LEGAL GROUNDS FOR CHALLENGING VALIDITY OF WILL

LEGAL GROUNDS FOR CHALLENGING VALIDITY OF WILL

Undue Influence means exercise of excessive persistence, dominance of physical power mind, and  will, or any burden applied due to authority or position, or relationship in relation to the power of the person submitting to it. It must be shown that will was the consequence of the implementation of the power and it is not sufficient to show that a person was in a situation or had the power to overcome the testator.

IN THE HIGH COURT OF BOMBAY
Testamentary Suit No. 74 of 2011 in Testamentary Petition No. 970 of 2009

Decided On: 14.10.2016
Panna Surendra Mehta
Vs.
Purnima Latik Shah
Hon'ble Judges/Coram:
G.S. Patel, J.
Citation: 2017(2) ALLMR 278
A. PARTIES AND THE LITIGATION HISTORY

1. Jaswantbhai Natwarlal Jolia ("Jaswantbhai") died on 26th January 2004.1 He left a Will dated 10th August 2002.2 The Plaintiff, Panna S. Mehta ("Pannaben"), seeks Letters of Administration with Will Annexed to this Will. She is Jaswantbhai's sister-in-law, his wife Veenaben's sister. Panna is one of the beneficiaries of the Will. The major beneficiary is Panna's son, Ashitkumar Surendra Mehta, also known as Asit Mehta ("Asit"). He was also the sole executor named in the Will. Asit died on 18th May 2009.
2. Jaswantbhai's wife, Veena, died on 3rd March 2000, about four years before Jaswantbhai passed. Jaswantbhai and Veena had no children of their own. Jaswantbhai had three sisters, Ramaben Krishnalal Shah, Indiraben V Bankley and Trilochanaben T. Fozdar, and a brother Kanhaiyalal Dalal. Ramaben and Indiraben died before Jaswantbhai. He was, therefore, survived by Trilochanaben and Kanhaiyalal, his surviving siblings.

3. After Jaswantbhai died, Asit sought probate. He filed Testamentary Petition No. 243 of 2004. That petition was opposed by Trilochanaben and by three of Ramaben's children (Panna, Jitendra and Kishore). It was renumbered as Testamentary Suit No. 22 of 2004. Kanhaiyalal died on 10th May 2007 without leaving any heirs. Asit filed Notice of Motion No. 104 of 2007 to dismiss the caveats filed by Ramaben's children, contending that they had no caveatable interest, since, at the time when succession opened, Jaswantbhai's heirs in law were Trilochanaben and Kanhaiyalal, and they took before, in preference to, and to the exclusion of Ramaben's children. The Notice of Motion succeeded, and Ramaben's children's caveats were dismissed.

4. Asit died on 15th May 2009 and it was then held that his probate petition abated.4 On 30th September 2009, his mother, Pannaben, filed the present petition for Letters of Administration with Will Annexed seeking to prove Jaswantbhai's Will. On 25th November 2009, Trilochanaben filed Testamentary Petition No. 45 of 2010 for Letters of Administration to Jaswantbhai's estate. Pannaben filed a Caveat, and this was renumbered as Testamentary Suit No. 118 of 2010. On 1st November 2010, Trilochanaben died in Mumbai. She left a Will dated 11th February 2008. In this, she purported to make bequests of her share, if any, from Jaswantbhai's estate inter alia to her own children and to the children of her deceased sister, Ramaben.

5. On 1st April 2011, Trilochanaben's daughter, Purnima Latik Shah ("Purnima") filed a Caveat in the present Petition for Letters of Administration with Will Annexed brought by Pannaben. On 16th January 2013, Jitendra Krishnalal Shah and Jaisukh Krishnalal Shah, two of Ramaben's children, filed Caveats in the present Petition. Pannaben filed Notice of Motion No. 49 of 2013 for discharge of those Caveats. The Motion succeeded: the two Caveats by Jitendra and Jaisukh were discharged.5 Thus, Ramaben's children had twice opposed proof of Jaswantbhai's Will: first in the Probate Petition filed by Asit and again in the Petition for Letters of Administration with Will Annexed filed by Pannaben. Both oppositions failed. The surviving opposition to the present Petition is only, therefore, by Purnima.

B. THE WILL DATED 10TH AUGUST 2002

6. I turn now to the physical aspect of the Will dated 10th August 2002. This is a two-page document typed in English. Jaswantbhai's signatures appear on both pages. The attesting witnesses to this Will are Mr. Kirit Damania, an Advocate & Solicitor of this Court, and one Ms. Shree Kumary S. Mr. Damania was Jaswantbhai's friend and legal advisor. Ms. Shree Kumary S was his stenographer. In the document, the testator refers to himself as "Jaswantbhai"; he signs it as "Jaswantlal". This, as we shall see, is of significance because it is central to Purnima's opposition that he was never known by this name but only as "Jaswantlal". In the Will, Jaswantbhai sets out his properties and assets in some detail. He makes an absolute bequest in favour of his nephew, Ashitkumar (alias Asitkumar, alias Asit), and directs him to take charge of his entire estate. He also devises and bequeaths all his gold and other valuable ornaments and silver utensils in equal shares to 1) Devyani H. Kapadia (Pannaben's sister) and 2) Pannaben. The Will also speaks of a flat at Kirti Manor on S.V. Road, Santacruz (W). The words "with two garages" are handwritten. Then there is the signature of the testator on the first page.

