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Bombay High Court
Chanchalben Chimanlal Patel And … vs Ruxmani Ravindra Balotia on 4 July, 2025
Digitally
signed by
MEERA
2025:BHC-OS:9982
MEERA MAHESH 1/26 Ts-90-15.doc
MAHESH JADHAV
JADHAV Date:
2025.07.04
15:10:50
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 90 OF 2015
IN
TESTAMENTARY PETITION NO. 1489 OF 2014
Chanchalben Chimanlal Patel & Anr ...Plaintiffs
V/s.
Ruxmani Ravindra Balotia ...Defendants
-----
Mr. Denzil D'mello for Plaintiffs.
Ms. Kalpana R. Balotia, for Defendant.
-----
CORAM: ARIF S. DOCTOR J.
RESERVED ON: 16th APRIL 2025
PRONOUNCED ON: 4th JULY, 2025
JUDGEMENT
1. The Plaintiff in the present Testamentary Suit seeks probate of a will
dated 6th May 2008 (“the said Will”) stated to be the last Will and Testament of
one Mr. Chimanlal Bavjibhai Patel (“the Testator”).
2. Before adverting to the rival contentions, it is useful for context to set out
the following facts :
i. At the time of his death, the Testator was stated to be residing in Flat No.
55 in building ‘B’ in Meghdoot Co-operative Housing Society Ltd. Shahaji Raje
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2/26 Ts-90-15.docMarg, Koldongri, Andheri (East), Mumbai – 400 0069 (“the said Flat”).
ii. The Testator passed away on 20 th January 2011, leaving behind, as his only
legal heirs and next of kin, his wife, Mrs. Chanchalaben Chimanlal Patel (“the
Wife of the Testator”), his son, Mr. Mahendra Chimanlal Patel (“the Plaintiff”),
and his daughter, Mrs. Ruxmani R. Balotia (“the Defendant”). The said Will
inter alia named the Plaintiff and the Wife of the Testator as the Executors. The
said Will inter alia made the following bequests (i) the said Flat alongwith five
fully paid up shares of Rupees 50/- each issued by the society to the Plaintiff,
(ii) the Testator’s monthly pension amount and money in bank accounts to the
Wife of the Testator, and (iii) the Public Provident Fund, where the Plaintiff had
been nominated to operate the account, to the Wife of the Testator.
iii. The Wife of the Testator and the Plaintiff, as named Executors, filed the
captioned Testamentary Petition on 6th November 2014 seeking probate of the
said Will. On 16th March, 2015, the Defendant filed a caveat opposing the
grant of probate, inter alia, on the ground that (a) the said Will is forged and
fabricated, (b) the said Will was executed under undue influence and (c) the
said Will was fraudulent and executed under force and coercion exerted upon
the Testator. During the pendency of these proceedings, the Wife of the
Testator passed away on 28th January, 2019, and the Plaintiff became the sole
Plaintiff to the present Suit.
iv. In view of the caveat, the Testamentary Petition was converted into the
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captioned Testamentary Suit and this Court vide an Order dated 8th June
2015, framed the following Issues :
“1. Whether the Plaintiff proves that the writing dated 6th
May 2008 was duly and validly executed and attested in
accordance with law as the last Will and Testament of
the Testator, Chimanlal Bavjibhai Patel?
2. Whether the Plaintiff proves that at the time of the said
alleged Will, the Testator was of sound and disposing
state of mind, memory and understanding?
3. Whether the Defendant proves that the alleged Will is a
forged and fabricated document?
4. Whether the Defendant proves that the alleged Will was
obtained by undue influence and coercion?
5. What reliefs and what orders?”
3 The Plaintiff led the evidence of two witnesses, (i) Dahyalal Vallbhram
Panchal (“PW1”), one of the attesting witnesses, and (ii) his own evidence, i.e.,
Mahendra Chimanlal Patel (“PW2”). The Defendant led her own evidence, i.e.,
Ruxmani Ravidra Balotia (“DW1”).
