Bombay High Court

AMIT D.NANDURKAR and ANRversusGULABAI SITRAMA BAIRAGI.

Decided: 8 September 2026
Disposal: DISMISSED

Holding

The plaintiff failed to prove the due execution of the will and to remove the suspicious circumstances, and therefore the petition for Letters of Administration with the Will annexed was dismissed.

Summary

The plaintiff, Sumit Devidas Nandurkar, sought Letters of Administration with a Will annexed for the estate of the deceased Kachardas Balkrishna Bairagi, relying on a Will dated 28 April 1984 that named his mother and himself as beneficiaries. The will was contested by several heirs who filed caveats and later a chamber summons, alleging fraud, undue influence and that the will excluded other legal heirs. The court examined the execution of the will, the age and health of the testator, the credibility of the sole attesting witness, and the suspicious nature of the bequests, especially the role of the deceased's son Devidas in drafting the will. Relying on statutory provisions and precedents, the court held that the plaintiff failed to dispel the legitimate suspicions surrounding the will’s execution and its substantive provisions. Consequently, the petition for probate and letters of administration was dismissed.

Issues considered

Do the petitioners prove due execution of the will dated 28th April 1984 of the deceased Kachardas Balkrishna Bairagi?
Whether the petitioners are entitled to Letters of Administration with Will annexed of the Property and Credits of the deceased Kachardas Balkrishna Bairagi?
Whether the petitioners are entitled to prosecute the present suit originally filed by the Executrix for grant of Probate?
Whether the Defendants/Caveators have any caveatable interest and/or locus to oppose the grant of Letters of Administration as prayed for?
What order and decree?

Legislation cited

Subjects

probate
will
letters of administration
undue influence
suspicious circumstances
testamentary capacity
attestation
successive legacies
executor
succession

Judgment

5-TS-16-1992

Digitally
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
signed by
MOHAMMAD
MOHAMMAD AREEB
AREEB
MOHD
MOHD
AKBAR
TESTAMENTARY AND INTESTATE JURISDICTION
AKBAR Date:
2026.09.11
16:36:35
+0530 TESTAMENTARY SUIT NO. 16 OF 1992
IN
TESTAMENTARY PETITION NO. 400 OF 1988
Sumit Devidas Nandurkar … Plaintiff

Versus

Gulabbhai Sitaram Bairagi & Ors. … Defendants

WITH
CHAMBER ORDER (L) NO. 7877 OF 2026
IN
TESTAMENTARY SUIT NO. 16 OF 1992
_______
Mr. Rakesh Kumar a/w. Mr. Raju Gupta, Mr. Pranay Singh, Mr. Aryan Tiwari
and Ms. Neelam Yadav, for the Plaintiffs.
Mr. Ashish Verma, for Defendant No. 2.
Mr. R. M. Haridas, for Defendant No. 3.
_______
CORAM : ARIF S. DOCTOR, J.
RESERVED ON : 14th JULY, 2026
PRONOUNCED ON : 8th SEPTEMBER 2026
JUDGEMENT:

1. The present Suit seeks Letters of Administration in respect of the estate of

Mr. Kachardas Balkrishna Bairagi (“the deceased/testator”), on the basis of

a Will dated 28th April 1984 (“the said Will"), which is said to have been

executed by the deceased. The captioned Testamentary Petition was

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originally filed for probate; however, the same was subsequently converted

into the captioned Testamentary Suit for the reasons set out hereinafter.

2. The deceased passed away on 10th September 1984, leaving behind the

following legal heirs (i) his widow, Laxmibai A. Bairagi (“Laxmibai”); (ii)

his son, Devidas Kachardas Nandurkar (“Devidas”); (iii) his two daughters,

Durgabai Ramkrishna Vaishnav (“Durgabai”) and Gulabbai Sitaram

Bairagi (“Gulabbai”) and (iv) his granddaughter and two grandsons from the

branch of Devidas, viz., Vaijayantha (from Devidas’s first wife, Uma),

Amit and Sumit (from Devidas’s second wife, Trupti). For convenience, the

family tree of the deceased is reproduced below:

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3. The said Will named Laxmibai (wife) and Devidas (son) as its executors.

Devidas, however, passed away on 22nd December 1987. Thereafter, on 28th

March 1988, Laxmibai filed the captioned Testamentary Petition for Probate

of the said Will.

4. The original Will was deposited with this Court as Will No. 134 of 1998.

The said Will named (i) Mr. Vidyadhar Vinayak Joshi, Advocate and

Solicitor; and (ii) Dr. V.P. Advirkar as the attesting witnesses. In support of

the Testamentary Petition, Mr. Vidyadhar Vinayak Joshi filed an Affidavit

dated 3rd May 1988.

5. Upon service of citations, Gulabbai, (one of the daughters of the deceased)

opposed the grant by filing a Caveat dated 27th March 1991, followed by an

Affidavit in Support of the Caveat dated 22nd April 1991. Thereafter, Uma

Devidas Kachardas Nandurkar Bairagi (first wife of Devidas) also opposed

the grant by filing a Caveat dated 22nd March 1991 and an Affidavit in

Support thereof dated 3rd April 1991. The Testamentary Petition was thus

converted into the captioned Testamentary Suit.

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6. Durgabai, the other daughter of the deceased, addressed a Letter dated 16 th

April 1991 to the Prothonotary and Senior Master of this Court, giving her

consent to the grant of Letters of Administration to the Petitioners.

