1. This Suit is for grant of Letters of Administration with Will annexed to the properties and credits of late Janardan Banduji Navghare (the Testator).
2. The background facts can be stated in brief as under:
2.1 The Testator was endowed with properties, including the land and building bearing Plot No. 521A, new Survey No. 872, admeasuring 623 sq yards, situated at Matunga, Mumbai (Matunga property) and an agricultural land admeasuring 19 Acre and 39 gunthas, situated at Mouje Dedale, Taluka Dahanu, District Thane (Dedale property).
2.2 The Testator passed away on 27th December 1969. Indira Janardan Navghare, the wife of the Testator, had pre-deceased him. The Testator left behind two sons, Devendra Janardan Navghare and Surendra Janardan Navghare, and four daughters, Ashalata Motiram Nagawkar, Sulbha Eknath Vagal, Revati Balchandra Mahajan & Sadhana Digambar Chachad.
2.3 Devendra instituted a Petition for grant of Probate, being Petition No. 23 of 2004, asserting inter alia that on 22nd September 1967, in the presence of Devendra and Surendra, the Testator had executed his last Will and Testament in Marathi language. Devendra and Surendra had attested the execution of the Will by the Testator. Under the Will the Matunga property was bequeathed to Devendra and Dedale property was bequeathed to Surendra. The Will, so far as the Dedale property, was acted upon and the legal heirs of the Testator consented to the mutation of the said property in the name of Surendra. As the Petitioner was not aware about the legal procedure to obtain the Probate or Letters of Administration of the Will, there was delay in filing the Petition for Probate.
3. Sulbha, Revati and Sadhana, the daughters of the Testator, Nitin Nagawkar, son of Ashalata, another daughter of the Testator, and Bharti Sushil Belapurkar, the daughter of Surendra, have filed Caveats opposing the grant. The substance of the resistance of the Caveators can be summarized as under:
3.1 That the Testator never executed any Will or testamentary writing in respect of his assets.
3.2 The signature on the purported Will was not that of the Testator. It did not appear that the Testator and the witnesses signed the Will at the same time and in the presence of each other. Thus the purported Will cannot be said to have duly executed and attested in accordance with law.
3.3 At the time of the alleged execution of the Will, the Testator was about 75 years of age. Consequently, the Testator’s degree of understanding was not normal. The Testator was not in a sound and disposing state of mind. The Testator did not understand as to what he was then doing. For 4-5 years prior to his death, the Testator was bed-ridden. His eye-sight had become poor and he was not able to read and write clearly. The Will has not been attested by or appended with a certificate issued by a Doctor. Thus, the purported Will was not the last Will and Testament of the Testator.
3.4 Devendra, the propounder, was himself a beneficiary under the Will. The propounder, also being a purported attesting witness, played a prominent role and, therefore, that constituted a strong suspicious circumstance.
3.5 The Testamentary Petition also suffered from gross delay and laches. The Petition was filed after about 35 years of the death of the Testator. There was no explanation for the inordinate and unexplained delay. Thus, the Petition was liable to be dismissed on the said count.
DEVELOPMENTS DURING THE PENDENCY OF THE PROCEEDING:
4. Before adverting to the issues that came to be settled and the evidence adduced by the parties, it may be appropriate to note the developments that ensued in the Suit, which significantly bear upon its determination.
4.1 Devendra, the original Plaintiff, had filed an Affidavit in Support of the Petition (Exhibit “P2”) affirming, inter alia, that he and his brother, Surendra, had witnessed the execution of the Will and put signatures in attestation thereof in the presence of the Testator.
4.2 Devendra, the original Plaintiff, passed away on 28th January 2007. Thereupon Prakash Navghare (P1) and Vandana Madan (P2), the son and daughter, respectively, of Devendra were brought on record as the Plaintiffs. As the necessary corollary, the Petition for Probate came to be converted into a Petition for grant of Letters of Administration with Will annexed.
4.3 Nitin Nagawkar, the grandson of the Testator, and one of the Caveators, filed a Testamentary Petition, being Petition No. 391 of 2007, for grant of Letters of Administration in respect of Matunga property only. In view of the Caveat by the Plaintiffs, the said Petition came to be converted into Testamentary Suit No. 56 of 2007. By an order dated 18th November 2009, this Court directed that the said Suit would be taken only after the disposal of the instant Testamentary Suit No. 45 of 2005.
4.4 On 23rd October 2007, the Plaintiffs filed the Chamber Summons No. 104 of 2007 seeking permission to place on record the Affidavits of Kusum Navghare, the widow of Devendra, and mother of Prakash (P1) and Vandana (P2), and Lilawati Mahajan Alias Asha A Vedak, the daughter of Revati Mahajan, and the granddaughter of the Testator, purportedly under Rule 384 of the Bombay High Court (Original Side) Rules, affirming that the Testator executed the Will in the presence of two attesting witnesses whom they had not known personally.
4.5 However, the said Chamber Summons came to be withdrawn pursuant to an order dated 17th March 2008.
4.6 In order to substantiate their claim of testamentary disposition by the Testator, the Plaintiffs have examined Prakash (PW-1) and Kusum (PW-2).
4.7 The Defendants chose not to lead any evidence.
4.8 By a judgment and order dated 12th October 2010, a learned Single Judge of this Court decreed the Suit and directed that probate of the last Will and Testament of the Testator dated 22nd September 1967 be issued.
