This testamentary suit sought probate of the last Will of Chhotalal Karunashankar Trivedi. The defendant contested execution, capacity, and alleged forgery. The court held probate was valid, dismissing the caveat filed by the defendant's heir.
Probate of the last Will and Testament of the deceased was granted to the Plaintiff as executor.
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.
TS-66-87-TRIVEDI-V-TRIVEDI-F.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION TESTAMENTARY SUIT NO. 66 OF 1987
IN
TESTAMENTARY PETITION NO. 92 OF 1986
VIBHUSHIT UMIYASHANKAR TRIVEDI,
of Bombay Hindu Inhabitant, residing at
Karunasagar, 267 Deodhar Road, Matunga,
Bombay 400 019, the sole Surviving executor
named In the said Will.
…Plaintiff
versus
1(a)BHARGAV JASVANTRAI TRIVEDI,
Residing at 3rd Floor Karunasagar, 267
Deodhar Road, Matunga, Bombay – 400
019.
1(b) MRS. MINAKSHI SHARAD TRIVEDI,
Residing at 3rd Floor, Karunasagar, 267
Deodhar Road, Matunga, Bombay – 400
019.
1(c) DAXA MADHU OZA
Residing at 3rd Floor, Karunasagar, 267
Deodhar Road, Matunga, Bombay – 400
019.
1(d) MRS. KALPANA JAGDISH SHAH,
Residing at 3rd Floor, Karunasagar, 267
Deodhar Road, Matunga, Bombay – 400
019.
…Defendants
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APPEARANCES
FORTHEPLAINTIFFMr. Girin Pandit
FORTHEDEFENDANTS
Mr. D.S. Jondhale, i/b M/s. Jondhale &
Co.
CORAM :G.S.Patel, J. JUDGMENT RESERVED ON :23rd July 2015 JUDGMENT PRONOUNCED ON : 7th April 2016 JUDGMENT:
1.The Suit seeks probate to the last Will and testament of one
Chhotalal Karunashankar Trivedi (“Chhotalal”; “the deceased”;
“the Testator”). Chhotalal died in Mumbai on 18th October 1982.
He was a widower. He had no children. He is said to have left a
testamentary writing in Gujarati dated 6th July 1982. In this Will,
which is the one propounded, Chhotalal appointed his brother
Umiyashankar, and Umiyashankar’s son, Vibhushit (the present
Plaintiff) as the executors of his Will. Umiyashankar and Chhotalal
had a brother Jasvantrai. He was the original Defendant. After he
died, his heirs have been brought on record as Defendants Nos. 1(a)
to 1(d).
2.The Will in question is in Gujarati.1 However, the Testator
has apparently signed it in English on page 2. There is also a
signature on page 1, and this is the subject of some dispute in the
1Exhibit “P6”,p.183.
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trial. I will turn to this presently. An official translation is also on
record.2
3.The execution of the Will was supposedly witnessed by one
Dr. H. R. Kamdar, and by one Vrajlal V. Thakkar. Although Vrajlal
Thakkar filed two Affidavits during the pendency of the Suit, he
died before he was cross-examined.
4.In the Will, Chhotalal said he had an undivided one-third
share, right, title and interest in an immovable property named
‘Karunasagar’ at 267, Deodhar Road, Matunga, Mumbai 400 019.
Some portion of it was, he said, in his exclusive possession. The
other two-thirds were with his brothers Umiyashankar and
Jasvantrai. Chhotalal said his one-third share was his self-acquired
property. He bequeathed this one-third share to the Plaintiff, his
nephew Vibhushit (Umiyashankar’s son).
5.Umiyashankar died on 5th February 1983, leaving the Plaintiff
as the sole surviving executor. The Petition was filed on 5th
September 1983. A citation dated 8th September 1987 was served on
Jasvantrai on 2nd December 1987. Jasvantrai entered a Caveat on
14th December 1987 with an accompanying Affidavit in Support.
6.In this Affidavit he said that the Will in question was
fabricated, bogus and not intended to be acted upon. He said that
Chhotalal was a chronic asthmatic and suffered from bronchitis;
that Chhotalal was an alcoholic; that he was twice operated on for
2Exhibit “P7”,p.185.
