Meena Vasant Patel. vs Pruthviraj A. Patel.
- Court
- Bombay High Court
CNR No : HCBM020008132011
2026:BHC-OS:23837-DB
: 1 : APEAL-OS-112-11-j.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.112 OF 2011
IN
TESTAMENTARY SUIT NO.48 OF 1990
IN
TESTAMENTARY PETITION NO.424 OF 1990
Meena Vasant Patel …..Appellant
Versus
Prithviraj Ambalal Patel, since deceased
through L.Rs. 1a. Suhasini Prithviraj Patel
and others …..Respondents
-----
Mr. Gaurav Joshi, Senior Advocate a/w. Sharad Bansal, Akash Chandran, Vasim
Shaikh, Mihir Boghani, i/b. Pravin Mehta and Mithi Co. for the Appellant.
Mr. Bhupesh Dhumatkar, Advocate a/w. Rijul Khandare for the Respondents.
-----
CORAM : SARANG V. KOTWAL &
RANJITSINHA RAJA BHONSALE, JJ.
th
RESERVED ON : 26 OCTOBER, 2026
th
PRONOUNCED ON : 04 NOVEMBER, 2026
JUDGMENT : [PER SARANG V. KOTWAL, J.]
1.
This Appeal is preferred against the judgment and decree
dated 21.9.2010 passed by a learned Single Judge of this Court in
Testamentary Suit No.48/1990 in Testamentary Petition No.424/1990.
The Testamentary Petition was filed by the Appellant against her brother
Prithviraj Patel. For the sake of convenience, the Appellant is described
as the ‘Plaintiff’ and Prithviraj Patel is referred to as the ‘Defendant’ as
per their status in the Testamentary Suit No.48/1990. During pendency
of the Appeal, Prithviraj passed away and he is represented by his legal
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heirs who are the Respondent Nos.1a to 1d in the present Appeal.
2.
Vide the impugned judgment and decree, the Plaintiff’s suit
was dismissed. The probate of the Will of her mother propounded by
the Plaintiff was not granted. The learned Single Judge decided another
Suit i.e. Testamentary Suit No.12/1991 in Testamentary Petition
No.647/1990 preferred by Prithviraj Patel seeking probate of another
Will of his mother. Both the Suits were dismissed by a common
judgment and decree.
3.
Heard Mr. Gaurav Joshi, the learned Senior Counsel for the
Appellant and Mr. Bhupesh Dhumatkar, the learned counsel for the
Respondents.
4.
The Testamentary Suit filed by the Plaintiff Meena was in
respect of the probate of the Will executed by her mother Shantaben
Ambalal Patel on 24.5.1989. Shantaben died on 14.7.1990 at Mumbai.
In the Probate Petition, the Plaintiff stated that, at the time of her death,
the deceased had a fixed place of residence at Mumbai and she had left
property within Greater Mumbai, in the State of Maharashtra and even
outside Maharashtra in India. The Will dated 24.5.1989 was her last Will
and Testament. The Plaintiff was the sole executrix named in the Will.
According to the Plaintiff, all the properties and credit which the
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deceased possessed or was entitled to at the time of her death, would
come to the Plaintiff’s share as bequeathed under the Will. The Plaintiff
and the Defendant were the only children of the deceased. With these
averments, a prayer was made by the Plaintiff in her Petition that
probate be granted to her having effect throughout the Union of India.
5.
The Will mentioned that the properties which Shantaben
owned and possessed were all her separate and self-acquired properties.
Through the Will, she directed her executrix to take charge of her estate,
both movable and immovable, to which she was entitled. In paragraph-5
of the Will, it was mentioned that Shantaben had 50% share in the
Partnership Firm of A.P. Patel & Company which she had inherited from
her late husband Shri A.P. Patel. The main office of the Partnership Firm
was in Jalna with branches at Aurangabad, Mumbai, Parbhani, Nanded
and Hingoli in Maharashtra and in Nizamabad in Andhra Pradesh. Her
son Prithviraj had 50% share in the said firm. The Will mentions that she
bequeathed her 50% share in the said Partnership Firm of A.P Patel &
Company to the Plaintiff. Paragraph-6 mentions as to why she was not
giving anything to her son Prithviraj. According to that paragraph, as
mentioned by her, he had received sufficient estate under the Will of her
late husband. It is further mentioned that her son had mismanaged the
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Firm and had sold various immovable properties without giving her
share to her. It is further mentioned that she had directed the Plaintiff to
demand an explanation and account from Prithviraj and if possible
recover the estate. Paragraph-7 mentions that she had bequeathed the
rest and residue of her real and personal estate of whatsoever nature and
wheresoever to the Plaintiff. Besides Shantaben, the Will was signed by
the two attesting witnesses (1) M.S. Shah and (2) Rekha Brahmbhat.
The Schedule to the Will mentioned the properties that were referred to
in the Schedule-I of the Will.
AVERMENTS IN THE AFFIDAVIT OF THE CAVEATOR :
6.
The Defendant Prithviraj contested the Probate Petition by
filing Caveat and submitting an affidavit in support of his caveat. He has
mentioned in the affidavit that he was the son of the deceased and in the
event of the deceased dying intestate, he was entitled to have share
and / or right, title and interest in the estate of the deceased Shantaben
as per the provisions of the Hindu Succession Act. This was stated
without prejudice to his other statements. According to him, the Plaintiff
had made several statements and allegations which were false to her
own knowledge. He raised doubts about the bonafides of the witnesses
and expressed that they were acting in conspiracy and in collusion with
the Plaintiff to defeat his rights in the estate of the deceased. He did not
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admit the execution or due execution according to the law, of the said
Will dated 24.5.1989. He did not admit that the Will was signed and/or
executed by the deceased. The signature on the Will was not her usual
signature. It differed materially from her signatures on several other
documents. According to him, the Will was neither signed nor executed
by the deceased and that the Will was forged. The Will was bogus and
fabricated.
7.
Without prejudice to these submissions, the Defendant made
further averments in the affidavit that the deceased had executed her
last Will and Testament dated 9.3.1990 by which her Will dated
24.5.1989 stood revoked. He further stated that the properties claimed
to be belonging to the deceased did not belong to her absolutely and,
therefore, she could not have bequeathed the same by the Will dated
24.5.1989. She had no legal right of disposition of these properties.
8.
The Defendant further stated that the contents of the Will
were unnatural. The Plaintiff had been living in London permanently
since the past several years and the deceased was residing with him and
his family members; and as such, she would not have excluded all of
them from inheriting any property. Her last Will dated 9.3.1990 shows
that she had bequeathed various properties to almost all the family
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members, including the Plaintiff and her daughters. It was the
distribution of the properties which a person of ordinary prudence is
expected to do. The Will dated 9.3.1990 is normal and natural. The
Defendant then referred to the Plaintiff’s marital status and her children.
