Bombay High Court
Rajkumar Assudomal Gurbani.versusVijay Gulab Gurbani.
- Decided
- Disposal
- DISPOSED OFF
Holding
The plaintiff is entitled to probate of the last Will and Testament of Gulab Hukumatrai Gurbani.
Summary
The plaintiff, a nephew of the deceased Gulab Hukumatrai Gurbani, sought probate of a Will dated 30 November 2004 that named him sole executor and principal beneficiary, including a share in a Jaipur property. The deceased's two sons opposed, filing caveats and alleging forgery, lack of testamentary capacity, undue influence, and the existence of a subsequent Will. The plaintiff proved execution through his own testimony and two attesting witnesses—a long‑time physician and a family acquaintance—who confirmed the deceased read the Will, understood it, and signed it voluntarily despite physical illness. The defendants relied on a handwriting expert’s opinion that the signature was not genuine and on alleged suspicious circumstances, but the court found the expert unqualified, the comparison material inadmissible, and the defendants’ burden unmet. The court held that the Will satisfied the requirements of Section 63(c) of the Indian Succession Act and Section 68 of the Indian Evidence Act, and that no unexplained suspicious circumstances existed, thereby granting probate to the plaintiff.
Issues considered
- Whether the plaintiff is entitled to probate of the deceased's last Will and Testament.
- Whether the plaintiff proved that the Will dated 30‑Nov‑2004 was duly executed.
- Whether the defendants proved that the deceased had not signed the Will.
- Whether any suspicious circumstances warrant denial of probate.
Legislation cited
- Bombay High Court (Original Side) Rules — s. 403
- Indian Evidence Act, 1872 — s. 45, 68, 73
- Indian Succession Act, 1925 — s. 63(c)
Subjects
- probate
- will execution
- testamentary capacity
- undue influence
- forgery
- handwriting expert
- Indian Succession Act
- Indian Evidence Act
- caveat
- burden of proof
Judgment
2-TS-74-2006
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 74 OF 2006
BASAVRAJ Rajkumar Assudomal Gurbani …Plaintiff
GURAPPA
PATIL Versus
Digitally signed by
BASAVRAJ GURAPPA
PATIL
Date: 2026.09.17
Vijay Gulab Gurbani & Anr. …Defendants
17:38:28 +0530
_______
Mr. Rahul Soman, Ms. Dhanashree Gaikaiwari, i/b. Bilawala and Co. for the
Plaintiff.
Mr. S.H. Mishra, i/b. Mr. Nahar Mahala for Defendants.
_______
CORAM : ARIF S. DOCTOR J.
RESERVED ON : 18th AUGUST 2026.
PRONOUNCED ON : 17th SEPTEMBER 2026.
JUDGMENT:
1. The Plaintiff in the captioned Testamentary Suit seeks probate of a Will
dated 30th November 2004 (the “said Will”), which is stated to be the last
Will and Testament of one Mr. Gulab Hukumatrai Gurbani (the
“Deceased”) who passed away on 16th April 2005.
2. The Plaintiff is the nephew of the Deceased, being the son of the brother
of the Deceased, namely, Mr. Assudomal Hukumatrai Gurbani. The
Deceased also left behind him his wife, i.e., Mrs. Savitri Gulab Gurbani
1
Basavraj
2-TS-74-2006
and two sons, i.e., Mr. Vijay Gulab Gurbani (Defendant No. 1) and Mr.
Ram Gulab Gurbani (Defendant No. 2).
3. The said Will names the Plaintiff as the sole executor and also the principal
beneficiary. One of the primary bequests made in favour of the Plaintiff is
the share of the Deceased in an immovable property situated at Jaipur
(“Jaipur Property”). The Plaintiff has also been bequeathed with the
residue of the estate of the Deceased.
4. Following the death of the Deceased, the Plaintiff filed Testamentary
Petition No. 619 of 2005 on 30th June 2005, seeking Probate of the said
Will. The Testamentary Petition was opposed by the sons of the Deceased,
both of whom filed their respective Caveats, which were identical in terms.
In view of the opposition raised by the Defendants, the Testamentary
Petition was converted into the captioned Testamentary Suit.
5. This Court, vide an Order dated 18th November 2009, framed the following
Issues, viz.
2
Basavraj
2-TS-74-2006
ISSUES
i. Whether the Plaintiff is entitled to the Probate of the last Will and
Testament of the Deceased?
ii. Whether the Plaintiff proves that the Deceased had left a duly
executed Will dated 30.11.2004?
iii. Whether the Defendants/Caveators prove that the Deceased had
not signed the Will?
iv. What order?
6. The parties examined the following witnesses:
Plaintiff’s Witnesses Defendants’ Witnesses
PW-1: Mr. Rajkumar A. DW-1: Mr. Vijay Gulab
Gurbani (Plaintiff) Gurbani (Defendant No. 1)
PW-2: Dr. Sumitlal M. Shaha DW-2: Mr. Ram Gulab
(Attesting Witness) Gurbani (Defendant No. 2)
PW-3: Mr. Uddhav Baldev DW-3: Ms. Hiral A. Mehta
Gurbani (Attesting Witness) (Handwriting Expert)
Submissions on behalf of the Plaintiff:
7. Mr. Soman, learned Counsel appearing for the Plaintiff, at the outset,
submitted that the Deceased had been residing with his brother,
Assudomal, i.e., the Plaintiff’s father, and the Plaintiff’s family since prior
3
Basavraj
2-TS-74-2006
to 1960. He submitted that the Deceased had, even after his retirement as a
Partner of the family Partnership Firm in July 1994, continued to reside
with the Plaintiff and his family in Mumbai. This, he submitted, was an
admitted position, as was evident from the following answers given by
DW-1 in cross-examination, viz.
“(Attention of the Witness is drawn to the document previously marked
“Exhibit Commissioner - 4” tendered by PW1 on 23rd February 2011)
Q. 25) Can you tell me what this document is?
Ans. After reading this document, I say that it is a Deed of Retirement
dated 14th July 1994 of a partner viz. Gulabrai Hukumatri Gurbani from
the partnership firm of M/s. Hukumatri Assudomal Bros.
(Attention of the Witness is drawn to his answer to Question No. 15)
Q. 26) Can you answer this question now?
Ans. After seeing this document today, I say that my father retired from
the partnership firm of M/s. Hukumatri Assudomal Bros. by thus
document on 14th July 1994. However, I cannot say whether this
document is correct or not.
Q. 27) After 14th July 1994, did your father reside with you at Jaipur?
Ans. Permanently he was not residing. He used to come and go.
Q. 28) After 14th July 1994, where was your father permanently
residing?
Ans. He used to stay in Mumbai also. He used to stay in Jaipur also.”
(emphasis supplied)
4
Basavraj
2-TS-74-2006
8. Mr. Soman then submitted that the Deceased had strained relations with
the Defendants, i.e., his sons as well as his wife. He pointed out that this
was evident from the fact that the Defendants and the wife of the Deceased
had opposed the Suit for partition of the Jaipur property (“Jaipur Suit”)
filed by the Deceased. In support of his contention, he placed reliance upon
an Affidavit dated 20th October 1994, filed by DW-1, and also an Affidavit
dated 19th September 1994, filed by the wife of the Deceased in the Jaipur
Suit. Mr. Soman pointed out that both these Affidavits had been duly
marked in evidence.
9. Mr. Soman then submitted that the Plaintiff had led the evidence of (i)
himself (PW-1), (ii) Dr. Sumitlal M. Shaha (PW-2) and (iii) Mr. Uddhav
Baldev Gurbani (PW-3) to support due execution of the said Will. He
submitted that PW-2 had been the physician of the deceased for
approximately 35 years, whereas PW-3 was a family acquaintance of the
Deceased for approximately 50 years.
10.From the Affidavit of Evidence of PW-2, Mr. Soman pointed out that the
deceased had read out aloud the said Will in the presence of the Plaintiff
5
Basavraj
2-TS-74-2006
(PW-1), PW-2, and PW-3 and the father of the Plaintiff, i.e., Mr.
Assudomal Gurbani. He also, from the examination in chief of PW-2,
pointed out that PW-2 had asked the Deceased whether the deceased had
understood the contents of the said Will and was executing the same of his
own free will, to which the Deceased answered in the affirmative, viz.
“6. I say that after having signed and executed the Will the deceased
requested me to sign the said Will. I asked the deceased as to whether he
had made the will and that he had understood its contents to which the
deceased answered in the affirmative.”
11.Mr. Soman submitted that the evidence of PW-2 further established that
the Deceased had signed the Will on pages 1 and 2, as well as at the foot
thereof. Thereafter, PW-2 signed the Will as an attesting witness in the
presence of the Deceased, PW-3, the Plaintiff and Assudomal. PW-3, in
turn, signed the Will as an attesting witness in the presence of the
Deceased, PW-2, the Plaintiff and Assudomal. According to Mr. Soman,
this evidence clearly established that the Will had been duly executed and
attested in accordance with the requirements of Section 63(c) of the Indian
Succession Act, 1925 (“Succession Act”).