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hernia, had lost consciousness and was bedridden from 1982
onwards;3 that at that at the time when the Will was executed on 6th
July 1982 the deceased was 85 years with severely restricted
movements; and that his medical condition was such that he could
barely take food and was practically on a liquid diet. Jasvantrai
claimed to have accompanied Chhotalal for most of the duration of
his illness. It is on this basis that Jasvantrai alleged that Chhotalal
lacked sufficient testamentary capacity.4
7.He then alleged that Chhotalal was at the mercy of
Umiyashankar and the Plaintiff and they had prevailed upon
Chhotalal to put his signature to the alleged Will.5
8.The next ground taken by the Caveator was that the Will was
unnatural and inequitable in its exclusion of the Caveator from its
bequests. This ground was sought to be bolstered by alleging that
the Karunasagar property of which one-third was bequeathed in the
Will, belonged in its entirety to Jasvantrai and Chhotalal had no
right, title or interest in it at all. This was also cited as evidence of
unsoundness of mind.6
9.Jasvantrai also disputed the signatures of the deceased as they
appeared on the Will.7
3Affidavit in support of Caveat, paragraph 3,p.20.
4Affidavit in support of Caveat, paragraph 4,pp.20-21.
5Affidavit in support of Caveat, paragraph 4,p.22.
6Affidavit in support of Caveat, paragraphs 5-6,pp.22-25.
7Affidavit in support of Caveat, paragraph 7,p.25.
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10.On the Caveat being filed along with its Affidavit in Support,
the Petition was renumbered as a Suit and proceeded to trial. Issues
were framed by R.D. Dhanuka J on 4th February 2014. These are set
out below with my findings against each.
Sr No Issue Finding 1. Whether the Plaintiff proves the last Will and Testament of the deceased Shri Chhotalal Karunashankar Trivedi dated 6th Yes July 1962 and the execution of the Will is duly attested in accordance with law? 2. Whether Defendant No.1(a) proves that the testator was suffering No from any serious illness and was not of sound and disposing mind at the time of execution of Will? 3. Whether Defendant No.1 proves that the Will was executed under undue No influence of the plaintiff? 4. Whether defendant no.1 proves that the signature of the testator is No. forged? 5. Whether the plaintiff is entitled to the probate of the last Will and
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Testament of the deceased as Yes. prayed? 6. What reliefs? Suit
decreed
11.The Plaintiff led his own evidence as also the evidence of Dr.
Kamdar, one of the attesting witnesses. The record also indicates
that the other attesting witness Vrajlal Thakkar had made not one
but two Affidavits. On 5th September 1983, when the Petition was
originally filed, Vrajlal Thakkar filed an Affidavit saying that the Will
was executed at the residence of the deceased at the Karunasagar
building in Matunga.8 Vrajlal Thakkar subsequently filed another
Affidavit on 26th March 1990 in which he says that there was a
mistake in the first Affidavit on account of a miscommunication
with the Advocates and that the Will was actually signed, as the
other witness Dr. Kamdar, Chhotalal’s family physician of many
years says, at Dr. Kamdar’s dispensary.9 Vrajlal Thakkar himself
died on 16th December 1998. By that time, the Caveat had already
been filed on 14th December 1997. On 4th February 2014, the issues
that I have set out above came to be drawn.
12.For his part Defendant No. 1(a), brought on record following
the demise of the original Defendant, Jasvantrai, examined himself
on a very limited aspect of the matter, i.e., to introduce the expert
evidence of a handwriting expert, Mrs. Titiksha Desai-Kamble.
These are the only two witnesses whose evidence was led by the
Defendants.
8Petition,pp.10-12.
9Annexure to the Plaintiff’s Evidence Affidavit,pp.45-46.
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RE: ISSUE NO.1: Whether the Plaintiff proves due execution and attestation of the Will
13.The burden of proving this issue is on the Plaintiff. It actually
falls in two parts. The first part of it relates to the due execution by
the Testator and the second part relates to the due attestation of that
execution by the two attesting witnesses. The Plaintiff must prove
both. I believe that the question of the Testator being of sufficient
testamentary or dispositive capacity is also a burden that must
necessarily fall on the Plaintiff although in Issue No. 2, a burden has
been cast on the Defendant to show that the Testator was suffering
from serious illness and was not of sound and disposing mind. I will
segregate these two for the simple reason that the contesting
Defendant No. 1(a) has adopted the original Caveator’s stand that
the deceased was so infirm for so long that he could not possibly
have retained any sufficient dispositive capacity.
