In this testamentary suit, the petitioner sought a probate of the deceased father's Will. The defendant challenged validity citing fraud and lack of capacity. The court found the Will valid, execution proper, and capacity intact, granting the suit and ordering probate.
Suit decreed and probate of the Will is to be issued at the earliest.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Jayant V Khandekar v Deepali D. Purohit
7-TS56-96-KHANDEKAR V PUROHIT.DOC
ATUL
IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION TESTAMENTARY SUIT NO. 56 OF 1996
IN
TESTAMENTARY PETITION NO. 79 OF 1995
JAYANT VASANT KHANDEKAR
Residing at A-1-4, Ganesh Bhavan, S.B. Marg,
Mahim, Mumbai 400 016
…Plaintiff
versus
DEEPALI DILIP PUROHIT,
Residing at Silver Arch, 1765-E, Rajarampuri,
Kolpapur 416 008
…Defendant
Mr. Vishal C. Ghosalkar, for the Plaintiff.
None for the Defendant.
CORAM: G.S. PATEL, J DATED: 18th August 2016
PC:-
1. Heard Mr. Ghosalkar for the Plaintiff. None for the Defendant.
2.The Petitioner seeks probate to a Will dated 14th November
1993 of one Vasant Govind Khandekar who died in Mumbai on 9th
December 1993. The Petitioner is one of the deceased’s sons. The
deceased was survived by his wife, Indumati, and four children, two
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sons and two daughters. The elder son is the Petitioner, Jayant. The
younger son, Rajan, has consented, as has the elder daughter Priti
Sunil Purandare (her married name). The only opposition comes
from the younger daughte, Deepali Dilip Purohit (also her married
name).
3.Before I proceed further, I must note that at some point
between 2013 and 2014, the Defendant appears to have given up the
contest altogether. On 23rd July 2013, Mr. Ghosalkar for the
Plaintiff applied to the Court (R.D. Dhanuka, J.) in Notice of
Motion No. 218 of 2012 seeking that the cross-examination on
behalf of the Defendant of the Plaintiff’s witnesses be closed.
Dhanuka J noted in considerable detail the various dates taken for
cross-examination, as well as the submission before him that there
was a continual delay and non-cooperation from the Defendant and
her Advocate. He also noted that it was clear that the Defendant and
her Advocate had copies of the Affidavits of Evidence of three
witnesses as early as 11th April 2012. Meetings scheduled thereafter
were cancelled. The Plaintiff’s Advocate thereafter repeatedly
sought that fresh dates be set. There was no reply to these requests.
There was no Affidavit in Reply to the Notice of Motion before
Dhanuka J either. This Notice of Motion was allowed and the cross-
examination was closed. On 26th June 2014, Kathawalla J noted that
even after notice the Defendant’s Advocate did not appear. He
directed notice to be given to the Defendant. This was done. On
15th July 2015, I restored the Defendant’s Notice of Motion No. 155
of 2014 (by an order made that very day in Notice of Motion No. 53
of 2015 for restoration). I heard Mr. Jaywant for the Defendant. In
that Notice of Motion, the Defendant sought a recall of Mr. Justice
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Dhanuka’s order dated 23rd July 2013 (to which I have referred
earlier). The only reason given was that the Defendant was not
present on that date. I quoted Dhanuka J’s order in full and found
that there was no explanation for the delay of over a year in filing
that Notice of Motion. The Defendant only said she had various
ailments, back pain and had to keep shifting her address. Of any of
this, I found no satisfactory supporting material. Noting that
Dhanuka J’s order was not unreasoned, and that the application
before me amounted to sitting in appeal over it, I dismissed the
Notice of Motion of recall. There is no Appeal against that order.
The matter was ultimately set down for final hearing on the board
that was notified for today a week ago.
4. None appears for the Defendant.
5.The Will in question is attested by two witnesses, one
Dattatray Hari Kale and one Joseph Lawrence Alvares. They filed
Affidavits supporting the Petition but both died before their
evidence could be taken.