C. THE CAVEAT & AFFIDAVIT IN SUPPORT

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7. In her Affidavit in Support of her Caveat, Purnima alleges that this Will is forged, fabricated and unnatural.6 She takes these grounds:

"(a) Purnima says that the name on the Will is 'Jaswantbhai Natwarlal Jolia' and not 'Jaswantlal Natwarlal Jolia', which was his 'real' name. She claims he was never known as Jaswantlbhai. The Defendant also relies on the death certificate,7 bank account details8 and certain share certificates9 to substantiate her claim.
(b) Purnima claims that Jaswantlal's signature was obtained on a blank paper; the Will had been drawn thereafter and that the signature itself is of Jaswantlal Jolia and not Jaswantbhai Jolia.
(c) Purnima alleges that Asit coerced Jaswantlal into signing the Will;
(d) Finally, Purnima sets up an affirmative case that Jaswantlal always treated Purnima as his own daughter and, therefore, he would have confided in her and brought to her notice his intention to create a Will.

8. Mrs. R.P. Sondurbaldota J framed and settled issues on 1st March 2012.10 On 1st September 2016, I framed an additional issue, parties having agreed. The final issues are set out below with my findings against each.

13. The burden of these two issues is on the Plaintiff. They need to be addressed together. The requirements of a valid unprivileged Will are well known. The testator must be an adult of sound mind.26 He must be shown to have made the Will of his own volition and without any importunity as might rob him of free agency.27 He must sign the Will intending it to be such a document. The execution of the Will must be attested by at least two witnesses. Both need not be present at the same time, but each must have seen the testator sign the Will.28

15. Mr. Damania was cross-examined, though very briefly.30 The very first question put to him was whether this was the first time Mr. Damania had said that Jaswantbhai and Jaswantlal were the same person. The question is itself peculiar;To this, Mr. Damania responded saying that for at least a year prior to his death, the testator could move about and had a good memory.32 Again, this was an answer that ought to have been tested further in cross-examination but was not. It remains uncontroverted.

17. The time frame of these questions is unhelpful. The Will is of 10th August 2002. Jaswantbhai lived for a good two years after, and died on 26th January 2004. The first of the questions about his health relates to a period of four years before 10th August 2002, i.e., about 1998; and that is, therefore, irrelevant. The second is vague when it speaks of 'last days', and in any case is fully met by Mr. Damania's answer, that at least for a year before his demise.

19. To demonstrate testamentary incapacity, Purnima had to show either that Jaswantlal was, on account of his condition of paralytic attacks, never, i.e., at no point in time, in a sufficiently lucid state of mind to make a testamentary instrument, or, alternatively, that on the day in question, 10th August 2002, he was so incapacitated that he could not possibly have made the Will.

20. Though Purnima called very many medical practitioners to give evidence, none of it establishes testamentary incapacity. The only relevant testimony is from DW4, Dr. P. Marfatia.

22. The other doctors contribute nothing to this, and I do not propose to spend further time labouring their evidence. DW2, Dr. Borse, spoke of Jaswantbhai's hospitalization in 1998. That is not denied.

23. There is nothing, I note, to controvert Mr. Damania's evidence of the actual execution and attestation of the Will. As to the second aspect, viz., testamentary capacity, there is no material to indicate that Jaswantbhai lacked it in the slightest on the day he made the Will. The inevitable result is that Issues Nos. 1 and 2 are proved.

26. Now, apart from the Pannaben's unequivocal refutation of the suggestion, what is important is the suggestion implicit in the question. If it is, therefore, shown that Jaswantlal and Jaswantbhai are the same person, then on this case placed by the Defendant herself the Testamentary Suit must succeed; for it admits the execution of the Will but only disputes the identity of the maker of it.

27. Later, Pannaben said that Jaswantlal N. Jolia was the family name or he was so known to the family, but in business circles he was known as Jaswantbhai. This is of some significance, because among Gujaratis, the word 'bhai' is an honorific and a frequently used term of respect. Yet again, there is no follow through on this answer and it remains untested.

28. What follows, however, is as baffling as it is crucial. The Plaintiff was confronted with an undated letter from the testator to the Branch Manager of the Bombay Mercantile Cooperative Bank. This was marked in evidence.