During the lifetime of the deceased Shantaben, the Defendant and his
family members looked after her well-being in Mumbai and the deceased
used to come with them at Nanded whenever they went there. The
affidavit further mentions that the Plaintiff never looked after the well-
being of the deceased. He further stated that Flat No.4 situated in
Kailash Niketan at L.D. Ruparel Marg, Mumbai was acquired in joint
names of the Defendant and the deceased during the lifetime of the
Defendant’s father. The Defendant, his family and his parents used to
reside in that flat. The Plaintiff and her daughters used to stay with
them on their trip to Mumbai. He further stated that Shantaben died in
Mumbai on 14.7.1990. The Plaintiff was immediately informed about
the same in London. Only after arrival of the Plaintiff, the body was
cremated. The Plaintiff and the Defendant’s father Ambalal died on
14.9.1978. He had left his last Will and Testament dated 22.3.1978.
The Defendant was told that Shantaben had filed a Probate Petition for
grant of probate of that Will, which according to him was pending
disposal. The affidavit then refers to the opening of the safe deposit
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lockers. However, that is not really the subject matter of the
Testamentary Suit. He further stated that the Will dated 24.5.1989 did
not appear to have been executed by the deceased on account of her free
Will or voluntary consent. In the concluding paragraph, he prayed that
the last Will and Testament of Smt. Shantaben was dated 9.3.1990 and
the probate be granted in respect of that Will in his favour. A copy of the
Will dated 9.3.1990 was annexed to his affidavit.
9.
It would not be out of place here to mention that the
defendant Prithviraj had filed his Testamentary Petition No.647/1990
resulting in Testamentary Suit No.12/1991 for probate of the Will dated
9.3.1990. By the same judgment and decree the learned Judge did not
grant probate of the said Will dated 9.3.1990. There were clear findings
that he had not examined either of the attesting witnesses or other
witnesses to prove attestation of the Will and, therefore, the
requirements of Sections 68 & 69 of the Indian Evidence Act, 1872 were
not satisfied. In paragraph-19 of the impugned judgment, it is
specifically held that the Will propounded by the son i.e. the Defendant
was not proved and the probate cannot be issued of the Will of the
deceased dated 9.3.1990. The said judgment and decree and this
finding is not challenged by the Defendant and hence have attained
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finality.
EVIDENCE ON BEHALF OF THE PLAINTIFF
:
10.
The Plaintiff examined herself as PW-1. In her affidavit in
evidence, she gave the background of her family. She had passed B.A.
(Hons.) from K.C. College, Mumbai and LL.B from Government Law
College, Mumbai. Since 1980, she was residing in London. She was
married to her first husband in 1978 and had a daughter from that
marriage. She got divorced and got married to Vasant Patel. Her second
daughter was born from this marriage. The second marriage also ended
in divorce. She pursued her further studies in London. She was
appointed as a Magistrate (Justice of Peace) for North East, London
Branch as well as Crown Court and employed as local Government
Officer in the Borough of Middlesex. She stated that her relationship
with her mother was very cordial and warm. Her father passed away on
14.9.1978 leaving behind her mother Shantaben and brother Prithviraj
as well as her step-sister Vimlaben Patel. Her mother Shantaben passed
away on 14.7.1990. At that time, Shantaben was residing in Flat No.4 in
Kailash Niketan CHS Ltd., L.D. Ruparel Marg, Mumbai . It was Shantaben’s
matrimonial home. Shantaben was a joint co-owner of the said flat and garage
No.8 along with the Defendant. Though the Plaintiff was residing in the U.K.
she used to communicate with her mother regularly on phone at least
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twice a week. Her mother was suffering from diabetes and high blood
pressure, but, she was of sound mental health. The Plaintiff’s father
used to look after the business of the firm ‘A.P. Patel & Company’ and
after his death, the Defendant Prithviraj used to look after the business;
but due to his personal debts, the Defendant sold various properties
which belonged to the estate of her father. The estate included the share
of her mother and for said purpose he used to obtain her signature by
exerting undue influence and coercion including emotional threats. Her
mother was vulnerable as she had no other family support in Mumbai
and did not know English that well. Because of these reasons, her
mother used to consult her and reposed complete trust and faith in her.
The Plaintiff thereafter mentioned different instances of suspicious
disposal of the property by her brother - the defendant.
11.
During various telephonic discussions, the Plaintiff realized
that her mother was not being well looked after by her brother and his
family. His family consisted of wife and three children. As she became
aware of her brother ill-treating her mother, she came down to Mumbai
in April, 1989 to look after her mother’s well-being. When she came to
Mumbai she had brought bathing soaps, almonds, music cassettes of
bhajans, 20 sarees, diamonds, gold bangles, talcum powder, perfumes
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etc., as her brother had not even cared to look after the deceased’s daily
necessities. The Plaintiff had brought various gifts for her sister-in-law
i.e. the Defendant’s wife, her mother and the children. The Plaintiff’s
mother told her that the Defendant did not provide medical treatment
through their family physician as according to the Defendant the
medical treatment with the family physician was expensive, instead he
gave some powder from a Sadhu to treat her mother’s illness. The
Plaintiff took her mother to their family doctor for medical checkup and
treatment for diabetes and high B.P.. The doctor prescribed medicine
and the Plaintiff’s mother continued that medication. The Plaintiff was
convinced that the Defendant was not looking after the well-being of
their mother.
12.
During her visit, she had taken her mother on a pilgrimage in
April, 1989 to Ambaji at Ahmedabad. During that visit to Mumbai, her
mother requested the Plaintiff to take her to their family Solicitors M/s.
Shantilal & Co. to make her last Will. After fixing an appointment with
Mr.Mrunal Shah on 24.5.1989 at around 10.30 a.m., the Plaintiff along
with her two daughters and her mother as well as her friend Ms. Rekha
Brahmabhat attended the office of M/s. Shantilal & Co. Her mother on
her own free will and volition gave instructions to Mr. Mrunal Shah to
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prepare her will as she desired to sign the same on the same day. Mr.
Mrunal Shah requested her to come after lunch at around 3.00 p.m..
After taking lunch, they again went to Mr. Mrunal Shah. He had kept the
Will ready for execution. It was read out to the Plaintiff’s mother by Mr.