6
Basavraj
2-TS-74-2006
12.Mr. Soman submitted that although the Deceased was suffering from
prostate cancer, the illness had affected only the physical movements of
the Deceased from below the waist and had not, in any manner, impaired
the mental faculties of the Deceased. He pointed out that PW-2, on the
strength of 47 years of general medical practice and having treated the
Deceased for approximately 35 years, specifically deposed to the fact that
the cancer had not affected the Deceased’s mental faculties and that, at the
time of execution of the Will, the Deceased was in a sound and disposing
state of mind. In support of his contention, he invited my attention to the
following deposition of PW-2, viz.
“10. I say that at the time when the deceased subscribed his signature to
the said Will as aforesaid he was in sound disposing mind, memory and
understanding and to the best of my belief and knowledge made and
published the same out of his own freewill and pleasure and without any
coercion or force or pressure from any person.”
13.Mr. Soman then also placed reliance upon the evidence of PW-3, which he
pointed out had independently corroborated that the deceased was in a
7
Basavraj
2-TS-74-2006
sound and disposing state of mind at the time of execution of the said Will,
viz.
“Q.124) On what basis are you saying the Will shown to you just now is
the same Will, which was signed by Mr. Gulab Hukumatrai Gurbani?
Ans: Because I have also signed the said Will. I can identify my signature.
Mr. Gulab Hukumatrai Gurbani has also signed the said Will in my
presence, Hence, I am saying that this is the same Will.
(Attention of the Witness is drawn to paragraph 9 of his Affidavit in lieu
of Examination-in-Chief)
Q.125) What do you mean by the phrase "good disposing mind"?
Ans: It means that the deceased appeared to be okay to me at the time of
execution of the said Will.
Per Commissioner: The witness answered this question in Hindi as
under. I am reproducing the exact sentence so as to avoid any controversy
that may arise whilst translating the same.
“Woh dimaag se theek lag rahe the”
Q.126) Save and except reading the said Will before the persons present
at the time of its execution on 30th November 2004, did any discussion
took place between the persons present at that time and the deceased?
Ans: No.
Witness adds: I have said earlier also that Dr. Shaha had asked the
deceased whether he had prepared the Will according to his wishes, to
which the deceased had replied 'Yes'.
Q.127) Do you know about any property which the deceased had in
Jaipur?
8
Basavraj
2-TS-74-2006
Ans:Yes, I know that the deceased has 1/3rd share in the some property
in Jaipur. This fact is also mentioned in the said Will.
Q.128) When did you come to know about the 1/3rd share of the deceased
in the Jaipur property?
Ans: At the time of execution of the Will, I came to know. Not prior
thereto.
(Attention of the Witness is drawn to paragraph 9 of his Affidavit in lieu
of Examination-in-Chief)
Q.129) What do you mean by the phrase "sound memory"?
Ans: His memory power appeared normal to me.
Q.130) On what basis do you say so?
Ans: The deceased read the Will to me, upon which I gathered this fact.
Q.131) What do you mean by the word "understanding"?
Ans: The deceased knew what he was saying.
Q.132) What do you mean by the phrase "out of his own free will"
Ans: When Dr. Shaha had asked him, the deceased had replied that he
was making the said Will after understanding its contents. It appeared to
me that no one was pressurising him into making the said Will.
Q.133) Did you make any enquiries or investigation before coming to the
conclusion that when the deceased executed the Will, he was in good
disposing mind, of sound memory and understanding and prepared the
Will out of his own free will and pleasure and without any coercion or
force or pressure from any person?
Ans: I did not make any enquiries or investigation because I did not feel
the need to do so.
9
Basavraj
2-TS-74-2006
Q.134) What do you mean by the phrase "pleasure and without any
coercion or force or pressure from any person"?
Ans: The deceased made the will out of "khushi". It did not appear to me
that the deceased was executing the said will out of any force but was
doing so out of his own pleasure. The deceased did not appear to me
"lachar".” (emphasis supplied)
Also that PW-3 had answered that the memory of the deceased appeared
normal, and he knew what he was saying, and that he made the Will of his
own “khushi”. PW-3 also stated that the deceased did not appear to be
“lachar” or acting under any compulsion or helplessness.
Basis the above, Mr. Soman submitted that this evidence materially
corroborated the evidence of PW-2 with regard to the testamentary
capacity of the Deceased and the fact that the Deceased had voluntarily
executed the said Will.
14.Mr. Soman then submitted that the disposition made under the Will could
not be characterised as unexplained or unnatural merely because the
Deceased had excluded his wife and sons and had bequeathed his estate
essentially in favour of the Plaintiff. He pointed out that the Will itself
expressly recorded the reasons why the Deceased had chosen to disinherit
10
Basavraj
2-TS-74-2006
his wife and sons and also explained the reasons why the Deceased had
made a bequest in favour of the Plaintiff. Mr. Soman submitted that the
reasons for disinheriting the Defendants and the wife of the Deceased were
clearly borne out by the surrounding circumstances and the evidence which
was led by the Parties which established the fact that the Deceased had a
strained relationship with the Defendants and his wife.
15.Mr. Soman then submitted that the evidence on record fully supported the
Plaintiff’s case that it was the Plaintiff and his family who had both
personally and financially cared for the Deceased during his illness. In
support of his contention, he placed reliance upon the answers given in
cross-examination by DW-1 to Question Nos. 96 to 120, which showed
that DW-1 had admitted that he had not attended the Deceased’s
chemotherapy sessions, was unaware of the doctors treating the Deceased,
and was not present when the Deceased underwent surgery. He also
pointed out that DW-1 had, in Answer to Question Nos. 63 to 68 of the
cross-examination, admitted as follows, viz.
“Q.63) Who informed you that he was suffering from Cancer?
Ans. I was informed by my father himself.
11
Basavraj
2-TS-74-2006
Q.64) What was the approximate expenditure that was incurred in respect
of the treatment of your father?
Ans. I do not exactly know how much money was spent. I had not spoken
with my father in connection with this topic.
Q.65) Would it be correct to say that your father had no source of income
after he was diagnosed with cancer?
Ans. I do not agree.
Q.66) What was his source of income at that time?
Ans. He had his personal accounts and income from interest and also
income from his business.
Q.67) What business?
Ans. Though he was not legally a partner in his brother's (Shri
Assudomal's) business of trading in oil, oil seeds, grains, etc. and other
commodities, he was working with him and doing business with him.
Q.68) What personal accounts are you talking about in your answer to
Q.66?
Ans. Savings Accounts, Life Insurance Policies, his ornaments, HUF.”
(emphasis supplied)
Basis the above, he submitted that it was clear that the relations between
the Deceased and the Defendants were strained, and it was the Plaintiff and
his family member who actually attended to and cared for the Deceased.
12
Basavraj
2-TS-74-2006
16.Mr. Soman submitted that it was the Plaintiff who had performed the last
rites of the Deceased, and neither of the Defendants had even attended the
funeral of the Deceased. This, he pointed out, was admitted by DW-1 in
answer to Question Nos. 44, 137 and 138 put to DW-1 in cross-
examination, viz.
“Q.44) Who performed the last rites in your absence?
Ans. When I arrived in Mumbai I was informed that my cousin Shri
Rajkumar Gurbani had performed the last rites.
…
Q.137) Would it be correct to say that your cousin Shri Rajkumar
Gurbani lit the pyre of your father?
Ans. When I arrived in Mumbai, I was informed that my cousin Shri
Rajkumar Gurbani lit the pyre of my father.
Q.138) I put it to you that your answer to Q.137 is false as your father
was electronically cremated.
Ans. I do not know whether my father was cremated electronically or by
lighting the pyre.
Witness adds: On the day of my father's cremation, I was not in Mumbai.
When I arrived, I was told that Shri Rajkumar Gurbani had performed
the last rites of my father. I do not know how the last rites were
performed.” (emphasis supplied)
13
Basavraj
2-TS-74-2006
Mr. Soman, therefore, submitted that the aforesaid admission supported the
Plaintiff’s case that the Deceased did not have any relationship with the
Defendants, so to speak.
17.Mr. Soman then invited my attention to the answer given by DW-1 to
Question No. 56, viz.
“Q.56) Do you agree with the contentions taken by your father in the said
case?
Ans. Individually I do not believe that my father has a share in the said
house/bungalow.” (emphasis supplied)
18.Mr. Soman was then at pains to point out that DW-1 had specifically
challenged the entitlement of the deceased to the Jaipur House and was
therefore asserting a title which was contrary to that of the Deceased. He
submitted that this, apart from showing how strained the relationship
between the Deceased and the Defendants was, would also disentitle DW-
1 to claim the Jaipur property as being that of the Deceased. Moreover,
DW-1 has, in answers given to Question Nos. 8 to 39, admitted that
14
Basavraj
2-TS-74-2006
Defendant No. 1 was not in a professional capacity to depose qua the
soundness of the testator’s mind at time of the making of the said Will.
