CS/2834/2015 1/39 JUDGMENT

Registration No. : CS/2834/2015

Filing No. : CS/2799/2015
Filed on : 01/12/2015
Registered on : 01/12/2015
Decided on : 28/01/2020
Total Time Taken : 4 Y 1 M 27 D

IN THE CITY CIVIL COURT AT AHMEDABAD

CIVIL SUIT NO.2834 OF 2015

Plaintiff:

1. Tarang Jashwantlal Sutariya

Aged:58 Years,
By Religion:Hindu,
Occupation:Business,
Residing at Geeta Bungalow No.2,
Aadarsh Society, Swastik Cross-Roads,
Navrangpura, Ahmedabad-380009.

VERSUS
Defendant:

1. Apoorva Shantilal Shah

Aged:Adult,
Residing behind Akshardham Towers,
Near Police Head Quarters,
Shahibaug, Ahmedabad.

Appearance:
Mr.R.M.Kapasi,learned Advocate for the Plaintiff.
Mr.N.L.Jain, learned Advocate for the Defendant.

JUDGMENT

1. The present suit has been filed by the

plaintiff for grant of probate of the Will dated
15.08.1991 executed by deceased Smt. Sumeeben
Mahendrabhai Shah (hereinafter referred to as
‘Smt. Sumeeben’ for the sake of brevity).
Originally, the plaintiff had filed a probate
CS/2834/2015 2/39 JUDGMENT

application bearing Civil Misc. Application

No.1533 of 2011, which was converted into Civil
Suit vide order dated 24.11.2015.

2. The brief facts of the present case are

that Smt. Sumeeben expired on 15.01.2009. Smt.
Sumeeben had executed a Will dated 15.08.1991 in
the presence of two attesting witnesses namely
Shri Bindukumar Babubhai Modi and Shri Virendra
Ramchandrabhai Gandhi. It is further submitted by
the plaintiff that Shri Mahendrabhai Shantilal
Shah had expired on 05.09.1983, who had executed a
Will dated 17.09.1973, in which Shri Mahendrabhai
Shantilal Shah had bequeathed all his properties
in the name of his wife Smt. Sumeeben Mahendrabhai
Shah. The plaintiff further submits that he is the
only legal heir of Smt. Sumeeben and he has been
appointed as the executor of the Will dated
15.08.1991 and therefore, he has filed the present
suit for grant of probate of the Will dated
15.08.1991 in the capacity of the executor of the
Will. It is further submitted by the plaintiff
that Smt. Sumeeben had filed R/First Appeal
No.2014 of 2002 with R/First Appeal No.2015 of
2002, with respect to her rights in the properties
of her father-in-law namely Shantilal Shah.
Thereafter, Smt. Sumeeben expired and the
plaintiff has filed Civil Application No.10975 of
CS/2834/2015 3/39 JUDGMENT

2009 for impleading him as legal heir of Smt.

Sumeeben wherein, the Hon’ble High Court vide
order dated 11.02.2010 has directed the plaintiff
to file a probate application before this Court.
It is further submitted by the plaintiff that his
mother namely Smt. Sumeeben had expired on
15.01.2009 at Ahmedabad and in compliance of the
order passed by the Hon’ble Gujarat High Court
dated 11.02.2010, the plaintiff has filed probate
application before this Court bearing Civil Misc.
Application No.1533 of 2011, in which public
notice dated 21.03.2012 was ordered to be
published in the daily newspaper, in response to
which, the present defendant has filed his
objections before this Court and therefore, vide
order dated 24.11.2015 passed in CMA No.1533/2011,
the probate application was converted into Civil
Suit.

3. The defendant has filed his objections

vide Exhibit-26 in CMA No.1533/2011, which is now
treated as written statement/reply in the present
suit, in which the defendant/objector has
submitted that the plaintiff has not mentioned the
details of movable as well as immovable properties
of the deceased Smt. Sumeeben and has further
submitted that the probate application filed by
the plaintiff is not maintainable. Further, the
CS/2834/2015 4/39 JUDGMENT

defendant in his written statement has submitted

that in the Will dated 15.08.1991 executed by
deceased Smt. Sumeeben, she has not mentioned any
of the properties owned by her in the said Will.
It is further submitted by the defendant that the
testator Smt. Sumeeben was not having knowledge of
the properties owned by her and she was not
mentally healthy and therefore, the Will in
question executed by testator Smt. Sumeeben is
under suspicion and is required to be proved by
the plaintiff. It is further submitted by the
defendant that the plaintiff is not the real son
of Mahendrabhai. Further, it is submitted that
Smt. Sumeeben had married Shri Jashwantlal
Sutariya and out of this wedlock, the plaintiff
was born and thereafter, testator Smt. Sumeeben
got divorced from Shri Jashwantlal Sutariya and
thereafter, married Shri Mahendrabhai Shantilal
Sha. Further, it is submitted by the defendant
that testator Smt. Sumeeben has not mentioned in
the Will, as from where and how the testator had
acquired the properties, which are being referred
in her Will dated 15.08.1991. Further, the
defendant has submitted that in these
circumstances, since the properties are not
mentioned in the Will dated 15.08.1991, therefore,
it is not ascertainable as to which properties
CS/2834/2015 5/39 JUDGMENT

were owned by the testator Smt. Sumeeben.

Therefore, in these circumstances, the probate
application with respect to the Will in question
cannot be allowed. It is further submitted by the
defendant that the plaintiff has filed the
affidavits of two attesting witnesses of the Will.
Further, the defendant has pointed out in his
written statement/reply that the signatures on the
affidavit of the attesting witnesses filed by the
plaintiff reveal that the signatures on the said
affidavit and the signatures of the witnesses on
the Will in question appears to be different and
therefore, in these circumstances, the Will in
question appears to be forged and fabricated.
Further, the defendant has submitted that the
facts as stated in para 2 & 4 of the probate
application/plaint are not admitted by him.
Further, the defendant admits the fact that Shri
Mahendrabhai Shantilal Shah expired on 05.09.1983.
The defendant also submitted that he had filed a
Civil Suit before the City Civil Court, Ahmedabad
with respect to the properties of deceased
Shantilal Mangaldas Shah, which was decided in
favour of the defendant and against the said
order, the plaintiff has filed R/First Appeal
No.2014/2002 with R/First Appeal No.2015/2002
before the Hon’ble Gujarat High Court and the same
CS/2834/2015 6/39 JUDGMENT

is pending adjudication. Hence, the defendant has

prayed to dismiss the probate application with
costs.