30. Quite apart from these two answers being utterly fatal to the Defendant's case on the question of a difference in identity, it must be noted that in the two printed documents, the letterhead shows the testator's name (and there is no doubt that it was the deceased who signed both) as "Jashwantbhai"; i.e., there is yet another variant in the name, one that is clearly as irrelevant as the difference between Jaswantlal and Jaswantbhai.

31. I turn next to the evidence of DW8, Mr. Chandanmal B. Chhajed, a Chartered Accountant with M/s. C.B. Chhajed & Co. He filed an Affidavit in lieu of Examination-in-Chief,45 and was briefly further examined in chief.46 He claimed to have a photocopy of Ex. D-1, the letter dated 12th March 2001 to him by the deceased. He referred to this letter in his examination-in-chief.

32. This is the last nail in the defence's coffin. The Defendant's own witness deposes that her case, of the two being different, and of the testator never being known as, or using, the name "Jaswantbhai" is untrue. There are other documents that the Defendant put into evidence, too, such as the share certificate at Ex. "D-4",47 admitted by the Defendant to be signed by the deceased and showing his name, written in Gujarati, as 'Jaswantbhai'.

33. The evidence of DW6, DW7 and DW9 carries the matter no further. None knew Jaswantbhai personally, but only in their professional capacity as bank managers at their respective banks. Their testimonies before the Commissioner do not assist the Defendant's case in any way.

34. There is absolutely no substance to the case that the testator was never known as Jaswantbhai but only ever as Jaswantlal. The evidence the Defendant herself led destroys her case as pleaded that the Will was fabricated.

35. On the question of forgery, there is no evidence whatever and, again, the Defendant's own pleadings, admissions in the cross-examination in questions, and on documents falsifies any such case.

36. As to the case on 'undue influence',48 there is no evidence at all. To invalidate a Will, undue influence must be established as a fact. The actual exercise of that undue influence on the testator, and which is in the nature of coercion and fraud, must also be demonstrated.49 It is not enough to show that one person was in a position or had the power to overbear the testator; it must be shown that Will was the result of the exercise of that power.50 Generalized allegations will not do: undue influence is to pleaded with specificity, particularity and precision.51

The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well-founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict - positive or negative."

43. The mere fact that some heirs are excluded is not per se evidence of a Will being unnatural; every Will disrupts the ordinary line of succession, and this is obvious.55 Were it otherwise, there would be no need for Wills. As against Purnima's lack of evidence, there is the evidence of Pannaben, elicited in her cross-examination, that her son, Asit, stayed with Jaswantbhai.56 She said she had some proof of this, but not complete proof. This is in sharp contrast to Purnima's case, of which she has no proof at all.

44. Issue No. 3A must, therefore, be answered in the negative.

I. CONCLUSION & ORDER

45. The testamentary jurisdiction is one of caution, not suspicion.57 Where nothing is shown against the reasonable nature of a Will, and there are no suspicious circumstances, the propounder's onus is discharged. On an overall assessment, it seems to me clear from the record that Jaswantbhai, himself childless, was close to Pannaben and her son, and treated her son (Asit) as his own. Issues such as undue influence, coercion, forgery or the Will being unnatural cast the burden not on the propounder, but on he or she who alleges these things.58

46. The suit succeeds, and is decreed with costs. The caveat is dismissed. The Registry will proceed to issue Letters of Administration with Will Annexed in respect of the Will dated 10th August 2002 of Jaswantbhai alias Jaswantlal Natwarlal Jolia.

47. The drawn up decree or order is dispensed with. The Registry is not to raise any objections or requisitions regarding service of citations. Given that the Petition is of 2009, pending for seven years already (and that a probate was first sought even earlier in 2004, i.e., 12 years ago), Letters of Administration with Will Annexed are to be issued no later than by 30th November 2016. For these reasons, and since, too, I have found not a shred of substance in the defence, the application for stay of this order is refused.

48. The registry will act on an authenticated copy of this order.

4Order dated 4th September 2009, following the decision of the Division Bench in Thrity Sam Shroff v Shiraz Byramji Anklesaria, 2007 (4) Mh. L.J. 56. The correctness of this decision has been doubted in the Division Bench decision in Haresh Chetan Thadani v Komal Suresh Chainani, Appeal No. 1 of 2015, decided on 27th January 2015, in appeal from an order I passed on 16th December 2014 allowing a Chamber Summons for conversion of a probate Petition into one for Letters of Administration with Will Annexed. The Division Bench in Thadani held that in Thrity Sam Shroff, the Court's attention had not been drawn to the decision of the Supreme Court in Shambu Prasad Agarwal & Ors. v Bhola Ram Agarwal, (2000) 9 SCC 714. 28Succession Act, Section 63. The Section allows the making of a mark or the signature on behalf of the testator by another and at his direction; each attesting witness must either see the testator sign, make or make another sign the Will or receive a personal acknowledgement of the signature, mark or other person's signature from the testator.