Mrunal Shah and explained to her in Gujarati. Ms. Rekha Brahmabhat
also explained the Will to her mother in Gujarati. After understanding
the Will, the Plaintiff’s mother on her free will and volition executed the
same. Mr. Mrunal Shah and Ms. Rekha Brahmabhat attested the said
Will. The Plaintiff along with her two daughters were present in the
office of Mr. Mrunal Shah at the time of execution of the Will. The
Plaintiff further stated that her mother was of sound mind and health.
Her mother always had soft corner for her. The Plaintiff then referred to
the death of her father on 14.9.1978 and the Will that he had executed.
After her visit to Mumbai in 1989, the Plaintiff was in regular touch with
her mother over telephone. Her mother never told her about the second
Will. The Plaintiff’s mother passed away on 14.7.1990. On the earlier
day, the Plaintiff had a telephonic conversation with her. Her mother
passed away in the same flat. Her mother had informed her that she had
purchased the said flat in the year 1961 and in February, 1962 the
Plaintiff’s father had made a declaration of gift of Rs.35,000/- which was
given to her mother and her brother who was a minor at that time. The
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share certificate of the flat was in the joint name of the Plaintiff’s mother
and the Defendant. After the demise of her mother, the Defendant and
his wife had taken away keys of the cupboard and had opened the
cupboard. The Plaintiff believed that the Defendant managed to keep
the alleged Will dated 9.3.1990 in the cupboard of his deceased mother
prior to the Plaintiff’s arrival in Mumbai. After the death of her mother,
the Defendant tried to severe all relations with her. She has stated in her
affidavit that the Defendant got married in 1972 to her sister-in-law
Suhasini but their relations with the Plaintiff’s parents were strained.
Suhasini’s parents used to interfere. Therefore, the Plaintiff’s father told
the Defendant to reside in Jalna with his family and to look after the
business from Jalna. However, the Defendant’s three children used to
stay in Mumbai and her mother used to take care of them. She further
stated that she had taken opinion of two handwriting experts who had
opined that the signature on the alleged Will dated 9.3.1990 was not the
correct signature.
She was cross-examined on behalf of the Defendant. She
was cross-examined extensively. Some of the questions were in respect of
her marriage. However, the cross-examination in that behalf is irrelevant.
Then she was cross-examined as to how she was informed about her
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mother’s death. At her request, her mother’s body was preserved till she
came down to Mumbai. She requested to one Kikumama to preserve
the body till she reached Mumbai. She denied the suggestion that she
was not happy with the brother because her father had made his Will in
the Defendant’s favour. Then, she was cross-examined about the
disposition of the property by her brother – the Defendant. That part of
cross-examination is also not very relevant.
13.
She was asked whether she planned to take her mother to
London and, therefore, she had applied for passport. In response to that
question, she stated that she had planned to take her mother to London
sometime in future, but, she was not sure when her mother would have
liked to come with her. She stated that she met her brother and the
brother’s wife at their family residence in Mumbai when she came down
to Mumbai in April, 1989. She was specifically asked a question as to
how were her mother’s relations with her brother, brother’s wife and
their children. In response to that question she answered that the
relations were very painful, mentally disturbing, depressed and
unhealthy. The Plaintiff herself was not on talking terms with her
brother and his wife. In further cross-examination, she stated that her
mother had told her that her brother did not provide money for
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expenses. She did not remember exactly when her mother expressed her
desire to take her to their family Solicitors; whether it was before, after
or during the pilgrimage. When her mother made a request to take her
to the family Solicitors for making a Will, her brother and his family
were in Mumbai; but she did not remember whether that request could
be heard by her brother and brother’s wife. Her mother passed away on
24.7.1990 and she filed the Petition for probate on 14.8.1990. She had
given original Will to her Solicitors M/s. Kapadia & Company.
EVIDENCE OF PW-2 MR. MRUNAL SHAH :
14.
Mr. Mrunal Shah, the attesting witness deposed important
facts as follows :
He was practicing as an Advocate in the High Court since
1976/77. He was Partner of M/s. Shantilal & Company, the Advocates &
Solicitors. During his tenure, he had prepared Wills for several clients.
He knew and was well acquainted with the deceased Shantaben. He also
knew the Plaintiff who was daughter of Shantaben. After fixing an
appointment with him on 24.5.1989, at around 10.30 a.m., Shantaben
Patel accompanied by the Plaintiff and the Plaintiff’s two daughters, as
well as the Plaintiff’s friend Rekha Brahmabhat attended his office.
Shantaben out of her own free will and volition gave him instructions to
prepare her last Will and she desired to sign the same on the same day.
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After taking instructions, he requested Shantaben to come after lunch at
around 3.00 p.m. for execution of the Will. He kept the original Will
ready for execution. It was read out to Shantaben and explained to her
in Gujarati. Rekha Brahmabhat also explained the contents of the Will in
Gujarati to Shantaben. After understanding the same, Shantaben Patel,
out of her own free will and volition, executed the same. He himself
along with Rekha Brahmabhat saw Shantaben Patel subscribing her
name at the foot of the testamentary paper in Gujarati language and
character. He along with Rekha Brahmabhat, at the request of Shantaben
and in her presence and in the presence of each other, both being
present at the same time, set and subscribed their names and signatures
at the foot of the said testamentary paper as witnesses thereto. The
Plaintiff and her two daughters were also present in their office at the
time of execution of the Will. They were sitting outside his Chambers as
he did not allow the persons accompanying the person intending to
make a Will to remain present at the time of taking instructions or
executing the same. He identified the signature of the testatrix, Rekha
Brahmabhat and his own signature on the Will. He further stated that at
the time of subscribing her name and signature on the Will, Shantaben
was of sound and disposing mind, memory and understanding. She took
away the original Will with her.
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15.
He was cross-examined on behalf of the Defendant. In the
cross-examination, he deposed that Shantaben was his neighbour since
1960 and he also knew the Defendant Prithviraj. He knew Shantaben’s
husband Ambalal Patel, but he did not recollect whether their firm
attended the legal work of Ambalal Patel. As a procedure followed by
their firm, they used to have discussion with the client and took
instructions as to who were the heirs, what were his properties and how
the client wished to distribute the property amongst the heirs and then
the Will used to be prepared accordingly. There was a general format
used for making the Wills. Therefore, Shantaben Patel’s Will and
Ambalal Patel’s Will had similarities. His affidavit of evidence was
drafted by M/s. Pravin Mehta & Mithi & Company. The draft was sent
for his approval. He made necessary corrections and sent back the same
to the Solicitors.
16.