4. It is in the background of such admitted

facts and pleadings that this Court has framed the
following Issues at Exhibit-30.

ISSUES

1. Whether the plaintiff proves that the Will

dated 15.08.1991 executed by Smt. Sumeeben
Mahendrabhai Shah is genuine?

2. Whether the plaintiff proves that the

plaintiff is entitled for the grant of
probate on the basis of the Will dated
15.08.1991 executed by Smt. Sumeeben
Mahendrabhai Shah?

3. Whether the defendant proves that in the

absence of mentioning of properties owned by
the deceased Smt. Sumeeben Mahendrabhai Shah
in her Will dated 15.08.1991, the probate
application with respect to the Will in
question cannot be allowed and the
application filed by the plaintiff for
probate is legal and valid as per the
provision of Law contained in City Civil
Rules, Rule 165 and also as per Form-52 of
the City Civil Rules?
CS/2834/2015 7/39 JUDGMENT

4. What final order and decree?

5. My findings on each of the Issues are as

follows.

FINDINGS

1. In the “negative”.
2. In the “negative”.

3. In the “affirmative”.

4. As per final order.

6. Before ascribing my reasons for arriving

at my findings, it would be necessary to note that
the plaintiff has, in support of his claim,
produced affidavit in lieu of his examination-in-
chief of plaintiff (PW-1) vide Exhibit-18.
Further, in support of his claim, the plaintiff
has also produced examination in chief by way of
affidavits of attesting witnesses Shri Bindukumar
Babubhai Modi (PW-2) vide Exhibit-19 and Shri
Virendra Ramchandra Gandhi (PW-3) vide Exhibit-20.
Except these, no other oral evidence has been led
on behalf of the plaintiff. Not only that, the
plaintiff has also produced documentary evidence
in reliance of his claim. The original list of
documents is produced on the record of the
proceedings at Exhibit-16 and these documents are
admitted and read in evidence, which are as per
the following details.
CS/2834/2015 8/39 JUDGMENT

Oral Evidence

Sr.No. Documents Exhibit

1 Examination in chief by way of Exh-18
affidavit of Plaintiff (PW-1)
2 Examination in chief by way of Exh-19
affidavit of Shri Bindukumar Babubhai
Modi (PW-2)
3 Examination in chief by way of Exh-20
affidavit of Shri Virendra Ramchandra
Gandhi (PW-3)

Documentary Evidence

Sr.No. Documents Exhibit

1 Affidavit of attesting witness Shri Exh-7
Virendra Ramchandrabhai Gandhi
2 Affidavit of attesting witness Shri Exh-8
Bindukumar Babubhai Modi
3 Death Certificate of Shri Mahendrabhai Exh-25
Shantilal Shah
4 Will dated 17.09.1973 executed by Shri Exh-26
Mahendrabhai Shantilal Shah
5 Affidavit of attesting witness of Will Exh-27
dated 17.09.1973 executed by Shri
Mahendrabhai Shantilal Shah
6 Death Certificate of Smt. Sumeeben Exh-28
Mahendrabhai Shah
7 Will dated 15.08.1991 executed by Smt. Exh-29
Sumeeben Mahendrabhai Shah

7. In light of such state of affairs, the

plaintiff has himself declined to lead any further
oral or documentary evidence in support of his case
and the plaintiff has passed a Pursis Exhibit-32
stating therein that no further oral or documentary
CS/2834/2015 9/39 JUDGMENT

evidence is sought to be led by the plaintiff.

Similarly vide Pursis Exhibit-33, the defendant has

also declared inter alia that the defendant does

not wish to lead any evidence in the proceedings.
It is in the background of such admitted position
that this Court is required to decide the fate of
the suit on the basis of the documents and oral
evidence tendered on the record of the proceedings
and referred to herein before.

REASONS

8. On behalf of plaintiff, the plaintiff

examined himself as witness as PW-1, who in his
examination-in-chief Exhibit-18 deposed that Shri
Mahendrabhai Shantilal Shah expired on 05.09.1983
and has filed his death certificate Exhibit-25. He
further deposed that after the demise of Shri
Mahendrabhai Shantilal Shah, the properties owned
by him devolved upon Smt. Sumeeben Mahendrabhai
Shah by virtue of his Will dated 17.09.1973, which
was executed by Shri Mahendrabhai Shantilal Shah
out of his free will. The original Will executed by
Shri Mahendrabhai Shantilal Shah has been filed and
exhibited as Exhibit-26. It is further deposed by
the plaintiff in his examination-in-chief that the
contents of the Will Exhibit-26 are true and
accepted by the plaintiff as genuine. It is further
deposed by PW-1 that the Will Exhibit-26 was
CS/2834/2015 10/39 JUDGMENT

executed in the presence of witness Shri N.A.Shah,

who has expired and the second witness Shri
Bindukumar Babubhai Modi, whose original affidavit
is exhibited as Exhibit-27, in which he has signed,
which the PW-1 identifies. It is further deposed by
PW-1 that his mother Smt. Sumeeben expired on
15.01.2009 and her death certificate is filed at
Exhibit-28. Smt. Sumeeben had left her Will dated
15.08.1991, which was executed in the presence of
witness namely (i) Shri Bindukumar Babubhai Modi
(ii) Shri Virendra Ramchandra Gandhi. The PW-1
further deposed that Smt. Sumeeben executed a Will
dated 15.08.1991 and handed over the original Will
to PW-1 as the executor of the Will. The said Will
was executed by Smt. Sumeeben in the presence of
two witnesses and the said Will is filed and
exhibited as Exhibit-29. It is further deposed by
PW-1 that the properties as mentioned in the Will
have been bequeathed in favour of the plaintiff
i.e. PW-1 himself.