Submissions on behalf of the Plaintiff
4 Mr D’mello, learned counsel for the Plaintiff, at the outset invited my
attention to Section 63 of the Indian Succession Act, 1925 (“the Succession
Act“) and pointed out that, as per Section 63(c) of the Succession Act, a valid
Will was one whose execution was attested by two or more attesting witnesses
in accordance with the provisions of Section 63(c). He then pointed out that in
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4/26 Ts-90-15.docthe present case, the said Will had been attested by two attesting witnesses,
namely Dahyalal Vallbhram Panchal (PW1) and Pyarelal Govind Teli.
5 He then submitted that while due execution of a Will required the same
to be attested by two or more attesting witnesses, a Will was required to be
proved in the manner provided under Section 68 1 of the Evidence Act, 1872
(“Evidence Act“), i.e., like any other document which in law was required to be
attested. He then pointed out that Section 68 of the Evidence Act mandated any
one of the attesting witnesses must be called to prove the execution of such a
document if such witness was alive. Thus, he submitted that the Plaintiff, to
prove due execution of the said Will, led the evidence of PW1, who was one of
the attesting witnesses.
6 He then invited my attention to the Affidavit of Evidence (“AOE”) and
Further Examination-in-Chief of PW1 and pointed out that PW1 was an
advocate and had deposed as follows:
i. Affidavit of Evidence:
“2. ….I say that I know the deceased since my childhood and the
children of the deceased and I used to play together….
3. I say that on the 6th day of May, 2008, the Deceased, Chimanlal
Bavjibhai Patel, Pyarelal Govind Teli, attesting witness no. 2 & this
Deponent were together present at the residence of the deceased
viz……..& we did then & there see the Deceased set & subscribe his1 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 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.
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signature at the foot of the Testamentary paper at page no. 5 in the
English language and & character….
4. I say that thereupon, the Attesting Witness No. 2, Mr. Pyarelal
Govind Teli and I, this deponent did at that request of the said
deceased and in his presence and in the presence of each other all
being at the same time set and subscribed our respective names,
addresses, signatures and date in the English Language at the foot of
the said Testamentary Paper at page No. 5 as witness thereto.
7. I say that at the time the deceased subscribed his signature “C
Patel” to the said Will as aforesaid, he was of sound and disposing
mind, memory and understanding and to the best my belief made
and published the same of his free will and pleasure. ”
ii. Examination in Chief
“Q.1 What is the nature of this document?
Ans. Will executed by Chimanlal B. Patel.
Q.2 Can you tell us, whose signatures appear on page
No.5 thereof?
Ans. First signature is of Chimanlal Patel. Second is my
signature, and the third signature is of the attesting witness
No.2, Pyarelal G. Teli.”
Basis the above, he submitted that PW1 had clearly deposed to the fact
that (i) he knew the Testator and the Plaintiff since his childhood; (ii) both
the attesting witnesses, namely PW1 and Mr. Pyarelal Govind Teli were
present at the house of the Testator and saw the Testator subscribing his
signature to the said Will; (iii) both the attesting witnesses had subscribed
their signatures as witnesses at the request of the Testator; and (iv) the
Testator while executing said Will was of sound and disposing state of mind,
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memory and understanding and had executed the same of his own free will
and pleasure.
7 Mr. D’mello then pointed out that the above evidence had remained
unshaken in the cross-examination of PW1. In support of his contention, he
invited my attention to the following questions and answers given thereto by
PW1 in cross-examination:
“Q 18. I put it to you that late Mr. Chimalal Patel was paralyzed on
the left side of his body and the right side of his body was
working properly and he was very much able to put his
signature?
Ans. I do not agree.
Q.19. With which hand did late Mr. Chimanlal Patel sign on the
Will, left or right?
Ans. Right
Q.20. Since there are initials on each page of the Will, is it correct
to say that, the only one signature of the Testator on the Will
was not done by the Testator himself but was forged by you
and Mr. Mahendra Patel in conspiracy?
Ans. This is incorrect.”