Shantaben herself had telephoned him for fixing an
appointment and told him that she proposed to make her Will and for
that purpose she needed appointment. All the people came together in
his chamber. When Shantaben stated that she desired to make a Will, he
asked others to leave the cabin and wait outside. In answer to question
No.42, he replied that he noticed that Shantaben appeared to be
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disturbed and she stated that after the death of her husband, her son
was not looking after her and hence she desired to make her Will
favouring her daughter. She accordingly gave instructions and
information relating to her properties and assets and told him that she
wanted to make a Will on that very day. He, therefore, advised her to
come after lunch hours so that in the meanwhile he could keep the draft
of the proposed Will ready. This was the entire conversation at the first
instance. When the draft was read out to Shantaben, all the people, who
had accompanied her, were present. He not only read out the draft but
also explained the contents thereof in Gujarati. The final document was
explained by Rekha Brahmabhatt to Shantaben, in his presence, in
Gujarati. To a further question, he answered that the draft Will was not
explained but the final Will was explained on the same day when the
Will was executed. It took two hours between the time the Testatrix
came back from lunch and the execution of the Will. During that period,
all of them were sitting in his cabin. Since Shantaben gave him proper
instructions and answers to his questions with regard to disposition of
her estate, he came to the conclusion that she was in disposing mind. At
the time of giving instructions, Shantaben had told him that her
relationship with her son was not cordial.
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THE DEFENDANT’S EVIDENCE :
17.
The Defendant Prithviraj examined himself. He deposed that
his father Ambalal Patel died on 14.9.1978 leaving behind his step sister
Vimalaben, himself and the Plaintiff as his heirs and Shantaben Patel as
his widow. Shantaben died at Mumbai on 14.7.1990. According to him,
his mother Shantaben had left a Will dated 9.3.1990 and for that he had
filed a Petition No.647/1990 for obtaining probate of that Will. The
Plaintiff herein had filed a caveat in that Petition. That Petition was
converted into Suit No.12/1991. He stated that the Will dated 24.5.1989
propounded by the Plaintiff Meena was not signed by Shantaben; and
was hence, not executed by the deceased Shantaben. The purported
signature on the Will was not the usual signature of Shantaben and the
Will dated 24.5.1989 is bogus and fabricated. In any case, according to
him, the Will was procured by the Plaintiff Meena by undue influence,
coercion and/or fraud practiced upon the deceased by the Plaintiff. The
Will was unnatural. The deceased had been living with him and his
family and was looked after by him. He had two sons and a daughter.
The deceased had love and affection for his children and was very fond
of them. His wife was also looking after the deceased Shantaben who
had affection for his wife and, therefore, it was highly unnatural that the
deceased would not give anything to him, his wife or to his children.
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The Plaintiff was residing permanently in London. Then he stated about
the Plaintiff’s matrimonial issues. His affidavit makes a reference to Suit
No.2980/1992 filed by his step sister Vimalaben for administration of
the estate of the Ambalal Patel against himself and the Plaintiff Meena.
18.
His father was carrying on business in the Partnership with
the Defendant in the firm named and styled as M/s. A.P. Patel and
Company. It had business at Jalna, Aurangabad, Mumbai, Parbhani,
Nanded and Hingoli and also in Nizamabad. After his father’s death, his
mother Shantaben became Partner in the said firm having 50% share.
His own share became 50% in the Partnership. During her lifetime
Shantaben was managing and looking after the business and affairs of
the firm. During her lifetime, Shantaben used to withdraw monies
required for the business of the said firm. The monies were withdrawn
either from Bombay Branch or from Jalna Branch. His father had left
high tax liability and other debts. To meet those liabilities, some property
was sold with the consent of Shantaben.
He was cross-examined mainly in respect of execution of the
Will dated 9.3.1990. He was extensively cross-examined on the attesting
witnesses. He came to know about the Will dated 24.5.1989 from a
Public Notice issued by the Plaintiff. He stated that he got married on
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14.12.1966. He shifted to Jalna in the year 1969-70. His parents were
residing in Mumbai. Though he stated that Shantaben was looking after
the business, he accepted that she was educated in Gujarati and she did
not know English language.
REASONING OF THE LEARNED JUDGE :
19.
The learned Judge has considered the question of validity of
the Will propounded by the Defendant Prithviraj. The learned Judge
observed that if the Will propounded by the Defendant Prithviraj is
proved to have been validly executed then the Will made in favour of the
Plaintiff daughter earlier in point of time would be of no consequence. If
that Will propounded by the Defendant is not proved, the execution of
the Will in favour of the daughter would be considered. The learned
Judge then discussed about the validity of the Will propounded by the
Defendant-son. The learned Judge observed that the Defendant–son had
not examined either of the attesting witnesses or any other witnesses to
prove attestation of the Will. The learned Judge then referred to Sections
68 & 69 of the Indian Evidence Act, 1872, which read thus :
“ 68. Proof of execution of document required by law to
be attested :- If a document is required by law to be
attested, it shall not be used as evidence until one
attesting witness at least has been called for the
purpose of proving its execution, if there be an
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attesting witness alive, and subject to the process of
the Court and capable of giving evidence:
Provided that it shall not be necessary to
call an attesting witness in proof of the execution of
any document, not being a Will, which has been
registered in accordance with the provisions of the
Indian Registration Act, 1908 (16 of 1908), unless its
execution by the person by whom it purports to have
been executed is specifically denied.
“ 69. Proof where no attesting witness found :- If no such
attesting witness can be found, or if the document
purports to have been executed in the United
Kingdom, 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
documents is in the handwriting of that person.”
20.
In paragraph-15 of the impugned judgment, the learned
Judge observed that the requirement of proof of execution of the Will
required to be attested when no attesting witness was found is seen not
to have been complied at all. The Defendant – son was unable to prove
that the signature of one of the attesting witness at least was in his
handwriting and that the signature of the person executing the
document was in her handwriting.
21.
In paragraph-19, there was a clear finding that the Will
propounded by the son was, therefore, not proved and the probate could
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not be issued of the Will of the deceased Shantaben dated 9.3.1990.
22.
Having observed thus, the learned Judge went on to consider
the validity of the Will propounded by the Plaintiff-daughter. The
learned Judge observed that the Plaintiff, who was otherwise residing in
London, had visited India about a month prior to the execution of the
Will. She had brought various gifts for her mother, including jewellery
stated to be worth about 5000 pound sterling/Rs.5 Lakhs, gold and
diamond jewellery and other articles. Soon before the execution of the
Will, the Plaintiff and her mother had gone on a pilgrimage. The learned
Judge also observed that the details of the two marriages of the Plaintiff
brought out in the verbose cross-examination did not merit a reference.
23.