9. On cross-examination of the PW-1 by the

defendant’s learned Advocate, the PW-1 deposed that
it is correct that her mother had married Shri.
Jashwantlal Sutariya, who is the father of
plaintiff/PW-1. He further deposed that it is
correct that Smt. Sumeeben got divorced from Shri.
Jashwantlal Suthariya and after her divorce, she
CS/2834/2015 11/39 JUDGMENT

married Shri. Mahendrabhai Shantilal Shah. He

further deposed that PW-1 has claimed those
properties in the suit, which his mother Smt.
Sumeeben had acquired from Shri Mahendrabhai. The
PW-1 also deposed that the shares, securities and
deposits for which present probate has been prayed,
the PW-1 has not stated the number and the name of
the company whose shares are and the quantum of the
shares has not been mentioned. PW-1 also admitted
that it is correct as to how much of cash and
jewelry is in whose custody has not been mentioned
in his application for probate. PW-1 also admitted
that it is correct that he has not mentioned the
details of the properties situated at Ahmedabad in
his application. PW-1 also admitted to be correct
that he has not mentioned the valuation of the
immovable properties and has also not mentioned as
to how much share his mother holds in the said
properties.

10. It is further admitted by PW-1 that at

the time of execution of the Will by Shri
Mahendrabhai and Smt. Sumeeben, he was not present.
The PW-1 specifically admitted that Shri
Mahendrabhai himself had handed over the original
Will of Mahendrabhai and Sumeeben to the
PW-1/plaintiff. He also admitted that the Will of
the Sumeeben was on a stamp paper and the first
CS/2834/2015 12/39 JUDGMENT

page of the Will consists of stamp paper. It is

further deposed by PW-1 that he does not remember
as to whether the original stamp paper Will had
been handed over to him or not. PW-1 also admitted
that he has not filed the original stamp paper Will
in the present suit proceedings. During the cross-
examination of the PW-1, he stated that he was
handed over the xerox copy of the Will with
original signatures of Smt. Sumeeben (Executor’s
copy). PW-1 further deposed that he has no
knowledge as to where is the original stamp paper
Will and further deposed that the same might have
been filed in the case pending before the Hon’ble
Gujarat High Court. It was further admitted by PW-1
that he has not made any efforts to locate/get the
original stamp paper Will. The PW-1 also admitted
that his mother had not handed over any list of
properties or the list of the jewelry to him or
along with the Will.

11. It was further admitted by PW-1 to be

true that no notice of this suit has been issued to
the relatives of Smt. Sumeeben, however, PW-1
deposed that public notice was issued.

12. Further, the plaintiff produced Shri

Bindukumar Babubhai Modi as PW-2, who in his
examination-in-chief by way of affidavit vide
Exhibit-19 has deposed that he identifies the
CS/2834/2015 13/39 JUDGMENT

plaintiff and defendant. He further deposed that he

is the relative of Smt. Sumeeben and he identifies
her and was occasionally visiting her. PW-2 further
deposed that Smt. Sumeeben had executed her Will
dated 15.08.1991 in his presence as well as other
witness namely Shri Virendrabhai Ramchandrabhai
Gandhi. He further deposed that at the time of
execution of the Will, Smt. Sumeeben was in perfect
health and was in proper senses and further
identifies his as well as Sumeeben’s and
Virendrabhai’s signatures on the Will executed by
Smt. Sumeeben.

13. During the cross-examination of PW-2 at

the time of execution of Will by Smt. Sumeeben,
Shri Tarangbhai, his wife Gitaben and one more
person (other witness) was present, whose name he
does not know. PW-2 deposes that he has no
knowledge that whether at the time of execution of
the Will, Notary was present or not. He deposes
that he signed the Will and thereafter, he left
away. PW-2 further deposes that at the time of
execution of the Will, no seal was affixed however,
later on at the time of affixing seal, he was
called. PW-2 again deposes that at the first time
he was alone and at that time, no seal was affixed.
He further deposed that at the second time, both
the witnesses were present and at that time, seal
CS/2834/2015 14/39 JUDGMENT

on the Will was affixed. He further deposed that

second time, second witness was present and he
signed. PW-2 further deposed that it is true that
at the first time, he signed on the Will and at the
second time, he singed on the register of Notary.
He further admitted to be correct that he has
signed the Will only once. PW-2 further admits that
the Will Exhibit-29 does not contain the signature
of Notary. PW-2 further deposes in his cross-
examination that the Will Exhibit-29 was signed by
him at the first time and at the second time, he
signed on the Will which was notarized. PW-2
further deposed that he has not signed any other
person’s Will except Sumeeben’s Will.

14. Further, the plaintiff produced Shri

Virendra Ramchandra Gandhi as PW-3, who in his
examination-in-chief by way of affidavit vide
Exhibit-20 has deposed that he identifies the
plaintiff and defendant. He further deposed that he
is the relative of Smt. Sumeeben and he identifies
her and was occasionally visiting her. PW-3 further
deposed that Smt. Sumeeben had executed her Will
dated 15.08.1991 in his presence as well as other
witness namely Shri Bindukumar Babubhai Modi. He
further deposed that at the time of execution of
the Will, Smt. Sumeeben was in perfect health and
was in proper senses and further identifies his as
CS/2834/2015 15/39 JUDGMENT

well as Sumeeben’s and Bindukumar’s signatures on

the Will executed by Smt. Sumeeben.