19.Mr. Soman therefore submitted that the evidence led by the Plaintiff when
read together with the contemporaneous documentary evidence and the
material admissions elicited from DW-1 in cross-examination clearly
established the Plaintiff’s case that (i) the said Will was duly executed by
the Deceased; (ii) the Deceased had strained relations with the Defendants
and their mother, i.e., the wife of the Deceased; (iii) the Deceased had in
the said Will explained the reasons why the Defendants and the wife of the
Deceased had been excluded; and (iv) it was the Plaintiff who was looking
after the deceased, both financially and physically.
20.Mr. Soman also submitted that DW-1, in answer to Question No. 1, stated
that he is not well conversant with the English language and crucially, in
answer to Question No. 40, mentioned that the contents of his Evidence
Affidavit were not explained to him in Hindi. Moreover, he submitted that
in answers to Question Nos. 49 and 50, DW-1 has admitted that he does
not understand the meaning of the word “attestation”. It is thus that Mr.
15
Basavraj
2-TS-74-2006
Soman submitted that the credibility of the Affidavit of Evidence of
Defendant No. 1 was seriously under suspicion. He also submitted that
DW-2, i.e., Mr. Ram Gulab Gurbani, who is the Defendant No. 2, in spite
of having filed an Affidavit of Evidence, did not subject himself to cross-
examination, and therefore, his evidence shall accordingly be entirely
disregarded.
21.Mr. Soman then placed reliance upon the decision of the Hon’ble Supreme
Court in Sridevi v. Jayaraja Shetty1, to submit that the propounder of a
Will is required to establish that (a) the testator signed the Will; (b) at the
relevant time, the testator was in a sound disposing state of mind; (c) the
testator understood the nature and effect of the dispositions; (d) the testator
signed the Will of his own free will; and (e) the attesting witnesses attested
the Will in the presence of the testator and in the presence of each other.
22.Mr. Soman then submitted that each of the aforesaid requirements stood
established in the present case. He submitted that the evidence of PW-2
and PW-3 was consistent, unimpeached and wholly corroborative of the
1
(2005) 2 SCC 784.
16
Basavraj
2-TS-74-2006
Plaintiff’s case. He submitted that the Defendants had not, in cross-
examination, elicited anything from PW-2 or PW-3 that would, in any
manner, discredit the testimonies of Plaintiff’s witnesses or cast any doubt
on the due execution and attestation of the Will.
23.He thus submitted that Issue Nos. 1 and 2 were required to be answered in
the affirmative.
Submissions on behalf of the Defendants:
24.Mr. Mishra, the Learned Counsel appearing on behalf of the Defendants,
submitted that the said Will was not the genuine last Will and testament of
the deceased. He submitted that the signatures appearing on the said Will
were not those of the Deceased and that the said Will was a forged and
fabricated document. In support of this contention, he placed reliance upon
the Report dated 20th March 2011 of DW-3, i.e., the handwriting expert.
25.Mr. Mishra then submitted that, quite apart from the challenge to the
signatures of the Deceased, the evidence on record also raised serious and
grave doubts as to whether the Deceased was in a sound and disposing state
of mind and physically capable of executing the Will at the relevant time.
17
Basavraj
2-TS-74-2006
In support of his contention, he placed reliance upon the Affidavit of
Evidence of DW-1 to point out that the Deceased was suffering from
prostate cancer and was paralysed from the waist down. Mr. Mishra
therefore submitted that the evidence of PW-2 concerning the testamentary
capacity of the Deceased ought not to be accepted since the physical
condition of the Deceased was, in his submission, such as to cast serious
doubt upon the ability of the Deceased to comprehend the contents and
effect of the Will as also to the execution of the same of the Deceased’s
own free volition. Relying upon the evidence of DW-1, he submitted that
the purported Will was obtained by coercion and by taking advantage of
the severely compromised physical condition of the Deceased.
26.Mr. Mishra then submitted that the Plaintiff’s contention that the Deceased
was estranged from the Defendants and his wife was belied by the
statements made by the Deceased before the Jaipur District Court during
the trial of the Suit filed by the deceased against his brothers, viz. Birjomal
and Assudomal Gurbani. He pointed out that, on 8 th and 9th January 2005,
the Deceased had stated that whenever he visited Jaipur, he used to hand
18
Basavraj
2-TS-74-2006
over monies to his wife. He therefore submitted that it was wholly incorrect
for the Plaintiff to suggest that the wife and children of the Deceased were
not members of the Deceased's family or that their relations were strained.
Mr. Mishra submitted that the evidence of the Deceased before the Jaipur
Court demonstrated that the relations between the Deceased, the
Defendants and the wife of the Deceased were cordial and were
inconsistent with the case of estrangement pleaded by the Plaintiff.
27.Learned Counsel also relied upon the statement dated 18th September 2004,
in which the Deceased stated that he had made a Will but had cancelled it,
and that only about 8% to 10% of the estate was in favour of the sons of
Assudomal, i.e., the Plaintiff. Mr. Mishra submitted that this statement
materially undermined the genuineness of the Will propounded by the
Plaintiff and was inconsistent with the testamentary disposition reflected
therein.
28.He then further submitted that the execution of the said Will was also
surrounded by several suspicious circumstances, which the Plaintiff, as the
propounder, had failed to provide an explanation, despite being required
19
Basavraj
2-TS-74-2006
by law to do so. He pointed out that the Plaintiff was the nephew of the
Deceased and, effectively, the sole beneficiary under the said Will, which
completely excluded the wife and sons of the Deceased. He then also
pointed out that the Plaintiff was also actively involved in the preparation
and execution of the Will. Learned Counsel submitted that all these factors
constitute grave suspicious circumstances surrounding the Will which the
Plaintiff had failed to explain.
29.Mr. Mishra then submitted that the Deceased had executed a subsequent
Will. In support of this contention, he placed reliance upon a letter dated
27th January 2005, which he pointed out was addressed by the Plaintiff to
the Deceased and contains a reference to a subsequent Will of the
Deceased. He submitted that the existence of such a subsequent Will would
render the said Will ineffective. Alternatively, he submitted that reference
to a subsequent Will was yet another circumstance casting serious doubt
upon the genuineness and validity of the said Will of which probate was
being sought.
20
Basavraj
2-TS-74-2006
30.As regards the evidence of the attesting witnesses, i.e., PW-2 and PW-3,
Mr. Mishra submitted that their evidence did not satisfactorily establish
that the Deceased was of sound and disposing state of mind. He submitted
that the attesting witnesses had not genuinely or independently satisfied
themselves that the Deceased was in a sound and disposing state of mind
at the time of execution of the said Will. Learned Counsel pointed out that
PW-3 had made no independent enquiry or attempt to satisfy himself as to
the mental condition and testamentary capacity of the Deceased.
31.Mr. Mishra further submitted that the Plaintiff and PW-2 had also
suppressed a material circumstance, namely, that the Deceased was
undergoing chemotherapy prior to and around the time of the execution of
the said Will. He then, from the cross-examination of PW-2, pointed out
that PW-2 had, in answer to Question No. 13, stated that Dr. Phadke had
suggested a chemotherapy tablet for bringing the PSA levels of the
Deceased to normal. He also placed reliance upon the answers given by
DW-1 to Question Nos. 99, 103, 105 and 120 to point out that the Deceased
had become very weak and bedridden and had experienced changes in the
21
Basavraj
2-TS-74-2006
colour of his skin and loss of hair some six to eight months prior to his
death, which period preceded the date of the Will. Learned Counsel
submitted that the nature and effect of such medication and treatment had
a direct bearing upon both the physical and mental condition of the
Deceased at the relevant time.
32.Mr. Mishra then additionally relied upon the answer given by PW-2 to
Question No. 69 to highlight that no scientific examination had been
carried out to ascertain whether the mental faculties of the Deceased had
been affected. He also relied upon the answer given by PW-2 to Question
No. 75, wherein it was stated that advanced prostate cancer could lead to
paraplegia, with the cancer penetrating the pelvis, affecting the nerves and
causing damage to the lower spinal cord. Mr. Mishra submitted that this
evidence assumed significance while considering whether the Deceased
possessed the requisite physical and mental capacity to execute the Will.
33.Mr. Mishra also relied upon the answers of PW-1 to Question Nos. 234 to
243 and 250 to 260. He submitted that these answers demonstrate that the
Plaintiff was largely unaware of the circumstances relating to the
22
Basavraj
2-TS-74-2006
preparation and drafting of the Will. At the same time, the Deceased was
bedridden and substantially dependent upon the Plaintiff. All of this only
heightened the suspicious circumstances surrounding the preparation and
execution of the Will.