4.9 The Defendants preferred an Appeal, being Appeal No. 225 of 2011, before the Appellate Bench. On 15th February 2021, by consent of the parties, the judgment and order dated 12th October 2010 granting Probate was set aside and the Suit was remitted back to the Single Judge to hear the arguments on behalf of the parties and decide the suit afresh.
5. In the backdrop of the aforesaid developments, I have heard Mr. Chaitanya Chavan, the learned Counsel for the Plaintiffs and Mr. Mayur Khandeparkar, the learned Counsel for the Defendants at some length. The learned Counsel for the parties took the Court through the pleadings and evidence adduced by the parties and the material on record.
6. Before adverting to note and appreciate the submissions of the Counsel for the parties, it may be apposite to extract the issues settled by the Court. The issues are thus reproduced below with my findings against each of them for the reasons to follow.
| Issues | Findings |
| 1. Whether the plaintiffs prove that the deceased Janardhan Banduji Navghare executed Will dated 22nd September, 1967 | In the negative |
| 2. Whether the defendants prove that the said will was fabricated by the plaintiffs | Does not survive |
| 3. What order | Suit dismissed |
REASONS:
EVIDENCE:
7. Though the Plaintiffs have examined Prakash (PW1) and Kusum (PW2), yet, the evidence of Prakash (PW1) is not of much assistance in proof of due execution and attestation of the Will.
8. Prakash (PW1) conceded in no uncertain terms that he was born after the execution of the purported Will (Exhibit “P4”) and he had no personal knowledge of any of the documents referred to in paragraph 7 of his Affidavit in lieu of examination-in-chief. Thus, the fate of the Plaintiffs’ case hinges upon the testimony of Kusum (PW2) who claimed that she had witnessed the execution and attestation of the Will (Exhibit “P4”).
9. Kusum (PW2) affirmed that her marriage was solemnized with Devendra on 24th May 1967. On 22nd September 1967, the Testator, her father-in-law, told her that, on that day, he was to execute the Will which he had already prepared. The Testator asked her to be present when he executes the Will on that day itself. Lilawati Mahajan, the granddaughter of the Testator, was also present in the house. The Testator executed the Will in the presence of two witnesses, one of whom was Dr. Jaidev Borkar. She had not known the identity of the other witness. Kusum (PW2) affirmed the Testator had set and subscribed his name and signature in English at the foot of the testamentary papers in Marathi language and character, in the presence of the two witnesses. Thereafter Dr Jaidev Borkar and another witness did at the request of the Testator and in his presence and in the presence of each other set and subscribe their respective names and signatures at the foot of the said testamentary paper as witnesses thereto, in her presence and that of Lilawati Mahajan. Kusum (PW2) professed to identify the signature of the Testator on the Will and also the signature of the attesting witnesses. It was, further, affirmed that the Testator was of sound and disposing mind, memory and understanding at the time of the execution of the Will.
BROAD SUBMISSIONS:
10. Mr. Chavan, the learned Counsel for the Plaintiffs would urge that the instant Suit deserves to be determined in the light of the attendant circumstances which cumulatively lead to an inference that the Will (Exhibit “P4”) has been duly executed by the Testator and attested by two witnesses, one of whom was Dr. Jaidev Borkar.
11. Mr. Chavan, the learned Counsel for the Plaintiffs, laid emphasis on the evidence of Kusum (PW2) which, according to Mr. Chavan, establishes that the Testator had put signature on the Will (Exhibit “P4”) in the presence of Kusum and two attesting witnesses and the later had also signed the Will (Exhibit “P4”) in the presence of the Testator. Minor discrepancies in the evidence of Kusum (PW2) do not merit much weight as there is evidence to indicate that Dr. Jaidev Borkar passed away on 5th June 1969 and the identity of another attesting witness could not be ascertained. Consequently, the Will (Exhibit “P4”) was required to be proved in the manner envisaged by Section 69 of the Indian Evidence Act 1872. Kusum’s evidence, Mr. Chavan would urge, satisfies the requirement of the proof of the Will as envisaged by Section 69 of the Evidence Act.
12. Mr. Chavan would urge that apart from the challenge to the due execution and attestation of the Will, based on mere technicalities, there is no reason to doubt the genuineness of the Will (Exhibit “P4”). The fact that the Testator was in a sound and disposing state of mind is established beyond the pale of controversy. The Defendants have not brought on record any material to show that the faculties of the Testator were impaired. Since the Defendants chose not to lead any evidence, the Defendants failed to discharge the onus to prove that the Will (Exhibit “P4”) was a fabricated document. Nor there are circumstances which can be said to shroud the execution and attestation of the Will in suspicion.
13. Lastly Mr. Chavan would urge that, the aspect of delay and laches forcefully canvassed on behalf of the Defendants, does not merit consideration as it is the consistent case of the original Plaintiff which finds support in the material on record that the Will was, in fact, acted upon so far as the Dedale property. The legal heirs of the Testator had given consent for mutating the name of Surendra to the Record of Rights of the Dedale property on the strength of the said Will (Exhibit “P4”).
14. Thus there was no occasion for the original Plaintiff to seek Probate or Letters of Administration. At no point of time there was any challenge to the Will (Exhibit “P4”) or assertion of any rights in derogation thereof by any of the legal heirs of the Testator. Thus, the right to sue for the Probate or Letters of Administration did not accrue till the filing of the Petition.