7. Laxmibai then passed away on 20th February 1997. Since the other named

executor, i.e., Devidas, had also passed away, this Court by an Order dated

2nd July 1998, permitted the sons of Devidas, i.e., Mr. Sumit Devidas

Nandurkar and Mr. Amit Devidas Nandurkar, who are also the residuary

legatees under the said Will to prosecute the Suit as Plaintiffs.

8. Uma passed away on 16th January 2006, after which her daughter, i.e.,

Vaijayantha Mundhe, was impleaded as Defendant No. 2.

9. This Court by an Order dated 7th January 2008, framed the following Issues

for determination:

ISSUES

1. Do the petitioners prove due execution of the will dated 28th

April, 1984 of the deceased Kachardas Balkrishna Bairagi?

2. Whether the petitioners are entitled to Letters of Administration

with Will annexed of the Property and Credits of the deceased

Kachardas Balkrishna Bairagi?

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3. Whether the petitioners are entitled to prosecute the present suit

originally filed by the Executrix for grant of Probate?

4. Whether the Defendants/Caveators have any caveatable interest

and/or locus to oppose the grant of Letters of Administration as

prayed for?

5. What order and decree?”

10. Thereafter, by an Order dated 28th April 2008, this Court recorded that Mr.

Amit Devidas Nandurkar, Plaintiff No. 1, did not desire to prosecute the Suit

and had no objection to its dismissal insofar as he was concerned. The Suit,

however, continued at the instance of Plaintiff No. 2, i.e., Mr. Sumit Devidas

Nandurkar (“the Plaintiff”).

11. Durgabai, then, despite the letter dated 16th April 1991 addressed to the

Prothonotary and Senior Master of this Court, in which she had consented

to the grant of probate, sought to contest the said Will by filing Chamber

Summons No. 111 of 2010. By an Order dated 28 th September 2010, this

Court permitted Durgabai to contest the said Will and directed that the

Affidavit in Support of Chamber Summons No. 111 of 2010 be treated as an

Affidavit in Support of Caveat/Written Statement. Durgabai was

accordingly impleaded as Defendant No. 3 to the Suit. Durgabai thereafter
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also passed away, and her son, i.e. Mr. Praful Vaishnav Ramkrishna Das,

was impleaded in her place as Defendant No. 3.

12. On 20th February 2017, a statement was made through Counsel before the

Commissioner recording evidence that Defendant No. 2 i.e. Vaijayantha

Mundhe did not wish to cross-examine the Plaintiff.

13. The parties thereafter led the following evidence, viz.

Plaintiff’s Witnesses Defendant's Witnesses

Sumit Devidas Nandurkar Gulabbai Sitaram Bairagi
(PW-1) (DW-1)
Dr. V.P. Advirkar Praful Vaishnav Ramkrishna Das
(PW-2)
(DW-2)

14. It is pertinent to note that Defendant No. 1, i.e., Gulabbai, thereafter

remained absent on several occasions. Consequently, by a conditional Order

dated 16th February 2026, this Court directed all the Defendants to remain

present on the next date of hearing and made it clear that, in the event of

their failure to do so, the Court would proceed to decide the matter. Despite

the said direction, Defendant No. 1 did not appear. Thereafter, by an Order

dated 30th March 2026 passed by the Prothonotary and Senior Master, the

Advocates for Defendant No. 1 were discharged. In view of Defendant No.
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1’s continued absence and failure to comply with the aforesaid directions,

this Court proceeded ex-parte against Defendant No. 1.

Submissions on behalf of the Plaintiff:

15. At the outset, Mr. Kumar, learned Counsel appearing on behalf of the

Plaintiff, submitted that Defendant No. 1 had, not in the Affidavit in Support,

disputed the existence or genuineness of the said Will or its execution. He

submitted that the only contention raised by Defendant No. 1 in the Affidavit

in Support of the Caveat was that the deceased had no right to dispose of the

properties bequeathed under the said Will.

16. Mr. Kumar then pointed out that Defendant No. 1 had not specifically

disputed the signature of the deceased on the said Will, nor had Defendant

No. 1 pleaded that the deceased at the time when the said Will was made

lacked the testamentary capacity to make the said Will. He further submitted

that Defendant No. 1 had neither disputed the signatures of the attesting

witnesses appearing on the said Will nor had pleaded any illegality or

irregularity in the execution or attestation of the said Will.

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17. Mr. Kumar submitted that original Defendant No. 3, i.e., Durgabai, had, in

the year 1991, expressly affirmed the said Will. In support of his contention,

he invited my attention to a Letter dated 16th April 1991 addressed by

Durgabai to the Prothonotary and Senior Master, to point out that Defendant

No. 3 had expressly stated that the properties of the deceased could be

divided in accordance with the said Will.

18. He submitted that Durgabai subsequently sought to withdraw her consent

and contest the Will on the ground that her earlier consent had been obtained

by fraud. In this connection, Mr. Kumar invited my attention to the Affidavit

filed by Durgabai in support of Chamber Summons No. 111 of 2010, which

he pointed out was directed to be treated as an Affidavit in Support of the

Caveat/Written Statement. Mr. Kumar then invited my attention to

paragraph 7 of the said Affidavit to point out that Durgabai had merely stated

as follows, viz.