The learned Judge further observed that in those
circumstances, execution of the Will by the mother in the Attorney’s
office was to be appreciated. The Attorney was her neighbour. The
Attorney has also given evidence of execution of the Will. The other
attesting witness was a close friend of the Plaintiff and an Advocate. She
was not examined. According to the learned Judge, complete exclusion
of the son as well as his children i.e. children of the son, would justify
raising of suspicion.
24.
The learned Judge further observed that the basic rule of
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construction and appreciation of the Will that the Court must sit in the
armchair of the testator or the testatrix. The Court must ascertain from
the evidence whether the testator or the testatrix could have executed a
Will such as the one which is sought to be propounded and is
challenged.
25.
The learned Judge enumerated certain circumstances, such
as :-
i.
the Plaintiff-daughter had taken her mother on pilgrimage,
ii.
the Plaintiff had brought gift items for her mother,
iii.
the Plaintiff had planned to take her mother sometime in
future with her to London,
iv. the Plaintiff had helped the mother procuring a passport,
v. her mother had resided at Jalna with the Defendant and his
family, the mother used to reside in Mumbai as well as in
Jalna,
vi.
the expenses of part-time cook, driver and servant were made
by the Defendant in 1989,
vii. the mother had made complaints to the Plaintiff about the
Defendant orally as well as in writing, but the complaints in
writing were never produced,
viii.
there were no physical threats by the Defendant or his wife.
All these points were brought out in the cross-examination of
the Plaintiff.
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26.
In paragraph-28, the learned Judge termed certain portions
of the evidence as most appropriate and material parts brought out in
evidence. The learned Judge referred to the evidence that the Plaintiff
took an active part in the execution of the Will. She was present all
throughout. She had gifted her mother various gifts and had taken her
on a pilgrimage just prior to the execution of the Will. The Plaintiff had
the Will in her custody. She corresponded on the strength of the Will and
produced the Will immediately after her mother’s death for obtaining
probate. Her mother’s relations with her brother and sister-in-law were
cordial. She lived in the house whenever she was in Jalna. The
Defendant – brother lived with the mother whenever he was in Mumbai.
The Defendant cared for his mother and appointed cook, driver and
servant for her. The Plaintiff did not produce any evidence to show that
the Defendant – brother had mismanaged the property and she admitted
that the accounts of the Partnership Firm were duly made and audited.
27.
The learned Judge further observed in paragraphs-32, 33
and 34 that the Plaintiff tactfully and artfully succeeded in getting the
mother to sign the writing in the office of the Solicitor known to both of
them upon the Plaintiff winning her over by her gifts, accompanying at
the pilgrimage which was the mother’s most cherished wish and offered
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to get a passport for her which could have well been the ultimate bait.
The learned Judge further observed that sitting in the armchair of the
testatrix, it is impossible to conceive that the mother, who had made the
Will propounded by the Plaintiff-daughter, disinherited her only son as
well as her grandchildren therefrom.
28.
Finally, the learned Judge observed that the Defendant-
brother had not proved the valid execution of the Will and the Plaintiff-
daughter’s evidence was completely unworthy of acceptance and has to
be wholly rejected. The Will propounded by the Plaintiff – daughter is
not only unnatural but was seen to be such as could never have been
executed by her mother. With these observations, both the Suits were
dismissed.
SUBMISSIONS ON BEHALF OF THE APPELLANT :
29.
The learned counsel for the Appellant submitted that the
learned Judge has specifically declined to grant probate of the Will dated
9.3.1990 propounded by the Defendant – Prithviraj. The main reasons
given while declining to grant probate to the said Will was that neither
of the attesting witnesses nor someone who knew the attesting witnesses
was examined to prove the signatures on the said Will. No Appeal is
preferred against that particular order which is a part of the same
impugned judgment and hence that finding has attained finality. On the
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other hand, the Plaintiff has challenged the dismissal of her Suit in the
Petition asking for probate of the Will dated 24.5.1989 executed by the
Plaintiff’s mother.
30.
He submitted that the main reason for the learned Judge
turning down the prayer for grant of probate is that according to the
learned Judge, the Plaintiff had come to Mumbai only a month prior to
the execution of the Will and had showered her mother with expensive
gifts, had promised to take her to London, had taken steps to obtain
passport and had taken her on pilgrimage. In other words, according to
the learned Judge the Plaintiff had tried to unduly influence her mother
in executing the Will. Shri Joshi submitted that, this can never be a
ground for denying grant of probate of the Will. It cannot be assumed or
even held that if the daughter brings gifts for her mother, she is exerting
undue influence on the mother.
31.
Shri Joshi relied on certain provisions. Section 59 of the
Indian Succession Act, 1925 provides that every person of sound mind
not being a minor may dispose of his property by a Will. The relevant
provision would be under Section 61. Shri Joshi specifically relied on the
illustrations (vii) & (viii) mentioned under the said Section. Section 61
reads thus :
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“61. Will obtained by fraud, coercion or importunity:- A
Will or any part of a Will, the making of which has
been caused by fraud or coercion, or by such
importunity as takes away the free agency of the
testator, is void.
Illustrations
xxxxxxx
xxxxxxx
xxxxxxx
A
(vii) being in such a state of health as to be capable of
B
exercising his own judgment and volition, uses
urgent intercession and persuasion with him to induce
A
him to make a Will of a certain purport. , in
consequence of the intercession and persuasion, but in
the free exercise of his judgment and volition makes
B
his Will in the manner recommended by . The Will is
not rendered invalid by the intercession and
B
persuasion of .
A B
(viii) with a view to obtaining a legacy from , pays him
attention and flatters him and thereby produces in him
A B
a capricious partiality to . , in consequence of such
attention and flattery makes his Will, by which he
A
leaves a legacy to . The bequest is not rendered
A
invalid by the attention and flattery of .”
32.
Shri Joshi, in particular, relied on the illustrations (vii) &
(viii) which runs directly contrary to the view taken by the learned
Judge. Shri Joshi submitted that, firstly, there was nothing unusual for a
daughter to bring gifts from abroad for her mother. It would not mean
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that she tried to influence her mother into executing the Will and in any
case, these two illustrations clearly lay down that such conduct would
not render the Will invalid if the Will is executed in the free exercise of
the testatrix’s judgment and volition.
33.
Shri Joshi submitted that the Plaintiff has proved the valid
execution of the Will by examining the attesting witness PW-2. It satisfies
the requirement of Section 68 of the Indian Evidence Act.
34.
The evidence of PW-2 is important in this case and there is
no reason to disbelieve him. PW-2 was a reputed Solicitor. He was also
knowing the family since many years. The testatrix knew him very well.
