Madhusudan Mansukhlal Sanghavi vs Indira Vasant Shah
- Court
- Bombay High Court
2026:BHC-OS:12565
-TS58-2010.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 58 OF 2010
IN
TESTAMENTARY PETITION NO. 940 OF 2009
Madhusudan Mansukhlal Sanghavi
Hindu, aged 68 years, an Indian Inhabitant
of Mumbai, Occupation: Business and
th
residing at Jupiter Apartments, 4 Floor,
Annesty Road, Off. Altamount Road
(Carmicheal Road), Mumbai 400 026,
one of the surviving executors names in the ...Plaintiff/
last Will of the abovenamed deceased Petitioner
SANTOSH
SUBHASH
KULKARNI
Versus
Digitally signed by
SANTOSH SUBHASH
KULKARNI
Date: 2026.06.08
21:25:36 +0530
1. Mrs. Indira Vasant Shah
Hindu, Adult, Indian Inhabitant of Mumbai
residing at Edul – Aie Co-operative Housing
th
residing at Flat No.B/18, 5 floor, 232,
Khetwadi, Main Road, Mumbai 400 004
2. Maya Kiran Khandwala
4, Stone Leigh Drive, Scotch Plains, New Caveatrix/
Nersey, U.S.A. - 070706 …Defendant
Mr. Arif Bookwala, Senior Advocate, a/w Mr. A. S. Pal and Ms.
Sanjana Das, i/b Mehta and Padamsey, for the Plaintiff.
Mr. Sunip Sen, Senior Advocate, a/w Nishanth Chotani
Shubro Dey, i/b Sutapa Shah, for Defendant No.1.
Ms. Armin Wandrewala, a/w Manan Jaiswal and Ms.
Anushka Shetty and Ms. Tanaya Srivastava, i/b MLS
Vani and Associates for Defendant No.2.
CORAM: N. J. JAMADAR, J.
nd
RESERVED ON: 2 FEBRUARY, 2026
th
PRONOUNCED ON: 8 JUNE, 2026
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JUDGMENT:-
1. This is a suit for the grant of Probate in respect of the
purported Last Will and Testament of Mansukhlal Kapoorchand
Sanghavi (“the Testator”).
2. In a nutshell, the background facts leading to this suit
can be stated as follows:
2.1 Mansukhlal Kapoorchand Sanghavi, the testator, was an
inhabitant of Mumbai and was residing at the time of his death
at Block No. 3, Kalewar Building, Dady Seth Lane, Mumbai. The
testator was endowed with multiple immovable and movable
th
properties. The testator passed away on 17 January, 1982
leaving behind Mrs. Sushila Sanghavi, his widow, who also
th
passed away on 12 February, 1988, and two sons,
Madhusudan, the plaintiff, and Ashin Sanghavi, and three
daughters, Mrs. Indira Vasant Shah, Dr. Maya Kiran
Khandwala, and Mrs. Shobha Pankaj Nevatia.
2.2 The plaintiff asserts that the testator had left behind a
th
purported last Will and Testament executed on 5 January,
1980. Madhusudan, the plaintiff; Mrs. Sushila, since deceased
widow, and Mr. Ashin Sanghavi, were named as executors in the
th
said Will. Since Mrs. Sushila passed away on 12 February,
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1988 and Ashin is a Non-Resident Indian and has been staying
in the United States of America (USA) for more than twenty
years, Madhusudan professed to seek Probate of the purported
th
last Will of the testator dated 5 January, 1980 in the capacity
of one of the surviving executors.
2.3 The plaintiff avers that, in the period intervening the
execution of the purported last Will and the death of the
testator, the latter had transferred his tenancy rights in Block
No. 3, Kalewar Building in favour of late Sushila and had also
disposed of factory premises situated at 250-D, Dr. Annie
Besant Road, Udyog Bhavan, Worli, Mumbai and half block on
ground floor. Thus, the Probate is sought in respect of the
properties and credits described in Schedule-1 appended to the
petition.
2.4 Under the said purported Will, a four storey building
known as “Sanghavi Chambers”, situated at 27 Ghoga Street,
Fort, Bombay, was bequeathed to Sushila and Ashin, in equal
proportion. The factory premises situated at 250-D, Dr. Annie
Besant Road, Udyog Bhavan, Worli, and the half-block in
ground floor was directed to be sold and the sale proceeds were
to be divided into ten equal parts, as far as practicable, and
given to ten Trusts of which the widow and named children and
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grandchildren were to be the beneficiaries. Lastly, the residuary
estate was to be divided in four equal parts and as far as
possible, each equal part was to be given to the trustees of the
four Trusts namely; Sushila Shobha Benefit Trust, Sushila Maya
Benefit Trust and Ashin Shobha Benefit Trust and Ashin Maya
Benefit Trust. The tenancy rights in Block No. 3 of Kalewar
Building were bequeathed to Sushila, the widow, exclusively.
2.5 In the petition an endevour was made to explain the delay
in filing the petition for the grant of Probate by ascribing the
reasons that, in the intervening, there were few meetings
between the family members in regard to the distribution of the
assets of the deceased. However, no decision could be taken
therein. And the plaintiff was also informed that there was no
necessity to obtain Probate in respect of the purported last Will
of the testator.
2.6 In the affidavits filed in support of the petition, it was
th
affirmed that on 5 January, 1980 the testator had called the
plaintiff and Hashu Vazirani, another attesting witness, at his
residence at Kalewar Building. The testator had set and
subscribed his name at the foot of the testamentary paper in
the English language and character and, at the request of the
testator and in his presence and in the presence of each other,
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the plaintiff and Hashu Vazirani, the attesting witnesses, had
set and subscribed their respective names and signatures at the
foot of the testamentary paper. The signatures and date on the
purported Will were in the handwriting of the testator. The
latter was also in a sound and disposing state of mind, memory
and understanding and had published the Will of his free will
and pleasure.