“7. I say that my signature was obtained fraudulently as the said
document was not explained to me. I have a share of the properties
mentioned in the present suit and therefore I am necessary party to the
suit. I say that I could not file my caveat in the probate petition because
of the said fraudulent consent which was obtained by the Original

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Petitioner. I say that I have share in the properties of my father and he
never intended to give all the properties to the Petitioner as there were
family disputes between them. I say that the Will-Deed seems to be a
fraudulent document and therefore the Petitioners are not entitled for any
relief. …” (emphasis supplied)

19. Mr. Kumar submitted that, apart from the aforesaid bald allegation,

Durgabai had not specifically challenged either the execution or the validity

of the said Will nor had she disputed the signature of the deceased appearing

on the said Will or alleged that the deceased lacked the testamentary capacity

to make the said Will.

20. Mr. Kumar then placed reliance upon the Caveat and Affidavit in Support

filed by the original Defendant No. 2, i.e., Uma Devidas Kachardas

Nandurkar, the first wife of Devidas, along with her daughter, i.e.,

Vaijayanta Mundhe, to point out that in paragraph 3 of the Affidavit in

Support of the Caveat, it was stated, inter alia, as follows:

“3. I say that the said alleged Will of deceased Kachardas being Exh A
to the Petition is a got up. As stated in the Plaint none of the said Will of-
the deceased Kachardas. All the said assets were mentioned at the behast
and at the instance of husband Devidas and only with a view to harass
me and my said daughter deprive us of our legitimate shares therein. It is
pertinent to note my husband died on 22.12.87. The alleged Will of the
said Kachardas was alleged to have been executed on 28.4.84 and the

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said Kachardas died on 10.09.84. No probate of Will was applied for
earlier then March 1988. The present Petition was filed only after the
said Suit No. 769 of 1988 was filed inter alia by myself. I therefore say
and submit that the said Will was and is bogus, got up and false and made
with a dishonest intention on the part of Devidas and his father
Kachardas and in at the instance of Trupti the alleged wife of Devidas
and in collusion with each other and to deprive myself and my said
daughter’s right to inherit the assets of the said deceased Devidas”
(emphasis supplied)

21. Mr. Kumar also drew my attention to paragraph 9 of the said Affidavit, to

point out that original Defendant No. 2, i.e., Uma, had stated as follows, viz.

“at the time of his death the said Kachardas was very old and was not
keeping good health. He was residing with said Devidas, and depended
upon and influenced by said Devidas to inturn influenced by the said
Trupti. I therefore say and submit that Devidas persuaded the said
Kachardas to execute the alleged Will. I therefore say that the alleged
Will of Kachardas was executed without the knowledge and consent of
the said Kachardas and/or against his own Will and/or the same was
executed by Kachardas without knowing its contents and effects and
implications. Had the true facts were disclosed to the said Kachardas, the
said Kachardas would have refused to execute the alleged Will.”
(emphasis supplied)

22. Mr. Kumar submitted that Uma Devidas Nandurkar passed away during the

pendency of the Suit without entering the witness box or leading any

evidence in support of the aforesaid allegations. He also pointed out that her

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daughter, i.e., Vaijayanta Mundhe, continued as Defendant No. 2 but did not

lead any evidence in support of the case as pleaded in the Caveat and

Affidavit in Support. Mr. Kumar, therefore, submitted that the allegations of

undue influence and want of knowledge or consent on the part of the

deceased remained wholly unproved. He further pointed out that Vaijayanta

Mundhe neither presented herself for cross-examination nor cross-examined

the Plaintiff.

23. Turning to the Plaintiff’s evidence, Mr. Kumar submitted that the Plaintiff

had filed his own Affidavit in lieu of Examination-in-Chief (PW-1) along

with the relevant documents, including the death certificate of the deceased,

a copy of the said Will, the death certificate of Vidyadhar Vinayak Joshi,

and the death certificate of Devidas. He pointed out that these documents

were marked in evidence and further pointed out that, during the further

examination-in-chief, PW-1 identified the signature of the deceased

appearing on the said Will.

24. Mr. Kumar then referred to the cross-examination of PW-1 and pointed out

that, in answer to Question No. 103, PW-1 had specifically stated that “the

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will was executed by grandfather Mr. Kachardas Bairagi”, and no further

case disputing the execution of the Will was thereafter put to PW-1. He also

relied upon the following questions put to PW-1 and the answers given

thereto in cross-examination, viz.

“Q.No. 106- What was your age when the Will was executed by the
deceased ?
A.- Since the will was executed in the year 1984, I was then 12 years old.
…
Q.No. 117- You had just told that you do not know the exact date of the
will. Can you tell the court how many witnesses signed that will?
A.-As per my knowledge it was signed by two witnesses.
…
Q.No. 120- that as you do not remember what happened 6 months back
I put it to you, you do not know anything about the execution of the
will and the said will is of the year 1984. What you want to say?
A.- I disagree regarding the rest. However, I say that the will was
executed in 1984.
Q.No. 122- I put it to you that you do not know anything about will as
the will states that he was 80 years when he executed the will.
A.- it is possible for me to forget few things.
Q. No. 124 – Can you please tell the Court where the deceased was
staying when he executed the said will?
A.- The deceased was then residing at Hazi Aishabai Manjil, Dongri,
Sandhurst Road, Mumbai.
Q.No. 125- Can you give full address of the deceased when he executed
the will?