34.Mr. Mishra then submitted that even the registration of the said Will was
suspect. He submitted that the entire process surrounding registration of
the said Will was suspicious and that that PW-1 had failed to satisfactorily
explain the formalities and procedure followed for the said registration. Mr.
Mishra submitted that there was also no satisfactory explanation for the
delay in the registration of the Will. All these factors he submitted, when
viewed together, gave rise to grave suspicion surrounding even the
registration.
35.Mr. Mishra then, from the cross-examination of PW-2, pointed out that
PW-2 had, in answer to Question Nos. 79 to 87, stated as follows, viz.
“Q.79) Who had prepared the draft of the said Affidavit?
Ans: M/s. Bilawala & Co.
Q.80) Which person in M/s. Bilawala & Co. gave you the said draft?
Ans: I do not remember the person's name.
Q.81) Can you find out even today, the person from M/s. Bilawala & Co.
who had given you the said draft?
23
Basavraj
2-TS-74-2006
Ans: No
Q.82) Where was the draft of the said Affidavit delivered to you?
Ans: I do not remember.
Q.83) Can you name the person to whom gave instructions for drafting
the said Affidavit?
Ans: I gave instructions to one Mr. Raju Assudomal Gurbani.
Q.84) Is Raju Assudomal Gurbani the same as Rajkumar Assudomal
Gurbani?
Ans: Yes.
Q.85) Is it true that Rajkumar Assudomal Gurbani is the Plaintiff in the
present suit?
Ans: Yes.
Q.86) Where did you give instructions to Mr. Rajkumar Assudomal
Gurbani?
Ans. On the phone.
Q.87) After receiving the draft of the said Affidavit, did you add or delete
anything from the said draft?
Ans: No.”
Mr. Mishra submitted that these answers materially affected the
authenticity, independence and reliability of PW-2’s Affidavit of Evidence
and demonstrated that the Affidavit in Chief of PW-2 could not be treated
as PW-2’s own independent account.
36.Learned Counsel then also placed reliance upon the answers given by PW-
2 to Question Nos. 171 and 172 to point out that PW-2 had stated that he
24
Basavraj
2-TS-74-2006
had neither seen nor read the contents of the Will before its execution.
According to Mr. Mishra, this admission was crucial, particularly in
evaluating the credibility of PW-2’s account concerning the circumstances
in which the Will came to be executed.
37.On the question of the alleged estrangement of the Deceased from his wife
and sons, i.e., the Defendants, Mr. Mishra reiterated that the documents
forming part of the Jaipur Court proceedings demonstrate that there was no
such estrangement. According to learned Counsel, those proceedings and
the statements attributed to the Deceased therein indicate that the Deceased
continued to maintain good relations with his wife and sons. He therefore
submitted that the complete exclusion of the wife and sons of the Deceased
under the said Will were, therefore, not satisfactorily explained and
constituted an additional suspicious circumstance.
38.Mr. Mishra also objected to the reliance placed by the Plaintiff upon the
Affidavit dated 20th October 1994 of DW-1 filed before the Jaipur Court in
which DW-1 had opposed the Deceased in the Suit for Partition and also
in the Affidavit dated 19th September 1994 filed by the wife of the
25
Basavraj
2-TS-74-2006
Deceased before the Jaipur Court, similarly opposing the Deceased.
Learned Counsel submitted that the signatures appearing on those
Affidavits had not been duly proved. He submitted that the mere marking
of a document as an Exhibit does not dispense with proof of its execution
or of the truth of its contents. Consequently, according to Mr. Mishra, both
the said Affidavits cannot be relied upon to establish estrangement between
the Deceased and the Defendants.
39.Mr. Mishra further submitted that the evidence of PW-1 and PW-2
concerning the physical movements of the Deceased renders the Plaintiff’s
account of the execution of the Will inherently improbable. He submitted
that the evidence showed that the Deceased had extremely restricted
movement below the waist and required assistance to move. Learned
Counsel therefore submitted that it was difficult to accept the version that,
notwithstanding this condition, the Deceased was able to sit up unaided,
place the Will upon a table positioned before the bed and sign each of its
three pages without assistance. To support this contention, he placed
reliance upon the answers given by PW-2 to Question Nos. 174 to 182, viz.
26
Basavraj
2-TS-74-2006
“Q.174) Was the deceased in a sitting position or sleeping position at the
time of affixing his signature on the Will?
Ans: The deceased was in a sitting position.
Q.175) Was the signature affixed by the deceased whilst he was sitting on
his bed?
Ans: Yes.
Q.176) Where were you positioned at the time when the deceased affixed
his signature on the Will?
Ans: I was sitting next to the deceased on his bed. I do not remember
whether it was to his right or to his left.
Q.177) Who else was present in the room when the deceased affixed his
signature on the Will?
Ans: Assudomal Gurbani, Rajkumar Gurbani, Uddhav Gurbani and
myself.
Q.178) Where were Assudomal Gurbani, Rajkumar Gurbani and Uddhav
Gurbani positioned when the deceased affixed his signature on the Will?
Ans: They were standing around the deceased.
Q.179) Apart from the bed, what other furniture was in the bedroom at
that time?
Ans: I think in his bedroom at that time, there was one chair and one
small table.
Q.180) Who was sitting on the chair at the time of when the deceased
affixed his signature on the Will?
Ans: I do not remember.
Q.181) How was the table positioned from the bed?
Ans: The table was in front of the bed. The deceased affixed his signature
on the Will whilst sitting on the bed and using the table.
Q.182) Is it correct to say that Mr. Assudomal Gurbani, Mr. Rajkumar
Gurbani and Mr. Uddhav Gurbani were around the table when the
deceased affixed his signature on the Will?
Ans: I do not remember exactly.”
27
Basavraj
2-TS-74-2006
40.As regards the objection that the Affidavit of Evidence of DW-1 travels
beyond the pleadings contained in the Affidavit in support of the Caveat,
Mr. Mishra submitted that there is no substance in the said objection.
According to the Learned Counsel, the matters set out in the Affidavit of
Evidence are merely an elaboration of the case already pleaded in the
Affidavit in support of the Caveat and do not constitute a new or
inconsistent case.
41.Mr. Mishra submitted that the aforesaid circumstances cannot be
considered in isolation. The challenge to the signatures of the Deceased,
his grave physical condition, the evidence concerning his medical
treatment, the alleged lack of independent satisfaction regarding his
testamentary capacity, the Plaintiff’s involvement and position as a
beneficiary, the complete exclusion of the Deceased’s wife and sons, the
evidence concerning the Deceased’s relationship with his family, the
circumstances surrounding registration, the evidence of the attesting
witnesses and the reference to a subsequent Will are, according to the
Learned Counsel, circumstances which cumulatively create grave and
28
Basavraj
2-TS-74-2006
substantial suspicion regarding the said Will which the Plaintiff, as
propounder of the Will, had failed to remove or satisfactorily explain.
42. Mr. Mishra also submitted that the evidence of the handwriting expert, i.e.,
DW-3, was of utmost importance since the expert had opined on 20 th March
2011 that the purported signature of the Deceased on the Will is, in fact,
not of the Deceased. He submitted that the expert compared the signature
on the Will with the signatures of the Deceased on the Court records, which
were filed by the Deceased and his brother, Mr. Assudomal Gurbani. He
submitted that the evidence of the expert holds a certain level of gravitas,
and since the same clarifies that the signature of the Deceased on the Will
does not match with the signature of the Deceased from the other records,
the genuineness of the said Will comes under suspicion.
43.Mr. Mishra accordingly submitted that the Plaintiff has failed to establish
the due execution, genuineness and validity of the said Will and
accordingly prayed that the Suit be dismissed with compensatory costs.
29
Basavraj
2-TS-74-2006
Submissions on behalf of the Plaintiff in Rejoinder:
44.Mr. Soman submitted that none of the contentions advanced by the
Defendants displaced the evidence establishing the due execution and
attestation of the said Will, nor had the Defendants established any
suspicious circumstance which remained unexplained.
45.He submitted that the allegations concerning the alleged unsoundness of
mind of the Deceased, as well as coercion and undue influence, had never
been raised in the Caveat or the Affidavit in Support thereof. He pointed
out that DW-1 raised all these contentions only for the first time in the
Affidavit of Evidence. He then submitted that, in answer to Question Nos.
20 to 24 of the cross-examination, DW-1 expressly admitted that the
contentions of unsoundness of mind and coercion were not raised in the
Affidavit in Support of the Caveat.