6.In Clause (1) of the Will, the Testator listed various
immovable properties. These include a flat and agricultural land in
Vasai, which were bequeathed to the Petitioner. The second
property was at Medha, Taluka Roha, District Raigad, which was
bequeathed to the second son, Rajan. It was also said that the
testator was a partner in a partnership firm Indo Enterprises. His
share and interest in the firm were left to his widow. The movable
properties were divided between various legatees, including his
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children and grandchildren. It is true that the Petitioner and his
family seem to have received a large amount of the legacies.
7.The Caveat filed by the Defendant raises various issues inter
alia questioning the deceased’s testamentary capacity and alleging
fraud, misrepresentation and coercion. It was on this basis that
issues were framed on 19th January 2011 (R.S. Dalvi, J.). These are
set out below, with my findings against each:
Sr. No. Issues Findings 1. Whether the last Will and Testament In the of the deceased Vasant Govind Affirmative. Khandekar was validly executed?2. Whether the Will of the deceased In the was fabricated, forged and bogus? Negative.3 What relief, if any, is the Plaintiff As per final entitled to? order.8.The Plaintiff led his own evidence. He also led the evidence
of one Pooja Purushottam Gothoskar, the daughter of Dr. Balkrishna
Shankar Jawadekar who had issued a medical certificate appended to
the Will. The Plaintiff also led the evidence of the sons of the two
attesting witnesses affirming their respective fathers’ signatures. In
addition, the Plaintiff’s sister Priti Sunil Purandare also filed her
Affidavit of Evidence. The Defendant only cross-examined the
Plaintiff. She failed to cross-examine any of the other witnesses.
9.At this stage, I must note one curious but telling
circumstance, viz., that the deceased’s wife Indumati had herself
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made a Will. Probate was obtained of that Will in Testamentary
Petition No. 90 of 1996. This document was led in evidence. This
Will by Smt. Indumati in terms says that she and her husband, the
present Testator, had between them decided the manner of division
of the estate and that both had made Wills accordingly. Indumati’s
Will proceeded without opposition including from the present
Defendant. Mr. Ghosaklar’s submission that the Defendant must be
deemed therefore to have accepted the correctness of the present
Will is not entirely without substance. His case, however, rests on a
far surer foundation.
10.I have, with his assistance, considered the cross-examination
of the Plaintiff’s witness. It does not disturb the Plaintiff’s
testimony at all. There is no dispute that the Plaintiff was a cancer
patient. There is also no dispute that he had conditions, though not
serious, of diabetes and hypertension as well. These do not rob the
testator of his testamentary capacity. Other than this, there is no
cross-examination at all. In fact, in the answers in cross-examination
the Plaintiff refutes the suggestions put to him and asserts that his
father was perfectly sound at and around the time of making of the
Will.
11.It is not insignificant either that the Plaintiff’s other siblings
have not challenged this Will. This is an another circumstance that
must be taken into account because it can hardly be said that the
Will is unnatural.
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12.As to the issue of the Will being fabricated, the burden of
proof lay squarely on the Defendant. Without any proof being
adduced, the second issue must be answered in the negative.
13.The first issue resolves itself into two components. One of
these is of the deceased’s testamentary capacity. That has been
established and has not been dislodged in any way. The second is as
to the actual execution of the Will. Here again, we find that the
Testator has signed and so have the two attesting witnesses. All their
signatures are sufficiently identified. There is also the Affidavit,
uncontroverted, of the daughter of the medical professional who
certified the Testator’s testamentary capacity.
14.Having regard to all these circumstances, I find that there is
no substance to the challenge. The Suit is decreed. Probate is to be
issued at the earliest.
15.All concerned to act on an authenticated copy of this order.
(G. S. PATEL, J.)
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1 issue framed by the court
Whether the Will of Vasant Govind Khandekar was validly executed?
1 provisions across 1 enactments
JAYANT VASANT KHANDEKAR
G. S. PATEL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court