From the above answers, Mr. D’mello first pointed out that the
Defendant had, in cross-examination, failed to in any manner discredit the
testimony of PW1 in his examination in chief and secondly, that the
Defendant had failed to put her case to PW1 in cross-examination. He thus
submitted that the evidence of PW1 had not in any manner been
controverted by the Defendant. Mr. D’mello, then in support of his
contention that when a party fails to put its case in cross-examination to the
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7/26 Ts-90-15.docwitness, it must necessarily follow that the testimony given by such a witness
was not disputed, placed reliance upon the judgement of the Calcutta High
Court in the case of A.E.G. Carapeit vs. A.Y. Dederian 2 which inter alia held
thus:
“The law is clear on the subject. Wherever the opponent has
declined to avail himself of the opportunity to put his essential and
material facts in cross-examination, it must follow that he believed
that the testimony given could not be disputed at all. It is wrong to
think that this is merely a technical rule of evidence. It is a rule of
essential justice. It serves to prevent surprise at trial and miscarriage
of justice, because it gives notice to the other side of the actual case
that is going to be made when the turn of the party on whose behalf
the cross-examination is being made comes to give and lead
evidence by producing witnesses. It has been stated on high
authority of the House of Lords that this much a counsel is bound to
do when cross-examining that he must put to each of his opponent’s
witnesses in turn, so much of his own case as concerns that
particular witness or in which that witness had any share. If he asks
no question with regard to this , then he must be taken to accept the
plaintiff’s account in its entirety. Such failure leads to miscarriage
of justice , first by springing surprise upon the party when he has
finished the evidence of his witnesses and when he has no further
chance to meet the new case made which was never put and
secondly, because such subsequent testimony has no chance of being
tested and corroborated”.
8 Mr. D’mello then submitted that the Defendant had in her AOE not
deposed to the fact that the Testator was not in a sound and disposing
state of mind, memory and understanding at the time of execution of the
said Will. He thus submitted that the Defendant having failed to lead any
2 AIR 1961 Cal 359
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evidence to support the contention that the Testator was not of sound
and disposing state of mind, was estopped from raising any such
contention.
9 Mr. D’mello then placed reliance upon the judgement of the Hon’ble
Supreme Court in H. Venkatachala Iyengar vs. B.N. Thimmajamma and
Others3 and pointed out that the Hon’ble Supreme Court had inter alia held
as follows :
“Section 68 deals with the proof of the execution of the document
required by law to be attested; and it provides that such a document
shall not be used as evidence until one attesting witness at least has
been called for the purpose of proving its execution. These
provisions prescribe the requirements and the nature of proof which
must be satisfied by the party who relies on a document in a court of
law. Similarly, Section 59 and 63 of the Indian Succession Act are
also relevant. Section 59 provides that every person of sound mind,
not being a minor, may dispose of his property by will and the three
illustrations to this section indicate what is meant by the expression
“a person of sound mind” in the context. Section 63 requires that the
testator shall sign or affix his mark to the will or it shall be signed by
some other person in his presence and by his direction and that the
signature or mark shall be so made that it shall appear that it was
intended thereby to give effect to the writing as a will. This section
also requires that the will shall be attested by two or more witnesses
as prescribed. Thus the question as to whether the will set up by the
propounder is proved to be the last will of the testator has to be
decided in the light of these provisions. Has the testator signed the
will? Did he understand the nature and effect of the dispositions in
the will? Did he put his signature to the will knowing what it
contained? Stated broadly it is the decision of these questions which
determines the nature of the finding on the question of the proof of3 AIR 1959 SC 443
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9/26 Ts-90-15.docwills. It would prima facie be true to say that the will has to be
proved like any other document except as to the special
requirements of attestation prescribed by Section 63 of the Indian
Succession Act. As in the case of proof of other documents so in the
case of proof of wills it would be idle to expect proof with
mathematical certainty. The test to be applied would be the usual
test of the satisfaction of the prudent mind in such matters.”
10 He submitted that in the facts of the present case, the Plaintiff had
clearly established due execution of the said Will and thus, Issues No. 1
and 2 were required to be answered in the affirmative.
11 Mr. D’mello then pointed out that the Defendant apart from
alleging undue influence, had failed to, in any manner, substantiate this
allegation. He thus submitted that the same remained the mere ipse dixit
of the Defendant. He then also took pains to point out that though the
Defendant in her Affidavit in Support of the Caveat had used the term
‘undue influence’, the AOE of the Defendant was absolutely silent on this
aspect. He thus submitted that the Defendant had not so much as even
attempted to substantiate this allegation of undue influence and hence
was precluded from taking this contention to oppose the grant of
probate.
