Bombay High Court
Dr. Govindaraja Venkatesh IyengarversusA. R. Sampathkumar (Since Deceased)
- Decided
- Disposal
- DISPOSED OFF
Holding
The court held that the testatrix was of sound mind and the will was duly executed, thereby granting probate to the plaintiff.
Summary
The Bombay High Court heard a probate suit filed by Dr. Govindaraja Venkatesh Iyengar, executor of the 1998 will of Rajalakshmi Gopal Ayengar, seeking probate of a bungalow in Chembur. The will bequeathed the property to the plaintiff and directed that proceeds could be used for the A.R. Gopal‑Ayengar Educational Trust. The caveator, A.R. Sampathkumar, contested the will alleging the testatrix was mentally unsound, the will was forged, and the petition was unduly delayed. Evidence included testimony of two attesting witnesses, a handwriting expert, and medical records, with the plaintiff’s witnesses remaining unchallenged and the defence’s expert opinion based on photocopies deemed unreliable. The court applied the standards of Sections 63 and 68 of the Indian Succession Act and the doctrine of judicial conscience, finding the testatrix was of sound mind and the will properly executed. It held that the delay was satisfactorily explained and did not bar probate. Consequently, probate was granted in favour of the plaintiff.
Issues considered
- Whether the testatrix was of sound and disposing mind on 22 December 1998 when the will was executed
- Whether the plaintiff proved the due execution and attestation of the will
Legislation cited
- Bombay High Court (Original Side) Rules, 1980 — s. Rule 382
- Hindu Succession Act, 1956 — s. 15(2)
- Indian Evidence Act, 1872 — s. 68
- Indian Succession Act, 1925 — s. 63, 68
- Limitation Act, 1963 — s. Article 137
Subjects
- probate
- will
- testamentary capacity
- sound mind
- attestation
- delay
- limitation
- handwriting expert
- charitable trust
- laches
Judgment
2026:BHC-OS:18770
ts 42 of 2012.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO.42 OF 2012
IN
TESTAMENTARY PETITION NO.64 OF 2011
Dr. Govindaraja Venkatesh Iyengar,
Hindu of Indian Origin, Residing at 6202,
Maiden Lane, Bethesda, MD 20817,
USA and presently in Mumbai being
the Executor named in the abovementioned
Will of the deceased … Plaintiff
versus
A.R.Sampathkumar (deceased)
through his legal heirs –
1A) S. Suresh Kumar, 4584, Temple Street,
N.R.Mohalla, Mysore 570 007
1B) Prakash S. Iyengar @ I.S.Prakash,
Plot No.73, Mysore Co-op. Housing
Soceity Ltd., Mahul Road,
Chembur, Mumbai – 400 074 … Defendants
Mr. Avinash Joshi with Mr. Karl Shroff i/by Mulla and Mulla and Craigie Blunt
and Caroe, for Plaintiff.
Mr. I.S.Prakash, Defendant No.1B, in person, present.
Mr. AjayJ. Yadav, Section Officer, Court Receiver Office, present.
CORAM: N.J.JAMADAR, J.
RESERVED ON : 17 APRIL 2026
REHEARD ON : 20 AUGUST 2026
PRONOUNCED ON : 21 AUGUST 2026
JUDGMENT :
1. This suit is for grant of Probate of the last Will and Testament to the
property and credits of Rajalakshmi Gopal Ayengar @ Rajlaxmi Ayengar
(Testatrix).
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2. The background facts can be stated, in brief, as under :
2.1 Dr. A.R.Gopal-Ayengar was an eminent scientist, who worked at
Bhabha Automatic Research Center (BARC), Mumbai. The Testatrix was the
wife of Dr. A.R.Gopal-Ayengar. Dr. A.R.Gopal-Ayengar and Rajalakshmi
Gopal Ayengar – Testatrix, had a son, who passed away as a bachelor, in an
accident. Dr. A.R.Gopal-Ayengar passed away on 8 September 1992, leaving
behind his last Will and Testament dated 23 August 1992. Dr. Gopal-Ayengar
had, under the said Will, bequeathed certain movable properties, including
cash to his nephews, including A.R.Sampathkumar, the Caveator - Defendant,
and the immovable property comprising of bungalow situated at 73, Mysore
Colony, Mahul Road, Chembur, Mumbai – 400 074 was bequeathed to
Rajalakshmi Gopal Ayengar. Thus, Rajalakshmi became the full and
absolute owner of the said bungalow at the Mysore Colony (the subject
property).
2.2 Under the said Will, Rajalakshmi was appointed as the executrix.
During the lifetime of the Testatrix, as per the wishes of Dr. Gopal-Ayengar, an
educational Trust under the name and style of A.R.Gopal-Ayengar
Educational Trust was formed and registered under the governing laws at
Bangalore.
2.3 Rajalakshmi passed away on 2 February 2002, allegedly leaving behind
her purported last Will and Testament dated 22 December 1998 executed in
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the presence of Mr. R.K.Ramanathan and Dr. P.T.V.Nair, the attesting
witnesses.
2.4 Under the said Will, the Testatrix purportedly bequeathed her right, title
and interest in the subject property to Dr. Govindaraja Venkatesh Iyengar –
Petitioner / Plaintiff, who claimed to be her nephew. The Testatrix had, inter
alia, desired that the Plaintiff may enjoy the subject property absolutely, and,
in the alternative, if the Plaintiff so chooses, dispose of the property and use
the proceeds thereof for the A.R.Gopal-Ayengar Educational Trust.
2.5 The Testatrix passed away four years after of the execution of the
purported Will. The Plaintiff, who himself claims to be an internationally
acknowledged scientist, and is staying in USA on account of his avocations,
has filed the present Petition in the capacity of the executor of the purported
Will of the Testatrix.
2.6 The Plaintiff asserts, at the time of her death, the Testatrix had left
behind no surviving heirs. Her only son had predeceased the Testatrix and
Dr. Gopal Ayengar. Dr. P.V.T.Nair and Mr. R.K.Ramanathan had attested the
execution of the Will by the Testatrix. She was in a sound and disposing state
of mind. A.R.Sampathkumar, the original Defendant, who has been in
unauthorized occupation of the subject property, had initiated multiple
proceedings before various authorities to usurp the properties left behind by
the Testatrix.
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2.7 On account of the professional engagements of the Petitioner and the
circumstances that ensued due to various proceedings initiated at the
instance of the Defendant, there was some delay in presenting the Petition for
grant of Probate. The Plaintiff, thus, prayed for the Probate in respect of the
last Will and Testament of the Testatrix.
2.8 The Caveator – Defendant filed a Caveat. Multiple affidavits were filed
in support of the caveat. The Defendant contended that the Testatrix was his
aunt i.e. wife of Gopal-Ayengar, the deceased brother of the father of the
Defendant. At the time of her death, the Testatrix was residing with the
Defendant and Prakash, who came to be impleaded as Defendant No.1B
upon the demise of the original Defendant. The Caveator and his family have
been residing at the subject premises since the lifetime of the Testatrix and
her deceased husband. The caveator and his family members were taking
care of the Testatrix and her deceased husband during their old age.
2.9 It was disputed that the Testatrix had left behind the purported last Will
and Testament. It was contended that, prior to her death, the Testatrix was in
a very critical condition and was of unsound mind. The Testatrix was regularly
hospitalized for some ailment and other, including major pain in both knees.
On 22 December 1998, the day Testatrix had made and published the
purported last Will and Testament, the Testatrix was admitted in ICCU of
BARC Hospital in an unconscious state. Taking undue advantage of the then
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situation in life of the Testatrix, the Plaintiff and others have created false
record and even manipulated the record maintained with Mysore CHS Ltd.
2.10 The Defendant categorically contended that the purported Will dated 22
December 1998 is bogus, null and void, as the stamp paper on which the
purported Will has been scribed was purchased on 29 January 1998. The
Petitioner and Mr. R.K.Ramanathan, who is also the purported beneficiary,
have joined hands to usurp the property of the Testatrix. The Plaintiff and the
purported beneficiaries under the Will, have created a bogus Trust in the year
1995. Late Rajalakshmi was never made a member of the said Trust. Nor
was Rajalakshmi ever made a member of Mysore Co-op. Hsg.Soc. Ltd. The
property still stands in the name of Dr. Gopal Ayengar and the Defendant has
been in exclusive occupation of the subject property and had also been
paying the municipal taxes and the electricity charges, etc., in respect of the
subject property. The relationship between the Plaintiff and the Testatrix was
also put in contest. Delay in filing the Probate Petition was also pressed into
service to counter the claim of the Plaintiff.