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A. -I do not remember the room number but he was residing at the above
address.” (emphasis supplied)

25. Mr. Kumar submitted that the tenor of the aforesaid cross-examination

proceeded on the basis that a Will had in fact been executed by the deceased

in 1984. He, however, pointed out that no specific case was put to PW-1 on

behalf of Defendant No. 3 denying that the deceased had executed the said

Will.

26. Mr. Kumar then also invited my attention to Question No. 156 put to PW-1

in cross-examination, viz.

“Q.No. 156 - The properties which are mentioned in so called will were
belonging to grand-father as his properties.
A.- Yes”

Placing reliance upon the aforesaid answer, Mr. Kumar submitted that the

case put to PW-1 itself proceeded on the footing that the properties referred

to in the Will belonged to the deceased. He therefore submitted that the

subsequent contention of Defendant No. 3 that the properties were ancestral

properties was unsupported by the case put to the Plaintiff in cross-

examination.

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27. Mr Jagdale, then from the evidence of PW-2, Dr. Vijay P. Advirkar, the

surviving attesting witness to the said Will, pointed out that PW-2

specifically deposed as follows, viz.

“Q.No.55- Please explain how you have deposed that Advocate V. V. Joshi
came from Vile Parle, Mumbai?
A.- Advocate Joshi accompanied with Kachardas Bairagi and his wife
came to my dispensary. He then told me and requested to proceed for
examination of deceased Kachardas Bairagi.
Q.No. 56- Do you want to suggest that Advocate V. V. Joshi accompanied
with Kachardas Bairagi and his wife came to your dispensary?
A.- Yes
Q.No. 76- I put it to you that the will was not signed by the deceased,
Kachardas Bairagi at your dispensary?
A.- it is not true. It was signed in my dispensary.
Q.No. 83- Do you have any personal knowledge whether will was
prepared as per the instruction of Kachardas Bairagi?
A.- Yes
Q.No. 87- Whether you have signed for certifying the correctness of this
endorsement?
A.- Yes
Q.No. 88- Whether your signature above the rubber stamp of your
dispensary is in a capacity as medical practitioner?
A.- yes
Q.No. 89- I put it to you that you have not signed on the Will in the capacity
as attesting witness.
A.- No. It is not true.
Q.No. 90- I put it to you that Kachardas Bairagi has not signed the Will
No. 134 of 1988 in your presence.

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A.- it is not true
Q.No. 91- I put it to you that Advocate Joshi has not signed the Will No.
134 of 1988 in your presence.
A.- No, it is not true.
Q.No. 92- I put it to you that you have not signed the Will No. 134 of 1988
in presence of Kachardas Bairagi or Advocate Joshi.
A.- it is not true.”

28. Mr. Kumar submitted that the aforesaid evidence remained entirely

unshaken in cross-examination. He submitted that nothing was elicited from

PW-2 in cross-examination that either discredited his testimony or cast any

doubt on the due execution and attestation of the Will.

29. He then also pointed out that it was never the pleaded case of Defendant No.

1, either in her Affidavit in Support of the Caveat or otherwise, that the

deceased had not signed the Will in the presence of PW-2. He submitted that

the suggestions to that effect were introduced only during the cross-

examination of PW-2, without any foundation in the pleadings. He

submitted that such suggestions could not displace PW-2's positive and

categorical evidence regarding the execution and attestation of the Will.

30. Mr. Kumar further submitted that PW-2 was cross-examined at length by

the advocate on behalf of Defendant No. 3 regarding certain minor

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corrections in the Will and the initials appearing alongside those corrections

despite the fact that Defendant No. 3 had never pleaded any case concerning

such corrections in her Affidavit in Support of the Caveat/Written

Statement. He submitted that, even so, PW-2 had satisfactorily explained

that the corrections were in the handwriting of the deceased and made in his

presence.

31. Mr. Kumar then submitted that PW-2 was also cross-examined on behalf of

Defendant No. 3 and invited my attention to the following answer given in

cross-examination by PW-2 to Question No. 122:

“Q.No. 122- Can you tell the Court on what basis you have given a fitness
certificate to the deceased Kachardas Bairagi?
A.- After examining him and interviewing him I gave medical certificate.”

32. Mr. Kumar then dealt with the evidence of Defendant No. 1, i.e., Gulabbai,

and submitted that Defendant No. 1 had, in her Affidavit in lieu of

Examination-in-Chief, sought to introduce an entirely new case which did

not find place in her Affidavit in Support of the Caveat dated 22 nd April

1991. He pointed out that Defendant No. 1 had not originally pleaded that

the Will was fabricated or that it did not bear the signature of the deceased.

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He also submitted that Defendant No. 1 had not pleaded that the Plaintiffs

had influenced the deceased to execute the Will, that the Will had not been

duly attested, or that the attesting witnesses had not seen the deceased sign

it. All these allegations, he submitted, were sought to be introduced for the

first time in the Affidavit of Evidence. Mr. Kumar submitted that it was well

settled that a party cannot be permitted to set up through evidence a case

which has not been pleaded.

33. He further pointed out that DW-1, i.e., Gulabbai, was cross-examined on

behalf of the Plaintiff and, in answer to Question Nos. 8, 9 and 10, had

specifically admitted that the case set out in her Affidavit of Evidence had

been raised for the first time therein and did not form part of her Affidavit

in Support of the Caveat dated 22nd April 1991.