12 Mr. D’mello took pains to point out that the Defendant had
pleaded a false case and was thus disentitled to any relief on this ground
alone. He pointed out that while it was the specific case of the Defendant
in her Affidavit in Support of the Caveat that the Plaintiff had denied the
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Defendant access to the Testator and had never allowed the Defendant
to talk to the Testator, the Defendant in cross-examination had not only
admitted that she was meeting the Testator but was even talking to the
Testator whenever he wished to do so. In support of this contention, he
invited my attention to the following questions and answers given
thereto in the cross-examination of DW1:
“Q.16. As per your answer to Question No. 14 somewhere in
February, 2011 Mr. Mahendra Patel broke relations with you
and did not allow you to meet your father. In your answer to
question no.15 you have said that your father passed away on
20th January, 2011. If your father had passed away on 20 th
January, 2011 how then did the Plaintiff No.2 i.e Mr.
Mahendra Patel not allow you to meet your father in
February, 2011?
Ans. I mean to say with in my answer to question no.14 that in
February, 2011 I meant to say that they broke relations with
all relatives. Till my father was alive everything was proper
and my father never used to allow Mr. Mahendra Patel to act
as per his whims and fancies. Before the death of my father
Mr. Mahendra Patel did not used to allow me to meet my
father. It is obvious that there is no question of him stopping
me to meet my father after my father’s death.
Q.20. Then do we take it that from the year 2000 until your father’s
death in the year 2011 your brother Mr. Mahendra Patel did
not allow you to meet your father as alleged by you?
Ans. I used to go to meet my father. I never meant that I was never
allowed to meet my father until 2011. He didn’t used to allow
me to talk to my father.
Q.22. Then do we take it that Mr. Mahendra Patel did not prevent
you from meeting your father?
Ans. Yes
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Q.27. I put it to you that your brother Mr. Mahendra Patel did not in
any manner prevent you from meeting your father or talking
to your father. Do you agree?
Ans. I do not agree.
Witness Volunteers:- Mr. Mahendra Patel used to always stop
me from either meeting or talking with my father. But my
father used to tell Mr. Mahendra Patel to call me and let me
meet my father.
Q.28. Did you meet your father and talk to him during the period
2000 to 2011 at his residence at Meghdoot?
Ans. Whenever my father used to insist on meeting me despite
resistance from my brother Mr. Mahendra Patel and
whenever my father used to have quarrels with my brother
Mr. Mahendra Patel, my brother used to come to my place to
call me to meet my father, and at that time I used to go at my
father’s residence at Meghdoot and used to meet and talk to
my father.”
From the above answers, Mr. D’mello submitted that it was clear
that the Defendant had sought to incorrectly portray a state of affairs
that in fact never existed only to create prejudice. He submitted that on
this ground alone, the Defendant was disentitled to any reliefs from this
Court.
13 Mr. D’mello then invited my attention to the judgement of the
Hon’ble Supreme Court in Subhas Chandr Das Mushib vs. Ganga Prasad
Das Mushib and others.4 to submit that the undue influence can be
proved only if the party who is stated to have asserted such undue
4 AIR I967 SC 878
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influence was in a position to dominate the will of the other and had
used such position to obtain an unfair advantage over the other party. In
the facts of the present case, Mr D’mello submitted that firstly, the
Defendant had neither shown that the Plaintiff held any real and
apparent authority over the Testator and secondly, that such an assertion
was belied by the answers given by the Defendant in cross-examination,
which clearly indicated to the contrary.
14 Mr. D’mello then also placed reliance upon the judgement of this
Court in Manilal Sunderji Doshi vs. Kamal Manialal Doshi and Others. 5
to submit that in order to prove undue influence, there must be positive
proof of coercion overpowering the volition of the testator, and mere
existence of a motive and/or opportunity to exercise undue influence
was not sufficient proof of the undue influence. He submitted that the
Defendant had not even attempted to establish such positive proof of
coercion. Basis this, he submitted that Issue No. 4 would have to be
answered in the negative.
