature of the deceased herself. That itself shows the execution to be invalid in law. Further upon seeing the same style in the handwriting stated to be of the deceased being the month July partly written in block capitals (JUL) further throws doubt upon the handwriting and the consequent signature of the deceased herself. Consequently, the case of the Defendant that the Will has been fabricated by the Plaintiff in collusion with B.L.Chaudhary who was known to the Plaintiff as the neighbour in his mother’s building stands to reason. 19. This fact must be viewed along with other aspects relating to the execution and attestation. The Will is typewritten. It has not been got prepared by the Plaintiff. The Plaintiff was present at the time of its execution. The Plaintiff was given the Will for safe keeping immediately upon its execution. The Plaintiff claims never to have read the Will before or after its execution and attestation. He yet claims to have kept it in safe custody. The Plaintiff had not seen it or read it. The Plaintiff had kept it with him in safe custody without reading it. He, therefore, did not even know who was the beneficiary in the Will. It could have well been another person to the exclusion of the Plaintiff or another person with the Plaintiff, or the Plaintiff alone. The Plaintiff had a sister. Hence the deceased had one son and one daughter. There was nothing to show any enmity of the deceased with the daughter. There was nothing to show any thick relationship of the deceased with the Plaintiff. There was nothing to show that the deceased could have chosen one child over another. He claims to have read it only when it was required to be produced by him in the Civil litigation between the parties in the Bombay City Civil Court. He has been asked his reaction to the Will when he read it at that time. His reaction was positive, because the Will bequeathed all the movable and immovable properties of the deceased to the Plaintiff alone. The Plaintiff has certified that the Will is correct. 20. The Plaintiff’s mother was a housewife. She lived alone at that time. The Plaintiff is shown to be living at another residence at that time. That was in Ananta Society at Warden Road, Mumbai. The Plaintiff has certified that the Will is correct. 20. The Plaintiff’s mother was a housewife. She lived alone at that time. The Plaintiff is shown to be living at another residence at that time. That was in Ananta Society at Warden Road, Mumbai. The Plaintiff used to come to the residence of his mother to have lunch every day. He worked in BASF at that time. He would, therefore, come in his lunch break. 21. The deceased is not shown to have been a woman of the world. She is not shown to be serving or doing any business. The evidence of the Plaintiff shows that his mother “knew how to read and write English”. He has not given his mother’s educational qualifications. She was a homemaker. The Plaintiff claims that she was not earning. She is not shown to be educated. Though the Plaintiff had not got the Will drafted and though the deceased had not told him to get it drafted, the deceased had produced the typewritten Will. The deceased is shown to have full knowledge of the requirements of execution of the Will which she is stated to have done and complied all by herself without the assistance of her son or anyone else. It is not known how she got the Will drafted and who advised her to get it executed as she did. She would have had to get the Will drafted through a Lawyer. There is nothing to show how the deceased got the Will prepared. The evidence is only with regard to its execution. 22. The Plaintiff’s evidence shows that after he finished his lunch on that day his mother expressed her desire to execute the Will and told him about it. He had to play no part in its execution. He was the sole beneficiary and sole executor. Hence, he could not attest the Will. It is not known how the deceased knew this nicety which is required by law and which has been followed. It is not shown or suggested, who could have advised the deceased, not only in drafting the Will, but in the proper mode of execution of the Will. 23. The Plaintiff claims that the date of the execution of the Will was “working date”. He then claims that he did not remember whether it was a working day or a holiday. 23. The Plaintiff claims that the date of the execution of the Will was “working date”. He then claims that he did not remember whether it was a working day or a holiday. His mother had expressed her desire to execute the Will in the month of July 1978. He had not given her any advice in that behalf. He did not express any desire to help her for making the Will. Nothing happened after that until on the date of the execution of the Will, when he went to take lunch his mother told him that she had already prepared the Will. This was after he had lunch. He did not inquire from his mother how she got it prepared and hence it is not known how it was prepared. The signature of the Testatrix shows that she was not the kind of person who could have known the intricacies of the preparation of the Will all by herself. 