Dismissed

Hemlata @ Kanakalata S. Shroff v. Prafulkumar C. Mohandas and Ors.

Probate – Challenge to will

Bombay HC16 Oct 2007APP/954/2001

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Case brief

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What is this about?

The two-judge bench affirmed the single judge's order allowing probate of the will of Leelavati executed in favor of the appellant's brother and dismissing the suit for partition filed by the appellant and sister. The court held that the testatrix had every right to bequeath property to those who cared for her.

What did the court decide?

Appellant appeals dismissed with costs to be paid by appellants to respondent Praful Kumar.

Hemlata @ Kanakalata S. Shroff Vs Prafulkumar C… — Succession and Inheritance | Bombay HC (2007)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 TESTAMENTARY AND INTESTATE JURISDICTION
 APPEAL NO.954 OF 2001
 IN
 TESTAMENTARY SUIT NO.40 OF 1998
 IN
 PETITION NO.974 OF 1997
 ALONGWITH
 SUIT NO.3761 OF 1997

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 Hemlata @ Kanakalata S. Shroff
 Plot No.168/B, II floor, Dadar,
 Vijay Sadan Co-op. Hsg. Society Ltd.
 Dr.Ambedkar Road,
 Mumbai 400 014 ..Appellant
 (Orig.Defendant No.2)
 V/s.

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 1. Prafulkumar Chintaman Mohandas
 of Mumbai Indian Inhabitant, the
 sole Executor named in the Will of
 the deceased abovenamed, and
 residing at Praful Bhavan, Plot
 No.130, Khareghat Road, Hindu Colony,
 Dadar, Mumbai-400 014.

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 2. Maheshkumar Chintamani Mohandas
 of Raigad, Indian Inhabitant, residing
 at Theronda, Post: Chaul, Taluka
 Alibag, Dist. Raigad

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 3. Shantikumar Chintamani Mohandas
 of Raigad, Indian Inhabitant, residing
 at Mukhrichi Ganpati Gally,
 Tekalkarali, Post Chowl, Taluka
 Alibag, Dist. Raigad ...Respondents
 (No.1 Org.Plff No.1 &
 No.2 Org.Deft.No.3)

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 Mr.P.G.Lad, adv. for the Appellant.

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 Mr.C.N.Chavan, adv. for the Respondent No.1.

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 WITH
 APPEAL NO.74 OF 2002
 IN
 SUIT NO.3761 OF 1997

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 Maheshkumar Chintamani Mohandas

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 Indian Inhabitant,
 Residing at Reodanda Post-Chawl,
 Taluka-Alibag, District-Raigad ..Appellant
 (Orig.Defendant No.1)
 V/s.
 1. Shri Prafulkumar Chintamani
 Mohandas, of Mumbai, Indian
 Inhabitant, R/at Praful Bhavan,
 Plot No.130, Khareghat Road,
 Hindu Colony, Dadar,
 Mumbai-400 014. ...Respondent
 (Orig.Plaintiff)
 2. Mrs.Hemlata @ Kanaklata
 Shivhar Shroff, Plot No.168/B,
 IInd floor, Hindu Colony, Dadar,
 Mumbai- 400 014.
 3. Shantikumar Chintamani
 Mohandas of Raigad, Indian
 Inhabitant, residing at
 Mukhrichi Ganpati Gally,
 Tekalkar Ali, Post. Chawl,
 Taluka: Alibag, Dist. Raigad
 4. Vijaykumar Chintamani Mohandas
 of Mumbai, Indian Inhabitant,
 130, Khareghat Road,Opp: King
 George High School, Hindu Colony,
 Dadar, Mumbai-400014.
 5. Shivhar Ganpat Shroff
 of Mumbai, Indian Inhabitant
 R/at Hindu Colony, Plot No.168-B,
 Dadar, Mumbai- 400014.
 6. Sandip Prafulkumar Mohandas
 7. Sumati Prafulkumar Mohandas
 both of Mumbai, Indian Inhabitant
 residing at Plot No.130,
 Khareghat, Opp: King George High
 School, Hindu Colony, Dadar,
 Mumbai- 400 014. ..Respondents
 (Orig.Defendant Nos.2 to 7)
 Mr. A.Y.Sakhare Senior Counsel with Smt.Lalita
 Panchakshari, advs. for the Appellant.
 Mr.C.N.Chavan, adv. for the Respondent No.1,4,6 and 7.