15. During the cross-examination of PW-3,

PW-3 deposed that at the time of execution of Will
by Smt. Sumeeben, Notary was not present. PW-3
further deposed that he has no knowledge whether
the Will was on the stamp paper or without stamp
paper. Further, PW-3 deposed that he has not signed
in any Notary Register regarding the Will. Further,
he deposed that the name of other witness in the
Will was Shri Bindukumar Babubhai Modi. PW-3
further deposed that Shri Bindukumar Babubhai Modi
was present at the time of execution of the Will
and at the time when he signed as witness in the
Will. He further deposed that when he signed in the
Will, he does not remember that whether the Will
was in original or a xerox copy of the Will.
Further, PW-3 admitted that he does not know Shri
Bindukumar Babubhai Modi and had met Shri
Bindukumar Babubhai Modi one or two times. Further,
he deposed that he does not know whether the Smt.
Sumeeben had affixed signatures in the Gujarati
language or in English language on the Will.
Further, deposed that he never went before the
Notary to affix his signature. PW-3 admitted that
the last page of the Will Exhibit-29 bears his
signature. Further, he deposed that he does not
CS/2834/2015 16/39 JUDGMENT

know whether he had signed in the original Will or

in the xerox copy of the Will. Further, he deposed
that he does not know whether he had mentioned his
residential address below his signature or not and
further deposed that he does not know who has
mentioned his address. Further, he deposed that he
does not know from whose pen he had signed on the
Will. PW-3 further deposed that he does not know as
to who had written the address mentioned below the
signature of witness No.1 on the Will. He further
deposed that it is true that when he signed on the
Will, prior to that witness No.1 had put his
signature on the Will. Further, PW-3 deposed that
he has never seen Smt. Sumeeben putting her
signatures ever on any document except the Will
Exhibit-29. PW-3 further deposed that he has not
affixed his signatures on any Will except the Will
Exhibit-29. Further, he deposed that he does not
know whether the Will Exhibit-29 bears the
signature of Smt. Sumeeben or not.

16. I have heard learned Advocate for the

plaintiff as well as learned Advocate for the
defendant/objector and perused the citations relied
upon by learned Advocate for the defendant/objector
and also perused the record and my findings on
issues are as under.
CS/2834/2015 17/39 JUDGMENT

Issue No. 1 & 2.

17. Since the Issue No.1 and 2 are

interconnected, therefore, they are discussed
together. In order to decide the Issue No.1 & 2,
let us peruse the provisions and principles of law
laid down by the Apex Court.

18. The expression "Will" is defined by

Section 2(h) of Indian Succession Act, 1925 to mean
the legal declaration of "the intention" of a
testator with respect to his property "which he
desires to be carried into effect after his death".

19. Section 59 of Indian Succession Act,

1925 governs the capability of a person to make a
Will. It reads thus:-

"59. Person capable of making Wills --- Every

person of sound mind not being a minor may
dispose of his property by Will.

Explanation1.----A married woman may dispose

by Will of any property which she could alien-
ate by her own act during her life.

Explanation 2.--- Persons who are deaf or dumb

or blind are not thereby incapacitated for
making a Will if they are able to know what
they do by it.

Explanation 3.--- A person who is ordinarily

insane may make a Will during interval in
which he is of sound mind.

Explanation 4.--- No person can make a Will

while he, is in such a state of mind, whether
CS/2834/2015 18/39 JUDGMENT

arising from intoxication or from illness or

from any other cause, that he does not know
what he is doing.

20. Section 59 thus declares that every per-

son (not being a minor) "of sound mind" may dis-
pose of his property by Will. The second explana-
tion appended to the said provision clarifies that
persons who are "deaf or dumb or blind" are not
incapacitated by such condition for making a Will
"if they are able to know what they do by it". The
third explanation makes the basic principle pellu-
cid by adding that even a person who is "ordinar-
ily insane" may make a Will during the interval in
which "he is of sound mind". The fourth explana-
tion renders it even more lucent by putting it
negatively in words to the effect that if the per-
son "does not know what he is doing" for any rea-
son (such an intoxiation, illness or any other
such cause) he is incompetent to make a Will. The
focal pre-requisite, thus, is that at the time of
expressing his desire vis-a-vis the disposition of
the estate after his demise he must know and un-
derstand its purport or import.

21. The provisions contained in Section 67

and 68 of the Indian Evidence Act, 1872, also be-
ing germane to the discussion here, may be
quoted:-
CS/2834/2015 19/39 JUDGMENT

"67. Proof of signature and handwriting of

person alleged to have signed or written
document produced.---If a document is alleged
to be signed or to have been written wholly or
in part by any person, the signature or the
handwriting of so much of the document as is
alleged to be in that person's handwriting
must be proved to be in his handwriting.

68. Proof of execution of document required by

law to be attested.--- If a document is
required by law to be attested, it shall not
be used as evidence until one attesting
witness at least has been called for the
purpose of proving its execution, if there be
an attesting witness alive, and subject to the
process of the Court and capable of giving
evidence:

Provided that it shall not be necessary to

call an attesting witness in proof of the
execution of any document, not being a Will,
which has been registered in accordance with
the provision of the Indian Registration Act,
1908 ( 16 of 1908), unless its execution by
the person by whom it purports to have been
executed is specifically denied."

22. The judgment of the Supreme Court in the

case reported as H. Venkatachala Iyangar Vs. B.N.
Thimmajamma, AIR 1959 SC 443, is one of the early
and celebrated judgments on the subject. After
construing, amongst others, the above statutory
clauses, the court ruled thus:-

"18... the question as to whether the will set

up by the propounder is proved to be the last
will of the testator has to be decided in the
CS/2834/2015 20/39 JUDGMENT

light of these provisions. Has the testator

signed the Will? Did he understand the nature
and effect of the dispositions in the will?
Did he put his signature to the will knowing
what it contained? Stated broadly it is the
decision of these questions which determines
the PC No. 48/09 & Virendra Katyal Vs State
29/45 New No. 16067/16 nature of the finding
on the question of the proof of wills. It
would prima facie be true be true to say that
the will has to be proved like any other
document except as to the special requirements
of attestation prescribed by Section 63 of the
Indian Succession Act. As in the case of proof
of other documents so in the case of proof of
wills it would be idle to expect proof with
mathematical certainty. The test to be applied
would be the usual test of the satisfaction of
the prudent mind in such matters.