24. She is not shown to have done anything else with regard to her property by herself. The Plaintiff was depositing monies in her bank account for her maintenance. How much he deposited and when he deposited shall be considered presently. A woman who had no income of her own and who never served and was admittedly a homemaker with no particular educational qualification is shown to have personally and solely got drafted her Will and sought to have it executed and attested in a absolutely correct fashion as required by law. Thereafter, she did not keep the Will with herself; she gave it to Plaintiff for safekeeping. That act is inconsistent with her earlier act showing complete and total independence of thought and action. She is shown to have no bank locker where she could have kept the Will. She never kept the Will in her residence though at the time of the execution of the Will she is stated to have lived alone. She is stated to have stayed with her grand daughter and her family later. 25. Relating to the aspect of calling the attesting witness the deposition of the Plaintiff is that his mother called B.L. Chaudhary and R.K. Menon. She knew both of them. She knew that both were there on that day. B.L. Chaudhary is stated to be a retired man, but R.K. Menon was not. 25. Relating to the aspect of calling the attesting witness the deposition of the Plaintiff is that his mother called B.L. Chaudhary and R.K. Menon. She knew both of them. She knew that both were there on that day. B.L. Chaudhary is stated to be a retired man, but R.K. Menon was not. The Plaintiff used to come for lunch to meet his mother, but R.K. Menon did not have to come for lunch at the place where he was a paying guest. R.K. Menon served in Lufthansa Airlines at Express Towers, Nariman Point, Bombay. If the date of execution, was a “working day” as deposed by the Plaintiff the presence of R.K. Menon who worked in Lufthansa at Nariman Point, Bombay in the flat of the deceased at Bandra not only could not be expected, but is found to be most inconsistent with his station in life. This fact, brought out from the address of R.K. Menon mentioned in the Will itself, clarifies the case of the Defendant that there was no paying guest called R.K. Menon in the flat of her grandmother at any time. Hence R.K. Menon who was working in Lufthansa Airlines “for the sales” (as deposed by the Plaintiff) at Nariman Point could never have been present on a “working date” in the lunch hours in the flat of the deceased in Bandra. This is the most important suspicious circumstance. 26. This fact coupled with the most glaring aspect of the two addresses being written in a single handwriting with an identical slant and with an identical unique characteristic of having one word written in block capitals in the handwritings of both the addresses of the attesting witnesses shows that there was no R.K. Menon, who could have been an attesting witness and the name of R.K. Menon shown to be his signature is put by the same attesting witness B.L. Chaudhary who put his signature and address before the name and address of other attesting witness. Hence, the execution of the Will is not duly proved, it is not proved to have been attested by two witnesses mandatorily required in law. 27. The evidence of the Plaintiff shows that Mr. Menon remained the paying guest only from 1976 to 1978. He has not seen him thereafter. Hence, the execution of the Will is not duly proved, it is not proved to have been attested by two witnesses mandatorily required in law. 27. The evidence of the Plaintiff shows that Mr. Menon remained the paying guest only from 1976 to 1978. He has not seen him thereafter. The deceased who meticulously got the Will drafted and knew how it was to be attested and got it attested by herself solely and independently calling two attesting witnesses whom she required would not be expected to have a paying guest whose whereabouts would not be known after her death and who would be living in her flat for a temporary period to be a desirable attesting witness. R.K. Menon was shown to be about 27 years old and a bachelor. He would leave her residence when he got married. He is, therefore, not even a likely attesting witness. 28. The Plaintiff has not mentioned about any other paying guest living with the deceased at any other time. The Plaintiff has specifically stated that he did not remember whether any paying guest resided with his mother in 1989, This was though the deceased is stated to have lived alone in her flat till about 1992 when the Plaintiff is stated to have requested the Defendant and her husband to come and live with his mother and that was soon after the Defendant got married which fact shall be considered presently. 