46.Mr. Soman pointed out that, under Rule 403 of the Bombay High Court
(Original Side) Rules, an Affidavit in Support of a Caveat is to be treated
as the Caveator’s Written Statement. Placing reliance upon the decision of
30
Basavraj
2-TS-74-2006
this Court in Purushottam Vishandas Raheja v. Asha Shrichand Raheja2,
he submitted that any ground objecting to the grant of Probate must be
taken and set out in the Affidavit in support of the Caveat and averments
in the subsequent Affidavits cannot be considered as a ground of challenge
towards execution of the Will. He further submitted that, since the
Defendants had not raised any plea of unsoundness of mind, coercion, or
undue influence in their Affidavit in Support of the Caveat, it was not open
to them to subsequently raise such contentions in evidence. In support of
this submission, Mr. Soman also relied upon the decision of the Hon’ble
Supreme Court in Kattinokkula Murali Krishna v. Veeramalla Koteswara
Rao & Ors.3. Mr. Soman submitted that infact, DW-1 had admitted, while
answering the Question Nos. 20 to 24, that the Affidavit in Support of the
Caveat did not take the plea of unsoundness of mind and coercion.
47.Mr. Soman then, without prejudice to the above, submitted that the
allegations concerning the alleged testamentary incapacity of the Deceased
were wholly unsupported by the evidence on record. He submitted that the
2
Order passed by Bombay High Court on 26th July 2016 in Appeal No. 598 of 2011.
3
(2010) 1 SCC 466.
31
Basavraj
2-TS-74-2006
fact that the Deceased suffered from prostate cancer and had restricted
movement below the waist did not establish any impairment of his mental
faculties or testamentary capacity. On the contrary, PW-2 had deposed that
the Deceased was of sound and disposing mind, memory and
understanding at the time of execution of the Will and that his illness
affected only his physical movement from the waist down.
48.Mr. Soman emphasised that physical infirmity could not, by itself, give rise
to an inference of lack of testamentary capacity. He pointed out that the
evidence of PW-2 and PW-3 established that the Deceased sat up on his
bed, read the Will aloud and thereafter signed it on a small table placed on
the bed. This evidence, according to him, remained unshaken in cross-
examination. Relying upon the decision of this Court in Ganpatrao
Khandero v. Vasantrao4, he submitted that the law does not require a
testator to be in perfect physical health. What must be established, he
submitted, is that the testator possesses the mental capacity to understand
4
AIR 1932 Bom 588.
32
Basavraj
2-TS-74-2006
the nature and effect of the testamentary act and that his instructions have,
in substance, been carried out.
49.Mr. Soman further submitted that the Defendants had not examined any
doctor, medical expert or psychiatrist to rebut the positive evidence
concerning the mental capacity of the Deceased. He submitted that no
medical evidence in particular had been led to establish that the
chemotherapy or other treatment undergone by the Deceased was capable
of impairing his testamentary capacity. He pointed out that DW-1 had
admitted, in answer to Question No. 99, that he had never attended a single
chemotherapy session and, in answer to Question 103, that he had learnt of
the treatment from the Deceased himself. According to Mr. Soman, the
latter admission was itself inconsistent with the suggestion that the
Deceased was mentally incapacitated or incapable of understanding his
affairs.
50.Mr. Soman also submitted that DW-1 was neither present at the execution
of the Will nor involved in the medical treatment of the Deceased. He
further pointed out that DW-1 admittedly had strained relations with the
33
Basavraj
2-TS-74-2006
Deceased and was not even aware of the identity of the doctors treating
him. In these circumstances, Mr. Soman submitted that the bare assertion
of DW-1 could not displace the direct evidence of PW-2, a physician of 47
years’ standing who had attended upon the Deceased for approximately 35
years, which evidence was corroborated by PW-3.
51.As regards the contention that no scientific examination had been
undertaken to determine the mental capacity of the Deceased Mr. Soman
submitted that the law does not require a testator to undergo any scientific
or a medical test as a condition precedent to the making of a valid Will. He
submitted that proof of the testator's sound and disposing mind at the time
of execution was required. According to him, that requirement was fully
satisfied by the evidence of PW-2 and PW-3, read with the terms and tenor
of the Will itself.
52.Mr. Soman submitted that the contents of the said Will made clear that the
Deceased was of sound and disposing state of mind. He pointed out that
the Will contained cogently explained the specific reasons for the
dispositions made thereunder, including the reasons for excluding the
34
Basavraj
2-TS-74-2006
Defendants and the wife of the Deceased. The detailed and intelligible
nature of the dispositions and the reasons recorded for the same, according
to him, were wholly inconsistent with the allegation that the Deceased
lacked testamentary capacity.
53.Mr. Soman also pointed to what he described as an inherent inconsistency
in the Defendants’ case. The Defendants had relied upon the letter dated
27th January 2005 in support of their allegation that the Deceased had made
a subsequent Will. According to Mr. Soman, that case necessarily
proceeded on the footing that the Deceased possessed testamentary
capacity in or about January 2005, nearly two months after the execution
of the Will propounded in the present proceedings. He therefore submitted
that the Defendants could not, on the one hand, contend that the Deceased
lacked testamentary capacity on 30th November 2004 and, on the other,
assert that he had made another Will approximately two months thereafter.
54.Mr. Soman next dealt with the Defendants’ reliance upon purported
statements made by the Deceased during his deposition before the Court
Commissioner at Jaipur on 18th September 2004, 8th January 2005 and 9th
35
Basavraj
2-TS-74-2006
January 2005. The Defendants sought to rely upon those statements to
contend that they were inconsistent with the recitals in the Will and
demonstrated that the Deceased had cordial relations with the Defendants
and his wife. Mr. Soman submitted that such reliance was impermissible
since, by an Order dated 31st January 2013 (Roshan Dalvi, J.), this Court
had expressly declined to mark the certified photocopy of the deposition in
evidence. He pointed out that the Court had held that the deposition related
to questions of title arising in the Jaipur partition proceedings, which could
not be adjudicated upon by a Probate Court, and had consequently held the
document to be irrelevant to the Probate proceedings.
55.Mr. Soman further pointed out that, following the filing of an Additional
Affidavit of Evidence by DW-1 in March 2013, the Defendants made a
second attempt to bring the same material on record. That attempt was
rejected by an Order dated 24th June 2013 (R.D. Dhanuka, J.). The Division
Bench, by its Order dated 28th October 2013, did not entertain the Appeal
against that Order, while observing that it would be open to the Appellant
to raise all permissible challenges against the final decree. Mr. Soman
36
Basavraj
2-TS-74-2006
therefore submitted that the purported statements made by the Deceased in
the Jaipur proceedings were not part of the evidentiary record and could
neither be relied upon nor considered in deciding the present Suit.
56.In contrast, as regards the Affidavits filed by DW-1 and the wife of the
Deceased before the Jaipur Court in opposition to the Deceased in the
partition proceedings, Mr. Soman submitted that those Affidavits had been
marked in evidence by an Order dated 23rd November 2010. He submitted
that the Defendants had an opportunity to lead evidence in rebuttal thereof
but chose not to do so.
57.Mr. Soman then dealt with the contention that the Will was suspicious
because it excluded the Defendants and the wife of the Deceased. He
submitted that the very object of a testamentary disposition is to enable a
testator to depart from the ordinary course of intestate succession. The
mere exclusion of a natural heir or the reduction of the share which such
heir would otherwise have received on intestacy could not, by itself,
constitute a suspicious circumstance. He further submitted that the reasons
for the dispositions in the present case had been expressly recorded by the
37
Basavraj
2-TS-74-2006
Deceased in the Will and that it was not for the Probate Court to sit in
Judgment over the wisdom or fairness of those dispositions. In support of
these submissions, he relied upon the decisions of the Hon’ble Supreme
Court in Ramabai Padmakar Patil v. Rukminibai Vekhande5 and
Pentakota Satyanarayana v. Pentakota Seetharatnam6.
58.Mr. Soman also relied upon the decision of the Hon’ble Supreme Court in
Leela Rajagopal v. Kamala Menon Cocharan7 to submit that the mere
participation of a beneficiary in the process leading to the execution of a
Will does not, by itself, constitute a suspicious circumstance. In any event,
he pointed out that PW-1 had specifically denied having actively
participated in the preparation or execution of the Will.
59.As regards the registration of the Will, Mr. Soman submitted that
registration is not compulsory and that the validity of a Will does not
depend upon its registration. In the facts of the present case, however, he
submitted that the registration of the Will during the lifetime of the
5
(2003) 8 SCC 537.
6
(2005) 8 SCC 67.
7
(2014) 15 SCC 570.
38
Basavraj
2-TS-74-2006
Deceased, pursuant to his application dated 17 th January 2005, constituted
an additional circumstance supporting its genuineness. He further pointed
out that the Defendants had not examined any officer from the office of the
Sub-Registrar to establish the alleged irregularities in the registration
record. According to him, minor discrepancies in PW-1’s recollection as
to the precise time of registration, when the witness was deposing several
years after the event, could not outweigh the substantive evidence
establishing the execution and attestation of the Will.
60.Mr. Soman also dealt with the challenge to the reliability of the Affidavit
of Evidence of PW-2. He submitted that there was nothing unusual in an
Affidavit of Evidence being prepared by Advocates on the instructions of
a witness. What was material was that PW-2 had affirmed the Affidavit,
entered the witness box and subjected himself to extensive cross-
examination. According to Mr. Soman, PW-2’s substantive testimony
concerning the reading of the Will, the question put by him to the
Deceased, the answer given by the Deceased and the subsequent execution
and attestation of the Will remained unshaken in cross-examination.