15. To buttress the aforesaid submissions, Mr. Chavan placed reliance on a judgment of a learned Single Judge of this Court in the case of Rikin Ranchhodlal Chokshi Vs Shaila Abhay Shah, 2024 SCC OnLine Bom 1612 an order passed by the learened Single Judge of this Court in the matter of Jane Elizabeth Cox (Constituted Attorney of Arun Badri-Narayan Sharma) Vs Rma Badr-Narayan Sharma Alias Rama Sharma (Testamentary Petition No. 1587 of 2024, order dated 9th August 2024) , a Division Bench judgment in the case of Bhika Cullianji and Co, Bombay Vs Avon Electric Company, Bombay and Ors, 1994 SCC OnLine Bom 88 a judgment of the learned Single Judge of this Court in the case of Mirzban Darabshaw Surti Vs Cedric Vaz & Anr 2015 (2) MhLJ 184 and a judgment of the learned Single Bench of this Court in the case of Suresh Manilal Mehta Vs Varsha Bhadresh Joshi. 2016 SCC OnLine Bom 10051
16. In opposition to this, Mr. Khandeparkar, the learned Counsel for the Defendants, submitted that the Plaintiffs are required to surmount impediments which appear to be insuperable. First, there is an inordinate and unexplained delay in filing the Petition for grant of Probate by the original Plaintiff. The Petition came to be filed after 34 years of the demise of the Testator. There is a bald assertion in the Petition that the original Plaintiff was not aware about the legal procedure to obtain the Probate or Letters of Administration. Laying emphasis on Rule 382 of the Bombay High Court (Original Side) Rules which mandates the explanation for delay, it was submitted that the aforesaid bald assertion does not amount to a satisfactory explanation for such huge delay.
17. Secondly, Mr. Khandeparkar would urge, the execution and attestation of the Will (Exhibit “P4”) is far from proved. On the contrary, the shifting stands of the Plaintiffs have presented as many as five versions as regards the execution and attestation of the Will, which are simply irreconcilable. After the demise of the original Plaintiff, a halfbaked attempt was made to prove the Will by resorting to the Provisions contained in Section 69 of the Evidence Act and Rule 384 of the Bombay High Court (Original Side) Rules. Mr. Khandeparkar would urge that Rule 384 is an enabling Provision and does not dispense with the requirement of proof of Will. Even the said attempt of the Plaintiffs is riddled with such inconsistencies that it commands no semblance of credence. The solemnity attached to the proof of Will is simply not forthcoming in the case at hand, urged Mr. Khandeparkar.
18. Thirdly, the suspicious circumstances are abound. There are contradictory versions regarding the execution and attestation of the Will which throw a cloud of doubt over the genuineness of the Will, commencing from the language and character in which the Testator has put signature on the purported Will (Exhibit “P4”), to the apparent inconsistency in the admitted signature of the Testator and the signature which appeared on the purported Will (Exhibit “P4”), to the persons in whose presence the Will was purportedly executed, to the persons who allegedly attested the Will (Exhibit “P4”), to the circumstances in which the purported Will (Exhibit “P4”) was drawn and the disclosure and safekeeping of the Will (Exhibit “P4”).
19. The disinheritance of the daughters of the Testator is rather inexplicable. Equally, confounding is the role of Devendra, as an attesting witness, which was dumped by the Plaintiffs soon after the demise of Devendra.
20. Mr. Khandeparkar, placed reliance on a number of judgments of the Supreme Court and this Court, reference to a few which bear upon the determination of the controversy would be made in the course of this judgment.
21. In the Rejoinder, Mr. Chavan, the learned Counsel for the Plaintiffs, laid emphasis on the fact that the testimony of Kusum (PW2) on the point that she had seen the Testator sign the Will (Exhibit “P4”) and had also seen Dr. Jaidev Borkar, one of the attesting witnesses, and another person to whom she had not known, sign the Will as attesting witness, in the presence of the Testator, has gone unchallenged. That proves the due execution and attestation of the Will. A strenuous effort was made by Mr. Chavan to draw home the point that it is not necessary for a witness to identify the signature of the attesting witnesses on the Will. Mr. Chavan placed a very strong reliance on the decision of the Supreme Court in the case of Mobarik Ali Ahmed Vs The State of Bombay AIR 1957 SC 857 wherein it was enunciated that proof of genuineness of a document may consist of direct evidence of a person who saw the document being written or the signature being affixed.
22. Once the due execution and attestation of the Will stands proved and there is no material to doubt the sound and disposing state of mind of the Testator, the aspect of delay in filing the Petition for Probate pales in significance, urged Mr. Chavan. What really tilts the scale in favour of the Plaintiffs, according to Mr. Chavan, was the effect given to the wishes of the Testator with regard to Dedale property. The said fact operates as a formidable dyke against the Will (Exhibit “P4”) not being the last Will and Testament of the Testator.
23. The aforesaid submissions now fall for consideration.
24. Section 63 of the Indian Succession Act, 1925, provides the manner in which the Will is to be executed. Clause (c) of Section 63 mandates the attestation of the Will by two or more witnesses; each of whom must have seen the Testator sign or received from the Testator a personal acknowledgment of the latter’s signature on the Will; each of the two witnesses must himself sign the Will in the presence of the Testator. But it is not peremptory that, more than one witness should be present and attest the Will at the same time.