3. Mrs. Indira Vasant Shah and Dr. Maya Kiran Khandwala,
the daughters of the testator, have filed caveats opposing the
grant. The substance of the resistance put-forth in the affidavits
in support of the caveats may be summarised as follows:
(a) First and foremost, there was huge, inordinate and
unexplained delay of over twenty-seven years in filing the
petition for the grant of Probate and that itself disentitled the
plaintiff from seeking the Probate. The explanation sought to be
offered for the delay is vague and bald.
(b) The petition for the grant of Probate has been
instituted only after Dr. Maya Khandwala instituted a suit, inter
alia, for partition of the properties left behind by the testator
and Sushila, the widow of the deceased, with an oblique motive
to usurp and retain all the assets left behind by the testator.
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(c) The purported Will does not bear the signature of the
testator. The purported Will is not the Will of the testator. It has
not been duly executed by the testator: Nor has the Will been
lawfully attested by the alleged attesting witnesses.
(d) The intrinsic evidence of the purported Will indicates
that it is not a genuine testamentary instrument.
(e) The Will is surrounded by a multitude of suspicious
circumstances, including the leading role played by the
plaintiff, who claims to be both an attesting witness and the
executor.
(f) The dispositions under the Will are ex facie
unnatural and erode the sanctity and genuineness of the
purported testamentary disposition.
4. In the light of the aforesaid averments in the petition and
the resistance thereto, the issues were settled. I have
reproduced the issues with my findings against each of them for
the reasons to follow:
Issues Findings
1. Whether the last Will and Testament of
In the negative.
Mansukhlal Kapoorchand Sanghavi
th
dated 5 January, 1980 was validly
executed?
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In the affirmative
to the extent of
suspicious
circumstances.
2.
Whether the Will and Testament of
Mansukhlal Kapoorchand Sanghavi
th
dated 5 January, 1980 is unnatural
and surrounded by suspicious
circumstances?
3. What relief, if any, is the plaintiff
The suit stands
dismissed.
entitled to?
Reasons:
5. At the outset, it may be appropriate to note few
uncontroverted facts. The relationship between the parties is
not much in dispute. The fact that the testator had left behind
Sushila, the widow, and two sons, Madhusudan (PW1) and
Ashin, and three daughters, namely; Mrs. Indira Vasant Shah
(D1), Dr. Maya Kiran Khandwala (D2), and Mrs. Shobha Pankaj
Nevatia, is not in controversy. The factum of death of the
th
testator on 17 January, 1982, is not in dispute; nor the fact
th
that Sushila, the widow of the testator, passed away on 20
February, 1988 is put in contest.
6. By and large, there is not much controversy over the fact
that Hashu Vazirani, the attesting witness to the Will also
th
passed away on 28 October, 2009, as is evidenced by the death
certificate (Exhibit-P1/5). Incidentally, the petition was
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th
instituted on 28 October, 2009 itself. Two of the properties
which were allegedy bequeathed under the purported Will
(Exhibit-P1/2) were professedly disposed by the testator during
his lifetime. The fact that a period of more than 27 years has
elapsed in filing the petition from the date of death of the
testator is indisputable. Indeed, the parties are at issue over the
consequences that entail the delay and the justifiability of the
explanation for the same.
Evidence:
7. Madhusudan, the petitioner, entered the witness box in
order to substantiate the averments in the plaint. A number of
documents were also tendered in support of the plaintiff’s claim.
Defendant Nos.1 and 2 have not adduced oral evidence in the
rebuttal, though documents have been tendered for the perusal
of the Court.
8. Madhusudan (PW1), consistent with the assertions in the
th
petition, deposed that on 5 January, 1980 he was present at
the house of the testator at Kalewar Building, along with Hashu
H. Vazirani. The testator had set and subscribed his name at
the foot of the purported Will (Exhibit-P1/2), and declared and
published the same as his last Will and Testament. At the
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request of the testator and, in his presence, he and Mr. Hashu
H. Vazirani, in the presence of each other, had set and
subscribed their respective names and signatures at the foot of
the said purported Will (Exhibit-P1/2) as witnesses thereto. The
signature “M. K. Sanghavi” and the date “5.1.1980” are in the
handwriting of the testator, and the signatures and addresses of
H. H. Vazirani and Madhusudan Sanghavi, alongwith the date
5.1.1980, are in the handwriting of the respective attesting
witness. Madusudan (PW1) affirmed that, at the time of the
execution of the Will, the deceased was in a sound and
disposing state of mind, memory and understanding, and made
and published the purported Will (Exhibit-P1/2) of his free will
and pleasure.
9. Madhusudan (PW1) was subjected to extensive cross-
examination on behalf of Defendant No. 1 and Defendant No. 2.
A reference to the relevant part would be made at an
appropriate stage during the course of this judgment.
10. In the light of the pleadings and evidence on record, I have
heard Mr. Arif Bookwala, the learned Senior Advocate for the
plaintiff, Mr. Sunip Sen, the learned Senior Advocate for
Defendant No. 1, and Ms. Armin Wandrewala, the learned
Counsel for Defendant No. 2, at length. It may be apposite to
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note the broad submissions canvassed on behalf of the parties
and thereafter appreciate the evidence and material on record in
the light of those submissions.
11. Mr. Bookwala submitted that the material on record
would indicate that there was no challenge to the due execution
and attestation of the Will (PW1/2). On the one hand, the
testimony of Madhusudan (PW1), on the aspect of execution and
attestation of the Will, went untraversed. On the other hand,
the manner in which Madhusudan (PW1) was confronted in the
cross-examination and the answers elicited therein fortified the
case of the plaintiff as to due execution and attestation of the
Will.