He had given evidence giving details of execution of the Will. He had
taken care to understand the desire of the testatrix. He had taken some
time to draft the Will. He had explained the Will in Gujarati to the
Testatrix. He has taken precaution at every stage. The execution of the
Will is proved beyond any doubt. In this view of the matter, the
execution of the Will is duly proved.
35.
Shri Joshi submitted that there was no suspicious
circumstance surrounding the Will including the execution of the Will.
Leaving out the testatrix’s son and his children cannot be termed as a
suspicious circumstance because the very purpose of executing a Will is
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to deviate from the normal line of succession and entitlement as legal
heirs of those persons. In support of this contention, he relied on the
observations of the Hon’ble Supreme Court in the case of Parvathi Nairthi
1
(Dead) & others Vs. Laxmi Nairthy (Dead) through L.Rs. & others .
36.
Shri Joshi further relied on the observations of the Hon’ble
Supreme Court in the case of K.S. Dinachandran Vs. Shyla Joseph and
2
others . In that case, the propounders of the Will were the siblings of the
one who was excluded. The Hon’ble Supreme Court observed that there
was a reason stated for such exclusion, the acceptability of which to the
Court’s mind, was not what the rule of prudence dictated. It was held
that the Court could not put the testator in its shoes and the Court
should step into the testator’s shoes. The Court cannot substitute its
opinion in place of that of the testator; his desire prompted by his own
justifications. As was trite, the Court would only ensure that, sitting in
the arm-chair of the testator, the rule of prudence is satisfied for the
exclusion.
37.
Shri Joshi further relied on the observations of the Hon’ble
Supreme Court in the case of Naresh Charan Das Gupta Vs. Paresh Charan
3
Das Gupta wherein the Hon’ble Supreme Court had discussed effect of
1 2026 SCC OnLine SC 911
2 2025 SCC OnLine SC 2848
3 (1954) 2 SCC 800
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alleged ‘undue influence’.
38.
Shri Joshi submitted that in the present case Shantaben had
given reasons as to why she was excluding the Defendant Prithviraj from
benefit of her property. These reasons were not vague or unreasonable.
They were reasons in the mind of the testatrix. They cannot be termed as
a suspicious circumstance.
SUBMISSIONS ON BEHALF OF THE DEFENDANT :
39.
On the other hand, Shri Dhumatkar, the learned counsel for
the Respondent submitted that execution of the Will itself is surrounded
with suspicious circumstances. Exclusion of the Defendant i.e. the son of
the testatrix was a glaring suspicious circumstance. According to him,
the evidence of the Plaintiff and the attesting witness PW-2 was
contradictory. The presence of the Plaintiff in the office and in the cabin
of PW-2 raises suspicion. There was contradictory evidence of PW-2
himself as to whether the Plaintiff was present in the cabin or outside
the cabin at the time of execution of the Will. The language of the Will
was in technical language and, therefore, it could not have been a
reflection of the desire of the testatrix. The Plaintiff failed to prove that
Prithviraj had mismanaged the business and, therefore, the reason
mentioned in the Will for exclusion of the Defendant - son raises
suspicion. The evidence shows that the business of the firm was
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properly managed. There were regular audits and there was no
mismanagement on the part of the Defendant Prithviraj. Exclusion of the
grand-children from the benefit of the property raises even more
suspicion regarding the execution of the Will. PW-1 failed to prove that
the relationship between the testatrix and her son i.e. the Defendant and
his children were strained.
40.
The learned counsel submitted that the Plaintiff had failed to
establish that there was cordial relationship between the Plaintiff and
her mother and she had failed to prove that the Defendant Prithviraj and
his wife ill-treated Shantaben. There is evidence to show that Shantaben
lived with her son and his family, whenever she was in Jalna. The
Defendant’s children used to reside in Mumbai in the same flat with the
testatrix and therefore it was more suspicious that Shantaben did not
give them any property in her Will.
41.
Shri Dhumatkar relied on the observations of the Hon’ble
4
Supreme Court in the case of Kavita Kanwar Vs. Pamela Mehta and others
to contend that an individual factor may not be decisive but, if after
taking all the factors together, conscience of the Court is not satisfied
that the Will in question truly represents the last wish and propositions
of the testator, the Will cannot get the approval of the Court.
4 (2021) 11 SCC 209
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42.
Shri Dhumatkar also relied on the observations of the
Madras High Court in the case of D. Kausalya w/o. late Durai Vs. S.
5
Sankaran wherein it was observed that even if it is established that the
Will was executed by the testator without any undue influence by the
beneficiary or the legatee still it is for the court to consider whether the
Will is a natural one or unnatural. The unnatural Will is the one
whereunder the undue preference is given to any one of the legal heirs
or the bequeathment is in favour of a third person. Undoubtedly giving
preference to one of the heirs and excluding the other from inheritance
will be a suspicious circumstance which must be got over by the
propounder.
43.
Shri Dhumatkar submitted that the Plaintiff failed to show
that the Plaintiff’s brother had failed to take care of their mother or
mismanaged the business as alleged in the Will.
POINTS FOR DETERMINATION :
44.
Based on these submissions and the evidence, the following
points arise for our determination :
[I] Whether the circumstances surrounding the execution of the Will are
suspicious circumstances ?
[II] Whether the Will is validly executed ?
5 2002 SCC OnLine Mad 91
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[III] Whether the Plaintiff had exerted undue influence or coercion or had
played fraud in getting the Will executed by her mother ?
[IV] Whether exclusion of the Defendant Prithviraj and his family from
the benefit of the Will raises suspicion to conclude that execution of
the Will was unnatural ?
[V] Whether the impugned judgment and decree challenged by the
Plaintiff requires interference ?
[VI] What order ?
REASONS AND CONCLUSION :
45.
At the outset it must be mentioned that the Defendant
himself had propounded the purported Will dated 9.3.1990. The learned
Judge by the same impugned judgment had discarded the Defendant’s
case and the probate was not granted for that Will. The Defendant did
not challenge that part of the impugned judgment in an Appeal and
hence that finding has attained finality. In any case, the learned Judge
has given acceptable reasons as to why the probate of that particular
Will could not be granted. Neither any of the attesting witnesses could
be produced before the Court nor anyone else who could have
recognized their signatures on the said Will were examined on behalf of
the Defendant to prove execution of that Will and, therefore, the prayer
to grant probate of that Will was not allowed. As a result, the
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consideration before us is regarding validity of the Will dated
24.5.1989.
46.