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 WITH

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 APPEAL NO.75 OF 2002

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 IN
TESTAMENTARY SUIT NO.40 OF 1998

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 IN
TESTAMENTARY PETITION NO.974 OF 1997

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 Maheshkumar Chintamani Mohandas
 Indian Inhabitant,
 Residing at Reodanda Post-Chawl,
 Taluka-Alibag, District-Raigad ..Appellant

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 (Orig.Defendant No.1)

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 V/s.

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 1. Shri Prafulkumar Chintamani
 Mohandas, of Mumbai, Indian
 Inhabitant, R/at Praful Bhavan,

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 Plot No.130, Khareghat Road,

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 Hindu Colony, Dadar,

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 Mumbai-400 014. ...Respondent
 (Orig.Plaintiff)

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 2. Mrs.Hemlata @ Kanaklata
 Shivhar Shroff, Plot No.168/B,
 IInd floor, Hindu Colony, Dadar,
 Mumbai- 400 014.

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 3. Shantikumar Chintamani
 Mohandas of Raigad, Indian
 Inhabitant, residing at
 Mukhrichi Ganpati Gally,
 Tekalkar Ali, Post. Chawl,

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 Taluka: Alibag, Dist. Raigad ...Respondents.
 (Orig.Defendant Nos.2 & 3)

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 Mr. A.Y.Sakhare Senior Counsel with Smt.Lalita
 Panchakshari, advs. for the Appellant.

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 Mr.C.N.Chavan, adv. for the Respondent No.1.

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 CORAM: D.K.DESHMUKH &
J.H. BHATIA, JJ.
DATED: 16th October, 2007.

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JUDGMENT: (Per J.H.Bhatia, J.)

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 1. All these three appeals may be disposed off by
 this common judgment as all the three appeals arise out
 of common judgment, delivered by the learned Single
 Judge of this Court, which has been challenged in these
 appeals. The learned Single Judge had granted a probate
 in testamentary suit no.40 of 1998 in testamentary
 petition no.974 of 1997 in favour of the
 plaintiff/petitioner Praful Kumar and had dismissed suit
 no.3761 of 1997 for partition filed by the present
 appellant Hemlata. For the sake of convenience, the
 petitioner/plaintiff may be addressed as plaintiff in
 the present judgment while the respondents may be
 referred to as defendants.

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 2. To state in brief, the plaintiff Prafulkumar
 filed a petition seeking probate of the will allegedly
 executed by his mother Leelavati on 12-3-1997 appointing
 him as an executor of will. As the defendants had filed
 a caveat challenging the said will, testamentary suit
 no.40 of 1998 came to be registered. Defendant Hemlata
 also filed a suit for partition of the property left
 behind by mother Leelavati. The facts, which are no
 more in dispute may be set out in brief. One Yashwant
 Rele was father of Leelavati. He had executed a will on
 22nd June, 1965. He died on 15-8-1967 and probate of

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 the said will was granted in probate petition no.799 of
 1967 on 7th May, 1970 and her son Shanti Kumar, grand
 daughter Hemlata and Shivhar Shroff were appointed as an
 executors. The said property was bequeathed to his
 grandsons Shanti Kumar, Ganesh Kumar and grand daughter
 Hemlata. He had provided in the will that his daughter
 Lilavati will enjoy the property during her lifetime
 subject to certain directions and he provided that in
 case, she would die before himself, i.e., testator
 Yashwant Rele, the property would be distributed among
 the three grand children. Admittedly, Yashwant Rele
 died on 15-8-1967 and after his death during the
 lifetime of Lilavati, property was actually distributed
 among three legatees namely, Shanti Kumar, Ganesh Kumar
 and Hemlata. Ganesh Kumar was blind. He was unmarried
 and he died on 6-1-1997 leaving behind him only mother
 Lilavati, four brothers and a sister. The dispute in
 the present matter pertains to immovable property, which
 was bequeathed to Ganesh Kumar and some movable
 property. It is the case of the plaintiff/petitioner
 Praful Kumar that on 12-3-1997 Lilavati executed a will
 bequeathing said moveable and immovable property in
 favour of his wife and son and he himself was appointed
 as executor. On 3/5/1997 Lilavati died.

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 3. According to the contesting defendants namely,

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 Hemlata, Shanti Kumar and Mahesh Kumar, Lilavati had not
 made any will. The alleged will is a forged document.
 Praful Kumar, who is the propounder and also the
 beneficiary of the same, had himself taken active part
 in preparation of the alleged will. One of the
 attesting witnesses, namely Girish Sao is his son-in-law
 and another attesting witness Deolekar, advocate is
 personal friend of Praful Kumar. It is contended by
 them that the will is liable to be rejected and the
 petitioner is not entitled to get a probate of the same.
 According to them, after death of Ganesh Kumar, Lilavati
 had become exclusive owner of the said property and
 after death of Lilavati, movable and immovable property
 left behind her would go to her four sons and a daughter
 equally. On these grounds, Hemlata sought partition and
 separate possession by filing a suit.