34. Mr. Kumar submitted that even the Affidavit of Durgabai nowhere stated

that the said Will did not bear the signature of the deceased. He pointed out

that the case of Durgabai was limited to the allegation that the Will was

fraudulent and that the Petitioners were therefore not entitled to relief. He

submitted that despite this, Durgaibai, in her Affidavit in lieu of

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Examination-in-Chief dated 12th February 2019, sought to introduce a case

that the said Will did not bear the signature of the deceased. Mr. Kumar

submitted that such an attempt to introduce a new case at the stage of

evidence was impermissible.

35. Mr. Kumar then placed reliance upon the cross-examination of DW-2, i.e.,

Prafullachandra Ramkrushnadas Vaishnav, who entered the witness box on

behalf of Defendant No. 3. He then invited my attention to the following

answers given by DW-2 in cross-examination, viz.

“Question No. 24- Who has given you the information about the facts of
the present case?

Answer- My mother informed me the facts of this case.

Question No. 29- Who informed you the facts as mentioned in the said
paragraph of your Affidavit?
Answer- My mother informed me the same. (DW-3 was shown the
document dated 16/04/1991 bearing Inward No. 2598 by office of
Prothonotary, High Court, Bombay on 19/04/1991). This document
was signed and forwarded by the mother of DW-3 the original
Defendant No.3 to the office of Prothonotary.
Question No. 30- is this the same document which you have referred in
paragraph 6 of your Affidavit of Evidence?
Answer- I do not know whether the document is same or not but the
signature on the said document is of my mother.”

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36. Mr. Kumar submitted that the aforesaid admission duly established the

authenticity of Durgabai’s letter dated 19th April 1991. He further submitted

that the answers given by DW-2 to Question Nos. 31 to 35 demonstrated that

several statements contained in his Affidavit of Evidence were based only

upon what had allegedly been told to him by his mother and were therefore

hearsay.

37. Mr. Kumar then also dealt with the contention that the properties mentioned

in the said Will were ancestral properties. He submitted that Defendant No.

3 had adduced no documentary or oral evidence to establish either that the

properties were ancestral or that there had been no partition between the

deceased and his brother. He submitted that the Defendants had therefore

failed to establish any factual basis for this contention.

38. Mr. Kumar submitted that the Plaintiff had duly proved the execution and

attestation of the said Will on the strength of the evidence led by the Plaintiff.

He submitted that the Defendants had failed to establish any suspicious

circumstances surrounding the execution of the said Will and had led no

evidence to show that the deceased had executed the Will under any undue

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influence or coercion or that the deceased lacked testamentary capacity to

make the said Will. He therefore submitted that the Plaintiff had discharged

the burden cast upon him as the propounder of the Will. In support of his

contention, he placed reliance upon the decision of the Hon’ble Supreme

Court in the case of Indu Bala Bose and Ors. v. Mahindra Chandra Bose

and Ors1.

39. He then also placed reliance upon the decision of this Court in Bandopant

Sitaram Bapat and Ors. v. Sankar Sitaram Bapat and Ors.2, to submit that

the evidence of one attesting witness was adequate to prove due execution

of the said Will and the Plaintiff was not compulsorily required to lead the

evidence of both attesting witnesses when the evidence of one attesting

witness was sufficient to prove due execution. He then, from the decision

of the Patna High Court in Harihar Prasad Sao v. Bhagwan Das and Ors.3,

pointed out that once due execution was established by the propounder of a

Will, the burden of proving an allegation of undue influence lies upon the

person who asserts it.

1
(1982) 1 SCC 20.
2
1996(1) Mh.L.J.
3
1970 SCC Online Pat 103.
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40. Mr. Kumar therefore submitted that the Plaintiff had adequately proved due

execution of the said Will and consequently prayed that Letters of

Administration with the Will annexed be granted in favour of the Plaintiff.

41. Mr. Verma, learned Counsel appearing on behalf of Defendant No. 2,

submitted that Defendant No. 2 accepted and adopted the submissions

advanced on behalf of the Plaintiff as recorded in the Order dated 14th July

2026.

Submissions on behalf of Defendant No. 3:

42. Mr. Haridas, learned Counsel appearing on behalf of Defendant No. 3,

submitted that the burden of proving due execution of the said Will and the

burden of dispelling the suspicious circumstances was upon the Plaintiff as

the propounder of the said Will.

43. Mr. Haridas then pointed out that the deceased had, under the said Will,

appointed Laxmibai, i.e., his wife, and Devidas, his son, as executors. He

then invited my attention to Clause (VII) of the said Will to point out that

the same bequeathed the entire estate to Laxmibai and, upon her death, to

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his grandsons, i.e., Amit and Sumit. Clause (VII), he pointed out, was

worded thus, viz.

“As to whatever property, both moveable and immoveable, that I might
have possessed in addition to the above and which I might not have
mentioned herein and which may remain over after my death, it is my
desire that the same should belong absolutely to my said wife
Laxmibai and after her death to my said grand sons Amit and Sumit
in equal proportions. However, if by misfortune, my wife predeceases
me then in that event the same should go to said grand sons Amit and
Sumit in equal proportions absolutely and during their age of
minority, my son Devidas should hold the same property in trust only.
He (Devidas) will not have any right, title or interest in the said
property that may come to my said grand sons” (emphasis supplied)

44. Mr. Haridas, therefore, submitted that the effect of Clause (VII) was that the

deceased had intended to confer his property upon Laxmibai in the first

instance and, upon her death, upon his grandsons. He submitted that such a

disposition amounted to the creation of successive legatees under the same

bequest and was impermissible in law. In support of his contention, he

placed reliance upon the decision of the Hon’ble Supreme Court in

Mauleshwar Mani & Ors. v. Jagdish Prasad & Ors.4

4
2002 SCC OnLine SC 113.
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45. Mr. Haridas then also submitted that the said Will disclosed no reason for

excluding the sons and daughters of the deceased from his estate. He

submitted that this exclusion also constituted a suspicious circumstance that

required a satisfactory explanation from the Plaintiff, but none was provided.