12. Mr. Bookwala would further urge the unimpeached
evidence of Madhusudan (PW1) is required to be appreciated in
the backdrop of the fact that the defendants chose not to enter
the witness box to substantiate the myriad defences sought to
be raised in the affidavits in support of the caveat filed by
defendants Nos. 1 and 2, which are almost identical. The failure
to put the case during the course of cross-examination and
adduce evidence in the rebuttal, according to Mr. Bookwala,
renders the resistance put-forth by the defendants unworthy of
consideration. To buttress these submissions, Mr. Bookwala
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placed reliance on the decisions of the Supreme Court in the
1
cases of Muddasani Venkata Narsaiah v. Muddasani Sarojana ,
Ishwar Bhai C. Patel alias Bachu Bhai Patel v. Harihar Behera
2 3
and Another , Vidyadhar v. Manikrao and another and a
Division Bench judgment of this Court in the case of S. Dave
4
and Company and others v. Tata Chemicals Limited .
13. Mr. Bookwala made a strenuous effort to drive home the
point that the bogie of delay in filing the petition for grant of
Probate sought to be raised by defendant Nos.1 and 2, if
appreciated from a correct legal perspective, falls through. It
was urged that the duty to apply for the Probate arises only
when the necessity to seek Probate arises. In the absence of
such necessity, there was no occasion for the plaintiff to seek
Probate. Thus, resistance to grant of Probate on the ground of
the alleged delay was wholly misconceived. Mr. Bookwala
submitted that, the executors were not required to seek the
Probate as the Will was in fact acted upon. It was only when Dr.
Maya instituted the suit for partition, the necessity to seek
Probate arose. Thus, the filing of the petition under a fortnight
1 (2016) 12 SCC 288.
2 (1999) 3 SCC 457.
3 (1999) 3 SCC 573.
4 2013 SCC OnLine Bom 157.
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of the institution of the said suit clearly negates the objection
premised on the bar of limitation.
14. In order to lend support to the aforesaid submission, Mr.
Bookwala placed very strong reliance on a judgment of the
Supreme Court in the case of Swarnalatha and others vs.
5
Kalavathy and others , wherein the Supreme Court did not
approve the view of the High Court in the facts of the said case
that, the delay on the part of the appellant in seeking Probate of
the Will constituted a suspicious circumstance. It was further
observed that the occasion for the appellant therein to seek
Probate of the Will arose only when the respondent therein filed
the suit for partition.
15. On the aspect of the intrinsic evidence of the Will (Exhibit-
P1/2), in the light of the contentions on behalf of the defendants
that two different instruments were stitched together to
propound the purported Will and that the Will (Exhibit-P1/2) is
riddled with inconsistency and incongruities, Mr. Bookwala
would urge that the probate Court is tasked with a solemn duty
to ascertain the real intent of the testator from the purported
testamentary instrument. There can be no particular form of a
testamentary writing. Therefore, a duly proved testamentary
5 2022 SCC OnLine SC 381.
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instrument cannot be thrown overboard on account of
inarticulate drafting.
16. Mr. Bookwala invited the attention of the Court to the
provisions contained in Sections 85 and 87 of the Indian
Succession Act which read as under:
“85. No part rejected, if can be it reasonably construed. -No
part of a will shall be rejected as destitute of meaning if it is
possible to put a reasonable construction upon it.
….
87. Testator's intention to be effectuated as far as possible.-
The intention of the testator shall not be set aside because
it cannot take effect to the full extent, but effect is to be
given to it as far as possible.”
17. Reliance was also placed on a number of judgments to
bolster up the submission that, de hors the inarticulate text of
the Will, the intention of the testator must be ascertained.
18. Once the Court, upon ascertainment of the real intention
of the testator, comes to the conclusion that the Will has been
duly executed and attested and the testator was alive to the
nature and extent of the disposition thereunder and the
propounder has satisfactorily accounted for the purported
suspicious circumstances, the Will cannot be discarded on the
fashioned notion that it is not in a particular form. In the case
at hand, Mr. Bookwala would urge, the intent of the testator
becomes clear and explicit from the contents of the Will. Nay the
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Will has been acted upon and, there are no suspicious
circumstances to put the Court on guard. Thus, the Probate
cannot be denied.
19. To buttress the aforesaid submissions, Mr. Bookwala
placed reliance on the judgments in the cases of Kavita Kanwar
6
v. Pamela Mehta , Shashi Kumar Banerjee and others v. Subodh
7
Kumar Banerjee (deceased through LRs) and others , Shyamal
8
Kanti Guha (Dead) & Ors. v. Meena Bose , Siddamurthy
9
Jayarami Reddy by LRs. v. Godi Jayarami Reddy , Uma Devi
10
Nambiar and others v. T.C. Sidhan , and the celebrated
judgment in H. Venkatachala Iyengar v. B.N. Thimmajamma &
11
Others .
20. Lastly, Mr. Bookwala would urge, the objection to the
genuineness of the Will on the ground that the disposition
thereunder is unnatural is based on an incorrect impression of
the purpose of the testamentary disposition. It was submitted
that the Will is executed to alter the normal mode of succession
and, thus, the fact that one of the heirs is excluded or the
bequests are unequal in nature cannot by itself be a suspicious
6 AIR 2020 SC 2614.
7 AIR 1964 SC 529.
8
(2008) 8 SCC 115.
9 (2011) 5 SCC 65.
10 (
2004) 2 SCC 321.
11 AIR 1959 SC 443.
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circumstance. The decision of the Supreme Court in the case of
12
Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande , was
pressed into service to lend support to the aforesaid
submissions.
21. Per contra, Mr. Sunip Sen, the learned Senior Advocate
for defendant No.1, submitted that the evidence is required to be
appreciated keeping in view the fact that the testamentary
Court is a Court of a conscience. In the instant case, Mr. Sen
would urge, it becomes abundantly clear that Madhusudan
(PW1) has resorted to disingenuous methods to usurp the assets
left behind by the testator. It was submitted that, Madhusudan
(PW1) usurped the estate of the testator by deliberately choosing
not to institute a petition for the grant of Probate. A reference
was made to a number of circumstances which, according to Mr.