19.... there is one important feature which

distinguishes wills from other documents.
Unlike other documents the will speaks from
the death of the testator, and so, when it is
propounded or produced before a court, the
testator who has already departed the world
cannot say whether it is his will or not; and
this aspect naturally introduces an element of
solemnity in the decision of the question as
to whether the document propounded is proved
to be the last will and testament of the
departed testator.

Even so, in dealing with the proof of wills

the court will start on the same enquiry as in
the case of the proof of documents. The
propounder would be called upon to show by
satisfactory evidence that the will was signed
by the testator, that the testator at the
relevant time was in a sound and disposing
state of mind, that he understood the nature
CS/2834/2015 21/39 JUDGMENT

and effect of the dispositions and put his

signature to the document of his own free
will. Ordinarily when the evidence adduced in
support of the will is disinterested,
satisfactory and sufficient to prove the sound
and disposing state of the testator's mind and
his signature as required by law, courts would
be justified in making a finding in favour of
the propounder. In other words, the onus on
the propounder can be taken to be discharged
on proof of the essential facts just
indicated.

20. There may, however, be cases in which the

execution of the will may be surrounded by
suspicious circumstances. The alleged
signature of the testator may be very shaky
and doubtful and evidence in support of the
propounder's case that the signature, in
question is the signature of the testator may
not remove the doubt created by the appearance
of the signature; the condition of the
testator's mind may appear to be very feeble
and debilitated; and evidence adduced may not
succeed in removing the legitimate doubt as to
the mental capacity of the testator; the
dispositions made in the will may appear to be
unnatural, improbable or unfair in the light
of relevant circumstances; or, the will may
otherwise indicate that the said dispositions
may not be the result of the testator's free
will and mind. In such cases the court would
naturally expect that all legitimate
suspicions should be completely removed before
the document is accepted as the last will of
the testator. The presence of such suspicious
circumstances naturally tends to make the
initial onus very heavy; and, unless it is
satisfactorily discharged, courts would be
reluctant to treat the document as the last
will of the testator. It is true that, if a
CS/2834/2015 22/39 JUDGMENT

caveat is filed alleging the exercise of undue

influence fraud or coercion in respect of the
execution of the will propounded, such pleas
may have to be proved by the caveators; but,
even without such pleas circumstances may
raise a doubt as to whether the testator was
acting of his own free will in executing the
will, and in such circumstances, it would be a
part of the initial onus to remove any such
legitimate doubts in the matter."

23. In Shashi Kumar Banerjee vs. Subodh

Kumar Banerjee, AIR 1964, SC 529, a Constitution
Bench of the Supreme Court had the occasion to
rule on the principles governing mode of proof of
a Will before a probate court. Referring, inter
alia, to the earlier decision of H. Venkatachala
Iyengar ( supra), the court held:-

"4.... The mode of proving a will does not

ordinarily differ from that of proving any
other document except as to the special
requirement of attestation prescribed in the
case of a will by S.63 of the Indian
Succession Act. The onus of proving the will
is on the propounder and in the absence of
suspicious circumstances surrounding the
execution of the will, proof of testamentary
capacity and the signatures of the testator as
required by law is sufficient to discharge the
onus. Where however there are suspicious
circumstances, the onus is on the propounder
to explain them to the satisfaction of the
Court before the Court accepts the will as
genuine. Where the caveator alleges undue
influence, fraud and coercion, the onus is on
him to prove the same. Even where there are no
CS/2834/2015 23/39 JUDGMENT

such pleas but the circumstances give rise to

doubts, it is for the propounder to satisfy
the conscience of the Court.

The suspicious circumstances may be as to

genuineness of the signature of the testator,
the condition of the testator's mind, the
dispositions made in the will being unnatural
improbable or unfair in the light of relevant
circumstances or there might be other
indications in the will to show that the
testator's mind was not free. In such a case
the Court would naturally expect that all
legitimate suspicious should be completely
removed before the document is accepted as the
last will of the testator. If the propounder
himself takes part in the execution of the
will which confers a susbtantial benefit on
him, that is also a circumstance to be taken
into account and the propounder is required to
remove the doubts by clear and satisfactory
evidence. If the propounder succeeds in
removing the suspicious circumstances the
Court would grant probate, even if the will
might be unnatural and might cut off wholly or
in part near relations…"

24. In Jaswant Kaur Vs Amrit Kaur, ( 1977) 1

SCC 369, after analyzing the ratio in H.
Venkatachala Iyangar (supra), the Supreme Court
culled out the following propositions:-

"(1) Stated generally, a will has to be proved

like any other document, the test to be
applied being the usual test of the
satisfaction of the prudent mind in such
matters. As in the case of proof of other
documents, so in the case of proof of wills,
one cannot insist on proof with mathematical
CS/2834/2015 24/39 JUDGMENT

certainty. (2) Since Section 63 of the

Succession Act requires a will to be attested,
it cannot be used as evidence until, as
required by Section 68 of the Evidence Act,
one attesting witness at least has been called
for the purpose of proving its execution, if
there be an attesting witness alive. And
subject to the process of the court and
capable of giving evidence.

(3) Unlike other documents, the will speaks

from the death of the testator and therefore
the maker of the will is never available for
deposing as to the circumstances in which the
will came to be executed. This aspect
introduces an element of solemnity in the
decision of the question whether the document
propounded is prsoved to be the last will and
testament of the testator. Normally , the onus
which lies on the propounder can be taken to
be discharged on proof of the essential facts
which go into the making of the will.