39
Basavraj
2-TS-74-2006
61.Mr. Soman then, in dealing with the opinion of the handwriting expert first
submitted, that DW-3 lacked the requisite qualifications and experience.
He pointed out that, in answer to Question Nos. 1 and 2 in cross-
examination, DW-3 admitted that she had not undertaken any formal study
in forensic document examination. He further relied upon her answers to
Question Nos. 4 and 19 to point out that, when she prepared her Report
dated 20th March 2011, she had only one year of training and approximately
one year and five months of independent practice. On this basis, Mr. Soman
submitted that DW-3 did not possess the requisite expertise to qualify as
an expert within the meaning of Section 45 of the Indian Evidence Act,
1872.
62.Mr. Soman submitted that the very foundation of the comparison
undertaken by DW-3 was defective, since it was based upon documents
and signatures which were neither admitted nor proved and did not form
part of the evidentiary record of the Suit. He submitted that Section 73 of
the Indian Evidence Act, 1872, contemplates comparison with signatures
which are admitted or proved to the satisfaction of the Court. He pointed
40
Basavraj
2-TS-74-2006
out that, in answer to Question 90, DW-3 admitted that the signatures
supplied to her for comparison had merely been represented to her as
signatures admitted by both parties. According to Mr. Soman, this
admission undermined the foundational basis of her Reports.
63.Mr. Soman also submitted that DW-3 had not examined the original Will
and that her analysis was based entirely upon scanned copies of
photocopies. Relying on her answers to Question Nos. 101 to 109, he
pointed out that DW-3 had stated that the documents annexed to her Report
“may not be” the same documents that she had actually analysed. He
further relied upon her answers to Question Nos. 46 to 49 and 70 to 73 to
submit that the images used for comparison had been digitally enlarged and
altered. Mr. Soman therefore submitted that the opinion of DW-3 was
based upon secondary and unreliable material and could not displace the
direct evidence of witnesses who were present at the execution of the Will.
64.In the aforesaid context, Mr. Soman relied upon the decision of this Court
in Hoshang Pesi Hodiwala v. Bonny Behramshah Bhathena8 to submit
8
(2014) 6 Mah LJ 656.
41
Basavraj
2-TS-74-2006
that handwriting expert evidence is inherently susceptible to error and must
be approached with caution, with the Court independently examining the
original signatures wherever appropriate.
65.As regards the second Report of DW-3 concerning whether the signature
appearing on the letter dated 27th January 2005 was that of the Plaintiff,
Mr. Soman submitted that the Report had no bearing on any issue arising
for determination in the present Suit. He pointed out that the Defendants
had neither produced the alleged subsequent Will nor sought to frame any
issue in relation to such a Will. He therefore submitted that the second
Report was liable to be disregarded.
66.Mr. Soman next submitted that the Defendants’ challenge was also liable
to be rejected insofar as they had themselves denied the Deceased’s title to
the Jaipur Property. Relying upon the decision of the Hon’ble Supreme
Court in Krishna Kumar Birla v. Rajendra Singh Lodha9, he submitted
that a person claiming an interest adverse to the testator or his estate cannot
9
(2010) 1 SCC 466.
42
Basavraj
2-TS-74-2006
maintain a caveatable interest which would have the effect of destroying
the estate of the testator itself.
67.Mr. Soman did not dispute that a Probate Court does not adjudicate
questions of title. His submission, however, was that the Defendants, by
denying the Deceased’s title to the Jaipur Property, had adopted a position
that was adverse to that of the Deceased. In this regard, he relied on
paragraph 8 of the Affidavit in Support of the Caveat, in which the
Defendants specifically stated that the Deceased “did not have power of
disposition regarding the Jaipur Property”. According to Mr. Soman, this
constituted a stand plainly adverse to the Will.
68.As regards the Plaintiff’s conduct subsequent to the execution of the Will,
Mr. Soman submitted that the extent of the Plaintiff’s involvement in the
Jaipur litigation had no bearing upon the due execution or attestation of the
Will. He also submitted that Defendant No. 1 himself had admitted in his
cross-examination, in particular, his answers to Question Nos. 130 to 133,
that no steps were taken by the Defendants in furtherance of the alleged
subsequent Will dated 25th January 2005, itself speaks volumes. He
43
Basavraj
2-TS-74-2006
submitted that this, coupled with the fact that the Defendants had failed to
even produce the subsequent Will before this Court. He also submitted that
by raising this contention, the Defendants can be said to have assumed that
the Deceased retained the capacity to make a Will nearly two months after
making the said Will in November 2004.
69.He further submitted that the evidence concerning the care taken of the
Deceased by the Plaintiff and members of his family during the Deceased’s
illness remained uncontroverted. He pointed out that DW-1 had himself
admitted, in answer to Question Nos. 63 to 68, that he was unaware of the
expenses incurred towards the treatment of the Deceased.
70.Mr. Soman concluded by submitting that the direct and positive evidence
of PW-1, PW-2 and PW-3, who were personally present at the relevant
time and had deposed to the execution and attestation of the Will had to
prevail over the opinion evidence of DW-3. According to him, the latter
stood materially discredited by her admissions in cross-examination and
was, in any event, founded upon scanned photocopies, unproved
comparison material and digitally altered images. The Defendants had led
44
Basavraj
2-TS-74-2006
no cogent positive evidence to establish that the Deceased had not signed
the Will. Their challenge to the signature of the Deceased rested
substantially upon the Reports of DW-3, which, according to Mr. Soman,
were incapable of displacing the direct evidence of the Plaintiff’s
witnesses.
71.Mr. Soman therefore submitted that the evidence, viewed as a whole,
established the due execution and attestation of the Will and the sound and
disposing state of mind of the Deceased at the relevant time. According to
him, none of the circumstances relied upon by the Defendants constituted
an unexplained suspicious circumstance sufficient to displace the positive
evidence led by the Plaintiff or to deny the grant of probate.
72.Mr. Soman submitted that the arguments advanced by the Defendants
against the attesting witnesses are only peripheral and do not go to the root
of the matter since the arguments that PW-2 did not read the Will before
its execution, or that neither witness knew who typed it, or that PW-3 put
no question after the Will was read out, and that neither of them was present
at the registration, do not in any manner dispel the fact of the Will having
45
Basavraj
2-TS-74-2006
been executed and attested in the manner deposed to by those witnesses.
He submitted that an attesting witness is not required by law to know the
contents of the Will, and is not expected to interrogate the testator upon the
wisdom of his dispositions.
73.He also submitted that the Advocates drawing Affidavit on the telephonic
instructions of the Plaintiff does not detract from the oral testimony given
upon oath and tested in cross-examination, which is also corroborated by
PW-1 and PW-3 and he thus submitted that Issue No. 2 is required to be
answered in the affirmative.
74.Mr. Soman also submitted that the circumstances pressed by the
Defendants such as the identity of the scribe, the hour recorded upon the
registration receipt, the manner in which the original Will came to be
found, and the recitals as to family relations, do not have any bearing either
on the proof of proper execution of the Will, or the Issue No. 3 which the
Defendants were required to prove.
75.Mr. Soman submitted that the onus in respect of Issue No. 3 lies upon the
Defendants, as is also recorded by this Hon'ble Court in the Order dated
46
Basavraj
2-TS-74-2006
19th March 2025. He submitted that it is the admitted position that the
Defendants were not present at the time of execution of the said Will. He
also submitted that the only attempt made by Defendants towards
discharging the burden was the evidence tendered in the Report of DW-3
and her oral evidence, wherein DW-3 has admitted to the fact that DW-3
(i) had not taken any course in forensic document examination from any
university; (ii) at the time of preparing the First Report, DW-3 had only
one year of training and one year and five months of independent practice;
(iii) the signatures used for comparison were only purported to her to have
been admitted by the parties; (iv) the analysis proceeded upon scanned
copies of photocopies, that the documents analysed do not form part of the
record, and that the documents annexed to the Report may not be the same
as those analysed; (v) the images used for comparison were digitally
enlarged.
76.He thus submitted that the testimony of DW-3 stands defeated against the
testimonies of the Plaintiff’s Witnesses who were actually present at the
time of execution of the said Will.
47
Basavraj
2-TS-74-2006
77.He thus submitted that Issue No. 3 is therefore required to be answered in
the negative, and it ought to be held that the Defendants have failed to
prove that the Deceased had not signed the Will.
78.Mr. Soman submitted that in view of the submissions on Issue Nos. 2 and
3, and there being no other impediment to the grant, it is submitted that the
Plaintiff, being the executor named in the Will, is entitled to the grant of
Probate, and therefore, Issue No. 1 be decided in the affirmative.