2.11 In the additional affidavit filed on 16 April 2012, the events in regard to
the inaction on the part of the Testatrix, absence of material to show that the
Plaintiff was the relative of the Testatrix and the purported acts and omissions
on the part of the Plaintiff and other persons to usurp the subject property,
were highlighted. There was a gross delay in filing the Testamentary Petition.
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There was no explanation for the inordinate and unexplained delay in filing
the Petition for Probate after 10 years of the demise of the Testatrix. Thus,
the Petition was liable to be dismissed on the count of delay and laches.
3. In the wake of the aforesaid pleadings, the following issues were
settled. I have recorded my findings against each of them for the reasons to
follow :
ISSUES FINDINGS
1) Whether the respondent proves In the negative
the deceased was not of sound and
disposing mind on the date of
execution of the Will by her on 22nd
December 1998 ?
2) Whether the Petitioner proves In the affirmative
the due execution of the Will by the
deceased on 22nd December 1998 ?
REASONS
4. In order to substantiate the claim for grant of Probate, Dr. Govindaraja
V. Iyengar (PW1) - the Plaintiff, has examined himself, and two witnesses
namely, Mr. R.K.Ramanathan (PW2), who purportedly attested the Will, and
Mr. Yeshwant Datay (PW3), a handwriting expert.
5. In the rebuttal, Mr. A.R.Sampathkumar (DW1), the deceased
Defendant, entered into the witness box and also examined two witnesses,
namely, Dr. P.T.V.Nair (DW2), the purported attesting witness to the Will and
Mrs. Titiksha Desai-Kamble (DW3), another handwriting expert. The parties
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have tendered and proved in evidence a number of documents to
substantiate their respective contentions.
6. At the outset, it is necessary to note few uncontroverted facts. There is
not much controversy over the fact that Dr. Gopal Ayengar was a renowned
scientist and was Scientist Emeritus in BARC. The relationship between Dr.
Gopal and the Testatrix is not in dispute. By and large, it could not be
controverted that Dr. Gopal and Rajalakshmi (the Testatrix) had a son who
passed away as a bachelor in an accident. The fact that Dr. Gopal was the
holder of the subject property is also not much in dispute. The relationship
between the original Defendant and Dr. Gopal Ayengar is also fairly admitted.
The Caveator was the nephew of Dr. Gopal Ayengar. As a matter of fact, the
occupation of the subject property by Prakash (D1B), the successor in interest
of A.R.Sampathkumar, is also irrefutable. The parties are at issue over the
execution of the purported Will, not only by the Testatrix, but also by Dr. Gopal
Ayengar, in the year 1992. Both the dispositive power and the testamentary
capacity of Rajalakshmi, the Testatrix, are put in contest. In particular, the
Defendant has contended that the purported Will of the Testatrix is a false and
forged document.
Broad Submissions :
7. In the context of the pleadings and the evidence adduced by the parties
and the uncontroverted facts, I have heard Mr. Avinash Joshi, learned
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Counsel for the Plaintiff, and Mr. Prakash Iyengar, Defendant No.1B.. Mr.
Shroff, learned Counsel for the Plaintiff canvassed submissions in rejoinder.
8. Before evaluating the evidence, it may be apposite to note the broad
submissions canvassed on behalf of the parties. In support of the claim for
Probate, it was submitted that the Plaintiff who is himself a scientist of
international repute, is prosecuting the suit for grant of Probate for a
charitable cause only in deference to the wishes of the Testatrix. The Plaintiff
does not have any pecuniary or monetary interest in the subject property and
the Plaintiff intends to use the corpus for advancing the objects of A.R.Gopal
Ayengar Educational Trust. Hence, the allegation of the Defendants that the
proceedings having been filed with intent to usurp the estate of late Dr. Gopal
Ayengar is wholly misconceived.
9. Secondly, the evidence adduced by the Plaintiff has virtually gone
unimpeached. Dr. Govindaraja Iyengar (PW1) was not cross-examined at all.
Nothing material could be elicited in the cross-examination of Mr.
R.K.Ramanathan (PW2), the attesting witness, who gave a vivid account of
the due execution and attestation of the Will in question. Mr. Yeshwant Datay
(PW3), the graphologist, has ascribed justifiable reasons in support of the
opinion that the signature on the Will (Exh.P-5) is that of the Testatrix. The
expert testimony of Mr. Datay (PW3) also remained unchallenged.
10. Thirdly, the defence evidence, instead of demolishing, substantiates the
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claim of the Plaintiff. The admissions elicited in the cross-examination of
Sampathkumar Prakash (DW1) dismantle the defence of the Defendants that
the Will is forged and fabricated and that the Testatrix was not in a sound and
disposing state of mind. Dr. P.T.V.Nair (DW2), who was examined by the
Defendants, to bolster up their case that, both Dr. Gopal and the Testatrix
were not in a sound and disposing state of mind, has made a clean breast of
the circumstances in which he was made to put his signature on an affidavit at
the instance of Mr. Prakash – the Defendant 1B. The tenor of the evidence fo
Dr. P.T.V.Nair (DW2) significantly erodes the defence of the defendants.
11. The testimony of Mrs. Desai-Kamble (DW3), an expert witness, is of no
assistance to the Defendant as she is not the author of the opinion tendered
at the instance of Mr. Prakash – the Defendant 1B. Even otherwise, the said
opinion does not command any value as it was rendered on the basis of a
photostat copy of the document, without ample admitted signatures of the
Testatrix.
12. It was submitted on behalf of the Plaintiff that, by examining the
attesting witness and the handwriting expert, the Plaintiff discharged his initial
onus. Conversely, the Defendants failed to demonstrate that the Will is forged
and fabricated. The myriad circumstances sought to be urged on behalf of
the Defendants do not have any bearing on the due execution and attestation
of the Will, which has gone virtually untraversed. The purported suspicious
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circumstances are not real and germane.
13. Lastly, mere production of the documents without leading any evidence
in support of the documents is of no avail, even if the document has been
marked in evidence. To buttress these submissions, reliance was placed on
the judgments in the cases of Madholal Sindhu V/s. Asian Assurance Co.
Ltd. and Ors.1; Sudhir Engineering Company V/s. Nitco Roadways Ltd.2
and Shivkumar and Ors. V/s. Sharanabasappa and Ors.3
14. In opposition to this, Mr. Prakash S. Iyengar, Defendant No.1B, would
urge that if the signatures of the Testatrix on the purported Will are compared
and contrasted with her admitted signatures, it becomes abundantly clear that
the Testatrix had not executed the purported Will. Refuting the submissions
on behalf of the Plaintiff that the evidence of Mrs. Desai-Kamble (DW3) was of
no assistance to the defence, it was submitted that the said witness has
referred to the record on the strength of which the opinion has been rendered.
The mere fact that particular Officer who had signed the opinion is not
available, does not detract materially from the value of the report of the
handwriting expert.
15. Secondly, Mr. Prakash would urge, a concerted effort was made to
suppress and destroy the original medical record maintained with the BARC
hospital. Despite demands, the original medical record of the Testatrix was
1 AIR 1954 Bombay 305
2 1995 SCC Online Del 251
3 (2021) 11 SCC 277
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not brought before the Court as that would indicate that on the date of the
purported execution of the Will, the Testatrix was critically ill and admitted in
ICCU while she was gasping for breath. In the face of such medical record, it
cannot be urged that the Testatrix was in a sound and disposing state of mind
on the day of the purported execution of the Will.
16. Mr. Prakash would further urge that the Plaintiff has miserably failed to
establish that he is the nephew of late Rajalakshmi. On the contrary, there is
overwhelming material to show that the deceased Defendant had been in the
occupation of the subject property during the lifetime of the Testatrix. The
original Defendant and Prakash were the immediate family members who
attended to the Testatrix and her deceased husband. The material
documents are still in the custody of the original Defendants. It was
submitted that the claim fo the Plaintiff that he has no pecuniary or monetary
interest in the subject property is a red herring. The purported trust has been
set up to usurp the subject property. Adverting to the contemporaneous
correspondence with the office bearers of the trustees and other authorities,
Mr. Prakash would urge that the attendant circumstances would indicate that
the purported Will has been set up belatedly with an oblique motive.