Sen, indicate that the petitioner has unjustly enriched himself
by converting the properties left behind by the testator to his
own use, in a dubious manner. The various objections raised
on behalf of the defendants deserve to be considered in the light
of the aforesaid modus operandi of the Madhusudan (PW1),
submitted Mr. Sen.
12 (2003) 8 SCC 537.
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22. Mr. Sen would submit that a bare perusal of the Will
(Exhibit-P1/2) unmistakably indicates that the purported Will
(Exhibit-P1/2) does not qualify as a testamentary instrument. It
needs no elaborate examination to arrive at an inescapable
inference that two different instruments were stitched together
to propound the purported Will. The first part is a draft of a
Will. It is not signed. Nor it is executed as a testamentary
instrument. The second part is a purported schedule appended
to the first. There is no reference to such a schedule in the draft
of the unexecuted Will. The stipulations in the two instruments
are ex facie irreconcilable. The intrinsic evidence of the two
instruments would indicate that both are distinct with
independent page numbers and purport. Even, the purported
Will (Exhibit-P1/2) contains gross errors and omissions which
dent the claim of the plaintiff that it was executed by the
testator. For instance, the testator has been referred to as the
testatrix and the purported instrument is stated to be “her” last
Will. Thus, Mr. Sen would urge the very fact that the purported
Will (Exhibit-P1/2) is a testamentary instrument has not been
duly proved.
23. Mr. Sen was extremely critical of the delay in filing the
petition for grant of Probate. There is no evidence to
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substantiate the explanation offered for the delay. Conversely,
there is no pleading to support the evidence sought to be
adduced to account for the delay. Even otherwise, the delay is
so inordinate that no amount of explanation can satisfactorily
account for the same. On the contrary, Mr. Sen would urge
that, the material on record would indicate that Madhusudan
(PW1) was fully cognizant of the necessity of the Probate and,
yet, for decades, the Probate was not sought.
24. The fact that Hashu Vazirani passed away on the very day
the petition was filed was critically commented upon by both Mr.
Sen and Ms. Wandrewala. Emphasis was laid on the fact that
the affidavit purportedly sworn by Mr. H. H. Vazirani was
affirmed in the year 1995 and was professed to be filed in a
testamentary petition, in the year 1995. Madhusudan (PW1)
fabricated the said affidavit and tendered the same along with
the instant petition. This conduct singularly disentitles the
petitioner from the grant of Probate. It was submitted that there
is no explanation regarding the delay in filing the petition since
the date the affidavit was affirmed by the purported attesting
witness in the year 1995.
25. Refuting the submission of Mr. Bookwala that the cause of
action to file a Probate petition accrues only when necessity
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arises, Mr. Sen would urge that the huge delay is sought to be
accounted for in an over-simplistic manner. It was urged that it
was incumbent upon the plaintiff to explain the inordinate delay
and the failure of the plaintiff to do so entails the consequence
of dismissal of the suit. Reliance was placed on a Division
Bench judgment of this Court in Satish Chandulal Shah v.
13
Vikram Chandulal Shah , wherein it was enunciated that any
delay beyond three years after the testator's death could arouse
suspicion, and the greater the delay the greater would be the
suspicion in regard to the authenticity of the Will.
26. Mr. Sen would urge, in the facts of the case, the
defendants were not required to adduce evidence as the plaintiff
miserably failed to prove the very fact that the purported Will is
a testamentary instrument and dispel the suspicious
circumstances. Since the plaintiff failed to discharge the initial
onus, the fact that the defendants did not adduce evidence in
the rebuttal becomes inconsequential. In order to lend support
to this submission Mr. Sen placed reliance on a judgment of the
Supreme Court in the case of Meena Pradhan and others v.
14
Kamla Pradhan and another .
13
2014 SCC OnLine Bom 925.
14 (2023) 9 SCC 734.
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27. Mr. Bookwala joined the issue by canvassing the
submissions in rejoinder that the evidence on record firmly
establishes that the Will was read over in the presence of the
family members of the testator, the Will was acted upon and
that negotiations were underway as late as the year 2005. In
these circumstances, the aspect of delay looses significance. Mr.
Bookwala reiterated that the evidence of Madhusudan (PW1) on
the aspect of execution and attestation of Will has gone
completely unassailed. Moreover, since Madhusudan (PW1) is
not a beneficiary under the Will, the motive attributed to him
does not detract materially from the proof of the Will as the last
Will and Testament of the testator.
28. Before appreciating the rival submissions canvassed
across the bar, in the light of the evidence and material on
record, it would be advantageous to keep in view the principles
which govern this branch of the law of testamentary succession.
29. 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
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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. 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.
30. 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. In the case of Ved Mitra Verma
15
v. Dharam Deo Verma , the Supreme Court has laid emphasis
on the element of satisfaction of the conscience of the Court.
31. By a catena of decisions including the judgments on which
reliance was placed by Mr. Bookwala, the nature and standard
15 (2014) 15 SCC 578.
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of evidence required to prove the Will has been delineated. In
16
the case of Jaswant Kaur v. Amrit Kaur and Ors. , a three
Judge Bench of the Supreme Court has crystallized 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 (supra). 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
16 (1977) 1 SCC 369.
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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.”
32. In the case of Sridevi and Ors. v. Jayaraja Shetty and
17
Ors. , 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.”
17 (2005) 2 SCC 784.
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33. It would be contextually relevant to note that, in the case
18
of Daulat Ram and Ors. V/s. Sodha and Ors. , it was
enunciated that the propounder has to show that the Will was
signed by the testator and that he had put his signature to the
testament of his own free will; that he was at the relevant time
in a sound and 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.
34. In the case of Meena Pradhan (supra), on which reliance
was placed by Mr. Sen, the Supreme Court culled out the
principles which emerge from the authoritative judicial
precedents, including the celebrated judgment in H.
Venkatachala Iyengar (supra). In the context of the controversy
18 (2005) 1 SCC 40.