14.On the question of the due execution of the Will, we have the
evidence of Dr. Kamdar first followed by the evidence of the
Plaintiff himself. There are in addition the two Affidavits filed by the
second attesting witness Vrajlal Thakkar to which I have just
referred. However, since he passed away after the Petition was filed,
he was not available for cross-examination. I will consider the
evidentiary value of his two Affidavits presently.
15.Dr. Kamdar’s evidence was taken on 30th September 1995 on
commission. Dr. Kamdar was 70 years old at the time. I must note
that on that day, Issues had not even been framed. I can only
presume that the evidence of Dr. Kamdar was taken well in advance
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because of his own failing health. Another peculiarity of this
evidence is that the examination-in-chief was not on Affidavit but
was taken directly by the counsel for the Plaintiff before the
Commissioner. Further, the Defendant represented himself and
appeared in person. He conducted the cross-examination himself.
16.In his examination-in-chief, Dr. Kamdar says that he knew the
deceased Chhotalal. He also said that he knew both the Plaintiff and
the Defendant. Dr. Kamdar said he had known the deceased for
about 20 years before his death. The deceased was Dr. Kamdar’s
patient and visited his dispensary “of and on” for medical
treatment.10
17.In his examination-in-chief11 Dr. Kamdar was shown the
original Will dated 6th July 1982. He identified his own signature at
the foot of page 2 as also the rubber stamp with his name. He
confirmed that he himself had put the address of the dispensary
when he attested the document. Secondly, he identified the
signature on page 2 as that of the deceased. He unequivocally stated
that this signature was placed by the deceased in his presence on 6th
July 1982 after the deceased read it.
18.However, even in his examination-in-chief, Dr. Kamdar was
unable to identify the signature on page 1. He also could not say
whether the second witness, Vrajlal Thakkar had signed the Will in
confirmation of attestation in Dr. Kamdar’s presence or not. Dr.
Kamdar did recollect that Chhotalal visited his dispensary on 6th
10Record,pp.124-125.
11Record,p.125.
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July 1982 for the purpose of signing this document along with one or
two people. At the time of his examination, he could not recall the
names of those persons. He also said that he did not know any
person named Vrajlal V. Thakkar. He confirmed that Chhotalal
signed the Will first and that he thereafter signed as the first
witness. Dr. Kamdar was not told anything else about the contents
of the Will. Dr. Kamdar did depose that Chhotalal was at that time
in good health and mentally alert although suffering chronic asthma
for many years.12
19.The cross-examination of Dr. Kamdar by the Defendant
appearing in person on that date is extremely brief.13 It is in fact no
cross-examination at all. Unfortunately, it has not been recorded in
question and answer form. Whether it is examination-in-chief or
cross-examination, all evidence before a Commissioner should
always only ever be recorded in question and answer form so that
the work of the Court at the final hearing is not made more difficult
by attempting to 'reverse engineer' as it were the precise frame of
the questions that were put to the witness. In any case, in cross-
examination the witness Dr. Kamdar reaffirmed that the Will was
not prepared in his presence. It had been brought by Chhotalal duly
prepared when he came to Dr. Kamdar’s clinic. Dr. Kamdar
confirmed in cross-examination that Chhotalal was accompanied by
two other persons at that time but he did not recollect their names.
He also could not explain (quite naturally) why the Will was
prepared in Gujarati but signed in English. He reconfirmed that the
12Record,p.125.
13Record,p.126.
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Will was brought by Chhotalal himself on the date that it was signed
in his presence.
20.This is the only cross-examination of the only available
attesting witness. It is important to note that given the Issues, no
case was ever put to this witness that he had not signed the Will as a
witness; that the signature of the deceased was not his, i.e., the
deceased’s; or that the Will was fabricated or a forgery. These are
important omissions and they will have a significant bearing on the
outcome of this particular case.
21.The Plaintiff filed and Affidavit in lieu of examination-in-
chief dated 15th March 2014. It was, therefore, almost twenty years
after Dr. Kamdar gave his evidence.14 In this Affidavit the Plaintiff
confirmed that Chhotalal was a widower and that he had no
children. Chhotalal’s wife died in 1969. After that, Chhotalal was
alone and stayed with the Plaintiff and his family who looked after
him. He also confirmed that the three brothers, Chhotalal,
Umiyashankar and the original Caveator/Defendant Jasvantrai all
had a one-third interest in the Karunasagar property at Matunga.