17. To lend support to the aforesaid submissions, Mr. Prakash placed
reliance on the judgments in the cases of Niranjan Umeshchandra Joshi
SSP 11/49
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V/s. Mrudula Jyoti Rao and Ors. ; Muninanjappa and Ors. V/s. R. Manual
4
and Anr.5 and the decision of this Court in the case of Harsha Nitin Kokate
V/s. Saraswat Co-op. Bank Ltd. And Ors.6 and Dr. Anthony Sequeira and
Ors. V/s. Cyrus Behram Irani and Ors.7.
Consideration :
18. Section 63 of the Indian Succession Act, 1925, provides the manner in
which the Will is to be executed. Clause (c) of Section 63 mandates the
attestation of the Will by two or more witnesses; each of whom must have
seen the Testator sign or received from the Testator a personal
acknowledgment of the latter’s signature on the Will; each of the two
witnesses must himself sign the Will in the presence of the Testator. But it is
not peremptory that, more than one witness should be present and attest the
Will at the same time. Section 63 of the Act, 1925 is required to be read with
Section 68 of the Indian Evidence Act, which specifies the requirements of
adducing evidence in proof of execution of a document which is required by
law to be attested. Section 68 of the Evidence Act, in terms, provides that, if a
document is required to be attested by law, it cannot be used as evidence
unless one attesting witness has been called for proving the execution of the
document if the attesting witness is alive.
4 (2006) 13 SCC 433
5 (2001) 5 SCC 363
6 2010(3) Mh.L.J. 780
7 2012 (5) ALL MR 866.
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19. Though the Will has to be proved like any other document, which is
compulsorily required to be attested, yet the solemnity attached to the Will
necessitates that the conscience of the Court that the writing propounded by
the propounder is the last Will and Testament and it has been legally and
validly executed and attested, must be satisfied. In the case of Ved Mitra
Verma V/s. Dharam Deo Verma 8, the Supreme Court has laid emphasis on
the element of satisfaction of the conscience of the Court.
20. By a catena of decisions the nature and standard of evidence required
to prove the Will has been delineated. In the case of Jaswant kaur V/s.
Amrit Kaur and Ors.9, a three Judge Bench of the Supreme Court has
crystalized the propositions which govern the proof of Will, as under :
“10. There is a long line of decisions bearing on the nature and
standard of evidence required to prove a will. Those decisions
have been reviewed in an elaborate judgment of this Court in R.
Venkatachala Iyengar v.B.N. Thirnmajamma & Others10 The
Court, speaking through Gajendragadkar J., laid down in that
case the following positions :--
1. Stated generally, a will has to be proved like any other
document, the test to be applied being the usual test of the
satisfaction of the prudent mind in such matters. As in the ease of
proof of other documents, so in the case of proof of wills, one
cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to
be attested, it cannot be used as evidence until, as required by
8 (2014) 15 SCC 578
9 (1977) 1 SCC 369
10 AIR 1959 SC 443
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Section 63 of the Evidence Act, 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.
3. Unlike other documents, the will speaks from the death
o[ the testator and therefore the maker of the will is never
available for deposing as to the circumstances in which the will
came to be executed. This aspect introduces an element of
solemnity in the decision of the question whether the document
propounded is proved to be the last will and testament of the
testator. Normally, the onus which lies on the propounder can be
taken to be discharged on proof of the essential facts which go
into the making of the will.
4. Cases in which the execution of the will is surround- ed by
suspicious circumstances stand on a different footing. A shaky
signature, a feeble mind, an unfair and unjust disposition of
property, the propounder himself taking a leading part in the
making of the will under which he receives a substantial benefit
and such other circumstances raise suspicion about the
execution of the will. That suspicion cannot be removed by the
mere assertion of the propounder that the will bears the signature
of the testator or that the testator was in a sound and disposing
state of mind and memory at the time when the will was made, or
that those like the wife and children of the testator who would
normally receive their due share in his estate were disinherited
because the testator might have had his own reasons for
excluding them. The presence of suspicious circumstances
makes the initial onus heavier and therefore, in cases where the
circumstances attendant upon the execution of the will excite the
suspicion of the court, the propounder must remove all legitimate
suspicions before the document can be accepted as the last will
of the testator.
5. It is in connection with wills, the execution of which is
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surrounded by suspicious circumstance that the test of
satisfaction of the judicial conscience has been evolved. That test
emphasises that in determining the question as to whether an
instrument produced before the court is the last will of the
testator, the court is called upon to decide a solemn question and
by reason of suspicious circumstances the court has to be
satisfied fully that the will has been validly executed by the
testator.
6. If a caveator alleges fraud, undue influence, coercion etc.
in regard to the execution of the will, such pleas have to be
proved by him, but even in the absence of such pleas, the very
circumstances surrounding the execution' of the will may raise a
doubt as to whether the testa- tor was acting of his own free will.
And then it is a part of the initial onus of the propounder to
remove all reasonable doubts in the matter.”
21. In the case of Sridevi and Ors. V/s. Jayaraja Shetty and Ors. 11,
the onus on the propounder was concisely encapsulated as under :
“14. The propounder of the Will has to show that the Will was
signed by the testator; that he was at the relevant time in sound
disposing state of mind; that he understood the nature and effect of
dispositions and had put his signatures to the testament of his own
free will and that he had signed it in the presence of the two
witnesses who attested in his presence and in the presence of each
other. Once these elements are established, the onus which rests on
the propounder is discharged.”
22. In the case of Daulat Ram and Ors. V/s. Sodha and Ors.12, it was
enunciated that the propounder has to show that the Will was signed by the
11 (2005) 2 SCC 784
12 (2005) 1 SCC 40
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testator and that he had put his signatures to the testament of his own free
will; that he was at the relevant time in a sound disposing state of mind and
understood the nature and effect of the dispositions and that the testator had
signed it in the presence of two witnesses who attested it in his presence and
in the presence of each other. Once these elements are established, the onus
which rests on the propounder is discharged. But where there are suspicious
circumstances, the onus is on the propounder to remove the suspicion by
leading appropriate evidence. The burden to prove that the will was forged or
that it was obtained under undue influence or coercion or by playing a fraud is
on the person who alleges it to be so.
23. In the case of Meena Pradhan and Ors. V/s. Kamla Pradhan and
Anr.13, on which reliance was placed by Mr. Shroff, the Supreme Court
enunciated, inter alia, the following propositions which bear upon the
controversy at hand. They read as under :
“10.8 Whenever there exists any suspicion as to the
execution of the Will, it is the responsibility of the
propounder to remove all legitimate suspicions before it can
be accepted as the testator's last Will. In such cases, the
initial onus on the propounder becomes heavier.
10.9 The test of judicial conscience has been evolved for
dealing with those cases where the execution of the Will is
surrounded by suspicious circumstances. It requires to
consider factors such as awareness of the testator as to the
13 (2023) 9 SCC 734
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content as well as the consequences, nature and effect of
the dispositions in the Will; sound, certain and disposing
state of mind and memory of the testator at the time of
execution; testator executed the Will while acting on his
own free Will.
10.10 One who alleges fraud, fabrication, undue influence
etcetera has to prove the same. However, even in the
absence of such allegations, if there are circumstances
giving rise to doubt, then it becomes the duty of the
propounder to dispel such suspicious circumstances by
giving a cogent and convincing explanation.
10.11 Suspicious circumstances must be ‘real, germane
and valid’ and not merely ‘the fantasy of the doubting mind’.
Whether a particular feature would qualify as ‘suspicious’
would depend on the facts and circumstances of each case.
Any circumstance raising suspicion legitimate in nature
would qualify as a suspicious circumstance for example, a
shaky signature, a feeble mind, an unfair and unjust
disposition of property, the propounder himself taking a
leading part in the making of the Will under which he
receives a substantial benefit, etc.”
24. In Shivkumar and Ors. (supra), on which reliance was placed by Mr.
Shroff, the Supreme Court observed as under :
“12.4 The case in which the execution of the Will is
surrounded by suspicious circumstances stands on a
different footing. The presence of suspicious circumstances
makes the onus heavier on the propounder and, therefore, in
cases where the circumstances attendant upon the
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execution of the document give rise to suspicion, the
propounder must remove all legitimate suspicions before the
document can be accepted as the last Will of the testator.