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at hand, the proposition Nos. 10.8 to 10.11 are material and,
hence, extracted below:
“10.8 Whenever there exists any suspicion as to the
execution of the Will, it is the responsibility of the
propounder to remove all legitimate suspicions before it can
be accepted as the testator's last Will. In such cases, the
initial onus on the propounder becomes heavier.
10.9 The test of judicial conscience has been evolved for
dealing with those cases where the execution of the Will is
surrounded by suspicious circumstances. It requires to
consider factors such as awareness of the testator as to the
content as well as the consequences, nature and effect of the
dispositions in the Will; sound, certain and disposing state
of mind and memory of the testator at the time of execution;
testator executed the Will while acting on his own free Will;
10.10 One who alleges fraud, fabrication, undue influence
et cetera has to prove the same. However, even in the
absence of such allegations, if there are circumstances
giving rise to doubt, then it becomes the duty of the
propounder to dispel such suspicious circumstances by
giving a cogent and convincing explanation.
10.11 Suspicious circumstances must be ‘real, germane and
valid’ and not merely ‘the fantasy of the doubting mind’ 1.
Whether a particular feature would qualify as ‘suspicious’
would depend on the facts and circumstances of each case.
Any circumstance raising suspicion legitimate in nature
would qualify as a suspicious circumstance for example, 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, etc.”
35. In the light of the aforesaid position in law, issues Nos. 1
and 2 are required to be determined by a common reasoning as
the evidence appears to overlap and it may not be possible to
determine the issues Nos. 1 and 2 in distinct watertight
compartments.
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Issue Nos.1 and 2:
36. Madhusudan (PW1) has put oath behind the statement
that the purported Will (Exhibit-P1/2) is the last Will and
Testament of the testator. Thus, the questions that warrant
adjudication are, whether the purported Will at Exhibit P1/2 is
indeed the Will of the testator and whether it was executed by
the testator as such? Had the testator known the nature of the
instrument? Did the testator put his signature to the purported
testamentary instrument of his own free will? Did the testator
understand the nature and effect of the dispositions therein?
37. For an answer, recourse to the intrinsic evidence of the
purported Will (Exhibit P1/2) is indispensable. The purported
Will (Exhibit P1/2) seems to comprise 14 pages. The first six
pages thereof are in the nature of a testament, and the rest are
th
in the form of the Schedule. On the 14 page, the purported
signatures of the executant and the witnesses appear.
38. A careful perusal of the purported Will (Exhibit-P1/2)
indicates that the elements of integrity of the instrument,
continuity of the stipulations and unity of the dispositive intent
are conspicuous by their absence. The first six pages of the
purported Will (Exhibit-P1/2) indeed contain the recitals which
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partake the character of testamentary dispositions. However,
the sixth page of the Will (Exhibit-P1/2) does not contain the
execution clause. Instead, on the sixth page, there is a writing
in the nature of a rider under the caption “insert”. It indicates
that the executant desired that Clause 5A be inserted in the Will
to bequeath the tenancy rights in Block No. 3, Kalewar Building,
in favour of Sushila exclusively. The said part of the purported
testamentary instrument stops at that. What follows is the
Schedule under the heading, “the Schedule above referred to”.
39. It would be contextually relevant to note that the body of
the purported Will in its first six pages contains the schedule of
immovable property (page 2) wherein the description of
“Sanghavi Chambers” has been furnished. Under the “Schedule”
which commences after the first six pages, an altogether
different instrument was purportedly brought into effect. One
gets an impression that a trust was professed to be settled and a
host of provisions were made for the administration of the trust,
including the duties and obligations of the trustees. The said
part appears to contain eight pages. Below the last clause,
which, inter alia, provides that the number of trustees shall not
be reduced below two or increased above five, the execution
clause appears.
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40. The aforesaid nature of the Will (Exhibit-P1/2) gives heft to
the submission on behalf of the defendants that two distinct
instruments were stitched together to propound the purported
Will, for reasons more than one. Firstly, the first part, in the
nature of a testamentary instrument, contains six pages which
are separately numbered. Whereas the second part, under the
caption, “the schedule of above referred to”, contains eight pages
which are again separately and not serially arranged. Secondly,
despite an intensive effort one does not find any corelation
between the first part in the nature of testamentary dispositions
and the second part which purports to settle a trust. Thirdly,
the second part does not form part of the testamentary
dispositions. The executant and the purported attesting
witnesses appear to have signed the Will (Exhibit-P1/2) below
the stipulations settling the trust. Fourthly, the signature of the
testator and the attesting witnesses do not appear on any of the
pages of the Will (Exhibit-P1/2) except the last page. Fifthly, if
the instrument was to be treated as the last Will and Testament
of the testator, then it would not have contained a direction to
insert a particular bequest as paragraph 5A. That betrays an
intention to treat the first part of the purported Will (Exhibit-
P1/2) as a draft Will. Sixthly, even the execution on the last
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page of the Will (Exhibit-P1/2) is not free from infirmities. The
testator purportedly signed the Will against the endorsement,
“signed and acknowledged by the above-named Testatrix as her
last Will and Testament in the presence of all being present at
the same time who at her request and her presence and in the
presence of each other have hereunto subscribed our names as
Witness.”
41. An endeavour on the part of the plaintiff to wriggle out of
the situation by asserting that the said endorsement in regard
to the gender of the executant is an inadvertent mistake, does
not merit countenance. It is not the case that the gender of the
executant is incorrectly mentioned at one place. Apart from
explicitly using the term “testatrix”, a feminine gender has been
used thrice in the said endorsement. Even two attesting
witnesses purportedly signed under the caption, “in my
presence”. Cumulatively, the execution and attestation of the
purported Will is not free from infirmities.