15 Mr D’mello then pointed out that the Defendant had also failed
to, in any manner, substantiate the allegation that the said Will was a
forged and fabricated document and had not brought on record any
material to substantiate this allegation. Conversely, he pointed out that
PW1 had affirmatively answered in cross-examination, as follows:
5 3 AIR Bom R 354
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13/26 Ts-90-15.doc“Q.16. I put it to you that as you have mentioned the date
below the signature of the late Mr. Chimanlal Patel, you
along with Mr. Mahendra Patel, have conspired and forged
the signature of the Testator late Chimanlal Patel on the Will
being Exhibit P-1.
Ans. This is incorrect.
Q.20. Since there are no initials on each page of the Will,
is it correct to say that, the only one signature of the Testator
himself but was forged by you and Mr. Mahendra Patel in
conspiracy?
Ans: This is incorrect.
Q.21. Your have given the answers to the above questions
as if you do not know the family of Mr. Mahendra Patel at
all but the fact remains that you know Mr. Mahendra Patel
and his family very well since childhood. Why did you not
inform Mr. Mahendra Patel’s sister i.e Mrs. Ruxmani Balotia
about the present Will before or after late Mr. Chimanlal
Patel’s death?
Ans. I did not inform Mr. Mahendra Patel’s sister about
the present Will since I felt that it was not necessary to do
so.
Q.23. I put it you that you have forged the signature of the
Testator on the Will and thereby you have committed
forgery, cheating, criminal conspiracy and have given false
and fabricated evidence in the Court.
Ans. I do not agree.”
Basis the above, Mr. D’mello submitted that while the
Defendant had not even attempted to substantiate the allegation of
forgery by bringing on record any cogent material whatsoever, PW1
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had specifically denied all the contentions qua the said Will in any
manner being forged and/or fabricated.
16 Mr. D’mello then pointed out that the only basis on which the
Defendant supported her contention that the signature on the said Will was
not that of the Testator was because PW2 had, in cross-examination,
admitted that the signature on the Power of Attorney (“POA”) dated 5th
March 2004 was that of the Testator and that the same was materially
different from the signature stated to be of the Testator appearing on the said
Will. He, however, took pains to point out that no questions were put to
either PW1 and/or P.W. 2 in this regard.
17 He also pointed out that in cross-examination DW1 had not only
denied that the allegations of forgery and fabrication were baseless but had
also not submitted any documentary proof to support such a claim. In
support of this contention, he invited my attention to the following questions
and answers from cross-examination of DW1
“Q.31. I put it to you that your allegation at 2 places in
paragraph 2 that the Will of the deceased is forged
are totally false. What do you have to say?
Ans. It is not correct.
Q.40. I put it to you that you have falsely alleged that the
Plaintiff No.2 and his wife have committed an act
of forgery. What do you have to say?
Ans. I do not agree.
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Q.41. Do you have any documentary proof of the
allegation made by you that the Plaintiff No.2 and
his wife committed an act of forgery?
Ans. I have already submitted the proof before this
Court.
(Attention of witness is drawn to paragraph no. 7
of Affidavit of Evidence dated 2nd July, 2018.)
Q.45. Do you have any documentary proof to
substantiate your allegation in paragraph 7 that
“they have forged the signature of my late father
and committed forgery which is crime and
punishable u/s. 463, 467, 468, 420, 202, 456 of
Indian Penal Code, 1860″?
Ans. The documentary proof is submitted with the
Police Station.
Witness Volunteers:- There are police complaints
lodged with regards to attempts to suicide
committed by my father twice which are lodged
with Vile Parle Police Station and Rajkot Police
Station.
Q.46. You have referred to police complaints alleged to
have been in your answer to question no. 45 above.
Can you tell us who lodged these complaints?
Ans: My father was admitted with The Sadanand Danait
Hospital, Jeevan Vikas Kendra and the hospital had
reported this to the police at Vile Parle. At Rajkot,
my father was admitted with Virani Hospital also
known as Gondhia Hospital at Kalava Road and
they had reported this to the police.
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Q.47. I call upon you to produce copies of police
complaints referred to in your answer to question
no.46?