12.5 If a person challenging the Will alleges fabrication or
alleges fraud, undue influence, coercion etcetera in regard to
the execution of the Will, such pleas have to be proved by
him, but even in the absence of such pleas, the very
circumstances surrounding the execution of the Will may
give rise to the doubt or as to whether the Will had indeed
been executed by the testator and/or as to whether the
testator was acting of his own free will. In such eventuality, it
is again a part of the initial onus of the propounder to remove
all reasonable doubts in the matter.
12.6 A circumstance is “suspicious” when it is not normal or
is ‘not normally expected in a normal situation or is not
expected of a normal person’. As put by this Court, the
suspicious features must be ‘real, germane and valid’ and
not merely the ‘fantasy of the doubting mind.”
25. Keeping in view the aforesaid legal principles, readverting to the facts
of the case, it is necessary to note that, the Court has the benefit of the
testimony of two witnesses, who purportedly attested the execution of the Will
by the Testatrix. The testimony of Mr. Ramanathan (PW2) and Dr. P.T.V.Nair
(DW2) throws light on the circumstances in which the Will was purportedly
executed by the Testatrix, although they were examined as Plaintiff’s and
Defendant’s witnesses, respectively. Mr. Ramanathan (PW2) informed the
Court that he was reporting to Dr. Gopal for almost two decades in his official
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capacity and had immense respect for both Dr. Gopal and Rajalakshmi – the
Testatrix. He claimed to have attested the last Will and Testament of Dr.
Gopal, who passed away on 8 September 1992. Rajalakshmi was the
executrix of the said Will. To fulfill the wishes of Dr. Gopal to perpetuate the
memory of their deceased son, Rajalakshmi had caused A.R.Gopal
Educational Trust, registered at Bangalore. He had acted as a trustee of the
said Trust as a mark of respect and out of loyalty to Rajalakshmi.
26. In regard to the execution of the Will by Rajalakshmi, Mr. Ramanathan
(PW2) deposed that on 21 December 1998, Mr. Baldev Mehta called him up
and informed that Rajalakshmi had drawn up a Will and she was desirous of
executing the same. She had expressed a desire that Mr. Ramanathan
should act as one of the attesting witnesses. Thus, on 22 December 1998,
Mr. Ramanathan (PW2) claimed to have visited BARC hospital. Rajalakshmi
along with Mr. Baldev Mehta along with his wife Kaushalya, were present
thereat. Dr. P.T.V.Nair (DW2) also arrived. Mr. Ramanathan (PW2) deposed
that, in his presence and that of Mr. Nair (DW2), Rajalakshmi had set and
subscribed her name at the foot of the testamentary paper and published the
same as her last Will and Testament. Rajalakshmi had signed on each of the
pages comprised in the said Will in his presence. Thereafter, at the request of
Rajalakshmi, he had put his signature on the Will in her presence. Dr. Nair
(DW2) also signed on the Will in the presence of Rajalakshmi. Rajalakshmi
SSP 19/49
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was in a sound and disposing mind, memory and understanding and
executed and published the Will of her free will and pleasure. Mr.
Ramanathan (PW2) also claimed to have forwarded the maturity proceeds of
the UTI mutual fund units, to which he was nominated by the Testatrix, to
A.R.Gopal Ayengar Education Trust.
27. In the cross-examination of Mr. Ramanathan (PW2), it was elicited that
Dr. Gopal was suffering from terminal cancer in the month of 8 August 1992.
In regard to the execution and attestation of the Will and the state of health
and mind of Rajalakshmi, nothing material could be elicited in the cross-
examination of Mr. Ramanathan (PW2). On the contrary, Mr. Ramanathan
(PW2) asserted that the Testatrix was of sound mental condition. She had
usual problems associated with old age. Rajalakshmi was highly educated.
She knew english and communicated with several distinguished scientists.
28. Evidently, the testimony of Mr. Ramanathan (PW2), on the core aspect
of due execution and attestation of the Will by the Testatrix, went completely
untraversed. Instead of eroding the claim of the witness in regard to the
condition of the Testatrix at the time of the execution of the Will, the answers
elicited in the cross-examination, fortify the claim of Mr. Ramanathan (PW2)
on that score. Mr. Ramanathan (PW2) has deposed about his association
with Dr. Gopal. That explains why he was called to act as an attesting witness
to the Will of not only Dr. Gopal but Rajalakshmi. As Mr. R.K.Ramanathan
SSP 20/49
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(PW2) was a confident of Dr. Gopal Ayengar, the evidence of Mr.
R.K.Ramanathan (PW2) in his capacity as an attesting witness has a ring of
truth. The attendant actions and conduct of Mr. Ramanathan (PW2) lend
credence to his testimony.
29. It is true, the Plaintiff categorically claimed that he was not present at
the time of the execution and attestation of the Will by the Testatrix. Yet, the
unimpeached testimony of the Plaintiff in regard to the situation in life of Dr.
Gopal and the Testatrix, coupled with the testimony of Mr. Ramanathan (PW2)
lend support to the Plaintiff’s claim in regard to the due execution and
attestation of the Will.
30. Mr. Yeshwant Datay (PW3), the graphalogist, has furnished justification
for arriving at the opinion (Exh.P-8) that the signature as “Rajalakshmi
Ayengar” on documents marked as Exh.A-1, A-2 and A-3, are of the same
person. They do show the same authorship. The enlarged graph of each
exhibits show the same design, various disconnections similar to each other
and the pattern of making the signature. All the signatures are visibly similar
to each other.
31. Again nothing material could be brought out in the cross-examination of
Mr. Datay (PW3), except that the Plaintiff and Ramanathan (PW2) had asked
him to give an opinion. Even a suggestion was not put to Mr. Datay (PW3)
that the signature appearing on the Will (A-1) was not that of Rajalakshmi, the
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testatrix.
32. At this stage, recourse to the evidence of Dr. P.T.V.Nair (DW2), another
attesting witness, becomes necessary. As noted above, Dr. Nair (DW2) was
examined in proof of the Affidavit dated 18 May 2005 (Exh.D-4) purportedly
sworn by him. Though Dr. Nair (DW2) identified his signature on the said
affidavit, he categorically stated that he had not signed the said affidavit
before the Notary and he cannot state when and how the said affidavit was
notarized. Thereupon, Court questions were put to Dr. Nair (DW2).
33. Relevant questions and the answers given by Dr. Nair (DW2) to the
Court deserve to be extracted. They read as under :
“To Court : Dr. Nair, are the contents of this affidavit which
bears your signature correct to your knowledge ?
Ans. No, they are not.
To Court : Please explain the circumstances in which you
signed this document.
Ans. In mid May 2005, I was working at the Barc hospital
in Mumbai. Mr. Prakash (the Constituted Attorney of
the Defendant) came to me and said he needed a
letter in an affidavit form for his personal reasons but
not for use anywhere else. He brought the document
to me. I know Mr. Prakash well. I was working at the
SSP 22/49
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hospital at that time. In good faith, but on the
express understanding that the documents would not
be used anywhere, I signed it for him.
To Court : Did you read the document before signing it ?
Ans. Yes, I did.
To Court : Is it your suggestion that there are portions of this
document that are incorrect to your knowledge ?
Ans. Yes.
To Court : Can you identify for the Court which portions are
incorrect ?
Ans. Paragraphs 2, 3, 4, 5 and 6 of this affidavit are
entirely incorrect and I wholly disown all these
statements. Paragraph 1 is correct. I am unclear
about what paragraph 7 means.
Note : the document is permitted to be marked in
evidence since the witness has deposed to it and has
identified his signature. The marking does not indicate
in any manner whatsoever that the contents of this
document have been proved.”
34. At this stage, it would be necessary to extract the contents of the said
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affidavit (Exh.D-4)
“AFFIDAVIT
I, Dr. P. T. V. Nair, Head of Medical Division, BARC Hospital,
Government of India, Anushaktinagar, Mumbai 400 094, do
hereby state on solemn affirmation as under :-
1. I say that late Dr. A. R. Gopal-Ayengar was seriously ill
and under my treatment in BARC Hospital during the period 8 th
August 1992 till his death on 8 th September 1992, and late
Smt. Rajalakshmi Gopal-Ayengar wife of Dr. A. R. Gopal-
Ayengar was seriously ill and under my treatment in the
ICCU/Hospital for breathlessness during the period 20 th
December 1998 to 4th January 19999 or thereabout.