He also submitted that the principal beneficiaries under the said Will were

the sons of Devidas, who was the principal architect of the said Will. He

therefore submitted that the fact that the sons of Devidas were the main

beneficiaries was also a suspicious circumstance that remained entirely

unexplained by the Plaintiff.

46. He then placed reliance upon the decision of the Hon’ble Supreme Court in

H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors.5, to point out that

where the propounder takes a prominent part in the preparation or execution

of a Will and, at the same time, derives a substantial benefit thereunder, such

a circumstance may give rise to suspicion and casts upon the propounder a

corresponding burden to remove the same by cogent and satisfactory

evidence. Mr. Haridas submitted that the Plaintiff had failed to adduce any,

5
1958 SCC OnLine SC 31.
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let alone sufficient, evidence to dispel the suspicious circumstances

surrounding the execution of the said Will.

47. He then also placed reliance upon the decision of the Hon’ble Supreme

Court in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao6 to submit

that, while a distinction must be maintained between a well-founded

suspicion and mere conjecture, an unnatural or unfair disposition,

particularly when coupled with the active participation of a principal

beneficiary or a person closely connected with such beneficiary in procuring

the execution of the Will, may place a heavier burden upon the propounder

to dispel the resulting suspicion.

48. Mr. Haridas submitted that, in the present case, Laxmibai and Devidas were

appointed executors under the said Will, while Laxmibai and the sons of

Devidas were the principal beneficiaries thereunder. He reiterated that

Devidas had played a prominent role in the execution of the said Will, and

that his sons ultimately stood to benefit from the testamentary disposition.

He submitted that these circumstances, taken together, gave rise to a serious

6
(2006) 13 SCC 433.
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and grave suspicion as to the genuineness of the said Will. The burden of

satisfactorily explaining those circumstances, according to him, lay upon the

Plaintiff which had not been discharged by the Plaintiff.

49. Mr. Haridas then submitted that PW-2, i.e., Dr V.P. Advirkar, in his cross-

examination, particularly the answers to Question Nos. 82 to 175, admitted

that PW-2 had no prior personal knowledge regarding the health or medical

condition of the deceased. He also was at pains to point out that PW-2 was

not the family doctor of the deceased, had not known the deceased prior to

the date on which the said Will was allegedly executed, and had no prior

knowledge of the draft Will or of the deceased’s intention to execute the

same, as was evident from the following answers given by PW-2 in cross-

examination, viz.

“Q.82. Do you have any personal knowledge whether Kachardas Bairagi
is aware of contents of the Will?

Ans. No.

Q. 119. Is it correct to say that before giving a fitness certificate to any
person you must know about the background of that person?

Ans. Yes.

Attention of the Witness is drawn to Q.41 and his answer thereto.
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[Q.41: Do you agree that Kachardas Bairagi was not your patient ?

Ans: That is correct.]

Q. 120. Do you agree that you were not knowing Kachardas Bairagi since
last two year before 1984?

Ans. Yes.

Q. 121. I put it to you that you were not knowing anything about the
medical background of Kachardas Bairagi prior to the alleged date
of execution of his Will executed in 1984.

Ans. That is correct.

Q. 122. Can you tell the Court on what basis you have given a fitness
certificate to deceased Kachardas Bairagi?

Ans. After examining him and interviewing him I gave medical
certificate.” (emphasis supplied)

50. Basis the above, Mr. Haridas submitted that the Plaintiff had failed to prove,

by satisfactory evidence, the due execution and genuineness of the said Will

or to dispel the suspicious circumstances surrounding it. He therefore

submitted that the Plaintiff was not entitled to a grant of Letters of

Administration with the said Will annexed.

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Reasons and Conclusion:

51. Before proceeding to consider the rival contentions and the evidence, it is

useful to make reference to the decision of the Hon’ble Supreme Court in H.

Venkatachala Iyengar v. B.N. Thimmajamma & Ors., which inter alia held

as follows, viz.

“18. What is the true legal position in the matter of proof of wills? It is
well-known that the proof of wills presents a recurring topic for decision
in courts and there are a large number of judicial pronouncements on the
subject. The party propounding a will or otherwise making a claim under
a will is no doubt seeking to prove a document and, in deciding how it is
to be proved, we must inevitably refer to the statutory provisions which
govern the proof of documents. Sections 67 and 68 of the Evidence Act
are relevant for this purpose…. 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, Sections 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

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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 of wills. 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.

19. However, there is one important feature which distinguishes wills
from other documents. Unlike other documents the will speaks from the
death of the testator, and so, when it is propounded or produced before a
court, the testator who has already departed the world cannot say
whether it is his will or not; and this aspect naturally introduces an
element of solemnity in the decision of the question as to whether the
document propounded is proved to be the last will and testament of the
departed testator. Even so, in dealing with the proof of wills the court will
start on the same enquiry as in the case of the proof of documents. The
propounder would be called upon to show by satisfactory evidence that
the will was signed by the testator, that the testator at the relevant time
was in a sound and disposing state of mind, that he understood the nature
and effect of the dispositions and put his signature to the document of his
own free will. Ordinarily when the evidence adduced in support of the
will is disinterested, satisfactory and sufficient to prove the sound and
disposing state of the testator's mind and his signature as required by
law, courts would be justified in making a finding in favour of the
propounder. In other words, the onus on the propounder can be taken to
be discharged on proof of the essential facts just indicated.