29. The evidence of the Plaintiff shows that he started residing in Mumbai from 1966. He resided at Breach Candy until 1968. He resided in Ananta till 1982. His mother resided with him until 1975 when he purchased a flat for her at Bandra. This was because his wife was a German National. His mother stayed with him from 1968 till 1978 in Ananta when she left for her new flat. His claim of purchase of the flat and his claim to the title would be decided in the Civil Court. He had kept a maid for his mother. 30. It is claimed by the Defendant that specially after the Plaintiff moved to Germany in 1986 he hardly ever came to meet his mother. It was then that his sister moved into the suit flat along with her daughter. The Plaintiff has been called upon to produce his passport to show his arrival and departure in and from Mumbai. 30. It is claimed by the Defendant that specially after the Plaintiff moved to Germany in 1986 he hardly ever came to meet his mother. It was then that his sister moved into the suit flat along with her daughter. The Plaintiff has been called upon to produce his passport to show his arrival and departure in and from Mumbai. He has stated that he did not have the passport and could not produce it. He has not produced his complete passport for all the years that he lived in Germany. However the Defendant has produced copies of certain passport pages which the Plaintiff deposed were “given” in City Civil Court proceedings. These are not refuted and which have therefore, been admitted in evidence as relevant and admissible documents. 31. The passport pages show that initially the Plaintiff went to Germany in 1975 for one month. In 1976 he went to Germany for 5 days in May and for 4 days in October. In 1977-1978 he went to Germany for one year. From 1982 he settled in Germany. According to his own oral evidence in para 37 he came to India for the first time in 1986 when he lived in India for 3 weeks. His passport shows that he was in India between 16th February and 7th March 1995. That was 13 years after he initially came to India for the first time in 1986. His mother expired on 11th February 1996 in the next year. He did not return to India then and came only on 14th September 1996 after her death and lived in India till 2nd December 1996. 32. The Petitioner had no one in India. He only had his mother to care for. His mother lived alone with a maid. He could not visit India between 1986 to 1995. It is not known what drove the Petitioner to visit India in the last quarter of 1996 after his mother’s death. Due to exigencies of his work or otherwise could never come to India for over a decade until his mother died. The Petitioner’s evidence shows that he got his mother’s death certificate and presumably came to settle the estate, he having been given his mother’s Will for safe custody since its execution, which he indeed kept safely until he produced it in the City Civil Court proceedings against the Defendant. 33. The Petitioner’s evidence shows that he got his mother’s death certificate and presumably came to settle the estate, he having been given his mother’s Will for safe custody since its execution, which he indeed kept safely until he produced it in the City Civil Court proceedings against the Defendant. 33. The Plaintiff claims that Defendant was a young girl of 16 to 17 years when the Will was executed. She never lived with the deceased. The Plaintiff claims that she came to live with the deceased after her marriage and that she came for the first time in about 1992. He did not even know about her marriage. His mother had casually spoken to him in 1989 that the Defendant was getting married. In 1990 he came to know that the Defendant had married her husband Amar Chaudhary. He claims that in about April 1992 the Defendant and her husband came to him and asked him not to worry about his mother since they were there and if they were allowed to stay free of cost in the flat they would look after his mother. He has deposed in his evidence that Amar Chaudhary had approached him at Bandra for those talks. The talks were held after the office hours in the presence of Neena (the Defendant). That was the first time that he had met Amar Chaudhary. They had come on their own to talk to him. He presumed that they must have come to know through his sister that he was worrying about his mother. At the very first meeting Amar Chaudhary agreed that they would look after his mother and stay in the flat. This was though they had their own accommodation in the Government quarters at Bhandup. 