2. I say that Shri R. K. Ramanathan now residing at B-3
Nidhi Co-operative Housing Society, Sector 16-A, Navi Mumbai,
Mumbai – 400 703, approached me with some typed
documents pertaining to some “WILL” and requested me to
sign accordingly. I signed in good faith without knowing the
contents of the documents/WILL.
3. I understand that late Dr. A. R. Gopal-Ayengar and late
Smt. Rajalakshmi Gopal-Ayengar had executed “WILL”. I say
that late Dr. A. R. Gopal-Ayengar and late Smt. Rajalaskhmi
Gopal-Ayengar was seriously ill and not in sound state of mind
and were hospitalized on several occasions. Question of
making any WILL does not arise and also my purported
attestion of such documents is not proper.
4. I say that I understand such documents is being given
the color of the “WILL” to claim benefits thereunder by R. K.
Ramanathan now residing at B-3 Nidhi Co-Operative Housing
Society, Sector 16-A, Navi Mumbai, Vashi, Mumbai – 400 703.
5. I say that I hereby totally disagree with such purported
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attestation on the documents signed by me inadvertently in
BARC Hospital.
6. I say that this “AFFIDAVIT” is made in the interest of
JUSTICE and out of my own WILL and WISH and not because
of my coercion or pressure from any person nor from any
relative of Late Dr. A. R. Gopal-Ayengar and his wife late Smt.
Rajalakshmi Gopal-Iyengar.
7. I say that I should not be involved anywhere in
connections with valid “WILL” made by late Dr. A. R. Gopal-
Ayengar and Smt. Rajalakshmi Gopal-Ayengar. That I am not at
all involved in ATTESTING any “WILL” on behalf of them.”
35. Mr. Nair (DW2) has disowned the correctness of the contents in
paragraphs 2, 3, 4, 5 and 6 and admitted the correctness of the contents in
para 1 and stated that he was unclear about what para 7 meant.
36. During the course of the cross-examination on behalf of the Plaintiff, in
regard to the health of Dr. Gopal Ayengar, Mr. Nair (DW2) conceded that from
8 August 1992 onwards, Dr.Gopal Ayengar was not seriously ill. He was in
hospital for observation. In regard to the condition of Rajalakshmi, Dr. Nair
(DW2) admitted that she was under his treatment at BARC hospital from
December 1998 to January 1999. She had severe arthritis and was morbidly
obese. She could not walk unsupported. However, she was not seriously ill.
Mr. Nair (DW2) admitted his signature on the Will (Exh.P-5). He also admitted
the signature and contents of the affidavit dated 14 December 2010 filed in
support of the Probate Petition.
SSP 25/49
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37. It would be contextually relevant to note that, Mr. Prakash (D1B) was
permitted to further cross-examine Dr. Nair (DW2) and put questions in the
nature of cross-examination. Dr. Nair (DW2) conceded that he had not read
the contents of Rajalakshmi’s Will before attesting the same. He added, he
was neither supposed to, nor required to, read the contents of the Will.
Answers to question Nos.18, 19, and 23 deserve to be extracted, as this
Court has shown maximum latitude to Mr. Prakash since he conducted the
cross-examination in person. They read as under :
“18. Did Mrs. Rajlaxmi Ayengar sign the Will in your presence ?
( I have take this question exactly framed by Mr. Prakash
Iyenger. I have not permitted the witness to answer. I have
twice asked Mr. Iyengar whether he is certain that he wants
to put this question to this witness. Mr. Iyengar insists.
The witness may answer.).
Ans. Yes, she signed the Will in my presence.
19. Was anybody else present in the room at that time ?
Ans. Yes, Mr. Baldev Mehta, Mrs. Mehta and Mr. Ramanathan.
23. According to you, was Mrs. Rajlaxmi Ayangar conversant in
English ?
Ans. Yes.
38. If the aforesaid answers are read in juxtaposition with the evidence of
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Mr. Ramanathan (PW2), an inference becomes inescapable that the Testatrix
had put the signatures on the Will (Exh.P-5) in the presence of both Mr.
Ramanathan (PW2) and Dr. Nair (DW2).
39. It is true, the facts that Dr. Nair (DW2) has signed the affidavit (Exh.D-4)
and was candid enough to admit the execution of the said affidavit (Exh.D-4),
put the Court on guard. However, having regard to the manner in which Dr.
Nair (DW2) deposed before the Court, evincible from aforesaid answers to
Court and during cross-examination, the testimony of Dr. Nair (DW2) cannot
be thrown overboard for being inconsistent with the previous statement in
writing. Mr. Nair (DW2) categorically asserted that he had signed the affidavit,
but not before the Notary. Nothing could be elicited in the cross-examination
of Dr. Nair (DW2) on behalf of the Defendants to buttress the defence that Dr.
Nair (DW2) had sworn the affidavit before the Notary declaring that both
Gopal and Rajlakshmi – Testatrix, were seriously ill and were not in a sound
state of mind. The propriety of executing of such an affidavit is also a matter
which cannot be completely ignored.
40. At this stage, the manner in which A.R.Sampathkumar (DW1) fared in
the cross-examination, assumes significance. In the cross-examination,
Sampathkumar (DW1) conceded that he had filed a suit in the City Civil Court
in respect of the subject property and claimed a declaration therein that he
was the legal heir of Dr. Gopal Ayengar. Mr. Sampathkumar (DW1) further
SSP 27/49
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admitted that he had given evidence in the said suit. To a pointed suggestion
that in the said evidence, Mr. Sampathkumar (DW1) had stated that the Will of
Rajalakshmi – Testatrix, was not tampered, he replied that, that was not
correct. The questions that followed deserve to be extracted :
“5. (Shown bracketed portion of paragraph 25, copy
of the cross-examination of the witness in City Civil
Court Suit No.2023 of 2005 recorded on 17th February
2015. The portion shown to the witness reads as
follows :
“It is correct to say that only the “Will” of Dr. Gopal
Ayenger is tampered. It is correct to say that in fact the
“Will” of Dr. Gopal Ayengar is tampered and [the “Will”
of Rajlxmi Ayanger is not tampered”
Do you still maintain that your previous answer is
correct ?
Ans. Yes.
6. In your evidence in the City Civil Court you have
said that Rajlaxmi’s Will is not tampered. In your
affidavit in this suit you claimed that her Will is
tampered. Which of these two statements, according to
you, is correct ?
(Witness’s attention is drawn to paragraph 1 of his
present evidence affidavit )
Ans. I maintain that my evidence affidavit is correct.”
41. Evidently, Mr. Sampathkumar (DW1) had conceded on oath that the
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Will of the Testatrix was not tampered with, but that of Gopal Ayengar was
fabricated. The inconsistent deposition before the City Civil Court, by itself,
may not be decisive. However, if appreciated in the light of the manner in
which the attesting witnesses Mr. Ramanathan (PW2) and Dr. Nair (DW2)
fared cross-examination, an inference becomes justifiable that the testimony
of two attesting witnesses finds further support in the admission of Mr.
Sampathkumar (DW1), the deceased Defendant, in the suit before the City
Civil Court that, the Will of the Testatrix is not tampered with.
42. As the Plaintiff can be said to have discharged the initial onus to prove
that the Will was signed by the Testatrix and she has put her signatures to the
testament of her own free will, the onus shifted on the Defendant who alleged
that the Will was fabricated and forged.
43. It is settled position in law that, where a person who challenges the
legality and validity of the will alleges fabrication or existence of vitiating
elements, like fraud, undue influence and coercion, the onus rests on such
person to prove those factors. Albeit even in the absence of such pleas,
where there are suspicious circumstances surrounding the execution of the
Will, it is again a part of the initial onus of the propounder to explain the
suspicious circumstances and remove all reasonable doubts in regard to the
due execution and attestation of the Will, and the sound and disposing state
of mind of the testatrix. In the case at hand, the entire defence of the
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Defendant in regard to the fabrication of the Will of the Testatrix rests on the
testimony of the handwriting expert Mrs. Titiksha Kamble (DW3).
44. The evidence of Mrs. Titiksha Kamble (DW3), handwriting expert,
examined by the Defendant, to put in contest the genuineness of the
signature of the Testatrix on the Will, does not seem to be of much assistance
to the Defendant. Evidently, the said report (Exh.D-5) is prepared and signed
by Ms. Neha Raut. When confronted with the question as to what her
assertion that the said report (Exh.D-5) was verified by her meant, Ms.