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 4. Several issues were framed by the learned
 Single Judge on behalf of the petitioner. In all four
 witnesses were examined including both the attesting
 witnesses and Dr.Mokashi, who had attended Lilavati and
 certified that she was physically and mentally fit and
 in disposing condition while executing the will. On
 behalf of the defendants, only Hemlata was examined.
 Taking into consideration the evidence on record and
 overall circumstances, the learned Single Judge accepted

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 the contention of the petitioner that the deceased
 Lilavati had actually executed a will and accordingly,
 the petition came to be allowed with the direction to
 grant probate of the will. As a consequence, the suit
 filed by Hemlata for partition of the property came to
 be dismissed.

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 5. Mahesh Kumar filed one appeal against dismissal
 of the suit for partition and another appeal against
 grant of probate. Hemlata filed an appeal challenging
 the judgment in respect of the will as well as the
 dismissal of the suit for partition. The learned
 counsel for the defendant/appellants vehemently
 contended that the learned Single Judge has not properly
 appreciated the evidence while granting the probate. He
 particularly contended that the whole of the property in
 the hands of the deceased Lilavati goes to the wife and
 son of the plaintiff/petitioner Praful Kumar with whom
 she was living. It is contended that as one of the
 attesting witnesses is son-in-law and another attesting
 witness is a close friend of the petitioner and the
 petitioner himself had taken active part in preparation
 of the will. According to him, this itself is
 suspicious circumstance sufficient to discard the will.
 It is contended that there could be no reason for
 Lilavati to exclude her other children and

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 grand-children from the property.

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 6. On the other hand, the learned counsel for the
 petitioner strongly supported the judgment and reasons
 given by the learned Single Judge while granting
 probate. It is contended that Lilavati died at the age
 of about 87 years. She was living with her son Praful
 Kumar and he alone was looking after her properly. He
 was also taking care of his two blind brothers namely,
 Ganesh Kumar and Vijay Kumar. Vijay Kumar is still
 living with the petitioner and has supported the
 petitioner in this matter and he does not claim any
 share in the property because he has been maintained by
 Praful Kumar. It is contended that Shanti Kumar, Mahesh
 Kumar and Hemlata never took care of their mother, but
 they are interested only in taking share in her
 property. They had actually quarrelled on 12th day
 ceremony after the death of Ganesh Kumar for division of
 the property and this was not liked by their mother. In
 these circumstances, she decided to bequeath the whole
 of the property in favour of the petitioner/plaintiff
 and had actually bequeathed the same in favour of his
 son and wife.

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 7. Perused the record and proceeding. As noted
 above, the petitioner Praful Kumar examined himself and

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 three other witnesses, being Advocate Deolekar, Doctor
 Mokashi and Girish Sao. Advocate Deolekar and Girish
 are the attesting witnesses. Dr.Mokashi deposed that he
 was called to examine and certify whether Lilavati was
 fit and in sound state of mind to execute a will.
 According to him, she admitted that she was aware about
 the contents of the will and he also certified that she
 was in sound state of mind and she had put signature on
 the will in his presence. Evidence of the petitioner
 shows that after quarrel, which was raised by the
 defendants on 12th day after the death of Ganesh Kumar
 for partition of the property, their mother was annoyed
 and, therefore, she had decided to bequeath property to
 him. She gave instructions to him get a will prepared.
 Accordingly, he approached advocate Deolekar and got the
 draft of the will prepared as per the said instructions.
 Evidence of Advocate Deolekar shows that he read over
 the will and explained the contents. Lilavati admitted
 that it was according to her instructions and
 thereafter, she put her signatures. Girish Sao also
 supported it. The evidence on record shows that she had
 actually understood the contents of the will before
 putting her signature on the same. It is true that
 Girish is son-in-law of the petitioner and Deolekar
 advocate is also his friend but that itself can be no
 ground to discard their evidence. As far as Dr.Mokashi

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 is concerned, his evidence shows that twice before

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 execution of the will, he was called to examine and
 treat her during a period of about 2-3 years. It
 appears that Advocate Deolekar and Doctor Mokashi are
 the residents of the same locality. Doctor Mokashi had
 no reason to make false statement or to falsely certify
 that Lilavati was in sound state of mind and she had
 understood and signed the will.