22.The Plaintiff then spoke of the preparation of the Will. He
said it was drawn up in Gujarati and was executed at Dr. Kamdar’s
dispensary at Agarwal Niwas, 402, Telang Road, Matunga Central,
Mumbai 400 019, in the presence of Dr. Kamdar and Vrajlal
Thakkar. He confirmed that both Dr. Kamdar and Thakkar signed
the document as attesting witnesses. Importantly, the Plaintiff did
14Affidavit of the Plaintiff,pp.30-36.
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not claim to have been present at the time although he identified the
signature of the deceased.15
23.The Plaintiff then spoke of Vrajlal Thakkar having filed his
Affidavits and having since passed away and of Dr. Kamdar having
been examined and cross-examined on commission.16
24.The Plaintiff then produced records showing that the
property in question was equally held by the three brothers, each
with an undivided 1/3rd share in it.17
25.The Plaintiff then said that the deceased was once operated
for a hernia, but that was well in the past before 1965. The deceased
was otherwise fit and healthy at the time of the Will. He was moving
about and used to attend his office.18
26.There was a further examination-in-chief of the Plaintiff on
commission. This was on 18th July 2014. The further examination-
in-chief reaffirms the evidence given on Affidavit.19 After this, cross-
examination of the Plaintiff began.20
15Affidavit of the Plaintiff, paragraph 3,pp.31-32.
16Affidavit of the Plaintiff, paragraphs 4-5,pp.31-32.
17Affidavit of the Plaintiff, paragraph 7,p.34.
18Affidavit of the Plaintiff, paragraph 8,p.34-35.
19Further examination-in-chief,pp.67-69.
20Cross-examination of the Plaintiff,pp.69-123. I notice in passing that this cross-examination before the Commissioner was most unsatisfactory. Although it was taken in a question and answer form, I find that the Commissioner had purported to rule on some of the objections taken before him. Much later, he evidently realised that this could not have been done and refrained from doing so. However, the cross-examination is replete with instances of the Commissioner
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27.A suggestion was put to the Plaintiff that the style of signature
on the first and the last page of the Will were different.21 This was
denied. It is however important to note that in answer to Question 7
the Plaintiff confirmed that he was not present at the time when the
Will was executed.22 Several questions were put to him ostensibly to
try and get him to agree that the two signatures of the Testator on
pages 1 and 2 were different. The Plaintiff did not agree with the
suggestions put to him.23 Then a suggestion was put to the Plaintiff
that the two pages of the Will were pages from two different
documents and for this reason there was no page number on the first
page of the Will.24 While this was denied, I find this question
exceedingly strange since this was not a case pleaded at all. This was
not even the case that was finally referred for the opinion of the
handwriting expert brought forward by the Defendant. I am unable
to see how any such question could have been allowed to be put to
the Plaintiff. Had there been any answer inconvenient to the
Plaintiff, I would have been moved to ignore it. What is important
however is that there is no suggestion put to the Plaintiff that the
property in question at Matunga is or was the sole property of the
original Defendant. Now this is an important omission because the
Defendant’s Affidavit in Support of the Caveat proceeds on the
footing that the property in question was exclusively the property of
the original Defendant alone.
purporting to rule and adjudicate on the objections taken before him.
21Plaintiff cross-examination, Qns. 2-6, pp. 70-71.
22Plaintiff cross-examination, p. 71.
23Plaintiff cross-examination, Qns. 8-15, pp. 71-74.
24Plaintiff cross-examination, Qn. 16, p. 74.
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28.The Plaintiff was then asked when he saw the Will for the first
time. He says that he saw it when Mr. Suryakant Mehta a solicitor
with M/s. Wadia Ghandy & Co., called him, Defendant No. 1(a),
the original Defendant Jasvantrai and the Plaintiff’s father
Umiyashankar to his office. At that time the Will was presented to
them and that was the first time that the Plaintiff learnt of it. This
was about a month after the death of the Testator.25
29.There then follows a long and, in my view, wholly irrelevant
cross-examination about various properties of the deceased, none of
which takes us very far. However, in Question 84 the Plaintiff was
asked whether before 6th July 1982 there was any quarrel between
the Testator and the Plaintiff.26 An objection was taken to this, in my
view quite correctly, that the question was irrelevant and had to be
disallowed. The Commissioner noted the objections and the rival
submissions. The answer to the question was a simple “No”. The
reason this is important is because once again we find a case being
put to the Plaintiff that has never been pleaded. This is repeated
again a few pages later in Question 128.27 This entire passage is
worth reproducing.