Kamble (DW3) explained that Ms. Raut was her junior and worked under her
guidance. Ms. Raut had prepared the report under her supervision and
guidance. Mr. Raut had left the services at her advisory company and, thus, it
would not be possible to produce Ms. Raut for cross-examination.
45. Plainly, Ms. Kamble (DW3) is not the author of the Report. Nor does
Mr. Kamble (DW3) claimed to have herself examined the questioned and
purported admitted documents and formed an opinion which was documented
in the form of report (Exh.D-5) by Ms. Raut. Even if maximum latitude is
given to the testimony of Ms. Kamble (DW3) discounting the aspect of the
examination of the disputed and admitted documents and the preparation of
the report (Exh.D-5), yet, the very method and material on the basis of which
the report (Exh.D-5) has been prepared, erodes the credibility of the opinion.
46. Ms. Kamble (DW3) conceded in unequivocal terms that, only the
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photostat copy of the disputed Will was delivered for examination along with
the original accounts receipt and original cheque No.74670 of United Bank of
India. When Ms. Kamble (DW3) was asked as to the person who admitted
the signature on the purportedly admitted document, Ms. Kamble (DW3)
candidly replied that it was Mr. Prakash and no body else had admitted the
signatures of the deceased on the purported admitted documents. She went
on to add that, she had called for more samples of the signatures of the
deceased, but they were not provided. Nor she had taken an inspection of
the original Will in the Court. She further conceded in no uncertain terms that
she did not get adequate number of known writings and that it was possible
that the signatures on the Will which was marked as D-1 in the report, were
that of the Testatrix.
47. The aforesaid nature of the testimony of Ms. Kamble (DW3) renders it
extremely unsafe to attach any value to the report (Exh.D-5). Firstly, the
opinion is based on a photostat copy of the Will, which in itself renders the
opinion inherently weak.
48. A useful reference can be made to the decision of the Supreme Court in
the case of S.P.S.Rathore V/s. CBI14, wherein the Supreme Court exposited
that the sole evidence of a handwriting expert is not normally sufficient for
recording a definite finding about the writing being of a certain person or not.
14 (2017) 5 SCC 817
SSP 31/49
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It is opinion evidence and it can rarely, if ever, take the place of substantive
evidence.
49. In the case of Abhay Jain V/s. State of M.P.15, the Madhya Pradesh
High Court underscored the risks in placing reliance on the opinion of the
handwriting expert based on examination of photostat documents. The
following observations deserve to be extracted :
“29. the expert should form opinion on the basis of study of
original document. The reason being that the pressure points
are analyzed by the hand writing expert for which original are
required. In the absence of original documents, the analysis
of a questioned document is limited to the features that
survive the copying process. This is like to identify a person
behind a cloudy window; the basics are there, but details are
missing. What we call the “three-dimensionality” of the
original document is lost. Not to mention that if the copy is a
copy of a copy, the details become increasingly difficult to
verify.
…..
44. Originals are always the best evidence. For a more
productive result, both questioned and admitted documents
should be in original.
45. While considering the question as to whether hand
writing expert can give opinion on the basis of photocopy, the
Hon’ble High Court of Andhra Pradesh replied in Bheri
Nageswara Rao V/s. Mavuri Veerabhadra rao, AIR 2006
AP 314 that :
“5. The opinion of a hand writing expert involves
15 2018 SCC Online MP 1839
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the analysis of the slant, which a person uses in the matter
of putting his signature, and in some cases, the point of time,
at which it may have been subscribed. These analyses
would become possible only vis-a-vis an original signature;
and the signature mark on a xerox copy of a document can
never constitute the basis.”
50. Following the aforesaid pronouncement, the learned Single Judge of
the Delhi High Court in the case of Narendra Kumar V/s. The Management
of M/s. Maman Chand Ramji Das 16 observed that the report of the
handwriting expert remained questionable and unreliable since the same was
based on the examination carried upon xerox documents. Reasons and
factors like loss of detailing, patching, fraudulent manipulation, paper etc.,
cannot be properly assessed and examined by the expert when only xerox
copy is made available.
51. Secondly, there is a serious doubt as to the documents which were
tendered to the handwriting expert as the admitted documents. None of the
documents originated from the custody which could be termed proper, so as
to lend assurance regarding the signature on such document being that of the
testatrix. Thirdly, the expert has conceded in clear and explicit terms that she
had not had the benefit of more samples/specimen signatures of the Testatrix,
which in the circumstances of the case, she considered necessary. Lastly,
16 2023 DHC/000667
SSP 33/49
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the clear and explicit admission that the signatures on the photostat copy of
the Will might be that of the Testatrix, completely denudes the report (Exh.D-
5) of value as an opinion of expert.
52. Cumulatively, the due execution and attestation of the Will can be said
to have been proved beyond the pale of controversy.
53. This propels me to the aspect of sound and disposing state of mind of
the testatrix at the time of the execution of the Will. The substratum of the
defence was that the testatrix was seriously ill and was not in a state to
execute the Will and appreciate the nature and consequences of the
disposition under the purported Will.
54. It is imperative to note, the fact that the Will was made at BARC
hospital is not in dispute. Whether the testatrix was in a sound and disposing
state of mind and understood the nature and effect of the dispositions
thereunder, is the moot question. To buttress the defence that the testatrix
was critically ill, the Defendant has placed on record only the photostat copies
of the medical case papers of the testatrix. No effort was made by the
Defendant to examine any witness in proof of the correctness of the entries in
the photostat copies, even if some allowance is given to the Defendant
No.1B, for his inability to place on record the original medical case papers.
Since the Defendant No.1B appeared in person and the testamentary Court is
the Court of conscience, this Court considered it appropriate to peruse the
SSP 34/49
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photostat copies of the medical case records to satisfy its conscience.
55. Entries in the medical case records dated 20 December 1998 indicate
that the Testatrix was admitted in hospital with a history of breathlessness
since afternoon, mild fever, dry cough since 10-15 days and chest pain in the
morning. The Testatrix was seen by RMO, ICCU. She was advised to be
admitted in Ward IV-A and have x-ray portable and blood tests. It appears
that the testatrix was prescribed medicines and intravenous injections.
56. The record of the next examination of the testatrix makes it clear that
there was no palpitation, giddiness, syncopal attack, no puffiness of face,
swelling of feet, and no pain in abdomen. On 22 December 1998, the day the
Will was executed, although the Testatrix was under treatment, yet, the
medical case record nowhere indicates that the Testatrix was not in a sound
state of mind and her faculties were impaired and she was unable to
understand the nature and consequences of the acts. The medical case
record is required to be appreciated in the light of the fact that the testatrix
was 76 years of age. She was a known case of IHD and HT. The Testatrix
was frequently availing treatment at BARC hospital. Moreover, the Testatrix
lived for over four years after the execution of the Will, on 22 December 1998.
57. As noted above, Dr. Nair (DW2) has categorically deposed that, on that
day, the Testatrix was not seriously ill. In the absence of any cogent evidence
to rebut the evidence adduced by Mr. Ramanathan (PW2) and Dr. Nair
SSP 35/49
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(DW2), this Court finds it difficult to draw an inference that the Testatrix was
not in a sound and disposing state of mind on the basis of the affidavit of Dr.
Nair (D2), the contents of which have been disowned by Dr. Nair (DW2), and
the entries in the photostat copies of the medical case papers.
58. As regards the dispositive power of Rajalakshmi, it is necessary to note
that, de hors the execution of the Will by Dr. Gopal, under which the subject
property was bequeathed to Rajalakshmi, even on the basis of intestate
succession, Rajalakshmi was the sole surviving Class I heir of Dr. Gopal.
Their son had predeceased Dr. Gopal. It was not the case of the Defendant
that, any other Class I heir of Dr. Gopal was alive at the time of his death.
Thus, the property left behind by Dr. Gopal would have devolved on
Rajalakshmi alone, either under the testamentary or intestate succession.
The Defendant was, thus, not entitled to succeed to the estate of Dr. Gopal,
not being the Class I heir. Consequently, the Defendant cannot be said to
have any caveatable interest qua the Will of Dr. Gopal.
59. It is trite, in the absence of the testamentary disposition, as Rajalakshmi
had no son or daughter alive at the time of her death, in the event of intestate
succession, the question of the source of the property devolved upon
Rajalakshmi would come into play in view of the provisions contained in
Section 15(2) of the Hindu Succession Act, 1956. In the event Rajalakshmi
died intestate, the property would have devolved upon the heirs of the
SSP 36/49
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husband under Section 15(2)(b), and in that case, the caveator had a chance
to succeed to the subject property. However, that would not impinge upon the
dispositive power of the testatrix to dispose of the subject property during her
lifetime by testamentary instrument, as she became the absolute owner of the
subject property after the demise of Dr. Gopal.