25. Section 63 of the Act, 1925 is required to be read with Section 68 of the Indian Evidence Act, which specifies the requirements for adducing evidence in proof of execution of a document which is required by law to be attested. Section 68 of the Evidence Act, in terms provides that if a document is required to be attested by law, it cannot be used as evidence unless one attesting witness has been called for proving the execution of the document if the attesting witness is alive. Section 69 provides for the mode of proof of a document required to be attested where no attesting witness can be found. Section 71 provides that if the attesting witness denies or does not recollect the execution of the documents, its execution may be proved by other evidence.
26. Though the Will has to be proved like any other document, which is compulsorily required to be attested, yet the solemnity attached to the Will necessitates that the conscience of the Court that the writing propounded by the propounder is the last Will and Testament and it has been legally and validly executed and attested, must be satisfied.
27. By a catena of decisions the nature and standard of evidence required to prove the Will has been delineated. In the case of Jaswant kaur V/s. Amrit Kaur and Ors. (1977) 1 SCC 369, a three Judge Bench of the Supreme Court has crystalized the propositions which govern the proof of Will, as under :
“10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v.B.N. Thirnmajamma & Others AIR 1959 SC 443 The Court, speaking through Gajendragadkar J., laid down in that case the following positions :--
1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the ease of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 63 of the Evidence Act, one attesting witness at least has .been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death o[ the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surround- ed by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution' of the will may raise a doubt as to whether the testa- tor was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.”
28. In the case of Sridevi and Ors. V/s. Jayaraja Shetty and Ors. (2005) 2 SCC 784 (supra), the onus on the propounder was concisely encapsulated as under :
“14. The propounder of the Will has to show that the Will was signed by the testator; that he was at the relevant time in sound disposing state of mind; that he understood the nature and effect of dispositions and had put his signatures to the testament of his own free will and that he had signed it in the presence of the two witnesses who attested in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged.”
29. It would be contextually relevant to note that, in the case of Daulat Ram and Ors. V/s. Sodha and Ors. (2005) 1 SCC 40, it was enunciated that the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of 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 where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so.
30. In the case of Shivakumar and Ors. V/s. Sharanabasappa and Ors. (2021) 11 SCC 277, the Supreme Court after traversing through the relevant decisions summerised the principles. The principles enunciated in paragraph Nos.12.5 to 12.9 are instructive as regards the onus of proof on the propounder to dispel the suspicious circumstances, when a circumstance can be said to be suspicious and the illustrative cases which may stoke such suspicion and the satisfaction of judicial conscience of the Court. They read as under :
“12.5 I f a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion etc. in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the Testator and/or as to whether the Testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
12.6 A circumstance is “suspicious” when it is not normal or is ‘not normally expected in a normal situation or is not expected of a normal person’. As put by this Court, the suspicious features must be ‘real, germane and valid’ and not merely the ‘fantasy of the doubting mind.’
12.7 As to whether any particular feature or a set of features qualify as “suspicious” would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the Testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the Will by the beneficiary thereunder etc. are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the Testator and his signature coupled with the proof of attestation.
12.8 The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the Testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether the Testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will
12.9 In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will.”
(emphasis supplied)
31. On the aforesaid touchstone, reverting to the proof of Will in question, of necessity, recourse is required to be made to the evidence of Kusum (PW2). Before appreciating the manner in which Kusum (PW2) stood the test of truth, it is necessary to note the progressive change in the Plaintiffs version as regards the execution and attestation of the Will culminating in the Affidavit in lieu of examination-in-chief filed by Kusum (PW2).
31.1 Devendra, the original Plaintiff in the Affidavit in Support of the Petition (Exhibit “P2”) affirmed that the Testator executed the Will in his presence and that of Surendra. He and Surendra attested the execution of the Will. Incontrovertibly, this version of Devendra, the deceased Plaintiff, was plainly incorrect. Plaintiff Nos. 1 and 2 did not profess to subscribe to said version. Instead, an endeavour has been made to steer clear of the said assertion.
31.2 The manner in which Plaintiff Nos. 1 and 2 attempted to deviate from the version of Devendra is also of material significance. Intially, in the Affidavit in Support of the Chamber Summons, the Plaintiffs asserted that they were not aware as to the identity of the two witnesses who purportedly attested the execution of the Will. Devendra had inadvertently filed the Affidavit stating that Devendra and Surendra had attested the execution of the Will. In addition, the Plaintiffs affirmed that Kusum (PW2) and Lilawati Mahajan were present at the time of the execution of the purported Will.
31.3 Interestingly, Kusum (PW2), in the Affidavit dated 23rd October 2007, filed along with the aforesaid Chamber Summons purportedly under Rule 384 of the Bombay High Court (Original Side) Rules affirmed that when the Will was executed by the Testator she, Lalawati Mahajan and even her husband, Devendra, were present. However, she had not known the two witnesses who attested the execution of the Will by the Testator. Kusum (PW2) did not assert that either her husband Devendra or Surendra, her brother-in-law, who were initially stated to be the attesting witness, attested the execution of the Will. In fact, Kusum (PW2) did not refer to the presence of Surendra at the time of the execution of the Will.