Q. 128 I put it to you that the Will of the deceased Testator signed before the Witness viz. Dr. H.R. Kamdar is different than the Will submitted by you with your Petition for Probate
26Plaintiff cross-examination,p.97.
27Plaintiff cross-examination,p.110.
25Plaintiff cross-examination, Qns. 22-27,pp.76-77.
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is another and not the same Will as signed by the deceased Testator?
Obj. Ld. Advocate for the Plaintiff raised the objection on above question on the ground that it is not the case anywhere pleaded by the Defendant in his Affidavit in Support of Caveat and as such the Defendant is not entitled to put up a new case not pleaded anywhere.
Reply
Ld. Advocate for the Defendant No.1A stated that it was very much pleaded and as such I am entitled.
Rejoinder Ld. Advocate for the Plaintiff requested the Ld. Advocate for Defendant No.1A to point out from the pleading a case put up by you now.
Sur-Rejoinder Ld. Advocate for Defendant No.1A pointed out para 7 of his Affidavit in Support of Caveat.
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Sur-SurLd. Advocate for the Plaintiff Rejoinder submitted that version in para 7 as stated by Ld. Advocate for Defendant No.1A is completely different and nowhere states case put up now before witness.
Per As the Ld. Court Commissioner do not Commissioner possess any power to decide any issue nor to over rule and / or disallow any question validly or invalidly put up to the witness and as such witness is duty bound to answer whatever question put to the witness. The issue or relevancy of otherwise will be decided by the Court at the time of final hearing. In the event if the Court feels about the irrelevancy of the above question the same can be taken note of at that time.
Answer It is incorrect.
30.I am unable to understand how any such case, never once
pleaded could ever have been put to the Plaintiff. The case put to
the Plaintiff is completely at odds with what is pleaded. It is no part
of the Affidavit in Support that the Will signed before Dr. Kamdar is
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different from the Will filed along with the Petition. This question
assumes that the deceased did in fact execute a Will and that this
was in fact witnessed at least by Dr. Kamdar. If this is so, then it
must constitute, of necessity, a vital admission on the part of
Defendant.
31.Finally we have two Affidavits of Vrajlal Thakkar. Since he
was not subjected to cross examination, they must receive limited
evidentiary value. The affidavits are noteworthy only for two things.
First, that Vrajlal Thakkar mentions the place of execution as the
deceased’s residence, but later files another Affidavit saying this was
the mistake and the Will was actually executed at the Dr. Kamdar’s
clinic; and second, that he affirms the actual execution of the Will,
consistent with Dr. Kamdar’s Affidavit. On its own, this evidence
cannot be determinative. It is only noted for the record.
32.Thus what we have is this: Evidence that is unshaken that the
deceased was of reasonably good health to come personally to the
clinic of Dr. Kamdar. He had with him a Will that was already
prepared. Dr. Kamdar confirms and reconfirms seeing the deceased
sign the Will and recalls attesting it as a witness. While he does not
know Vrajlal Thakkar and does not recollect whether the other
witness signed in his presence, he does recollect that there were two
other persons present. We are, of course, left to speculate as to as to
who that other person might have been. Very possibly it could have
been Umiyashankar, but by the time of the trial he had already
passed away and was no longer available as a witness. Certainly the
present Plaintiff, a co-executor as a beneficiary, does not seem to
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have had any role to play in either the preparation of the Will or its
execution. He is not a participant in the Will-making process.
33.Read as a whole, and considering the tenor of the cross-
examination, I find it difficult to accept the suggestion made by Mr
Jondhale for the Defendant that the due execution of the Will has
not been established. In my view it has. It may not be perfect. It may
be considerably less than perfect. But then, so are we all. The
jurisdiction of a probate Court is not a jurisdiction of suspicion. It is
merely a jurisdiction of circumspection and caution. It is not for the
probate Court to adopt what has been described as a resolute
scepticism and unshakeable doubt. It is only required to be cautious
and careful in its approach.28 The evidence of both the Plaintiff and
Dr. Kamdar is wholly undisturbed in cross-examination.