60. This leads me to the aspect of delay in seeking the Probate. It is well
neigh settled that the application for grant of Probate, merely seeks
recognition from the Court to discharge the duty of the executor. Right to
apply for Probate or Letters of Administration is thus, construed to be in the
nature of a continuing right. At the same time, it must be noted that, it is one
thing to state that the right to apply for grant of Probate or Letters of
Administration is a continuing right and it is a completely different thing to hold
that the Limitation Act, 1963 does not at all govern the application for grant of
Probate. Article 137 which is a residuary Article, provides a period of
limitation of three years for any other Application for which no period of
limitation is specifically provided. The crucial expression in Article 137 is ‘the
time beings to run when the right to apply accrues’. Indisputably, Article 137 of
the Limitation Act, governs a proceeding for grant of Probate or Letters of
Administration also.
61. In the case of Kunvarjeet Singh Khandpur V/s. Kirandeep Kaur &
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Ors. , the Supreme Court considered the question as to whether Article 137
17
of the Limitation Act, appies to a proceeding for a grant of Probate and Letters
of Administration and held that such proceeding merely seeks recognition
from the Court to perform a duty and because of the nature of the proceeding,
it is a continuing right. Yet, it cannot be said that the application for grant of
Probate or Letters of Administration is not covered by Article 137 of the
Limitation Act.
62. It would be contextually relevant to note that in the aforesaid decision,
the Supreme Court referred to the judgment of this Court in the case of
Vasudev Daulatram Sadarangani v. Sajni Prem Lalwani18. The Supreme
Court enunciated the law as under:
13] Article 137 of the Limitation Act reads as follows:
_______________________________________________________
Description of suit Period of limitation Time from
which period
begins to run
_______________________________________________________
137. Any other application Three Years When the right
for which no period of to apply accrues
limitation is provided
elsewhere in this division.
________________________________________________________
The crucial expression in the petition (sic Article) is "right to apply". In
view of what has been stated by this Court, Article 137 is clearly
applicable to the petition for grant of Letters of Administration. As rightly
observed by the High Court in such proceedings the application merely
seeks recognition from the Court to perform a duty because of the
nature of the proceedings it is a continuing right. The Division Bench of
the Delhi High Court referred to several decisions. One of them was S.
17 (2008) 8 SCC 463
18 1983 Bombay 268.
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Krishnaswami v. E. Ramiah. In para 17 of the said judgment it was
noted as follows: (AIR p. 222).
"17. In a proceeding, or in other words, in an application filed for
grant of probate or letters of administration, no right is asserted or
claimed by the applicant. The applicant only seeks recognition of the
Court to perform a duty. Probate or letter of Administration issued by a
competent Court is conclusive proof of the legal character throughout
the world. An assessment of the relevant provisions of the Indian
Succession Act, 1925 does not convey a meaning that by the
Proceedings filed for grant of probate or letters of administration, no
rights of the applicant are settled or secured in the legal sense. The
author of the testament has cast the duty with regard to the
administration of his estate, and the applicant for probate or letters of
administration only seeks the permission of the Court to perform that
duty. There is only a seeking of recognition from the Court to perform
the duty. That duty is only moral and it is not legal. There is no law
which compels the applicant to file the proceedings for probate or
letters of administration. With a view to discharge the moral duty, the
applicant seeks recognition from the Court to perform the duty. It will be
legitimate to conclude that the proceedings filed for grant of probate or
letters of administration is not an action in law. Hence, it is very difficult
to and it will not be in order to construe the proceedings for grant of
probate or letters of administration as applications coming within the
meaning of an 'application' under Art. 137 of the Limitation Act, 1963.
14] Though the nature of the petition has been rightly described by the
High Court, it was not correct in observing that the application for grant
of probate or letters of Administration is not covered by Article 137 of
the Limitation Act. Same is not correct in view of what has been stated
in Kerala SEB case.
15] Similarly reference was made to a decision of the Bombay High
Court's case in Vasudev Daulatram Sadarangani v Sajni Prem Lalwani,
AIR 1983 Bom.268. Para 16 reads as follows :(AIR p. 270).
"16. Rejecting Mr. Dalapatrai's contention, I summarise my conclusions
thus:-
(a) under the Limitation Act no period is advisedly prescribed within
which an application for probate, letters of administration or succession
certificate must be made;
(b) the assumption that under Article 137 the right to apply necessarily
accrues on the date of the death of the deceased, is unwarranted;
(c) such an application is for the Court's permission to perform a legal
duty created by a Will or for recognition as a testamentary trustee and
is a continuous right which can be exercised any time after the death of
the deceased, as long as the right to do so survives and the object of
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the trust exists or any part of the trust, if created, remains to be
executed;
(d) the right to apply would accrue when it becomes necessary to apply
which may not necessarily be within 3 years form the date of he
deceased's death.
(e) delay beyond 3 years after the deceased's death would arouse
suspicion and greater the delay, greater would be the suspicion;
(f) such delay must be explained, but cannot be equated with the
absolute bar of limitation; and
(g) once execution and attestation are proved, suspicion of delay no
longer operates".
Conclusion (b) is not correct while the Conclusion (c) is the correct
position of law.
(emphasis supplied)
63. Referring to a judgment of this Court in the case of Vasudev
Daulatram Sadarangani (supra), the Supreme Court held that the
enunciation by this Court that, the assumption that under Article 137 the right
to apply necessarily accrues on the date of the death of the deceased is
unwarranted, was not correct. However, the proposition that an application
for grant of Probate or Letters of Administration is for the Court’s permission to
perform a legal duty created by a Will or for recognition as a testamentary
trustee and is a continuous right, which can be exercised any time after the
death of the deceased, as long as the right to do so survives and the object of
the trust exists or any part of the trust, if created, remains to be executed, was
the correct position in law.
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64. The aforesaid pronouncement was followed by the Supreme Court in
the case of Ramesh Nivrutti Bhagwat v. Dr Surendra Manohar Parakhe 19.
In paragraph 14 of the judgment, the Supreme Court held that in Kunvarjeet
Singh Khandpur (supra), the Supreme Court had concluded that right to
apply for Probate accrues on the death of the Testator. However, it is
necessary to note the issue in the said case arose out of the applicability of
the period of limitation for an application to revoke the Probate or the Letters
of Administration.
65. Rule 382 of the Bombay High Court (Original Side) Rules, 1980
provides as under:
“382 Delay in application:
In any case where an application for Probate or letters of
administration or succession certificate is made for the first time after
the lapse of three years from the death of the deceased, the reason
for the delay shall be explained in the petition. Should the explanation
be unsatisfactory, the Prothonotary and Senior Master may require
such further proof of the alleged caused of delay as he may deem fit.”
66. In a recent pronouncement in the case of Sanjay Sharma @ Sanjay
Bhardwaj V/s. Krishnadhan Khaware and Ors. 20, the Supreme Court
referred with approval, the aforesaid decision in the case of Kunvarjeet
Singh Khandpur v/s. Sanji Prem Lalwani (supra). The Supreme Court
postulated three-fold purpose of the Probate of a Will, as under :
19 (2020) 17 SCC 284.
20 2026 INSC 708
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“5. The Probate of a Will has three-fold purposes – (a) It
is a judicial stamp of a approval on the genuineness of the
Will; (b) It acknowledges the appointment of an executor of
the Will; (c) It grants the executor to act for the purposes of
the Will. Keeping this in view, the specific view that the
period of limitation for Probate commences from the death
of the testator has been rejected.”
67. In the context of the aforesaid legal position and the requirement of
Rule 382, it has to be seen whether the Plaintiff has offered any satisfactory
explanation. Initially, the Plaintiff asserted that Mr. Sampathkumar – caveator,
after the demise of the testatrix, was filing various proceedings before the
police authorities, courts, government agencies. The Plaintiff was defending
those proceedings bonafide. Later on, the Plaintiff was advised that,
irrespective of the proceedings, Probate of the Will was required and,
therefore, the Petition was filed. Later on, the Plaintiff amended the Petition
and offered explanation in regard to the delay in filing the Probate Petition. It
was, inter alia, asserted that the Plaintiff being an internationally acclaimed
scientist was staying in USA, and that the Plaintiff was advised that the
Probate Petition cannot be filed through a power of attorney; since the High
Court had twice directed Sampathkumar, the defendant, to file appropriate
proceedings before the Testamentary Court, the Plaintiff awaited the filing of
such proceedings; that the Advocate who represented the Plaintiff stopped
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attending the matters and, that, eventually, the executor was required to come
to India and take steps to file the Petition for grant of Probate.