42. The aforesaid being the nature of the intrinsic evidence of
the purported Will (Exhibit-P1/2), it cannot be said with an
element of certainty that the testator had executed the
purported Will (Exhibit-P1/2) clearly cognizant of the fact that
what was being executed was the last Will and Testament. The
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evidence on record does not provide an answer to the legitimate
question as to what was the nature of the instrument which the
testator purportedly executed. In this view of the matter, the
reference to the manner in which Madhusudan (PW-1) fared in
the cross-examination on the aspect of the execution and
attestation of the Will and the absence of material to
demonstrate that the Will (Exhibit-P1/2) does not bear the
signature of the testator, does not salvage the position. To put it
in other words, the very fact that the purported Will (Exhibit-
P1/2) was executed by the testator as his last Will and
Testament cannot be said to have been firmly established.
43. Mr. Bookwala submitted that with tenacity that the Court
would be required to ascertain the real intent of the testator.
The mere fact that, there is some inconsistency in the various
clauses of the Will cannot by itself be a ground to jettison away
the instrument. The Probate Court ought to put itself in the
testator's armchair to ascertain the intent of the testator.
44. In the case of Shyamal Kanti Guha (supra), the Supreme
Court enunciated that the Court should construe the Will by
placing itself on the armchair of the testator. The endeavour of
the Court should be to give effect to his intention. The intention
of the testator can be culled out not only upon reading the Will
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in its entirety, but also upon consideration of the background
facts and circumstances.
45. In Siddamurthy Reddy (supra) the Supreme Court
reiterated that the Court must put itself, as far as possible, in
the position of the person making the Will in order to collect the
testator’s intention from his expressions; because upon that
consideration must very much depend the effect to be given to
the testator’s intention, when ascertained. The Will must be
read and construed as a whole to gather the intention of the
testator and the endeavour of the Court must be to give effect to
each and every disposition.
46. In the case of Uma Devi Nambiar (supra), while expositing
the principles in regard to the construction of the Will, the
Supreme Court enunciated as under:
“13. What is the intention of the testator has to be found
out on a reading of the Will and there cannot be any hard
and fast rule of uniform application to find out as to
whether the grant was absolute or it was subject to any
condition or stipulation. The true intention of the testator
has to be gathered not only by attaching importance to
isolated expressions but by reading the Will as a whole with
all the provisions and ignoring none of them as redundant
or contradictory. As observed in Navneet Lal v. Gokul ((1976)
1 SCC 630) , although there is no binding rule that the
Court should avoid intestacy at any cost, yet the Court
would be justified in preferring that construction of the Will
which avoids intestacy. Where the words are ambiguous
attempt should be made to avoid that construction which
leads to intestacy.”
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47. There can be no quarrel with the aforesaid propositions.
However, in the considered view of this Court, the case at hand
does not present the problem of proper construction of the
contents of the Will. In the case at hand, the very character of
the Will (Exhibit-P1/2) as a testamentary instrument is in
question. For the reasons adverted to above, this Court is
unable to persuade itself to construe the Will (Exhibit-P1/2) as
a testamentary instrument. The submission of Mr. Bookwala
that pages 1 to 6 of the Will (Exhibit-P1/2) constitute the
testamentary disposition and the latter part provides machinery
for the execution and discharge of the trust, is simply not borne
out by the intrinsic evidence of the Will (Exhibit-P1/2). In the
considered view of this Court, it does not appear that the Will
(Exhibit-P1/2) was executed by the testator as his last Will and
Testament being conscious of the nature of the instrument and
the nature and extent of the dispositions thereunder.
48. A useful reference, in this context, can be made to the
decision of the Supreme Court in the case of Shivakumar and
19
ors. vs. Sharanabasappa and ors. , wherein the Supreme Court
after traversing through the relevant decisions summarized the
19 (2021) 11 SCC 277.
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principles. The propositions enunciated in paragraph Nos.12.5
to 12.9 are instructive. 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)
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In the case at hand, in the backdrop of the nature of the
49.
purported testamentary instrument , which appears to be shrouded
in mystery, the judicial conscience of this Court that the
testator had signed the purported Will (Exhibit-P1/2) being
aware of its contents and after understanding the nature and
effect of the dispositions made thereunder, is not satisfied.
50. In view of the aforesaid findings, the further journey to
appreciate the other points urged on behalf of the parties may not be
strictly warranted.
At the same time, it is trite law that even if
the due execution and attestation of the Will are established,
that does not foreclose the enquiry in a proceeding for the grant
of Probate. 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 imprimatur.
51. In the case of Lilian Coelho And Ors Vs Myra Philomena
20
Coalho , 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,
20 (2025) 2 SCC 633.
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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.
52. In the facts of the case at hand, two circumstances stare
in the face. One, the aspect of delay. Two, the filing of the
petition for grant of Probate by making use of an affidavit of the
attesting witness Hashu Vazirani, which was purportedly
th
affirmed on 10 January, 1995.
53. The element of delay in propounding the Will (Exhibit-
P1/2) and seeking its Probate assumes critical salience.
Evidently, the Will was propounded after 27 years of the death
of the testator.
54. I am conscious of 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. An
application for the grant of Probate merely seeks recognition
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from the Court to discharge the duty. The right to apply for
Probate or Letters of Administration is thus in the nature of a
continuing right.
55. Nonetheless, the aspect of delay cannot be said to be
wholly inconsequential. The broad submission on behalf of the
plaintiff that the period of limitation did not begin to run as
there was no necessity to obtain Probate cannot be acceded to
unreservedly. In the strict sense, the submission that there is
no provision under the Limitation Act, 1963 which governs an
application for grant of Probate, is not acceptable as an absolute
proposition in law. It is one thing to say that the right to apply
for grant of Probate or Letters of Administration is a continuing
right. However, it is a completely different thsing to take a
position that the Limitation Act, 1963 does not govern an
application for grant of Probate or Letters of Administration at
all.
56. 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 that Article 137 of
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the Limitation Act governs a proceeding for grant of Probate or
Letters of Administration also.
57. In the case of Kunvarjeet Singh Khandpur v. Kirandeep
21
Kaur & Ors, the Supreme Court, considered the question as to
whether Article 137 of the Limitation Act applies to a proceeding
for the 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.