(4) Cases in which the execution of the will

is surrounded by suspicious circumstances
stand on a different footing. A shaky signa-
ture, a feeble mind, an unfair and unjust dis-
position of property, the propounder himself
taking a leading part in the making of the
will under which he receives a susbtantial
benefit and such other circumstances raise
suspicion about the execution of the will.
That suspicion cannot be removed by the mere
assertion of the propounder that the will
bears the signature of the testator or that
the testator was in a sound and disposing
state of mind and memory at the time when the
will was made, or that those like the wife and
children of the testator who would normally
receive their due share in his estate were
disinherited because the testator might have
CS/2834/2015 25/39 JUDGMENT

had his own reasons for excluding them. The

presence of suspicious circusmtances makes the
initial onus heavier and therefore, in cases
where the circumstances attendant upon the ex-
ecution of the will excite the suspicion of
the court, the propounder must remove all lig-
itimate suspicions before the document can be
accepted as the last will of the testator.

(5) It is connection with wills, the execution

of which is surrounded by suspicious circum-
stances that the test of satisfaction of the
judicial conscience has been evolved. That
test emphasises that in determining the ques-
tion as to whether an instrument produced be-
fore the court is the last will of the testa-
tor, the court is called upon to decide a
solemn question and by reason of suspicious
circumstances the court has to be satisfied
fully that the will has been validly executed
by the testator.

(6) If a caveator alleges fraud, undue influ-

ence, coercion, etc. in regard to the execu-
tion of the will, such pleas have to be proved
by him, but even in the absence of such pleas,
the very circumstances surrounding the execu-
tion of the will may raise a doubt as to
whether the testator was acting of his own
free will. And then it is a part of the ini-
tial onus of the propounder to remove all rea-
sonable doubts in the matter."

25. The burden of proof of Issue No.1 & 2 is

on the plaintiff who examined PW-2 Shri Bindukumar
Babubhai Modi and PW-3 Shri Virendera Ramchandra
Gandhi, the attesting witnesses of the will
Exhibit-29. The detailed testimony of the same has
been discussed herein above. The testimony of PW-2
CS/2834/2015 26/39 JUDGMENT

Shri Bindukumar Babubhai Modi established that he

was known to the testator Smt. Sumeeben and was on
visiting terms. He also admitted in his
examination in chief that Smt. Sumeeben executed
her Will dated 15.08.1991 in his presence as well
as in the presence of other witness namely Shri
Virendra Ramchandra Gandhi. Further, he has
identified the signatures of Smt. Sumeeben as well
as Shri Virendra Ramchandra Gandhi but during the
cross-examination of PW-2, PW-2 stated that at the
time of execution of the Will by Smt. Sumeeben,
one more person (other person) was present, whose
name he does not know. Further, he has submitted
in his cross-examination that at the time of
execution of Will by Smt. Sumeeben, Shri
Tarangbhai (plaintiff) and his wife Smt. Gitaben
were also present. It is to be noted here that in
the cross-examination of PW-1 (plaintiff), he has
deposed that at the time of execution of Will by
Smt. Sumeeben, he was not present. Further, PW-2
has deposed that he has not signed on any other
person's Will, except the Will of Smt. Sumeeben
whereas, the plaintiff has filed affidavit
Exhibit-27 of PW-2 (Shri Bindukumar Babubhai
Modi), in which he has deposed that he was present
at the time of execution of Mahendrabhai’s Will.

26. PW-3 in his cross-examination has

CS/2834/2015 27/39 JUDGMENT

deposed that at the time of execution of Will by

Smt. Sumeeben, the Notary was not present and
further deposed that he signed on the Will as
witness No.2. Further, he deposed that he does not
know whether the Smt. Sumeeben has affixed her
signatures on the Will in Gujarati language or in
English language and further stated that he never
went before the Notary to affix his signatures,
whereas PW-2 in his cross-examination has stated
that after signing the Will, he left away and
further he again came back on the call of the
executor. Further, PW-2 stated that at the second
time, when the Will was attested before the
Notary, the seal on the Will was affixed and at
that time, he has signed on the Notary Register
and further, at that time, both the witnesses were
present. It is to be noted here that PW-2 submits
that both the witnesses were present before the
Notary whereas, PW-3 deposed that he never signed
before the Notary. From the cross-examination of
PW-2 and 3, it transpires that the Will was
executed and the signatures of the witnesses were
affixed at two places at different times, which
creates doubt in the mind of the Court as to the
execution of the Will. Further, PW-2 deposed in
his cross-examination that the Will Exhibit-29 was
signed by him at the first time and at the second
CS/2834/2015 28/39 JUDGMENT

time, he signed only on the Will, which was

notarized. It is also to be noted here that the
Will Exhibit-29 is not a notarized Will and is
photocopy of the Will, having original signatures
of the executant as well as the witnesses on the
last page.

27. Further, PW-3, who is the attesting

witness of the Will Exhibit-29 has deposed in his
cross-examination that he has never seen Smt.
Sumeeben affixing her signatures ever on any
document except the Will Exhibit-29 and at the
same time, PW-3 deposed in his cross-examination
that he does not know whether the Will Exhibit-29
bears the signatures of Smt. Sumeeben or not. From
the deposition of the PW-3, it transpires that the
witness PW-3 has not signed on the original Will.
Further, from the record it transpires that the
plaintiff has filed the original affidavits of the
PW-2 and PW-3 along with the plaint vide Exhibit-7
& 8 respectively. The Exhibit-7 is the affidavit
executed by Shri Virendra Ramchandra Gandhi. From
the contents of affidavit Exhibit-7, it transpires
that the stamp paper was purchased on 27.11.2009
whereas the witness as signed the affidavit on
29.11.2009 and the signatures of the deponent were
identified on 27.11.2009 and the same was attested
by the Notary on 24.11.2009. Further, the
CS/2834/2015 29/39 JUDGMENT