31.4 It would be contextually relevant to note that Lilavati Mahajan the other witness, whose Affidavit was tendered under Rule 384 of the Bombay High Court (Original Side) Rules, did not refer to even the presence of Devendra, the original Plaintiff, at the time of the execution of the purported Will (Exhibit “P4”). According to her, apart from her, only Kusum (PW2) and two attesting witnesses, whom she had not known, were present at the time of the execution of the Will (Exhibit “P4”).
31.5 Then comes the Affidavit in lieu of examination-in-chief of Kusum (PW2). In the said Affidavit (Exhibit “P5”), Kusum (PW2) claimed that one of the of attesting witness was Dr. Jaidev Borkar, who was their family Doctor. She had not, however, known the identify of the other attesting witness.
32. The position which thus emerges is that the Plaintiffs’ case as regards the execution and attestation of the Will (Exhibit “P4”) wavered from one end to another; from a positive case of Devendra and Surendra, the sons of the Testator, being two attesting witnesses, to a complete ignorance about the identity of the two attesting witnesses, to a case of identity of one of the attesting witnesses, namely, Dr. Jaidev Borkar, who passed away in 1969, and the identity of second witness remaining unmasked throughout. 33. Keeping this backdrop in view, the manner in which Kusum (PW2) fared in the cross-examination is required to be appreciated.
34. During the cross-examination, Kusum (PW2) was confronted with her statements in the Affidavit in Support of the Chamber Summons (Exhibit “3”), especially, her claim that she had not personally known the two witnesses who attested the execution of the purported Will (Exhibit “P4”).
35. Kusum (PW2) attempted to wriggle out of the situation by asserting that when the said Affidavit in Support of the Chamber Summons was filed, she did not know about the identity of even one of the attesting witnesses. Subsequently, she claimed to have seen some documents in her cupboard and thereupon she realized that one of the attesting witnesses was Dr Jaidev Borkar. Those documents were not placed on record. Though, Kusum (PW2) claimed that she has visited the clinic of Dr. Jaidev Borkar and seen Dr. Jaidev Borkar put signature on the Will, she had no occasion to see Dr Jaidev Borkar put signature on document. Kusum (PW2) went on to admit that her husband, Devendra had known Dr. Jaidev Borkar.
36. With regard to the knowledge and custody of the purported Will (Exhibit “P4”), in the Affidavit in Support of the Chamber Summons, Kusum (PW2) had asserted that after the execution of the purported Will (Exhibit “P4”), the Testator had given the same to her for safekeeping. During the course of cross-examination, however, Kusum (PW2) conceded that the Testator had kept the Will in his cupboard. After 13 days of the death of the Testator, cupboard was opened in the presence of his legal heirs and, thereupon, the Will (Exhibit “P4”) was found. Kusum (PW2) conceded that the contents of the said Affidavit in Support of the Chamber Summons dated 13th October 2007 were explained and interpreted to her and whatever stated therein was true and correct. Kusum (PW2), however, expressed her inability to state as to why she has stated in the said Affidavit dated 23rd October 2007 that the Will (Exhibit “P4”) was given to her by the Testator for safekeeping. Yet, Kusum (PW2) was steadfast in asserting that she had seen the Will for the first time after the death of her father-in-law.
37. With regard to the mode and manner of the execution of the Will (Exhibit “P4”), Kusum (PW2) conceded that Indenture dated 10th July 1942 (Exhibit “P6”) contains the full signature of her father-in-law. Kusum (PW2), however, did not cave in to the suggestion that the Testator was in the habit of making complete signature and not used to put truncated signature. Kusum (PW2) asserted that the Testator used to sometimes sign in full and sometimes put a short signature.
38. Kusum (PW2) affirmed that the statement in paragraph 5 of the Affidavit in lieu of examination-in-chief, that the deceased had set and subscribed his name and signature at the foot of the testamentary papers in Marathi language and character was correct. She conceded that the names of the attesting witness do not find mention in the Will (Exhibit “P4”).
39. The aforesaid manner in which Kusum (PW2) fared in the crossexamination renders it extremely unsafe to place implicit reliance on the testimony of Kusum (PW2). As noted above, the material on record indicates that the Plaintiffs case was simply ever-changing. In fact, the multiple versions regarding the execution and attestation of the Will (Exhibit “P4”) were so inconsistent that one version worked out the retribution of another.
40. Devendra, the original Plaintiff, claimed that the Will (Exhibit “P4”) was executed before and attested by Devendra and Surendra. Even if, this version is discounted completely as, Mr. Chavan wants the Court to do, on the specious premise that Devendra, the original Plaintiff, passed away before his evidence could be recorded and, therefore, the Affidavit filed in the support of the Petition does not constitute evidence, yet, the testimony of Kusum (PW2) is equally baffling.
41. First and foremost, the Court cannot loose sight of the fact that no attesting witness could be examined. Nay, it is a case where the very identity of the attesting witness is shrouded in mystery.
42. Kusum (PW2) initially asserted that she had not known who allegedly attested the execution of the Will (Exhibit “P4”). Plaintiff Nos. 1 and 2 who came to be substituted in place of Devendra, the original Plaintiff, were equally unaware of the identity of the attesting witnesses. Having realized the impediment which the Plaintiffs may face in proving the due execution and attestation of the Will (Exhibit “P4”), Kusum (PW2) improved her version to state that one of the attesting witness was Dr. Jaidev Borkar.