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20. There may, however, be cases in which the execution of the will may
be surrounded by suspicious circumstances. The alleged signature of the
testator may be very shaky and doubtful and evidence in support of the
propounder's case that the signature, in question is the signature of the
testator may not remove the doubt created by the appearance of the
signature; the condition of the testator's mind may appear to be very
feeble and debilitated; and evidence adduced may not succeed in
removing the legitimate doubt as to the mental capacity of the testator;
the dispositions made in the will may appear to be unnatural, improbable
or unfair in the light of relevant circumstances; or, the will may otherwise
indicate that the said dispositions may not be the result of the testator's
free will and mind. In such cases the court would naturally expect that all
legitimate suspicions should be completely removed before the document
is accepted as the last will of the testator. The presence of such suspicious
circumstances naturally tends to make the initial onus very heavy; and,
unless it is satisfactorily discharged, courts would be reluctant to treat
the document as the last will of the testator. It is true that, if a caveat is
filed alleging the exercise of undue influence, fraud or coercion in respect
of the execution of the will propounded, such pleas may have to be proved
by the caveators; but, even without such pleas circumstances may raise a
doubt as to whether the testator was acting of his own free will in
executing the will, and in such circumstances, it would be a part of the
initial onus to remove any such legitimate doubts in the Matter.

21. Apart from the suspicious circumstances to which we have just
referred, in some cases the wills propounded disclose another infirmity.
Propounders themselves take a prominent part in the execution of the
wills which confer on them substantial benefits. If it is shown that the
propounder has taken a prominent part in the execution of the will and
has received substantial benefit under it, that itself is generally treated as
a suspicious circumstance attending the execution of the will and the

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propounder is required to remove the said suspicion by clear and
satisfactory evidence. It is in connection with wills that present such
suspicious circumstances that decisions of English courts often mention
the test of the satisfaction of judicial conscience. It may be that the
reference to judicial conscience in this connection is a heritage from
similar observations made by ecclesiastical courts in England when they
exercised jurisdiction with reference to wills; but any objection to the use
of the word “conscience” in this context would, in our opinion, be purely
technical and academic, if not pedantic. The test merely emphasizes that,
in determining the question as to whether an instrument produced before
the court is the last will of the testator, the court is deciding a solemn
question and it must be fully satisfied that it had been validly executed by
the testator who is no longer alive.

22. It is obvious that for deciding material questions of fact which arise
in applications for probate or in actions on wills, no hard and fast or
inflexible rules can be laid down for the appreciation of the evidence. It
may, however, be stated generally that a propounder of the will has to
prove the due and valid execution of the will and that if there are any
suspicious circumstances surrounding the execution of the will the
propounder must remove the said suspicions from the mind of the court
by cogent and satisfactory evidence. …” (emphasis supplied)

Having considered the facts of the present case and the evidence which has

been led by the Parties, I find that the same does not adequately satisfy the

judicial conscience of the Court so as to grant the Plaintiff letters of

administration as prayed for. I say so for the following reasons, viz.

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A. First, the said Will was executed on 28th April 1984, when the

testator was at the advanced age of 80 years. The testator passed

away shortly thereafter, i.e., on 10th September 1984. While the

advanced age of the Testator is not by itself a suspicious

circumstance sufficient to invalidate a Will, however, when

considered along with the other circumstances surrounding both the

execution and the contents of the Will, in the facts of the present

case, it would certainly constitute a suspicious circumstance.

B. Second, the circumstances relating to the attestation and the

witnesses examined to prove the due execution of the said Will

would also qualify as suspicious. PW-1, who has deposed to the

execution of the said Will, was only twelve years old when the said

Will was executed and was admittedly not present at the time when

the said Will was stated to have been executed. Moreover, and

crucially, PW-2, i.e., Dr A.P. Advirkar, the only surviving attesting

witness to the said Will, has, in answer to Question Nos. 82 to 175,

admitted that he (i) was not the regular medical practitioner

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attending to or treating the deceased, (ii) had no prior medical history

of the deceased, and (iii) had met the deceased for the first time only

when the said Will came to be executed.

C. Third, the said Will itself is also highly suspect because it admittedly

excludes all the other legal heirs of the Testator, save and except

Laxmibai (wife), Sumit, and Amit (grandsons). It is not even the

Plaintiff’s case that the Testator had strained relations with his other

family members, i.e., his daughters and granddaughter. The said

Will apart from entirely disinheriting, without the semblance of any

explanation, much less any cogent explanation, does not even make

a reference to them. I must, however, hasten to add that the mere

exclusion of a legal heir from a Will would not, ipso facto, be a

suspicious circumstance. In the present case, however, the exclusion

assumes significance because there is no suggestion, much less any

evidence, that the Testator had strained relations with any of the

excluded legal heirs. Yet, they have been excluded without even the

semblance of an explanation or, indeed, any reference to them in the

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said Will. This, when considered with what has been noted in (A)

and (B) above, would, in my view, render the exclusion of the said

legal heirs a further suspicious circumstance surrounding the said

Will.