Ans. According to me, I cannot procure the copies of
police complaints from either the Police Stations or
the hospitals without their being any directions
from the Court. I can produce the same only if
appropriate directions are given by the Court to the
Police Stations and the hospitals also.
Q.48. I put it to you that no such police complaints were
filed. What do you have to say?
Ans. I do not agree.”
Basis the above, Mr. D’mello submitted that the Defendant had,
despite being called upon by the Plaintiff to produce the copies of the alleged
police complaint, failed to produce the same before this Court. Basis this he
submitted, that Defendants allegation that the Will was forged was totally
unsubstantiated. He thus submitted that the Defendant, having failed to
prove Issue No. 3, the same would have to be answered in the negative.
18 Thus, Mr. D’mello submitted that the Suit be decreed as prayed for
and probate of the said Will be granted to the Plaintiff.
Submissions on behalf of the Defendant.
19 Ms. Balotia at the outset, submitted that the execution of the said Will
was surrounded by suspicious circumstances and that the Plaintiff as
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propounder, had not been able to dispel the same. She pointed out that the
suspicious circumstances surrounding the said Will were (i) that the Plaintiff
had taken an active part in the making of the said Will, (ii) the Plaintiff was
a major beneficiary under the Will and (iii) the Defendant, who was the
daughter of the Testator, was not bequeathed anything under the said Will.
She submitted that it was incumbent upon the Plaintiff to have dispelled
these suspicious circumstances, which the Plaintiff had not done, and thus
submitted that the Suit would have to be dismissed, and the estate of the
Testator would have to devolve as per intestacy. In support of her contention
that the onus lay upon the Plaintiff to dispel the suspicious circumstance, she
placed reliance upon the following judgements, Jaswant Kaur vs Amrit Kaur
& Others6, Seth Beni Chand (since dead) Now By L.Rs vs Smt. Kamla Kunwar
and Others7, and Rani Purnima Devi and Another vs Jumar Jhagendra
Narayan Dev and Another8.
20 Ms. Balotia then submitted that the fact that the signature on the said
Will was not of the Testator was apparent from the answers given in cross-
examination by PW2. She directed my attention to the following questions,
viz;
“(Shown a certified copy of 15th March 2004 said to be Power of
Attorney signed by the deceased in favour of the Plaintiff……)Q.9 Is this your signature on this documnet?
Ans. Yes.
6 AIR 1977 SC 74
7 AIR 1977 SC 63
8 AIR 1962 SC 567
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(The witness points to the signature just above and to the right of the
printed words “before me”.)Q. 10 Who has signed above your signature?
Ans. That is the signature of my father Chimanlal Patel. ”
Basis the above, Ms. Balotia submitted that PW2 had admitted that
the signature on the POA dated 15th March 2004 issued by the Testator
in favour of the Plaintiff/PW2 was the signature of the Testator. She then
pointed out that the signature on the said Will stated to be of the
Testator was materially different from the signature on the POA and, on
this basis, submitted that the said Will was forged.
21 Ms. Balotia then also pointed out that the Plaintiff had not
brought on record any material to show that the signature on said Will
was, in fact, of the Testator. She then submitted that once the Court was
satisfied that the signature of the Testator on said Will was different
from the one on the POA executed by the Testator, which was admitted
by the Plaintiff/PW2, then it stood conclusively established that the
signature on the said Will was a forged and fabricated signature. Basis
this, she submitted Issue No. 3 would have to be answered in the
affirmative, and Issues No. 1 and 2 would consequently have to be
answered in the negative.
22 Ms. Balotia also pointed out that PW1 falsely contended that he
had known the Testator since childhood, which she submitted became
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apparent from the answers given by PW1 in cross-examination. In
support of her contention, she pointed out the following questions and
answers given by PW1 in cross-examination :
“Q.17. Late Mr. Chimanlal Patel was suffering from
paralysis in which side of his body?
Ans. I do not know.
Q.18. I put it to you that late Mr. Chimanlal Patel was
paralyzed on the left side of his body and the right side of his
body was working properly and he was very much able to
put his signature.
Ans. I do not agree.
Q.19. With which hand did Late Mr. Chimanlal Patel sign
on the Will, left of right?