43. The aforesaid version of Kusum (PW2) that one of the attesting witness was Dr Jaidev Borkar, does not merit implicit reliance for reasons more than one.
43.1. Firstly, Kusum (PW2) came with an improved version under two years of filing an Affidavit in Support of the Chamber Summons.
43.2 Secondly, the explanation offered that one of the attesting witnesses, namely, Dr. Jaidev Borkar, was the family doctor and Kusum (PW2) had seen certain documents in the intervening period and, therefore, she could recollect that the one of the signatures on the Will (Exhibit “P4”) was that of Dr Jaidev Borkar, does not appeal to human credulity. Kusum (PW2) conceded that Devendra had known Dr Jaidev Borkar. She had visited the clinic of Dr Jaidev Borkar on a number of occasions. Had these been the facts, neither Devendra could have missed to state that Dr. Jaidev Borkar was one of the attesting witnesses nor Kusum (PW2) could have missed to state, at the first possible opportunity that Dr. Jaidev Borkar had attested the execution of the Will.
43.3 Thirdly, it defies comprehension that when the Will (Exhibit “P4”) was allegedly entrusted to Kusum (PW2) for safekeeping, or for that matter the Will was discovered after 13th day of the death of the Testator and disclosed in the presence of the legal heirs, no effort whatsoever was made to ascertain the identity of the persons who attested the execution of the Will.
43.4 Fourthly, intrinsic evidence of the Will (Exhibit “P4”) erodes the credibility of the version of Kusum (PW2). Neither the name of the Testator is mentioned below the purported signature of the Testator on the Will (Exhibit “P4”) nor the names of any of the attesting witnesses find mention below their respective signatures on the purported Will (Exhibit “P4”), which runs counter to the version of Kusum (PW2) that the Testator and the attesting witnesses had set and subscribed their names and signatures at the foot of the Will (Exhibit “P4”).
44. Mr. Chavan, the learned Counsel for the Plaintiffs, attempted to salvage the position by canvassing a submission that Kusum (PW2) was called upon to depose after decades of the execution of the Will and while she was 73 years of age and thus the inability to recollect the things, according to Mr. Chavan, does not render the testimony of Kusum (PW2) unworthy of credence. This submission, in the peculiar facts of the case, does not merit countenance.
45. The circumstances adverted to above and the manner in which, Kusum (PW2) stood the test of cross-examination lead to an inexorable inference that the testimony of Kusum (PW2) is riddled with irreconcilable inconsistencies. Her version cannot be accepted as ungalvanized truth for the only reason that she had right and opportunity to be present at the place where the Will (Exhibit “P4”) was purportedly executed. Such an approach would defeat the very purpose of incorporating provisions for the special mode of proof of the Will on account of solemnity attached to the testamentary disposition for the reason that a Will speaks from the death of the Testator.
46. I also find it rather difficult to accede to the submission of Mr. Chavan that the Will (Exhibit “P4”) has been proved in the manner contemplated by Rule 384 of the Bombay High Court (Original Side) Rules. Indeed Rule 384 is an enabling provision and comprises two parts. In the first part where it is not possible to file an Affidavit of any of the attesting witnesses, the said Rule enables filing of an Affidavit of some other person, if any, who may have been present at the time of execution of the Will. In the second part, where it is neither possible to file an Affidavit of any of the attesting witnesses nor the Affidavit of any person who may have been present at the execution of the Will, evidence on Affidavit shall be produced of that fact and of the handwriting of the deceased and the attesting witnesses, and also of any circumstance which may raise a presumption in favour of due execution.
47. Mr. Chavan was justified in canvassing a submission that the present case apparently falls in the first part as Kusum (PW2) claims to have been present at the execution of the Will (Exhibit “P4”). However, the evidence and material on record does not advance the cause of the Plaintiffs any further. The evidence of Kusum (PW2), on account of infirmities adverted to above, does not give the necessary assurance to draw an inference that Kusum (PW2) witnessed the execution and attestation of the Will (Exhibit “P4”)
48. Nor the Will (Exhibit “P4”) can be said to have been proved under Section 69 of the Indian Evidence Act. Under Section 69, which is again an enabling provision, where no attesting witness can be found, it must be proved that the attestation of one attesting witness at least is in his handwriting and that the signature of the person executing the document is in the handwriting of that person.
49. The first requirement of establishing that the attestation of one attesting witness at least in his handwriting, in my considered view, made Kusum (PW2) to improve her version to affirm that Dr. Jaidev Borkar was one of the attesting witnesses and the Will (Exhibit “P4”) bears the signature of Dr Jaidev Borkar as an attesting witness. Apart from the oath put behind the said assertion, there is no material in the nature of contemporaneous circumstance or document to show that Dr. Jaideo Borkar was the attesting witness or the attestation is in the handwriting of Dr. Jaidev Borkar.
50. As regards the signature of Janardan Navghare, the Testator, the Indenture (Exhibit “P6”) contains the signature of the Testator in full. In contrast, the signature of the Testator on the Will (Exhibit “P4”) is abridged. It is true that Kusum (PW2) did not cave in to suggestion that the Testator always used to put the signature in full length and, claimed that at times the Testator used to put abridged signature. It is also true that it would be hazardous to compare the signature of the Testator in the margin of the Indenture (Exhibit “P6”) with the signature on the Will (Exhibit “P4”) to draw an inference about the genuineness of the signature. Yet, in the totality of the circumstances, the evidence of Kusum (PW2) does not lend assurance to satisfy the conscience of the Court that the signature on the Will (Exhibit “P4”) is that of the Testator.