34.Issue No.1 must be answered in the affirmative.
Re: Issue No.4: Whether Defendant No.1(a) proves that the signature of the deceased is forged.
35.This Issue is linked to Issue No.1 and I have, therefore, taken
it immediately next in sequence. The burden was entirely on the
Defendants and this burden of proof was sought to be discharged by
leading the evidence of a handwriting and forensic expert, Dr.
Titiksha Kamble-Desai. Her evidence is somewhat unfortunate and
is possibly unfair to her. She was specifically commissioned by the
Defendant No.1(a) to give her opinion. Defendant No.1(a) filed an
28H. Venkatachala Iyengar v B.N. Thimmajamma & Ors., AIR 1959 SC 443.
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Affidavit only on this aspect of the matter and on nothing else.29 He
did not offer himself for cross-examination.
36.Mrs. Desai-Kamble affirmed an Affidavit of Evidence dated
24th March 2000.30 In this she says she is working with Helik
Advisory Ltd as a forensic expert. She gives the details of this
enterprise and her own technical experience. She says in February
2015, i.e. very recently, she was approached by Defendant No.1A to
provide a signature verification report after verifying what is
described as the “disputed signature” on page 1 with the “admitted
signature” on page 2 of the Will.31 These terms are of some
consequence. Mrs. Desai-Kamble herself did not inspect the
original document. A forensic expert from the firm form one
Sukanya Parande seems to have done also on 17th February 2015.
Ms. Parande took photographs of the Will.32 It is on a comparison of
these two photographs that Mrs. Desai-Kamble came to the
conclusion that these are suggestive of different authorship.33
37.On this basis she made and produced a report dated 26th
February 2015.34 Turning first to the report, I find that this is based
on a comparison of only these two signatures and the two
photographs of the two signatures. In paragraph 2 of her report,
Mrs. Desai Kamble accepts that the only ‘admitted’ signature
sample provided for comparison was the signature on page 2 of the
29Defendant No.1(a) Affidavit,pp.127-144.
30DW1 Evidence Affidavit,pp.148-151.
31DW1 Evidence Affidavit, paragraph 4,p.149.
32DW1 Evidence Affidavit, paragraph 5,pp.149-150.
33DW1 Evidence Affidavit, paragraph 6,p.150.
34Exhibit D5,pp.197-210.
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Will.35 She also accepts in the report itself that every signature is
bound to have a minor variation.36 She then compares the signature
on page 1, which is written vertically in the left margin with the
signature on page 2 of the Will. After setting out her observations
she concludes that on account of differences in line quality, spacing,
connecting stroke, size of signatures, underscore formation, ending
stroke and other aspects, the two signatures are suggestive of
different authorship.37
38.Mrs. Desai Kamble was cross examined in Court.38 She
confirmed that it was the Defendant No.1(a) who asked her to
examine two signatures and gave her opinion.39 She also confirmed
that she did not herself inspect the Will but that her junior assistant
did so instead.40 When confronted with her own report she
confirmed that the signature marked ‘D1’ in her report was the one
that was disputed. This is the signature she says that was disputed
by Defendant No.1(a). This question and answer is important:41
35Exhibit D5,p.198.
36Exhibit D5,p.199.
37Exhibit D5,p.207.
38Cross-examination of DW1,pp.152-161.
39Cross-examination of DW1, Qn. 2,p.154.
40Cross-examination of DW1, Qns. 3-5,p.154.
41Cross-examination of DW1,pp.155-156.
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page 1 there is a signature in the left margin. This has been circled in red and marked D-1. On the second page there is a signature to the right. This has been marked in red as A-1. Is it correct that by using the marking D-1, you meant to indicate that the signature on page 1 is the one that is disputed?
39.This was immediately followed by a confirmation question as
to whether the signature on page 2 of the Will was also disputed.
That answer is revealing. At this, I myself put a question to the
expert.
Ans. The signature marked A-1 is the one that is allegedly admitted.
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Ans. Yes.