D. Fourth, the said Will appoints Laxmibai and Devidas as executors,

and the only beneficiaries under the said Will are Laxmibai and the

sons of Devidas. Thus, the role of Devidas, who is the father of the

Plaintiff, is pivotal. Also, it cannot be overlooked that the ultimate

beneficiaries under the said Will are the sons of Devidas, and it is

Devidas who, under the said Will, is responsible for executing the

said Will. In these facts the Plaintiff’s reliance upon the decision of

the Hon’ble Supreme Court in H. Venkatachala Iyengar v. B.N.

Thimmajamma & Ors. is apposite since it lays down that where

suspicious circumstances surround the execution of a Will, and

particularly where a person who is closely connected with the

beneficiaries has taken a prominent part in its preparation or

execution, the propounder must remove such suspicion by clear and

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satisfactory evidence. In the present case, the Plaintiff has entirely

failed to do so.

E. Fifth, and in my view crucially, Clause (VII) of the said Will would

also become invalid, as it appoints subsequent legatees. A plain

reading of the said Clause (VII) makes it apparent that the testator

had first declared that his entire property shall “belong absolutely”

to his wife, Laxmibai, and thereafter, upon her death, the very same

property shall devolve upon his grandsons, Amit and Sumit. Clause

(VII), therefore, plainly creates a successive disposition in respect of

the same property. Also and equally crucial is the fact that this was

not even disputed much less explained by the Plaintiff.

F. In the context of the aforesaid admitted facts, the reliance placed by

Defendant No. 3 on the decision of the Hon’ble Supreme Court in

Mauleshwar Mani & Ors. v. Jagdish Prasad & Ors. is apposite.

The said decision lays down that where a testator confers an absolute

interest in a property upon a legatee, any subsequent bequest of the

same property in favour of another person cannot take effect, since

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upon the vesting of an absolute interest in the first legatee, the

testator’s power to make any further testamentary disposition in

respect of that property stands exhausted. Applying this principle to

the present case, once the Testator had absolutely bequeathed his

estate to Laxmibai under the said Will, he was thereafter denuded of

the power to make any further effective testamentary disposition of

the same property. Consequently, the subsequent bequest, which is

to take effect upon the death of Laxmibai in favour of Amit and

Sumit, is invalid. Crucially, the Plaintiff has failed to ,in any manner

address or deal with this aspect of the matter altogether.

G. In my view, the aforesaid circumstances cannot be viewed in

isolation and must be considered cumulatively. On such a

cumulative assessment of the facts and evidence which is before me,

what emerges is that (i) the Testator executed the said Will when he

was of advanced age and passed away shortly thereafter; (ii) the

evidence of the sole attesting witness reveals that he met the Testator

for the first time when the said Will was executed and was not the

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regular doctor of the Testator; (iii) despite there being no pleaded

case, much less any evidence, that the Testator had strained relations

with Gulabbai, Durga and Uma, all of them don’t find so much as a

mention in the said Will, much less any cogent explanation for their

exclusion from the said Will; (iii) Devidas, who was both appointed

as an executor and whose sons were among the ultimate

beneficiaries under the Will, has played a prominent role in the

making of the said Will and then in ultimately ensuring that the

bequest made in favour of his sons is given effect to; and (iv) the

creation of successive legacies in respect of the same property, so as

to ensure that the sons of Devidas ultimately get the property.

H. Furthermore, there are two additional factors that merit

consideration. First, Plaintiff No. 2’s unexplained stand not to

prosecute the Suit. Second, the marked change in the stand taken by

Defendant No. 3. Although the Plaintiff has contended that Durgabai

had consented to the grant of Probate to Laxmibai by her letter dated

19th April 1991 and subsequently adopted a contrary position by

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filing the Chamber Summons claiming a share in the deceased’s

property, Durgabai has explained, in her Affidavit in Support of the

Chamber Summons, that her earlier consent had been obtained by

fraud.

I. As already noted above, although the Plaintiff has established the

formal execution of the Will, he has failed to furnish satisfactory

evidence sufficient to remove these suspicious circumstances and

satisfy the conscience of the Court that the Will represents the free,

genuine and voluntary testamentary intention of the deceased.

J. In view of the aforesaid reasons, I am unable to accept that the

Plaintiff has discharged the burden cast upon him as the propounder

of the Will. I therefore answer Issue Nos. 1 and 2 in the negative.

Since I have answered Issues No. 1 and 2 in the negative, Issue

No. 3 would not survive and is rendered academic.

K. As regards Issue No. 4, there is no dispute that all the Defendants

are the legal heirs of the deceased as per the provisions of the Hindu

Succession Act, 1956. The Defendants would therefore be entitled

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to oppose the grant of either Probate or Letters of Administration.

Issue No. 4 is therefore accordingly answered in the affirmative.

52. In view of the reasons mentioned hereinabove, I pass the following Order:

ORDER

(i) The captioned Testamentary Petition is dismissed for the reasons

mentioned hereinabove.

(ii) There shall be no orders as to costs.

(iii) The office shall return the original documents to the Advocate for

the Plaintiff, upon the Advocate for the Plaintiff making the

necessary application for the same, complying the requisite

procedure.

(iv) The Suit is disposed of in the aforesaid terms.

(v) All the pending Applications are dismissed accordingly.

[ARIF S. DOCTOR, J.]

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