Ans. Right ”
23 Ms. Balotia then also submitted that despite the fact that there was
a grave shadow of doubt upon the evidence of PW1, the Plaintiff had not
even bothered to call the second attesting witness, namely Pyarelal G
Teli, to give evidence to prove due execution of the said Will. She
submitted that it was not the case of the Plaintiff that he was unable to
produce the second attesting witness. She submitted that the Defendant
had been informed by the Testator that he had not executed any Will
during his lifetime and that he was ill-treated by the Plaintiff and his
wife. She thus submitted that Issue No. 4 be answered in the positive.
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24 After having heard Learned Counsel for the Plaintiff and the
Defendant, and having considered the evidence on record, I find as
follows :
I. Issue 1: Whether the Plaintiff proves that the writing dated 6th
May 2008 was duly and validly executed and attested in accordance with law
as the last Will and Testament of the Testator, Chimanlal Bavjibhai Patel?
i. Section 63 of the Succession Act mandates that a valid Will must be
attested by at least two attesting witnesses. In the present Petition, it is
important to note that both attesting witnesses have filed a common Affidavit of
Due Execution, which is annexed to the Plaint. However, it is established law
that a Will can be proved in accordance with Section 68 of the Evidence Act by
leading evidence of at least one of the attesting witnesses. The Plaintiff has thus
led the evidence of PW1, who was one of the attesting witnesses to the said
Will. PW1 has clearly deposed to the fact that he saw the Testator subscribing
his signature to the said Will in the presence of both the attesting witnesses and
that both the attesting witnesses subscribed their signatures at the Testator’s
request. PW1 also affirmed that the Testator was of sound mind at the time and
that the Testator executed the said Will.
ii. Crucially, Mr D’Mello highlighted the fact that the evidence of PW1 (a)
remained unshaken in cross-examination and (b) that the Defendant had failed
to put her specific case (of forgery, undue influence, or unsound mind) to PW1
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21/26 Ts-90-15.docduring cross-examination. Thus, as held by the Calcutta High Court in the case
of A.E.G. Carapeit (supra), the evidence of PW1 would be undisputed.
iii. The only real contention of the Defendant was that the said Will was
forged and the signature appearing thereon was not that of the Testator. This
case was entirely premised on the basis that the signature appearing on the said
Will was materially different from the Testator’s signature, which appeared on
a POA dated 15th March 2004 executed by the Testator in favour of the
Plaintiff. However, neither PW1 nor the Plaintiff/PW2 were cross-examined on
this aspect, and admittedly, no question was put to either PW1 or PW2
regarding the difference in signatures was even put to them. Thus, the evidence
would suggest that both the signatures were of the Testator and not that one
was not. It is also to be noted that the POA was executed in the year 2004 and
the said Will in the year 2008, there is a four year gap between the two
signatures.
iv. Though the Defendant has submitted that the execution of the said Will
is suspect and that thus the Plaintiff ought to have called the second attesting
witness, which only added to the suspicious circumstances in the present facts
and from the evidence on record, I am unable to agree. While calling both
witnesses is an ideal scenario to dispel any suspicious circumstance, Section 68
of the Evidence Act is clear and required the evidence of one attesting witness
to be led. The Plaintiff has done so. Furthermore, the Defendant has not,
through her evidence, made out any case to establish suspicious circumstances
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22/26 Ts-90-15.docexisted, apart from her mere ipse dixit. As already noted above, the Defendant
has not even put such a case to either of the Plaintiff’s witnesses in cross-
examination, nor was the evidence of PW1 in any manner shaken. Thus, in my
view, the occasion to call the second attesting witness did not, in the facts of the
present case, arise.
v. Hence, basis the above reasoning, Issue No. 1 would have to be
answered in the affirmative and is accordingly so answered.