40.Mrs. Desai Kamble then confirmed that the only documents
she was given were the photographs of the two pages of the Will and
that the only admitted signature sample was the signature on page
2.42 She also confirmed that she orally asked the Defendant for more
samples but that these were not provided.43
41.At this stage, a most unusual question was put to the expert
witness. She was asked if Defendant No.1(a) had ever informed her
that the Plaintiff had offered to provide additional signature
samples. She said no; meaning only that Defendant No.1(a) had not
told her of this.44 Mr. Pandit for the Plaintiff then tendered a copy of
his letter dated 27th February 2015 to Mr. Jondhale. There was
some controversy about delivery of this letter, which I found there
and then to be incorrect. I admitted the letter into evidence as
Exhibit P-8.45 This letter is, in terms of litigation strategy, a bold
move: in it, Mr. Pandit, on behalf of the Plaintiff, offered to submit
to the handwriting and forensic expert chosen by Defendant No.1(a)
additional signature samples. There was no reply to this. I do not
suggest that Defendant No.1(a) was bound to accept this offer, but it
is certainly a factor to be taken into account in assessing the expert
testimony that came to be given in the absence of additional
comparison material that was offered for her examination. Mrs.
Desai Kamble did what she could with what little was given to her.
But the fact that Defendant No.1(a) deliberately kept from her
42Cross-examination of DW1, Qns. 9-11,p.156.
43Cross-examination of DW1, Qns. 14-18,pp.157-158.
44Cross-examination of DW1, Qn. 19,p.158.
45Atp.187.
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additional material, especially when she had sought it, should tell us
to approach her final conclusion with a very great deal of caution. In
fairness, she was then asked whether there was possibility that
shown additional signatures samples she might have reached to
different conclusion. She quite correctly said that this was possible
though not certain.46
42.Finally, Mrs. Desai Kamble agreed that factors such as age
and illness could cause certain variations.47
43.I do not wish to comment at any great length on the evidence
attesting witness. It must, of course, be received with caution,
among other things because additional material that she herself
asked for, and which was on offer, was kept from her. As a result, her
evidence is not determinative. It might have some corroborative
value, but that requires proof aliunde from the+ Defendants that the
Testator’s signature is a forgery. There is no such proof.
44.What is however significant is Mrs. Desai Kamble’s
confirmation that the Defendant himself told her that the signature
on page 2 is an ‘admitted’ signature. To my mind, this completely
demolishes the Defendants’ case regarding the Will being forgery or
a fabrication.
45.Therefore, Issue No. 4 is answered in the negative. The
Defendants have not proved that the Testator’s signature on the
Will is a forgery.
46Cross-examination of DW1, Qn. 26,p.160.
47Cross-examination of DW1, Qns. 21-22,p.153.
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Re: Issues Nos. 2 and 3: Whether the Defendants prove the Testator’s incapacity and whether they prove undue influence.46.As regards these issues, Defendant No. 1(a) led no evidence at
all. The Affidavit in Support of the caveat filed by Jasvantrai was not
even attempted to be supported by any evidence. Defendant No.1(a)
never stepped into the witness box. On the other hand, at least as
regards the ownership of the Karunasagar property, the evidence of
the Plaintiff, unshaken in cross-examination, was that each of the
three brothers held a one-third share in it. This was established from
tax documents,48 and the land records.49
47.Both issues are answered in the negative.
Re: Issues Nos. 5 and 6: Whether the Plaintiff is entitled to Probate; reliefs.
48.In the result, Issue No.5 must be answered in affirmative.
There is absolutely no material on record to deny the grant of
probate.
49.The Suit succeeds and is decreed. There is no merit in the
caveat. The Suit is decreed in terms of prayer clause (a).
48Exhibit “P-4”,pp.167-181.
49Exhibit “P-5”,p.182.
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50.The Registry is directed to issue probate at the earliest acting
on an authenticated copy of the Order.
51.At the request of Mr. Jondhale, the issuance of probate is
stayed for a period of four weeks from today.
(G.S. PATEL, J.)
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3 issues framed by the court
Whether the Plaintiff proved due execution and attestation of the Will?
Whether the Testator lacked testamentary capacity or the Will was executed under undue influence?
Whether the Defendants proved the Testator's signature on the Will was forged?
Vibhushit Umiyashankar Trivedi
Bhargav Jasvantrai Trivedi
Mrs. Minakshi Sharad Trivedi
Daxa Madhu Oza
Mrs. Kalpana Jagdish Shah
G.S. Patel
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court