affidavit Exhibit-8 is the affidavit of Shri

Bindukumar Babubhai Modi, on which the deponent
has signed and the stamp paper of this affidavit
was purchased on 27.11.2009 and the same was
notarized on 28.11.2009. From the contents of the
affidavit Exhibit-7 of deponent Shri Virendra
Ramchandra Gandhi seems to be forged affidavit as
the stamp vendor’s stamp reveals that it was
purchased on 27.11.2009 whereas the Notary has
attested the same on 24.11.2009 and the deponent
has signed on 29.11.2009 and further, the
signature of deponent was identified on
27.11.2009. Further, both the witnesses PW-2 and
PW-3 have not said anything about their affidavits
Exhibit-7 and 8 in their deposition, therefore, it
is doubtful that whether these affidavits Exhibit-
7 and 8 were executed by the PW-2 and PW-3.
Further, the plaintiff has also filed another
affidavit of Shri Bindukumar Babubhai Modi
Exhibit-27, in which Shri Bindukumar Babubhai Modi
has stated that he has signed the Will of Shri
Mahendrabhai Shantilal Shah in the presence of
Shri Mahendrabhai Shantilal Shah as a witness to
Shri Mahendrabhai Shantilal Shah but in the cross-
examination of witness Shri Bindukumar Babubhai
Modi, he has stated that he has not signed as a
witness on any other Will except the Will of Smt.
CS/2834/2015 30/39 JUDGMENT

Sumeeben. From the deposition of PW-2 and Pw-3,

the witnesses PW-2 and PW-3 do not inspire
confidence and therefore, the execution of the
Will seems to be suspicious.

28. Further, PW-1 i.e. the plaintiff has

stepped into the witness box and has in his
examination in chief Exhibit-18 deposed that Smt.
Sumeeben has executed the Will dated 15.08.1991
and handed over the original Will to PW-1 as the
executor of the Will whereas, in the cross-
examination of the PW-1, PW-1 has deposed that
Shri Mahendrabhai Shantilal Shah himself has
handed over the original Will of Shri Mahendrabhai
and Smt. Sumeeben to the plaintiff/PW-1. It is to
be noted at this juncture that the statements of
the PW-1 in his examination in chief and the
cross-examination are contrary, as on one point he
has stated that Smt. Sumeeben has handed over the
original Will to him whereas in his cross-
examination, he states that the Will of Smt.
Sumeeben was handed over to him by Shri
Mahendrabhai Shantilal Shah. It is to be noted
that Shri Mahendrabhai Shantilal Shah expired on
05.09.1983 whereas, Smt. Sumeeben executed Will on
15.08.1991. Therefore, in any circumstances, Shri
Mahendrabhai Shah was not in a position to hand
over the original Will of Smt. Sumeeben to the
CS/2834/2015 31/39 JUDGMENT

plaintiff as Mahendrabhai Shah expired in the year

1983 before the execution of the Will by Smt.
Sumeeben, which was executed on 15.08.1991.

29. The plaintiff/PW-1 in his cross-

examination also admitted that he has not filed
the original stamp paper Will in the present suit
proceedings and he has further deposed that he has
no knowledge as to where is the original stamp
paper Will and further deposed that the same might
have been filed in the case pending before the
Hon’ble Gujarat High Court. Further, the plaintiff
admitted that he has not made any efforts to
locate/get the original stamp paper Will.

30. Further, the plaintiff has produced the

Will of Smt. Sumeeben vide Exhibit-29 whereas, on
perusal of the record, it transpires that the
plaintiff has also filed photocopy of the Will
along with the plaint at list Exhibit-3/2 and on
comparison of both the documents i.e. Exhibit-29
and Exhibit-3/2, it transpires that both are the
photocopies of the Will and both the photocopies
are not identical. The photocopy of the Will
produced vide list Exhibit-3/2 bears the seal of
the Notary and the signatures of the executant
Smt. Sumeeben as well as the witnesses and the
address written thereunder are not identical as
CS/2834/2015 32/39 JUDGMENT

compared the Will Exhibit-29. When both the xerox

copies of the Will are compared, it transpires
that the signature of testator Smt. Sumeeben are
affixed at different places and are not identical.

31. On the aspect of grant of probate of not

the original but only a copy of the Will, it will
be necessary to refer to Section 237 of The Indian
Succession Act, 1925. This section reads as
under:-

“Section 237. Probate of copy or draft of

lost Will.-When a Will has been lost or

mislaid since the testator’s death, or has

been destroyed by wrong or accident and not

by any act of the testator, and a copy or

the draft of the Will has been preserved,

probate may be granted of such copy or

draft, limited until the original or a

properly authenticated copy of it is

produced.”

32. The Hon’ble Delhi High court in Ashwani

Kumar Aggarwal Vs Bk Mittal in FAO no 214/2012

decided on 3rd July 2014, made following

observations:

“The aforesaid section is extremely

relevant. This Section 237 of the Act is

CS/2834/2015 33/39 JUDGMENT

part of Chapter 2 of Part IX of the Act.

Part IX contains four sections from Sections

237 to 240. (ii) A reading of Section 237

makes it clear that a Will is revoked by

destroying the same. An original Will can be

destroyed in various ways including by

tearing up of the same or burning of the

same or throwing the same theoretically to

say in the ocean. It is only if the original

of the Will is not available because it has

been destroyed by a wrong or an accident i.e

not an intentional destruction by the

testator, then, probate can be granted of

the copy of the Will. When a probate is

sought of only a copy of the Will, evidence

is required to be led on record that the

original Will was not destroyed by the

intentional act of the testator, or if the

same is destroyed, it has been destroyed

wrongly or erroneously.”

33. From the above mentioned discussion, it

transpires that there is more than one copy of the
Will and the signatures on all the Wills are not
identical but the plaintiff has failed to produce
the original Will except the photocopy of the
Will. Further, no plausible reasoning is coming
CS/2834/2015 34/39 JUDGMENT

from the side of the plaintiff as to in what

circumstances, he is possessed of the different
photocopies of the same Will having different
signatures on each of the photocopies.