As far as execution of the Will is concerned, the evidence of
PW-2 Mr. Mrunal Shah, who was the attesting witness, is extremely
important. He was well acquainted with the deceased Shantaben. He
had practised for at least 14-15 years in the High Court. At the time of
execution of the Will on 24.5.1989, Shantaben met him and gave
instructions out of her free will and volition. PW-2 asked them to come
after lunch. In the meantime, he kept the original Will ready for
execution. The final draft was explained to Shantaben in Gujarati. Even
the other attesting witness Rekha Brahmbhat explained contents of the
Will in Gujarati and only after understanding the same, Shantaben
signed that Will. PW-2 Mrunal Shah saw Shantaben making her
signature and also saw the other attesting witness Rekha Brahmbhat
ascribing her signature at the foot of the Will. Thus execution of the Will
is proved through this evidence. All requirements of valid execution of
the Will are proved by him.
47.
We do not see any reason to disbelieve this witness PW-2
Mrunal Shah or to discard his evidence. Nothing was shown through the
cross-examination that PW-2 was won over by the Plaintiff or he acted in
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collusion with the Plaintiff. Nothing is shown as to what personal
interest PW-2 would have in giving false evidence or stating falsely in his
evidence regarding execution of the Will.
48.
The learned counsel for the Defendant laid much emphasis
on the evidence regarding whether the Plaintiff and her daughters were
in the office or outside the office at the time of execution of the Will. PW-
2 has stated that he had taken precaution that at the time of execution of
the Will only the testatrix Shantaben was inside. It is understandable
that though the Plaintiff and her daughters had accompanied Shantaben
to the office of PW-2, but that does not necessarily mean that they were
present inside the cabin when Shantaben made her signature on the
Will.
49.
Therefore, we do not find any suspicious circumstance in
execution of the Will.
50.
The next question is whether presence of the Plaintiff in the
office of the Solicitor (PW-2) could be treated as a suspicious
circumstance to make the Will unacceptable. PW-2 was known to the
family. The testatrix had gone to his office accompanied by the Plaintiff
and her daughters. We do not see any reason to hold that the testatrix
ought to have attended the office of PW-2 alone for execution of the
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Will. If Shantaben wanted to bequeath everything to her daughter then
it was not unusual for her to take her daughter with her to the Solicitor’s
office. That by itself cannot be termed as a suspicious circumstance.
There is nothing to show or it is not even brought in the evidence that
the Plaintiff exerted some pressure or coercion in the office of PW-2
before Shantaben executed the Will. There is no evidence to show that
the Plaintiff interfered and made some suggestions while the Will was
being drafted. The evidence shows that after taking instructions from
Shantaben, PW-2 asked them to come after lunch. In the meantime, he
prepared the draft of the Will. He kept it ready and then in the
afternoon the Will was executed. At no point of time, the Plaintiff had
interfered in preparation of the Will. Therefore, her presence along with
her daughters in the office of the Solicitor at the time of execution of the
Will cannot be termed as a suspicious circumstance.
51.
The main reason which weighed with the learned Judge in
rejecting the validity of the Will is regarding the Plaintiff showering her
mother with expensive gifts, taking her on pilgrimage and helping her
for procuring passport for her possible visit to the Plaintiff’s place. Again
we do not see anything unnatural in the conduct of the Plaintiff. She was
residing in U.K. and financially well-off. Therefore, when she came back
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to Mumbai naturally she would bring some gifts for her mother. It would
be too much to hold that the mother would be influenced by these gifts
to such an extent to give her daughter entire property to the exclusion of
her only son and his family. There were reasons for excluding the
Defendant son from the benefit of the Will as is mentioned in the Will
itself. The illustrations (vii) and (viii) under Section 61 of the Indian
Succession Act specifically deal with this particular aspect. We have
already reproduced those illustrations in the earlier part of our
judgment. Those illustrations are applicable in the facts of the present
case. . In view of the specific provisions illustrated therein, it can safely
be held that the Will it not rendered invalid by affection, flattering and
showering expensive gifts by the Plaintiff on her mother. Neither it
would become invalid if there was persuasion; in the present case there
is no direct evidence to show that the Plaintiff persuaded her mother to
execute this Will.
52.
In any case it is an admitted position that the Plaintiff was
residing in U.K.. Even after execution of the Will by her mother, the
Plaintiff had gone to U.K.. She was still in U.K. when her mother passed
away. If the Will was executed under some pressure, coercion or for any
other reason against the wish of Shantaben, it was quite easy for
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Shantaben to approach PW-2 who was their Solicitor for a long duration
and to cancel the Will by executing a fresh document. But, in this case
there is no evidence to show Shantaben either attempted to approach
the Solicitor and made any efforts to get the Will cancelled by executing
any other document.
53.
If the Will was executed against Shantaben’s wish, as claimed
by the Defendant, Shantaben could have easily informed the Defendant
about the execution of that Will particularly when as claimed by the
Defendant and according to the Defendant, their relations were cordial.
The record shows that the Defendant was not even aware of execution of
the Will by his mother i.e. Shantaben till the Plaintiff filed it for probate.
54.
We are of the opinion that merely because the Plaintiff took
her mother Shantaben to the Solicitor, gave her expensive gifts and
assisted her in obtaining a passport, it cannot be inferred that she
thereby influenced the testatrix to execute the Will, as mentioned earlier.
55.
In this case, we find substance in the reliance of Shri Joshi
on the observations of the Hon’ble Supreme Court in the case of Naresh
Charan Das Gupta (supra). In that judgment, the Hon’ble Supreme Court
observed that it was not every influence which was brought to bear on a
testator that can be characterised as "undue". It was open to a person to
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plead his case before the testator and to persuade him to make a
disposition in his favour. And if the testator retains his mental capacity,
and there is no element of fraud or coercion, the will cannot be attacked
on the ground of undue influence.
56.
The next circumstance which is termed by the Defendant as
a suspicious circumstance is exclusion of the Defendant and his family
from the property of the testatrix. In this context, the Hon’ble Supreme
Court in the case of Parvathi Nairthi (supra) observed that mere exclusion
of the natural heirs from the property of the testator, by itself, cannot be
construed as a suspicious circumstance so as to invalidate a Will
outrightly. A testator is legally entitled to dispose of his property
according to his own wishes, and unless the exclusion is accompanied by
suspicious circumstances affecting the genuineness or due execution of a
Will, such exclusion alone can not render a Will invalid.
57.