51. The conspectus of the aforesaid consideration is that the due execution and attestation of the Will (Exhibit “P4”) cannot be said to have been proved.
52. In view of the aforesaid finding, in a sense, the further journey to appreciate the other points urged on behalf of the parties may not be strictly warranted. Conversely, even if the due execution and attestation of the Will is established, that does not conclude the inquiry in a proceeding for grant of probate or Letters of Administration with the Will annexed. The Court’s conscience that the Will is the last Will and Testament of the deceased needs to be satisfied before the Court grants its imprimature.
53. In the case of Lilian Coelho And Ors Vs Myra Philomena Coalho, (2025) 2 SCC 633 the Supreme Court enunciated that if a Will is found not validly executed, in other words invalid owing to the the failure to follow the prescribed procedures, then there would be no need to look into the question whether it is shrouded with suspicious circumstances. Even after the propounder is able to establish that the Will was executed in accordance with the law, that will only lead to the presumption that it is validly executed but that by itself is no reason to canvass the position that it would amount to a finding with respect to the genuineness of the same. In other words, even after holding that a Will is genuine, it is within the jurisdiction of the Court to hold that it is not worthy to act upon as being shrouded with suspicious circumstances when the propounder failed to remove such suspicious circumstance to the satisfaction of the Court.
54. To being with, in the facts of the case at hand, apart from the extremely unsatisfactory manner of the execution and attestation of the Will (Exhibit “P4”), the element of delay in propounding the Will (Exhibit “P4”) and seeking its Probate, assumes critical salience. The Will (Exhibit “P4”) was propounded after 34 years of the death of the Testator. I am mindful of the fact that the provisions contained in Rule 382 of the High Court (Original Side) Rules, on which reliance was sought to be placed by Mr. Khandeparkar, are required to be read in consonance with the well recognized position in law as regards the applicability of the period of limitation to an Application for grant of Probate or Letters of Administration. Mr. Chavan was also justified in canvassing a submission that once the due execution and attestation of the Will and sound and disposing state of mind of the Testator is proved, the aspect of delay pales in significance. However, it cannot be said that the aspect of delay is wholly inconsequential.
55. Article 137, which is a residuary Article, provides a period of limitation of three years for any other Application for which no period of limitation is specifically provided. The crucial expression in Article 137 is ‘the time begins to run when the right to apply accrues’. It is well recognized Article 137 of the Limitation Act governs a proceeding for grant of Probate or Letters of Administration.
56. In the case of Kunvarjeet Singh Khandpur Vs Kirandeep Kaur & Ors, (2008) 8 SCC 463 on which reliance was placed by Mr. Khandeparkar, the Supreme Court, considered the question as to whether Article 137 of the Limitation Act applies to a proceeding for a grant of Probate and Letters of Administration and held that such proceeding merely seeks recognition from the Court to perform a duty and because of the nature of the proceeding, it is a continuing right. Yet it cannot be said that the Application for grant of Probate or Letter of Administration is not covered by Article 137 of the Limitation Act.
57. Referring to a judgment of this Court in the case of Vasudeo Daulatram Sadarangani vs. Sajni Prem Lalwani 1983 Bombay 268 , the Supreme Court held that the enunciation by this Court that the assumption that under Article 137 the right to apply necessarily accrued on the date of the death of the deceased is unwarranted, was not correct. However, the proposition that an application for grant of Probate or Letters of Administration is for the Court’s permission to perform legal duty created by a Will or for recognition as a testamentary trustee and is a continuous right, which can be exercised any time after the death of the deceased, as long as the right to do so survives and the object of the trust exists or any part of the trust, if created, remains to be executed, was the correct position in law.
58. The aforesaid pronouncement was followed by the Supreme Court in the case of Ramesh Nivrutti Bhagwat Vs Dr Surendra Manohar Parakhe, (2020) 17 SCC 284 on which reliance was placed by Mr. Khandeparkar. In paragraph 14 of the judgment, the Supreme Court held that in Kunvarjeet Singh Khandpur (Supra), the Supreme Court had concluded that right to apply for Probate accrues on the death of the Testator. However, the issue in the said case arose out of the applicability of the period of limitation for an application to revoke the Probate or the Letters of Administration.
59. In the instant case, even if maximum latitude is given to the case of the Plaintiffs with regard to the time at which right to apply accrued, the period of 34 years cannot be construed to be too small not to present a cause for the Plaintiffs to apply for Probate. To add to this, the bald assertion that in the Petition that Devendra, the original Plaintiff, was unaware of the legal requirement and procedure to obtain the Probate or Letters of Administration, however, impairs the Plaintiffs’ case.
60. Mr. Chavan, the learned Counsel for the Plaintiffs, made an endeavour to wriggle out of the situation by canvassing a submission that the need to apply for Probate did not arise as the Will was, in fact, acted upon qua Dedale property. This submission was also pressed into service to bolster up the case of genuineness of the purported Will (Exhibit “P4”). A very strong reliance was placed on mutation of the name of Surendra to the Record of Rights of Dedale property on the strength of the purported Will (Exhibit “P4”).