34. He claims to have given a letter to the society, a copy of which has been annexed as Exhibit-B to the Petition. The letter is dated 1st April 1992. It is shown to be addressed to the Chairman of the Society. It is received by the Chairman on 1st April 1992. The Chairman is the same B.L. Chaudhary. Though the document has not been proved by direct oral evidence, he has been cross examined thereupon. The initial shown in the receipt of the letter is similar to his full signature in the attestation clause of the Will. The slant of the initial is the same. The Chairman is the same B.L. Chaudhary. Though the document has not been proved by direct oral evidence, he has been cross examined thereupon. The initial shown in the receipt of the letter is similar to his full signature in the attestation clause of the Will. The slant of the initial is the same. The letter shows that the flat stands jointly in the names of the Plaintiff and his mother. It shows his worry about his mother and the fact that his niece and her husband volunteered to look after her provided that he allowed them to reside in the flat free of cost. He makes a note that they would have no claim of any nature, whatsoever in flat and will not claim any right, title or interest in the flat and that they have agreed to give vacant and peaceful possession of the flat on his mother’s demise. He has also made a note that he would be responsible for payments of the outgoings of the flat. 35. Hence it is seen that he claims that since his niece and her husband unilaterally came to him to make the offer to him for his mother, upon understanding that he is worried about his mother through his sister, and talked with him just once at Bandra after office hours, he agreed to allow them into the flat on the condition put by him and wrote to the Chairman of the society, whom he knew and who had executed his mother’s Will earlier, about 14 years ago, putting on record the agreement between him and his niece and her husband and asked the Chairman to note the facts stated by him. At the time of writing the letter both the Chairman as well as he knew about the execution of the Will. There is no mention of the Will in that letter. The circumstantial evidence is not only lacking, but shows the conspicuous absence of the Will. When the Plaintiff made 2 points very clear to be noted: (1) that his niece and her husband would have no right, title and interest and would handover vacant possession. There is no mention of the Will in that letter. The circumstantial evidence is not only lacking, but shows the conspicuous absence of the Will. When the Plaintiff made 2 points very clear to be noted: (1) that his niece and her husband would have no right, title and interest and would handover vacant possession. and (2) that they had volunteered to look after his mother only provided he allowed them to reside in his flat free of cost, it was most opportune for him to mention to the attesting witness who had attested the Will the fact that his mother had executed a Will. That would be whether or not he knew about its contents and knowing that the flat was the only worthwhile property of the deceased. 36. It is seen that the paying guest Mr. Menon was the attesting witness who never was. He could not even be present at the time of the execution of the Will. The other attesting witness who was the Chairman of the Society was known to the Plaintiff. If the Plaintiff had purchased the flat, he alone would have known him. His mother had lived in the flat a few years prior to the execution of the Will. The flat was in the joint names of the Plaintiff and his mother. His mother was a housewife. Plaintiff was an erudite businessman. He was highly qualified. He lived in an elitist society. He had married a German lady. Even if he had purchased the flat, it was after his mother had lived with him for some years. He knew the chairman of the society upon the purchase claimed by him. The Chairman lived in flat No.5; his mother lived in flat No.1A. It is hardly coincidental that his mother would call the neighbour who was not her side-door neighbour whom she is expected to have known better. She called the neighbour whom the Plaintiff was expected to know upon the purchase claimed by the Plaintiff as he was the Chairman of the Society. Incidentally, it is that neighbour to whom the Plaintiff has addressed the letter dated 1st January 1992 relied upon by him. 37. She called the neighbour whom the Plaintiff was expected to know upon the purchase claimed by the Plaintiff as he was the Chairman of the Society. Incidentally, it is that neighbour to whom the Plaintiff has addressed the letter dated 1st January 1992 relied upon by him. 37. The Plaintiff claims that the Defendant started residing in the flat only from April 1992 and there was no occasion for her to reside in the flat of the deceased prior thereto and has refuted that her husband lived in the flat also from 1989 after his marriage and parked his car since that time. Copies of the marriage certificate of the Defendant produced by her shows the marriage solemnised under the Special Marriage Act on 6th February 1989 with Amar Chaudhary and her address is shown to be the address of the flat of the deceased at 1A, Evergreen, Parry Coop. Housing Society, Parry Road, Bandra (West), Mumbai. The marriage certificate shows that the Defendant lived with the deceased prior to her marriage. The evidence of the Plaintiff that in 1989 his mother had mentioned to him casually that the Defendant was getting married and that in 1990 he came to know that she had married Amar Chaudhary is reflected in the marriage certificate itself. It, therefore, stands to reason that the Defendant’s husband could have moved into the flat which was occupied only by her grandmother at the time when she lived with her grandmother. The claim that he parked the car is also, therefore, not out of place. 