79.Mr. Soman thus prayed that the Testamentary Suit No. 74 of 2006 be
decreed and the Prothonotary and Senior Master be directed to issue the
grant of Probate of the Will dated 30 th November 2004 of the Deceased
Gulab Hukumatrai Gurbani in favour of the Plaintiff expeditiously.
80.Mr. Soman further submitted that since this Court had, in paragraph 1 of
Order dated 19th March 2025, recorded as follows, viz.
“After hearing Learned Counsel for the Plaintiff, it was pointed out to
Learned Counsel for the Defendant that the only issue, onus of which was
upon the Defendant to prove was issue No.3. It was put to Learned
Counsel for the Defendant that in the event it is found that the opposition
to the grant of probate is frivolous, an order of costs would follow. He
48
Basavraj
2-TS-74-2006
submitted that he would like to take instructions from the Defendant
before proceeding further”
81.Mr. Soman submitted that thereafter the Court observed, vide the Order
dated 26th March 2025, as follows:
“Today, Learned Counsel for the Defendant submitted that, despite the
orders passed previously, he has instructions to oppose. However, he
seeks leave to amend the written submissions by incorporating the
relevant page numbers and cross-references to the pleadings. He is
permitted to do so.”
He thus submitted that Defendants have failed to discharge the onus
pertaining to Issue No. 3, and thus it is submitted that the objection to the
grant of Probate is wholly frivolous and vexatious and has materially
contributed to the delay in the grant of probate since 2006.
82.Mr. Soman submitted that the Plaintiff in the present case is entitled to an
Order of costs, and in support of this claim, he placed reliance upon the
decision of this Court in the case of Dileep Cheema v. Jehangir Tehmas
49
Basavraj
2-TS-74-2006
Patel10 to submit that this Court had decreed the Testamentary Suit with
costs quantified at Rs. 5,00,000/- to be paid by each Defendant, on account
of the Defendants therein having frivolously stalled the grant for several
years. He thus submitted that the present case is a fit case for the grant of
exemplary costs, given the manner in which the Defendants have
prolonged this litigation despite the orders dated 19 th March and 26th
March 2025.
Mr. Soman therefore finally submitted that the Suit be decreed and the
Plaintiff be granted the Probate in respect of the Will dated 30th November
2004, and the Order of costs may also be passed against the Defendants.
Reasons and Conclusion:
83.After having heard Learned Counsel for the Parties and on an appreciation
of evidence and the case law upon which reliance has been placed, I
proceed to answer the issues as follows, viz.
10
Order dated 25th February 2025 passed by Bombay High Court in Testamentary Suit No. 65 of 2012.
50
Basavraj
2-TS-74-2006
Issue No. 2:
84.The principles governing proof of a Will are well settled. The propounder
of a Will is required to establish that the said Will of which Probate is being
sought was duly executed by the testator; that, at the relevant time, the
testator was in a sound and disposing state of mind; that the testator
understood the nature and effect of the dispositions made by him; and that
the testator executed the Will of his own free volition. In cases where there
are suspicious circumstances surrounding the execution of the Will in
question, the burden lies upon the propounder to satisfactorily disprove
these suspicious circumstances, as held by the Hon’ble Supreme Court in
the case of Sridevi v. Jayaraja Shetty.
85.In the present case, the Plaintiff has examined both the attesting witnesses
to the said Will, namely Dr. Sumitlal M. Shaha (PW-2) and Mr. Uddhav
Baldev Gurbani (PW-3). From the evidence on record, it can be discerned
that PW-2 was the physician of the Deceased for approximately 35 years,
whereas PW-3 was a family acquaintance who had known the Deceased
for approximately 50 years. Therefore, evidence of PW-2 and PW-3
51
Basavraj
2-TS-74-2006
assumes significance not merely because they were examined as attesting
witnesses, but also because they both had known the Deceased closely for
a considerable period of time. There was not even a suggestion to shake
this evidence, let alone discredit the same.
86.From the evidence led by the Plaintiff, it is clear that the Deceased read
the Will; the evidence of PW-2 shows that the Deceased was specifically
asked whether he had read and understood its contents and whether he was
executing it of his own free will, to which the Deceased had answered in
the affirmative. The attesting witnesses have further deposed that the
Deceased subsequently signed the said Will in their presence, and that each
of them then signed the said Will as an attesting witness in the presence of
the Deceased and in the presence of each other. More importantly, the
evidence of PW-2 and PW-3 on these material aspects has not been
displaced during cross-examination. Crucially, DW-1 was not even present
at the time of the execution of the said Will. Therefore, the evidence of the
attesting witnesses clearly establishes that the requirement of Section 63(c)
52
Basavraj
2-TS-74-2006
of the Succession Act read with Section 68 of the Indian Evidence Act,
1872, has been satisfied.
87.Considerable emphasis was placed by the Defendants upon the fact that
PW-2 had not read the Will before its execution; that neither of the attesting
witnesses knew who had typed the Will; that PW-3 did not put any question
to the Deceased after the Will was read; and that neither witness was
present when the Will was subsequently registered. In my view, none of
these circumstances would in any manner displace the factum of due
execution, which has been established by the evidence of PW-2 and PW-
3, as already noted above.
88.Furthermore, and crucially, an attesting witness is required to prove due
execution in the manner required under Section 63 of the Succession Act
1925. The law does not require an attesting witness to know who drafted
or typed the Will, nor does it require an attesting witness to independently
examine the wisdom or propriety of the dispositions made by the testator
under the Will which is being attested or proved. Equally, an attesting
witness's absence during the subsequent registration of the Will is a factor
53
Basavraj
2-TS-74-2006
which is wholly irrelevant to proving due execution of the Will in question.
These objections raised by the Defendants, therefore, would not in any
manner take away from or discredit the evidence of PW-2 and PW-3 on the
factum of the due execution and attestation of the said Will.
89.Also, the Defendants sought to make capital the manner in which the
Affidavit of Evidence of PW-2 was prepared. However, even accepting the
case of the Defendants, that would not ipso facto render the evidence of
PW-2 to be unreliable or liable to be discarded. It cannot be lost sight of
that PW-2 entered the witness box, affirmed his evidence on oath and
subjected himself to cross-examination. The evidence of PW-2 on the
aspect of execution and attestation of the said Will has remained unscathed
and is also consistent with the evidence of PW-1 and PW-3. In the facts of
the present case, I am therefore not inclined to discard the evidence in chief
of PW-2.
90.The Defendants have also sought to question the testamentary capacity of
the Deceased. However, the Caveat and Affidavit in Support thereof do not
even remotely raise the plea that the Deceased lacked the testamentary
54
Basavraj
2-TS-74-2006
capacity to make the said Will, was of unsound mind, or was coerced into
making the said Will. It is well settled that evidence which travels beyond
the pleadings cannot be considered. In the present case, admittedly no such
pleas were taken in the Affidavit in Support of the Caveat, nor was any
Issue on this aspect even framed. Thus, the questions of the Defendants
proving contentions pertaining to the Deceased’s unsoundness of mind,
coercion in executing the said Will or the lack of disposing capacity of the
testator in evidence does not arise. In these admitted facts the Plaintiff’s
reliance upon the decisions in the case of Purushottam Vishandas Raheja
v. Asha Shrichand Raheja as well as Kattinokkula Murali Krishna v.
Veeramalla Koteswara Rao is entirely apposite.
91.On the contrary, from the evidence on record, it is quite apparent that the
Deceased was in a sound and disposing state of mind and did not in any
manner lack testamentary capacity at the time when the said Will was
executed, i.e., on 30th November 2004. PW-2, who had attended upon the
Deceased as his physician for about 35 years, has specifically spoken to his
mental condition of the Deceased. The record shows that this is
55
Basavraj
2-TS-74-2006
corroborated by PW-3, who has similarly deposed that the Deceased
appeared mentally sound at the time when the said Will was executed. This
evidence is consistent with the contents of the said Will, which specifically
explains the reasons as to why the Deceased made the bequests made in the
manner more particularly stated in the said Will.
92.Although it is an admitted position that the Deceased was suffering from
prostate cancer, it is clear that this condition affected only the Deceased’s
movements below the waist and did not in any manner affect the mental
capabilities of the Deceased. It is well settled that physical infirmity and
testamentary incapacity are distinct matters, and the law does not require a
testator to be in perfect physical health at the time of execution of a Will.
What is required is that the testator has the requisite mental capacity to
understand the nature and effect of the dispositions being made. Therefore,
in the facts of the present case, and in light of the evidence which has been
led by the Plaintiff, the decision in the case Ganpatrao Khandero v.
Vasantrao, upon which reliance was placed by the Plaintiff, would
squarely apply.