In this context, the observations of the Hon’ble Supreme
6
Court in the case of Uma Devi Nambiar and others Vs. T.C. Sidhan (Dead)
are important. Paragraph-16 of the said judgment reads thus :
“16. A Will is executed to alter the ordinary mode of succession
and by the very nature of things it is bound to result in
earlier reducing or depriving the share of natural heirs. If a
6 (2004) 2 SCC 321
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person intends his property to pass to his natural heirs, there
is no necessity at all of executing a Will. It is true that a
propounder of the Will has to remove all suspicious
circumstances. Suspicion means doubt, conjecture or
mistrust. But 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 an offspring. As held in PPK Gopalan
Nambiar v. PPK Balakrishnan Nambiar and Ors. : [1995] 2
SCR 585 it is the duty of the propounder of the Will to
remove all the suspected features, but there must be real,
germane and valid suspicious features and not fantasy of the
doubting mind. It has been held that if the propounder
succeeds in removing the suspicious circumstances, the
Court has to give effect to the Will, even if the Will might be
unnatural in the sense that it has cut off wholly or in part
near relations (See Puspavati and Ors. v. Chandraja
Kadamba and Ors. : AIR 1972 SC 2492. In Rabindra Nath
Mukherjee and Anr. v. Panchanan Banerjee (dead) by LRs.
and Ors. : (1995) 4 SCC 459), it was observed that the
circumstance of deprivation of natural heirs should not raise
any suspicion because the whole idea behind execution of
the Will is to interfere with the normal line of succession and
so, natural heirs would be debarred in every case of Will. Of
course, it may be that in some cases they are fully debarred
and in some cases partly.”
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58.
Thus, exclusion of the Defendant by itself cannot be a
suspicious circumstance. In the present case, the testatrix has given
specific reasons for excluding the Defendant. She has given specific
reason in paragraph-6 of her Will, as follows :
“6. I am not giving anything to my son Prithviraj in this Will as
he has received sufficient estate under the Will of my late
husband Ambalal Patel. My son has mismanaged the affairs
and he has sold away various immovable properties without
giving me my share in the same, for which he is
accountable to me. I direct my executrix to demand an
explanation and account from my son Prithviraj and if
possible recover the estate if she so desires.”
. These are the reasons given by the testatrix.
59.
Shri Dhumatkar submitted that the Plaintiff failed to prove
that the Defendant Prithviraj mismanaged the business as alleged in the
Will and that the Plaintiff failed to provide proper explanation for
exclusion of the Defendant and his family from the estate. In this case, it
is not possible to substitute or even supplement the reasons given by the
Testatrix in her Will for exclusion of the Defendant and his family. It was
her perception and her reasons. It was not for the Plaintiff to
substantiate or prove the reasons given by the testatrix. Once we hold
that the Will was validly executed through Shantaben’s own volition,
then the reasons given by her in the Will are to be accepted as her own
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reasons. Those reasons cannot be proved or disproved through any other
external evidence of any other witness. Only if it could be termed as a
suspicious circumstance, the Plaintiff was required to dispel the suspicion
raised regarding that circumstance. But in this case, since we hold that
the execution of the Will was valid, was made through Shantaben’s own
volition and was made in the state of sound mind, we do not find the
reasons given by Shantaben in the Will as a suspicious circumstance.
60.
The learned counsel for the Defendant raised suspicion on
another ground that Shantaben had excluded even her grand-children
i.e. the Defendant’s children from the Will. According to Shri Dhumatkar,
the Defendant’s children were residing in Mumbai in the same flat with
Shantaben. However Shantaben had given reasons that the Defendant’s
family had received sufficient estate through the Will of her husband;
that was one of the reasons for exclusion of the Defendant’s family from
the benefit of her own Will. Such reasons cannot be termed as
suspicious or unnatural.
61.
Observations of the Hon’ble Supreme Court in the case of
Kavita Kanwar (supra) are important. Paragraph-28 of the said
judgment reads thus :
“28. There is no doubt that any of the factors taken into account
by the Trial Court and the High Court, by itself and
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standing alone, cannot operate against the validity of the
propounded Will. That is to say that, the Will in question
cannot be viewed with suspicion only because the
Appellant had played an active role in execution thereof
though she is the major beneficiary; or only because the
Respondents were not included in the process of execution
of the Will; or only because of unequal distribution of
assets; or only because there is want of clarity about the
construction to be carried out by the Appellant; or only
because one of the attesting witnesses being acquaintance
of the Appellant; or only because there is no evidence as to
who drafted the printed part of the Will and the note for
writing the opening and concluding passages by the
testatrix in her own hand; or only because there is some
discrepancy in the oral evidence led by the Appellant; or
only because of any other factor taken into account by the
Courts or relied upon by the Respondents. The relevant
consideration would be about the quality and nature of each
of these factors and then, the cumulative effect and impact
of all of them upon making of the Will with free agency of
the testatrix. In other words, an individual factor may not
be decisive but, if after taking all the factors together,
conscience of the Court is not satisfied that the Will in
question truly represents the last wish and propositions of
the testator, the Will cannot get the approval of the Court;
and, other way round, if on a holistic view of the matter,
the Court feels satisfied that the document propounded as
Will indeed signifies the last free wish and desire of the
testator and is duly executed in accordance with law, the
Will shall not be disapproved merely for one doubtful
circumstance here or another factor there.”
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62.
In the present case, after taking all the factors together we
do not find anything suspicious about the said Will executed by
Shantaben on 24.5.1989.
63.
Thus, from the above reasoning, we find that the learned
Judge erred in not granting probate of the Will dated 24.5.1989
executed by Shantaben Ambalal Patel. Hence, we answer the questions
arising for our consideration as follows :
[I]
The circumstances surrounding the execution of the Will are not
suspicious circumstances.
[II]
The Will is validly executed.
[III]
The Plaintiff had not exerted undue influence or coercion or had not
played fraud in getting the Will executed by her mother.
[IV]
Exclusion of the Defendant Prithviraj and his family from the benefit of
the Will does not raise suspicion to conclude that execution of the Will
was unnatural.
[V] The impugned judgment and decree challenged by the Plaintiff is
required to be set aside.
[VI]
The Appeal deserves to be allowed.
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64.
Hence, the following order :
:: O R D E R ::
i.
The Appeal is allowed.
ii.
The judgment and decree dated 21.9.2010 passed by a learned
Single Judge of this Court in Testamentary Suit No.48/1990 in
Testamentary Petition No.424/1990, is set aside.
iii. The probate of the Will of Shantaben Ambalal Patel dated
24.5.1989 is granted.
iv.
Decree be drawn accordingly.
(RANJITSINHA RAJA BHONSALE, J.) (SARANG V. KOTWAL, J.)
Deshmane (PS)
PRADIPKUMAR
PRAKASHRAO
DESHMANE
Digitally signed by
PRADIPKUMAR
PRAKASHRAO DESHMANE
Date: 2026.11.04 12:19:37
+0530
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