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 8. It appears that before filing of this
 proceeding before the Court, notice was issued by Mahesh
 Kumar to the petitioner alleging that he had forged a
 will of mother and had obtained some thumb marks
 purporting to be of their mother while she could put
 signature. However, the will on record shows that it
 was signed in English. It does not bear any thumb
 marks. Though initially Hemlata tried to take a stand
 that the will does not bear signature of her mother,
 finally she admitted that the signature on the will is
 in English and her mother always used to sign in

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 English. The learned trial Court minutely discussed the
 evidence and came to conclusion that the will bears the

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 signature of the deceased Lilavati. Hemlata had
 initially pleaded that she had several documents bearing
 signatures of their mother but she did not produce any
 such documents for the purpose of comparison. The

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 learned Single Judge observed that due to non production
 of such documents inference can be drawn that if she

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 would have produced documents, they would not support
 her contention that the will does not bear signature of
 her mother and her stand would have been falsified.

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 9. Admittedly, Lilavati had five sons and a

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 daughter. Out of the five sons, two sons namely, Ganesh
 Kumar and Vijay Kumar were blind. She was living with
 Praful Kumar. Ganesh Kumar and Vijay Kumar were also
 living with the petitioner and he was properly
 maintaining them. Ganesh Kumar died while living with
 him and Vijay Kumar is still living with the petitioner.
 Vijay Kumar does not support the defendants. He has
 supported the petitioner in respect of the will. It is
 material to note that Shanti Kumar, Mahesh Kumar and
 Hemlata did not take any care for their mother. From
 admissions of Hemlata herself, it appears that once in a
 while and sometimes in a year, they used to pay visit to
 their mother, while the petitioner, his wife and
 children used to take care of Lilavati. The will of
 Lilavati also clearly shows that only the petitioner
 Praful Kumar, his wife and son had affectionately taken
 care of her and, therefore, she was inclined to bequeath
 her property in favour of the wife and the son of the
 petitioner. If the defendants did not take care of

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 their old mother and if she was being looked after only
 by one son and his family members, it was but natural
 for her to bequeath her property in favour of
 daughter-in-law and grand son, who were treating her
 affectionately and taking her care properly. It was
 also but natural for her not to give any share in the
 property to her other children, who never bothered to
 take care of her. There is clear admission on record
 that on 12th day after the death of Ganesh Kumar,
 quarrel was raised by the defendants for partition of
 the property of Ganesh Kumar. It appears that due to
 this conduct of the defendants, their mother was
 annoyed. Infact, Ganesh Kumar was a exclusive owner of
 the property on the basis of will of grandfather
 Yashwant Rele. As he was not married and he died
 issueless. As per the provisions of Section 8 read with
 Schedule I of the Hindu Succession Act, 1956, mother is
 the Class I heir and brothers and sisters fall in Entry
 No.2 of Class II heirs. Lilavati being mother was the
 only legal heir of Class I after the death of Ganesh
 Kumar. It is nobody’s case that Ganesh Kumar had made
 any will bequeathing the property to anybody. As he
 died intestate, his mother succeeded him and became
 absolute owner of the property. She was entitled to
 take a decision about the disposal of the property.
 Even though brothers and sisters could not claim any

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 right in the property of Ganesh Kumar, the defendants
 raised quarrel and that too on 12th day ceremony after
 the death of Ganesh Kumar. It appears that in view of
 the conduct and behaviour of and neglect by the
 defendants, Lilavati decided to disinherit the
 defendants from the said property.

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 10. In view of the evidence pointed out above,

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 there were strong reasons for Lilavati to bequeath the
 property in favour of the petitioner or his wife and
 son. It could not be expected from Lilavati or from the
 petitioner to call some persons, who were totally
 unknown to them for the purpose of attestation of the
 will. Therefore, in our considered opinion merely
 because attesting witnesses happen to be close friend
 and relative of the petitioner, their evidence can not
 be discarded. In our opinion, their evidence is
 reliable and trustworthy. The learned Single Judge has
 minutely considered their evidence and the
 circumstances, before coming to conclusion that the will
 was infact executed by the deceased Lilavati. We see no
 reasons to take a different view. In our opinion, there
 is no substance in the contention of the
 defendants/appellants.

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 11. In the result, all the three appeals stand

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 dismissed with costs to be paid by the appellants to the
 defendant/respondent Praful Kumar.

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(D.K.Deshmukh, J.)

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 (J.H.Bhatia, J.)

Hemlata @ Kanakalata S. Shroff v. Prafulkumar C. Mohandas and Ors.

Case brief

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Hemlata @ Kanakalata S. Shroff v. Prafulkumar C. Mohandas and Ors.

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