56
Basavraj
2-TS-74-2006
93.Much emphasis was also placed by the Defendants on the fact that, under
the said Will, the Deceased had effectively disinherited both the
Defendants and his wife. While such a circumstance could, in an
appropriate case, be considered a suspicious circumstance, I do not find it
to be so in the present case. Firstly, it is well settled that a testamentary
disposition, by its very nature, permits a testator to depart from the natural
course of intestate succession. Therefore, an unequal or exclusionary
disposition would not ipso facto constitute a suspicious circumstance so as
to invalidate a Will that is otherwise duly proved and where the reasons for
exclusion are explained and also borne out by evidence. The decisions in
the case of Ramabai Padmakar Patil v. Rukminibai Vekhande and
Pentakota Satyanarayana v. Pentakota Seetharatnam, upon which
reliance has been placed by the Plaintiff would squarely apply. Secondly
and crucially, the Deceased has in the said Will specifically explained the
reasons for the bequests in favour of the Plaintiff and for excluding his wife
and sons. This also is explained by the evidence led by the Plaintiff, which
clearly shows that the Defendants and the wife of the deceased had strained
57
Basavraj
2-TS-74-2006
relations with the deceased and were in fact making claims which were
adverse to the deceased in respect of the Jaipur property. The reliance
placed by the Plaintiff, on the decision of Krishna Kumar Birla v.
Rajendra Singh Lodha, is thus apposite.
94.Equally, as held by the Hon’ble Supreme Court in the case of Leela
Rajagopal v. Kamala Menon Cocharan, mere participation of a
beneficiary in matters surrounding the execution of a Will does not ipso
facto establish undue influence, coercion, or a suspicious circumstance
sufficient to displace an otherwise duly proved Will. The other
circumstances relied upon by the Defendants as being suspicious include
the identity of the scribe, the time reflected on the registration receipt, the
circumstances in which the original Will was subsequently found, and
certain recitals concerning family relationships. In the facts of the present
case, these circumstances, either individually or cumulatively, do not cast
such suspicion upon the execution of the said Will so as to displace the
direct evidence of both the attesting witnesses. In my view, none of these
circumstances, even if correct, would materially affect the fact that the said
58
Basavraj
2-TS-74-2006
Will was duly executed by the Deceased as required under the provisions
of Section 63 of the Succession Act and Section 68 of the Indian Evidence
Act, 1872, in the facts of the present case. Also, the registration of the Will
is not mandatory under any law, and the same was registered within the
lifetime of the deceased.
95.Another factor which, in my view, is crucial and entirely cuts against the
contention of the Defendants that the Deceased was not in a sound and
disposing state of mind or the fact that the cognitive abilities of the
Deceased were afflicted because the Deceased was suffering from prostate
cancer is belied by the fact that it was the Defendants’ own contention that
the Deceased had executed a subsequent Will on or about 25 th January
2005. This contention is entirely founded upon a letter dated 27 th January
2005 and the Second Report of DW-3. However, this alleged subsequent
Will has never been produced before the Court, and DW-1 has admitted in
answer to Question Nos. 130 to 133 that no steps were taken by the
Defendants in furtherance of this alleged subsequent Will. Thus, the case
of the Defendants is as perplexing as it is self-contradictory. The
59
Basavraj
2-TS-74-2006
Defendants, though having contended that the Deceased was not in a sound
and disposing state of mind on 30th November 2004, i.e., the date on which
the said Will was executed, have in the very next breath asserted that the
Deceased has executed a subsequent Will as mentioned by him in the Letter
dated 27th January 2005.
96.Therefore, upon an overall consideration of the evidence on record, I am
satisfied that the Plaintiff has proved the due execution and attestation of
the said Will as required under the provisions of Section 63(c) of the
Succession Act and Section 68 of the Indian Evidence Act, 1872. In my
view, the Plaintiff has adequately explained what the Defendants have
claimed as suspicious circumstances. The so-called suspicious
circumstances in the present case would not, in my view, disentitle the
Plaintiff to the grant of probate of the said Will.
Issue No. 2 is, therefore, accordingly, answered in the affirmative.
Issue No. 3:
97.The burden of proving this issue was entirely upon the Defendants, as
specifically recorded in the Order dated 19th March 2025. The question is
60
Basavraj
2-TS-74-2006
therefore whether the Defendants have discharged the burden of
establishing that the signature appearing upon the Will is not that of the
Deceased. Admittedly, none of the Defendants were present when the Will
was executed. The challenge to the signature of the Deceased rests
principally on the Report dated 20th March 2011 prepared by DW-3 and on
the oral evidence of DW-3.
98.The evidentiary value of the opinion of DW-3 must be examined in light
of the admissions made by DW-3 in cross-examination. DW-3 has, in
cross-examination, answered Question Nos. 1 to 4, as follows, viz.
“Q.1) Is there any error that you have noticed in your Observation Report?
A. Yes. The date of the Will is 30th November 2004. It has as inadvertently
been mentioned 30th November 2005 in the first paragraph on page 1 of 28
and in the last paragraph under the heading "Opinion" on page 6 of 28 of
my Observation Report. This may please be corrected.
Mr. Mahala has no further questions for the witness.
[Cross-examination of DW-2 by Ms. Mahek Bookwala Shetty on behalf of
the Plaintiff]
Q.2) What are your educational qualifications?
A. I am a Certified Forensic Document Examiner. I have also done my
M.Com. I have been trained by Mr. V.C. Misra in the field of forensic
document examination for one year and have been certified thereto by him.
61
Basavraj
2-TS-74-2006
Mr. Misra is a Forensic Expert himself with over 20 years of experience and
apart from his independent practice, he is also a Member of the faculty at
Amity University.
Q.3) Would it be correct to say that you have not done your forensic
document examination from any university?
A. It is correct.
Q.4) How many years of experience do you have in this field?
A. Four years post certification.” (emphasis supplied)
99.Significantly, DW-3 has also, in answer to Question No. 90 in cross-
examination, admitted that the signatures used by her for comparison were
merely represented to her as being the admitted signatures of the Deceased.
DW-3 had also admitted that she had not independently established that the
signatures which form the basis of the comparison carried out by DW-3 of
the signature of the Deceased on the said Will were admitted or proved
signatures.
100. Additionally, there are also further difficulties in accepting the evidence of
DW-3. The material on which DW-3's expert opinion is based on the fact
that DW-3's analysis was carried out on scanned copies of photocopies of
the signatures and that such documents analysed by DW-3 do not form part
62
Basavraj
2-TS-74-2006
of the record before the Court, and that the documents annexed to DW-3's
Report may not be the very documents analysed by DW-3, as shown by
DW-3's answers to Question Nos. 101 to 109. DW-3 has also admitted that
the images used for analysis were digitally enlarged.
101. All of the above admissions substantially diminish the evidentiary value of
the Report filed by DW-3. Even otherwise, this Court has noted the
fallibility of handwriting expert evidence and the caution needed in
evaluating a handwriting expert's opinion in the case of Hoshang Pesi
Hodiwala v. Bonny Behramshah Bhathena. In the facts of the present
case, therefore, the evidence of DW-3 is not worth the paper it is written
on.
102. Also, in my view, the Second Report of DW-3 does not advance the
Defendants’ case any further. That Report concerns the signature of the
Plaintiff on the letter dated 27th January 2005 and is relied upon in
connection with the alleged subsequent Will. The alleged subsequent Will
itself has not been produced or proved. The Second Report, therefore, does
63
Basavraj
2-TS-74-2006
not establish that the signature appearing on the Will dated 30th November
2004 is not that of the Deceased.
103. DW-2, though having filed an Affidavit of Evidence, has not offered
himself for cross-examination. The evidence of DW-2, therefore, cannot
be relied upon. Also, DW-1 was admittedly not present at the time of the
execution of the Will. Thus, the Defendants have not established any
material basis, let alone any evidence, to prove that the Deceased did not
execute the said Will or that the signature on the said Will was not that of
the Deceased. Thus, on the one hand, there is the direct and consistent
evidence of the Plaintiff regarding the due execution of the said Will, and
on the other is the expert opinion based on material whose provenance and
evidentiary foundation have not been satisfactorily established. Hence, in
my view, the Defendants have failed to discharge the burden cast upon
them of proving that the Deceased did not sign the Will.
Accordingly, I answer Issue No. 3 in the negative.
104. Hence, for the reasons set out in paragraphs 84 to 105 above, I find that the
Plaintiff has duly proved Issue No. 1.
64
Basavraj
2-TS-74-2006
Issue No. 1 is accordingly answered in the affirmative.
105. For the reasons mentioned in the paragraphs hereinabove, I pass the
following Order:
ORDER
(i)Testamentary Suit No. 74 of 2006 is decreed.
(ii) The Prothonotary and Senior Master is directed to issue
Probate of the last Will and Testament dated 30th November
2004 of Mr. Gulab Hukumatrai Gurbani, in favour of the
Plaintiff, upon compliance with the requisite formalities.
(iii) The grant shall be issued expeditiously.
(iv) There shall be no orders as to costs.
[ARIF S. DOCTOR, J.]
65
Basavraj
Checking your session…
Lawyer court records for this case
Associated through the court’s case reference.