68. Mr. Shroff, the learned Counsel for the Plaintiff submitted that the
Plaintiff has not only offered explanation for the delay in filing the Petition for
probate but has put oath behind those assertions in the affidavit in lieu of
examination-in-chief. Attention of the Court was invited to paragraphs 14, 15
and 16 of the affidavit in lieu of examination-in-chief. This entire version of the
Plaintiff has gone completely unchallenged as the Defendant declined to put
any question to the Plaintiff in his cross-examination. Therefore, the suit for
grant of Probate to discharge the duties of the Executor cannot be dismissed
on the ground of delay.
69. Mr Prakash countered the submissions of Mr. Shroff mainly on the
merits of the defences, adverted to above. It was submitted that there was no
reason for the Plaintiff not to file the Petition for probate for over nine years of
the death of the testatrix.
70. On the aspect of the law of Limitation, as noted above, in the case of
Kunvarjeet Singh Khandpur (Supra), the Supreme Court has approved the
enunciation of the principles by this Court in the case of Vasudev Daulatram
Sadarangani (Supra), except the proposition (b), namely, the assumption
that under Article 137 the right to apply necessarily accrues on the date of the
death of the deceased, is unwarranted. The Supreme Court expressly
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approved proposition (c) that, an application for Probate is for the Court’s
permission to perform a legal duty created by a will or for recognition as a
testamentary trustee and is a continuous right which can be exercised any
time after the death of the deceased, as along as the right to do so survives
and the object of the trust exists or any part of the trust, if created, remains to
be executed.
71. In the case of Sanjay Sharma Alias Sanjay Bhardwaj (Supra), the
Supreme Court has again given its imprimatur to the prepositions laid down in
the case of Vasudev Daulatram Sadarangani (Supra), by observing that
the said decision has been quoted with approval by the Supreme Court in the
case of Kunvarjeet Singh Khandpur (Supra), except one point proposition
(b).
72. At this juncture, it is necessary to note that this Court in the case of
Vasudev Daulatram Sadarangani (Supra) further enunciated that delay
beyond three years must be explained, but cannot be equated with absolute
bar of limitation and once execution and attestation are proved, the suspicion
of delay no longer operate. Pertinently, having examined the correctness of
the propositions (a) to (g) enunciated that in the case of Vasudev Daulatram
Sadarangani (Supra), in the respectful understanding of this Court, the
Supreme Court has not disapproved the other propositions except proposition
(b), extracted above.
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73. This position was clarified by a Division Bench of this Court in the case
of Wilma Levert Canuao Vs Allan Sebastian D’Souza 21 wherein there was
a delay of seven years in filing a Petition for Probate. The Division Bench after
referring to the judgments in the cases of Vasudev Daulatram Sadarangani
(Supra) and Kunvarjeet Singh Khandpur (Supra) postulated that it is well
settled principle that an application for grant of Letters of Administration or
Petition for grant of Probate seeks, in substance and in effect, the permission
of the Court to perform a legal duty created by the Will or for recognition as a
testamentary trustee. This necessarily involves a continuing cause of action
and so long as the right to do so survives and the object of the trust remains
to be executed, the cause of action would not be barred by limitation.
74. In the facts of the said case, after adverting to propositions (f) and (g) in
the case of Vasudev Daulatram Sadarangani (Supra), the Division Bench
observed that since the Division Bench had came to the conclusion that the
execution and attestation of the Will had been duly proved, it declined to
accept the contention that the delay should result in the dismissal of the suit.
75. On the anvil of the aforesaid legal position, if the facts of the case at
hand are appraised, it becomes evident that the Plaintiff has categorically,
asserted that the Petition has been filed to give effect to the Will of the
Testator to dispose of the subject property and use the proceeds thereof for
21 2014(3) MhLJ 1.
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the A.R.Gopal-Ayengar Educational Trust, established pursuant to the wishes
of Dr. A.R.Gopal-Ayengar. The said Trust was formed in the year 1995 during
the lifetime of the Testatrix. The object of the Trust remains to be executed.
Therefore, an inference becomes justifiable that duty of the executor yet
remains to be discharged.
76. It is true, the Defendant had initiated proceedings even questioning the
legality and validity of the Will (Exhibit P-5) and the Plaintiff participated in
those proceeding, albeit through a Power of Attorney. The circumstance in
which those proceeding were defended, the impression that the Plaintiff had
about the outcome of those proceeding to achieve a quietus to the dispute,
the legal advice purportedly received by the Plaintiff and the constraints the
Plaintiff had faced on account of his position, avocation and residence in
Unites States, were all specifically pleaded by the Plaintiff in the Testamentary
Petition by carrying out the amendment in the Petition, purportedly upon an
objection being raised by the Registry in regard to the delay. The Plaintiff has
also deposed on oath in regard to the circumstances on account of which the
Petition could not be filed at an earlier point in time (Paragraphs 14, 15 and
16 of the Affidavit). These assertions of the Plaintiff have gone unimpeached.
77. In the totality of the circumstances, if viewed in the light of the avowed
purpose for which the Plaintiff seeks Probate and a categorical assertion that
the Plaintiff does not claim any pecuniary or monetary interest in the subject
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property and the sale proceeds thereof are to be utilised for the advancement
of the object of the A.R.Gopal-Ayengar Educational Trust, established in
deference to the wishes of Dr. A.R.Gopal-Ayengar, and the conclusion this
Court has arrived at, that the execution and attestation of the Will (Exhibit P-5)
has been duly proved and it is the last Will and Testament of the Testatrix, in
the considered view of this Court, the Plaintiff cannot be non-suited on the
ground of delay.
78. In conclusion, the broad features of the case deserve to be
encapsulated. Firstly, Dr A.R. Gopal-Ayengar, the Testatrix had lost their only
son in an accident. Secondly, the Testatrix succeeded to the estate left behind
by Dr. A.R.Gopal-Ayengar as an absolute owner. Thirdly, the A.R.Gopal-
Ayengar Educational Trust was established during the lifetime of the Testatrix.
Fourthly, the due execution and attestation of the Will has been proved to the
satisfaction to the conscience of the Court. Fifthly, the disposition under the
Will is in accord with the wishes of Dr. A.R. Gopal-Ayengar. Sixthly, the desire
to keep the memory alive by promoting a charitable cause is natural when Dr.
A.R. Gopal-Ayengar and the Testatrix lost their only son in an accident.
Seventhly, the Defendant has failed to adduce any evidence in support of the
contention that the Will is a forged and fabricated document. Even the
challenge on the count that the Testatrix was not in a sound and disposing
state of mind is proved to be unworthy of the acceptance in the light of the
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evidence and material on record. Lastly, the situation in life of the Plaintiff and
the categorical assertion of the Plaintiff that the estate would be used for the
advancement of the object of the Trust, negates the fulcrum of the defence of
the Defendant that the Plaintiff and the former associates of Dr. A.R.Gopal-
Ayengar have conspired to usurp the estate of Dr. A.R.Gopal-Ayengar.
79. For the foregoing reasons, issue No.1 is answered in the negative and
Issue No.2 is anwered in the affirmative.
80. Resultantly this Court is inclined to grant Probate.
81. Hence, the following order:
:ORDER:
(i) The Suit stands decreed.
(ii) Probate be granted to the Plaintiff having its effect throughout
India.
(iii) Parties shall bear their respective costs.
(iv) Decree be drawn up accordingly.
[N. J. JAMADAR, J.]
Mr. Prakash, Defendant No.1B, seeks stay to the execution and
operation of the decree as he intends to prefer an appeal against this
judgment.
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Mr. Shroff opposes the prayer for stay.
Since the Defendant No.1 appears in person, and having regard
to the fact that the Probate is being granted in respect of the Will
executed in the year 1998, the execution and operation of the decree is
stayed for a period of six weeks to facilitate the Defendant No.1B to
prefer an appeal.
[N. J. JAMADAR, J.]
SSP 49/49
Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 21/08/2026 17:56:08
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