58. It would be contextually relevant to note that in the
aforesaid decision, the Supreme Court referred to the judgment
of this Court in the case of Vasudev Daulatram Sadarangani v.
22
Sajni Prem Lalwani . The Supreme Court enunciated the law
as under:
13] Article 137 of the Limitation Act reads as follows:
____________________________________________________________
Description of suit Period of limitation Time from
which period
begins to run
____________________________________________________________
137. Any other application Three Years When the right
for which no period of to apply accrues
is limitation provided
the elsewhere in Division.
____________________________________________________________
21 (2008) 8 SCC 463.
.
22 1983 Bombay 268
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The crucial expression in the petition (sic Article) is
"right to apply". In view of what has been stated by this
Court, Article 137 is clearly applicable to the petition for grant
of Letters of Administration. As rightly observed by the High
Court in such proceedings the application merely seeks
recognition from the Court to perform a duty because of the
nature of the proceedings it is a continuing right. The
Division Bench of the Delhi High Court referred to several
decisions. One of them was S. Krishnaswami v. E. Ramiah. In
para 17 of the said judgment it was noted as follows: (AIR p.
222).
"17. In a proceeding, or in other words, in an
application filed for grant of probate or letters of
administration, no right is asserted or claimed by the
applicant. The applicant only seeks recognition of the Court
to perform a duty. Probate or letter of Administration issued
by a competent Court is conclusive proof of the legal
character throughout the world. An assessment of the
relevant provisions of the Indian Succession Act, 1925 does
not convey a meaning that by the Proceedings filed for grant
of probate or letters of administration, no rights of the
applicant are settled or secured in the legal sense. The author
of the testament has cast the duty with regard to the
administration of his estate, and the applicant for probate or
letters of administration only seeks the permission of the
Court to perform that duty. There is only a seeking of
recognition from the Court to perform the duty. That duty is
only moral and it is not legal. There is no law which compels
the applicant to file the proceedings for probate or letters of
administration. With a view to discharge the moral duty, the
applicant seeks recognition from the Court to perform the
duty. It will be legitimate to conclude that the proceedings
filed for grant of probate or letters of administration is not an
action in law. Hence, it is very difficult to and it will not be in
order to construe the proceedings for grant of probate or
letters of administration as applications coming within the
meaning of an 'application' under Art. 137 of the Limitation
Act, 1963.
14] Though the nature of the petition has been rightly
described by the High Court, it was not correct in observing
that the application for grant of probate or letters of
Administration is not covered by Article 137 of the Limitation
Act. Same is not correct in view of what has been stated in
Kerala SEB case.
15] Similarly reference was made to a decision of the Bombay
High Court's case in Vasudev Daulatram Sadarangani v Sajni
Prem Lalwani, AIR 1983 Bom.268 . Para 16 reads as follows :
(AIR p. 270).
"16. Rejecting Mr. Dalapatrai's contention, I summarise my
conclusions thus:-
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(a) under the Limitation Act no period is advisedly prescribed
within which an application for probate, letters of
administration or succession certificate must be made;
(b) the assumption that under Article 137 the right to apply
necessarily accrues on the date of the death of the deceased,
is unwarranted;
(c) such an application is for the Court's permission to
perform a 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;
(d) the right to apply would accrue when it becomes
necessary to apply which may not necessarily be within 3
years form the date of he deceased's death.
(e) delay beyond 3 years after the deceased's death would
arouse suspicion and greater the delay, greater would be the
suspicion;
(f) such delay must be explained, but cannot be equated with
the absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion of
delay no longer operates".
Conclusion (b) is not correct while the Conclusion (c) is
the correct position of law.
(emphasis supplied)
59. Referring to a judgment of this Court in the case of
Vasudev Daulatram Sadarangani (supra), the Supreme Court
held that the enunciation by this Court that, the assumption
that under Article 137 the right to apply necessarily accrues 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 a legal duty created by a Will or for
recognition as a testamentary trustee and is a continuous right,
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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.
60. The aforesaid pronouncement was followed by the
Supreme Court in the case of Ramesh Nivrutti Bhagwat v. Dr
23
Surendra Manohar Parakhe . 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, it is
necessary to note 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.
61. Rule 382 of the Bombay High Court (Original Side) Rules,
1980 provides as under:
“382 Delay in application:
In any case where an application for Probate or letters
of administration or succession certificate is made for the first
time after the lapse of three years from the death of the
deceased, the reason for the delay shall be explained in the
petition. Should the explanation be unsatisfactory, the
Prothonotary and Senior Master may require such further
proof of the alleged caused of delay as he may deem fit.”
23 (2020) 17 SCC 284.
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62. In the case of Satish Chandulal Shah (supra) a Division
Bench of this Court after adverting to the judgment in the case
of Vasudeo Daulatram Sadarangani (supra) observed that in the
said case this Court has ruled that the right to apply for Probate
may not necessarily accrue within three years from the date of
the death of the testator, (which was not completely approved by
the Supreme Court in the case of Kunvarjeet Singh Khandpur
(supra)) but when the petition seeking Probate is instituted after
three years from the date of death of the testator, the reasons
for delay shall have to be explained in the petition. Any delay
beyond three years after the testator’s death would arouse
suspicion and greater the delay greater would be the suspicion
regarding the authenticity of the Will.
63. In the context of the aforesaid legal position and the
requirement of Rule 382, it has to be seen whether the Plaintiff
has offered any satisfactory explanation. In paragraph 12 of the
petition, two reasons were sought to be ascribed. First, meetings
were held for family settlement. Second, the petitioner was
apprised that there was no necessity to obtain Probate regarding
the last Will of the deceased. Later on the petitioner was advised
to obtain Probate.