61. Firstly, the daughters of the Testator cannot be bound down by the said mutation entry. At best, the legal representatives of Surendra may be estopped from questioning the Will (Exhibit “P4”). However, even that cannot be an absolute proposition. Reliance placed by Mr. Khandeparkar on a judgment of a learned Single Judge of this Court in the case of Shobhana Sahadev Shah & Ors Vs Sangeeta Porbanderwala & Ors 2017 SCC OnLine Bom 3947 appeared to be well founded. In the said case, the learned Single Judge adverted to the circumstances in which the doctrine of election applies under Sections 180 and 187 of the Indian Succession Act. The observations in paragraph 90 are material and hence extracted below.
“90. The foundational doctrine is the principle against approbation and reprobation. Generally stated, a person may not simultaneously seek benefit under a document and repudiate or renounce it. This is a species of estoppel — an estoppel by conduct — and it is, therefore, both a rule of evidence and a rule in equity. In evidence, both the acceptance and repudiation must be shown to be clear and unequivocal. There cannot be slightest shred of doubt about either. The benefit must also be shown to be one such that but for the document the recipient would not have received it. Once this is established, as a matter of equity, the person receiving the benefit (one only available under the document and not otherwise) cannot repudiate or renounce the document itself. This stands to reason. Crucial to this is the establishing in evidence that the benefit is such that but for the document, the person taking under the document would not have received it at all, or, at any rate, would have received much less. Once it is shown that the benefit is not of this type, viz., that the person receiving it would have done so anyway even without the document, or would have received a much larger amount without the document, then no question of approbation and reprobation can be said to arise. Consider three examples:
(a)A testator’s niece, not otherwise in the line of succession, is bequeathed a large sum of money. On intestacy, she would receive nothing. She cannot both receive the legacy and impugn the document that makes the bequest.
(b)A testator’s daughter is entitled to 50% of her father’s estate on intestacy. She is bequeathed 25%. She can accept the 25% and yet maintain a challenge to her father’s Will.
(c)A testator’s daughter is entitled to 50% of her father’s estate on intestacy. She is bequeathed 90%. She cannot take the 90% and yet maintain a challenge to the Will (indeed, to do so would be self-defeating and illogical).”
62. The learned Singl Judge went on to further observe that, in any case for any of the above to be of consequence, the Will must be shown to be valid in the first place. If the Will is not proved, this issue is academic. The Will cannot be proved in its solemn form on account of some action or inaction on the part of the objectors who had received some benefit under the Will. It does not shut out the challenge from the other objectors who did not receive any benefit thereunder. In any event, it is no substitute for proving the due execution of the Will, removing all suspicious circumstances and establishing tesmentary capacity.
63. Mr. Chavan then urged that the sound and disposing state of mind of the Testator could not shown to be infirm or impaired. Nothing could be elicited in the cross-examination of Kusum (PW2) to impeach her evidence on this score. This submission is required to be stated to be repelled. This submission presupposes the reliability of the testimony of Kusum (PW2) for the purpose of due execution and attestation of the Will. Once the Court finds that Kusum’s (PW2) testimony is of no assistance to establish due execution and attestation of the Will, it may not be permissible to place reliance on the very same testimony of an infirm witness, to buttress the case of testamentary capacity of the Testator.
64. Mr. Chavan further submitted that the disinheritance of the daughters is required to be appreciated in the light of the then prevailing societal values. Since the daughters of the Testator were all married, the fact that they were excluded from the bequest does not by itself amount to a suspecious circumstance in the context of the time at which the Will (Exhibit “P4”) was executed, urged Mr. Chavan. This submission cannot be faulted at.
65. Reliance by Mr. Chavan on the decision of the Supreme Court in the case of Uma Devi Nambiar & Ors Vs T.C. Sidhan (Dead) (2004) 2 SCC 321 is well placed. The Supreme Court inter alia enunciated that a Will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. The fact that the natural heirs have either been excluded or a lesser share has been given to them, by itself, without anything more, cannot be held to be a suspicious circumstance, especially in a case where the bequest has been made in favour of an offspring.
66. The aforesaid pronouncement would have advanced the cause of the submission on behalf of the Plaintiffs had the Plaintiffs succeeded in establishing the due execution and attestation of the Will. The failure of the Plaintiffs to establish the said primary fact, renders the issue as to whether the disinheritance of the daughters constitutes such a suspicious circumstance as to cast onus on the propounder to dispel the same, superfluous.
67. The upshot of the abovesaid consideration is that the Plaintiffs have failed to prove that the Will (Exhibit “P4”) is the last Will and Testament of the Testator. Issue No. 1 is, therefore, requried to be answered in the negative.
68. Since the primary fact of due execution and attestation of the Will (Exhibit “P4”) has not been proved by the Plaintiffs, the Defendants were not required to discharge the onus to prove that the said Will (Exhibit “P4”) was fabricated by the Plaintiffs. Thus, Issue No2 does not survive for determination. Resultantly, the Suit deserves to be dismissed. 69. Hence the following order:
: O R D E R :
(i) The Suit stands dismissed.
(ii) In the circumstances, the parties shall bear their respective costs.
(iii) Decree be drawn accordingly.