38. The Defendant has claimed that she took care of the deceased. The Plaintiff claims that he used to send monies to the deceased from Germany from time to time. The monies could have been sent either through mail or by post. There was no system of Telegraphic Transfers (TTs) at that time. The Plaintiff has not shown any mode of transfer of foreign exchange from Germany to India. He claims that he used to send cash through his friends and deposit amounts in her bank account in cash from time to time. He was not in India for 13 whole years to deposit any amounts in his mother’s bank account personally. There are 2 entries prior to his mother’s death in 1996 showing deposits of Rs.40,000/- each. The amounts are deposited on 18th June 1991 and 17th March 1992. He was not in India for 13 whole years to deposit any amounts in his mother’s bank account personally. There are 2 entries prior to his mother’s death in 1996 showing deposits of Rs.40,000/- each. The amounts are deposited on 18th June 1991 and 17th March 1992. This was soon after the marriage of Defendant. The Defendant has produced the pay-in-slip book of Allahabad Bank, Bandra, for bank account No.3202 in the name of the deceased where the amounts were paid in cash. The Plaintiff has not even shown that as his mother’s account. The Will does not mention that account. The Will mentions the deceased having savings bank account No.8541 in Mercantile Bank. The Plaintiff has not produced the pay-in-slip book of the Bank Account of the deceased in Mercantile Bank. The Plaintiff has also not shown who deposited the aforesaid amounts in the bank account of his mother because he was not present in India to deposit it personally. The Defendant has produced the pay-in-slips showing these and other smaller amounts deposited from time to time prior to the death of the deceased. The Plaintiff has shown nothing paid by him to his mother or deposited in her bank account. 39. The Plaintiff claims that the Bank account in Allahabad Bank was his joint account with his mother and sister. The Defendant has produced the passbook of the savings bank account. The account is opened on 14th October 1983. It shows the names of these 3 persons as joint holders. The first page of the savings bank passbook shows only 2 names initially entered in the passbook. These are of the deceased and her daughter. The deceased is the first account holder. It shows her to be a housewife. It shows the same address. There are only 2 names in the same light blue ink showing 2 holders at the time of the initial opening of the account. These are the deceased and the Defendant. The names of the Plaintiff and his daughter are in darker ink. Prima facie they appear to have been entered later. Below the darker ink in the same bank passbook an endorsement is made that the 4th name is added on 22nd November 1990. There is no mention about when the 3rd name was added. There is nothing to show or suggest that the Plaintiff opened the account or deposited any monies therein. Below the darker ink in the same bank passbook an endorsement is made that the 4th name is added on 22nd November 1990. There is no mention about when the 3rd name was added. There is nothing to show or suggest that the Plaintiff opened the account or deposited any monies therein. 40. The entire evidence shows that the Plaintiff was far remote from his mother. He cared little for her. He did nothing for her. She was a housewife. She lived alone until her daughter and her grand daughter came to live with her. That was before her grand daughter’s marriage. Thereafter the granddaughter’s husband also lived with her. Admittedly, they lived at least from 1992. 41. The Defendant claimsthat the Will is unnatural. Indeed, there was no reason for the deceased to disinherit her daughter or her grand daughter. There was no reason for the deceased to execute a Will giving everything to her son and not even to modify the Will thereafter when her son never even cared for her. Of course, the deceased may not disinherit her son entirely. On intestacy her son would get 50% of her flat. 42. The Defendant has also denied the signature of the deceased on the Will. This denial stands to reason. The handwriting and signature of the deceased show that unique identifiable feature in writing one word in block capitals as is in the case of the signatures and addresses of the attesting witnesses. The deceased is shown to have put her signature and date on the Will. The date of the execution is shown to be 31st July 1978. The word July shows 3 capital letters “JULY” (much like the capital letters “EVERGREEN” and “BOMBAY” in the attestation clause of the Will). 