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64. On first principles, the period of 27 years cannot be
construed to be too small not to present a cause of action for the
executors to apply for Probate. Secondly, the reasons ascribed
for the delay, even if taken at their face value, appear to be too
general and bald. Thirdly, it is imperative to note that in the
evidence adduced by the Plaintiff, there is no whisper about the
circumstances on account of which there was delay in seeking
the Probate. To put it in other words, there is no evidence to
substantiate the explanation sought to be offered for the delay
in the petition. In contrast, during the course of cross-
examination, when the petitioner was confronted with the
aspect of delay, an endeavour was made to put the blame at the
door of the co-executor. To a pointed question (question No.206)
as to why the Plaintiff did not take any steps to obtain the
Probate of the purported Will after the demise of the testator,
Madhusudan (PW-1) replied that the other executors, namely
Sushila, his mother, and Anish, his brother, were handling the
matter. When asked whether any grievance was made with the
co-executors in regard to their inaction (question No.307),
Madhusudan (PW-1) replied that verbal grievances were made.
When further probed as to the inaction after the death of
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Sushila, Madhusudan (PW-1) replied that Anish was handling
the matter, (question No. 308).
65. It is imperative to note that there is no foundation in the
pleadings for the aforesaid explanation sought to be offered
during the course of cross-examination. On the contrary, it was
asserted in the petition that Anish is a non-resident Indian and
had been residing in the USA since more than 20 years.
Therefore, the gratuitous explanations for not filing the petition
for grant of Probate are unworthy of credence.
66. The claim of Madhusudan (PW1) that he was informed
that Probate was not required was also shown to be not correct
to the knowledge of Madhusudan (PW1). When confronted with
the question as to who informed him that the distribution under
the Will could take place only after Probate was granted,
Madhusudan (PW1) candidly conceded that he was aware of the
said legal position. If that was the case, the explanation that he
was informed that Probate was not necessary, or for that matter
the necessity for obtaining the Probate did not arise, cannot be
countenanced.
67. What exacerbates the situation is the delay in filing the
petition after initiating steps to file the same in the year 1995.
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Ms. Wandrewala was justified in canvassing a submission that
the filing of the petition on the day Hashu Vazirani passed away
cannot be said to be a matter of sheer coincidence. The affidavit
th
of Hashu Vazirani clearly reveals that it was affirmed on 10
February, 1995 and steps were taken to file the petition through
M/s Govardandas and Fouzdar, Advocates, in the year 1995. In
the said affidavit the year of the petition was typed “1995”. It
appears that while filing the instant petition the figure “1995”
was scored off and “2009” mentioned. I am afraid, the affidavit
th
which was dully affirmed on 10 February, 1995 could have
th
been so corrected on 28 October, 2009; the day the deponent
thereof passed away.
68. No amount of explanation can hardly account for the delay
of over 14 years in filing the probate petition. The fact that the
steps were taken in the year 1995 to file the Probate petition
implies that the Plaintiff had then reckoned the necessity of the
probate. In the aforesaid view of the matter, in the peculiar
facts of the case, the delay of over 27 years in propounding the
Will and seeking the Probate, impairs the Plaintiff’s case.
69. The endeavour of Mr. Bookwala to salvage the position by
asserting that there is evidence to indicate that the Will
(Exhibit-P1/2) was read in the presence of the family members
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cuts both ways. It implies that the Plaintiff was aware of the
existence of the Will and his appointment as the executor. On
account of the nature of explanation to account for the delay, in
the considered view of this Court, the delay in filing the Probate
petition, especially in the context of its institution under a
fortnight of the filing of a suit for partition, gives rise to a grave
suspicion about the genuineness of the Will and puts the Court
on guard.
70. Extensive submissions were canvassed on behalf of the
parties especially by Mr. Sen in regard to the manner in which
the Plaintiff has usurped the properties left behind by the
testator. The Court was taken through the documents which
evidence the creation of tenancies in respect of the premises in
Sanghavi Chambers and the transfer of the assets left behind by
the testator in the capacity of the owner thereof and not as an
executor. Conversely, an effort was made by Mr. Bookwala to
drag home the point that in relation to certain properties, the
Will was acted upon. In the context of the remit of the enquiry
in a Probate petition, this Court refrains from delving into all
these contentious issues.
71. Upon analysis of the evidence on record, the Court finds
that the purported Will (Exhibit-P1/2) does not partake the
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character of a testamentary instrument’; it has not been
executed as a testamentary instrument by the testator being
cognizant of its true character and the nature and extent of the
dispositions thereunder and the purported Will is surrounded
by suspicious circumstances, no less on account of an
inordinate and unexplained delay in propounding the Will and
seeking its probate.
72. The conspectus of the aforesaid consideration is that
within the confines of the jurisdiction as a Testamentary Court,
this Court considers it appropriate to be content with the
determination that the purported Will (Exhibit-P1/2) is not the
last Will and Testament of the testator. Issue No. 1 is, therefore,
required to be answered in the negative.
73. Since the Plaintiff failed to discharge the primary onus of
the due execution and attestation of the Will (Exhibit-P1/2) as
the last Will and Testament of the testator, the defendants were
not required to adduce evidence. Therefore, the submissions
canvassed by Mr. Bookwala premised on the failure to put the
case during the course of cross-examination and adduce
evidence in defence do not advance the cause of the Plaintiff.
Thus, no occasion for drawing an adverse inference against the
defendants arises.
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74. Mr. Bookwala was within his rights in submitting that the
Will cannot be said to be shrouded with suspicious
circumstances for the reasons that the dispositions thereunder
are unnatural, in the sense that the Plaintiff was completely
excluded and the distribution of assets among the rest of the
children was unequal. The legal position is fairly crystallized. In
the case of Ramabai Patil (supra), the Supreme Court
enunciated that, the fact that 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 the offspring.
75. Issue No. 2 is, therefore, answered in the affirmative, to
the extent of suspicious circumstances only.
76. Resultantly, the suit deserves to be dismissed. 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 up accordingly.
[N. J. JAMADAR, J.]
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