II. Issue 2: Whether the Plaintiff proves that at the time of the said
alleged Will, the Testator was of sound and disposing state of mind, memory
and understanding?
i. The Plaintiff through the evidence of PW1, has established that the
Testator was of sound and disposing mind at the time of execution and had
executed the said Will of his own free will and accord. Crucially, however, the
Defendant, in her AOE, has not deposed to the Testator being of unsound mind,
despite having taken such a plea in the caveat. Thus, such a plea is totally
unsupported by any evidence on the part of the Defendant and thus would
have to be nothing more than the Defendant’s mere ipse dixit.
ii. Thus, given the evidence of PW1 and the failure of the Defendant to lead
any evidence to support her allegation of unsound mind, the burden would
shift to the Defendant once the Plaintiff had made out a prima facie case, as
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23/26 Ts-90-15.docheld by the Hon’ble Supreme Court in the case of H. Venkatachala Iyengar
(supra).
iii. Thus, Issue No. 2 is answered in the affirmative.
III. Issue 3: Whether the Defendant proves that the alleged Will is a
forged and fabricated document?
i. The entire basis of alleging that the signature of the Deceased on the said
Will was forged was because PW2 had admitted that the signature appearing
on the POA dated 15th March 2004 was that of the Testator. This signature on
a visual comparison is slightly different from the one appearing on the said
Will. However, as already noted above, in dealing with Issue No. 1, neither
PW1 nor PW2 were cross-examined on this aspect, and admittedly, no
question was put to either PW1 or PW2 regarding the difference in signatures.
Also, there is a gap of four years between the time of execution of the POA and
the said Will. Thus, from the evidence on record, while both signatures do
differ, the evidence reads that both are of the Testator, given the lack of any
cross-examination.
ii. Crucially, the Defendant has not independently sought to lead any
evidence of a handwriting expert in an attempt to establish that the signature
on the said Will was not that of the Testator. Also, equally, when the Defendant
was cross-examined regarding having any documentary proof to substantiate
her allegations of fraud or forgery, the Defendant attempted to evade the
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question and was further unable to produce copies of any police complaints
filed in respect of fraud or forgery committed by the Plaintiff and the Wife of
the Testator, or otherwise, as allegedly filed, despite being called upon to
produce such a police complaint.
iii. The burden to prove forgery lies squarely upon the Defendant. While a
discrepancy in signatures can raise suspicion, it is not, by itself, conclusive
proof of forgery without expert analysis. The Defendant has failed to provide
any concrete evidence (like a handwriting expert’s report or validated police
complaints) to substantiate the allegation of forgery. Conversely, the attesting
witness has directly denied the accusation. Allegations of criminal conduct like
forgery require a higher standard of proof, which the Defendant has clearly
not met.
iv. Thus, Issue No. 3 is answered in the negative.
IV. Issue 4: Whether the Defendant proves that the alleged Will was
obtained by undue influence and coercion?
i. The basis of alleging undue influence is that, according to the Defendant
the Plaintiff had taken an active role in the preparation of the said Will and
was also a major beneficiary under the said Will. It is the case of the Defendant
that the Testator had informed her that he had not executed any Will and was
ill-treated by the Plaintiff. However, again, the Defendant’s AOE was absolutely
silent on this aspect, despite such contention having been raised in the caveat.
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ii. Furthermore, the record in fact bears out that the Defendant has pleaded
a false case in her caveat since it has been specifically contended by her that
she was denied access to the Testator in his lifetime, whereas in cross-
examination, the Defendant has admitted to meeting and talking to the
Testator during his lifetime. Infact in cross-examination, the Defendant
volunteered the statements that the Testator “never used to allow Mr.
Mahendra Patel to act as per his whims and fancies” and further that the
Testator “used to tell Mr. Mahendra Patel to call me and let me meet my father”
infact suggests the Testator had his own volition and was not under the control
of the Plaintiff.
iii. Also, it is well settled, as held in the case of Subhas Chandr Das Mushib
(supra)and Manilal Sunderji Doshi (supra), that undue influence requires
positive proof of coercion dominating the Testator’s will, not just motive or
opportunity. Thus, the burden of proving undue influence lay upon the
Defendant. However, given the fact that the Defendant’s AOE is entirely silent
on this aspect and her contradictions in her cross-examination regarding
access to the Testator. While the Plaintiff being a major beneficiary and having
an active role can be suspicious circumstances, they are not, by themselves,
conclusive proof of undue influence without further evidence of coercion
overpowering the Testator’s free will. The Defendant has failed to provide
positive proof of such coercion.
iv. Hence, for the aforesaid reasons, Issue 4 is answered in the negative.
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