43. The deceased died 18 years after the execution of the Will. She would have been 80 years of age at the time of her death. She owned a residential premises in which she lived alone and thereafter with her granddaughter and her husband. The flat stood in her name. She had a bank account. She would be required to sign documents with regard to the flat as also certain bank documents. Her specimen signature in the bank account was available for production in Court, if required. None of these has been produced by the Plaintiff. The flat stood in her name. She had a bank account. She would be required to sign documents with regard to the flat as also certain bank documents. Her specimen signature in the bank account was available for production in Court, if required. None of these has been produced by the Plaintiff. The evidence of the Plaintiff shows that his mother used to attend society meetings. That is understandable and can be accepted. She would have signed the minutes of the meeting. These were the usual documents required to be produced to show his mother’s usual signature. Neither the bank documents nor the society records are produced to that end. The Plaintiff has not produced any documentary evidence to show his mother’s signatures. He relied upon the sinking fund certificate of the Society stated to have been signed by his mother in 1981, but has not produced it. There is, therefore, nothing to show that the signature stated to be of the deceased on the Will is proved to be of the deceased. 44. The suit Will is seen not to have been executed by the deceased on the date shown on the Will at all. The deceased could have merely put her signature on the Will without understanding the document that she signed, even if she can be taken to have signed the document titled her Will. The Plaintiff could have got her signature at any time, even later than the date put on the document even if the deceased can be taken to have put the date as shown. There is absolutely no credible, satisfactory, acceptable evidence that the Will was validly and duly executed by the deceased, knowing it to be so, on the date mentioned on the document in the presence of the 2 attesting witnesses as written thereon. The Will and its contents, more specifically the attestation, make the Will not only most suspicious, most improbable, but unmistakably fabricated. The circumstantial evidence runs against the Will itself. 45. There are too many suspicious circumstances which the Plaintiff is required to explain. The Plaintiff has not done so. It is settled law that if suspicious circumstances are not removed the Court would not probate the Will propounded. 46. In the case of Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao & Ors. 45. There are too many suspicious circumstances which the Plaintiff is required to explain. The Plaintiff has not done so. It is settled law that if suspicious circumstances are not removed the Court would not probate the Will propounded. 46. In the case of Niranjan Umeshchandra Joshi Vs. Mrudula Jyoti Rao & Ors. AIR 2007 S.C. 614 meticulous drafting of Will giving details of assets and liabilities of the testator including cash and amounts lying in the Bank when the testator was in the ICU of a hospital with his Doctor son (amongst his other children who were also the beneficiaries) was held to be such as required explanation of the unnatural disposition made in the Will. 47. In the case of Balathandayutham & Anr. Vs. Ezhilarasan (2010) 5 S.C.C. 770 in which no witness came forward to prove unregistered subsequent wills, which were sought to be proved when the Testator’s mental capacity at that later time was challenged, the execution of the Will coupled with the fact that the Testator did not live with the propounder of such Will except during last couple of days was held to be under suspicious circumstances. 48. In the case of Yumnam Ongbi Tampha Ibema Devi Vs. Yumnam Joykumar Singh & Ors. (2009) 4 SCC 780 = 2009 3 Scale 571 is has been held thus: “7. The propounder has to show that the will was signed by the testator; that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the will are not the result of the testator’s free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the will is accepted. Again in cases where the propounder has himself taken a prominent part in the execution of the will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain.” 49. Given the suspicious circumstances in this case and sitting in the armchair of the testatrix it is seen that the Will propounded by the Plaintiff is got fabricated by the Plaintiff. Hence it is not seen to be duly proved. Hence issue No. 1 is answered in the negative and issue No.2 is answered in the affirmative. 50. Issue No.3: 51. Hence, the Will of the Testatrix Gouri Banarjee shown to be dated 30th July 1978 and titled “her last will and testament” cannot be probated. 52. The suit as well as the testamentary petition are dismissed.