34. In view of the evidence led by the

plaintiff/PW-1, the plaintiff himself has created
doubts over the genuineness of the Will. The

attesting witnesses viz. PW-2 and PW-3 have also

given contradictory statements in their
depositions, which also creates doubt about the
genuineness of the Will. Further, the photocopy of
the Will cannot take the place of original Will
and no plausible reasoning is coming forward from
the plaintiff as to the non-production of the
original Will. The plaintiff has also not filed
any evidence to show that the Will Exhibit-29 was
the last Will of the testator Smt. Sumeeben. The
affidavit Exhibit-8 filed by the plaintiff along
with the plaint shows that there are some
manipulations made by the plaintiff while filing
the present suit. Therefore, in view of the
forgoing discussion, the Will Exhibit-29 cannot be
regarded as the genuine Will executed by the
testator Smt. Sumeeben, thus, the Issue No.1 and 2
are decided against the plaintiff and in favour of
the defendant. Hence, I answer Issue No.1 and 2 in
the negative.
CS/2834/2015 35/39 JUDGMENT

Issue No.3:

35. In order to decide the Issue No.3, it is

worthwhile to mention here Rule 165 of The
Ahmedabad City Civil Court Rules, 1961, which reads
as under;

“Chapter XVI- Testamentory and Intestate

Matter:

164.----------

165.Application for probate-Application for

probate shall be made by petitioner with the

Will annexed, accompanies. If the Will is not

in English or Gujarati, by a translation

thereof in English or Gujarati; such

application shall be in Form No.52 or as near

thereto as the circumstances of the case may

permit and shall be accompanied by

(a) A warrant signed by the petitioner unless

the applicant appears in person.

(b) Executor’s oath (to be endorsed on the

Will when possible). (Form 53).

(c) Affidavit of one of the attesting

witnesses, if procurable (Form No.54) and

(d) Schedule of property of the deceased,

(Form No.55).

36. On perusal of the Rule 165 of The

CS/2834/2015 36/39 JUDGMENT

Ahmedabad City Civil Court Rules, 1961 and after

perusing the application/plaint filed by the
plaintiff for grant of the probate of the Will
dated 15.08.1991 executed by Smt. Sumeeben, it
transpires that the plaintiff has not given
requisite details as required under the Rule 165 of
The Ahmedabad City Civil Court Rules, 1961. After
going through the Form-52 of The Ahmedabad City
Civil Court Rules, 1961, it transpires that the
plaintiff is required to attach the Schedule-1
thereby mentioning all the properties and credits
which the deceased died possessed of or entitled to
at the time of his death which have or are likely
to come to his hands but in the present case, the
plaintiff has not filed any Schedule along with the
plaint mentioning the properties of the deceased
Smt. Sumeeben. Further, the plaintiff has also not
mentioned in the plaint that the Will dated
15.08.1991 annexed along with the plaint is the
last Will and testament of the deceased Smt.
Sumeeben. Further, it also transpires that the
plaintiff has not mentioned the names of the
surviving legal heirs/near relatives of the
deceased Smt. Sumeeben. The plaintiff, who stepped
into the witness box as PW-1 has in his cross-
examination stated before the Court that Smt.
Sumeeben got divorced from Shri Jashwantlal
CS/2834/2015 37/39 JUDGMENT

Sutariya and after her divorce, she married Shri

Mahendrabhai Shantilal Shah. PW-1 further deposed
that he has claimed those properties in the suit,
which Smt. Sumeeben had acquired from Shri
Mahendrabhai Shantilal Shah. Further, he also
deposed that the shares, securities and deposits
for which probate has been prayed, he has not
mentioned the numbers and the name of the company
whose shares are and the quantum of the shares are
also not mentioned. PW-1 specifically admitted in
his cross-examination that he has not mentioned the
details of the properties situated at Ahmedabad in
his application and also admitted that he has not
mentioned the valuation of the immovable properties
in the plaint. Further, in the cross-examination,
PW-1 has specifically admitted that he has not sent
any Notice of the present probate application to
any relatives of the deceased Smt. Sumeeben. It has
been specifically stated by PW-1 in his cross-
examination that there are near relatives of Smt.
Sumeeben, whose names have been disclosed by PW-1
in his cross-examination. The plaintiff has also
not made the relatives of the testator as party to
the present suit and no Notice was effected upon
the near relatives of the testator Smt. Sumeeben.
Therefore, after perusing the contents of the
plaint and the cross-examination of PW-1, it can be
CS/2834/2015 38/39 JUDGMENT

safely deduced that the plaintiff has not filed the

probate application/plaint in consonance with the
Rule 165 of The Ahmedabad City Civil Court Rules,
1961. It is mentioned in the Rule 165, that the
application for probate shall be accompanied by
Schedule of property of the deceased (Form No.55)
whereas in the present case, the plaintiff has
failed to attach the Schedule of the properties of
the deceased Smt. Sumeeben along with the
application/plaint. The use of the word “shall” in
the Rule 165 makes it mandatory to follow the
provisions of the Rule by the applicant/plaintiff.
Therefore, the probate application filed by the
applicant/plaintiff is not filed as per the Rule
165 of The Ahmedabad City Civil Court Rules, 1961
and therefore, Issue No.3 is decided against the
plaintiff and in favour of the defendant. Hence, I
answer Issue No.3 in the affirmative.

Issue No.4:

37. In view of the foregoing discussions and

on the basis of the answers of the Issue No.1 to 3,
the Will Exhibit-29 produced by the plaintiff
cannot be regarded as genuine and last Will of the
testator Smt. Sumeeben as it is clouded with
suspicion on several counts. Further, the Will of
Shri Mahendrabhai Shantilal Shah, which has been
CS/2834/2015 39/39 JUDGMENT

exhibited as Exhibit-26 in the present case is not

proved as the same was not the subject matter of
the present suit.

38. In that view of the matter, I pass the

following final order with respect to Issue No.4.

FINAL ORDER

i. The present suit is dismissed.

ii. Decree sheet be prepared accordingly.

iii. No order as to costs.

Judgment pronounced in the open Court,

today on this 28th day of January, 2020.

Place: Ahmedabad

Date : 28/01/2020 (TARUN V.P.AHUJA)

Judge, Court No.28
CITY CIVIL COURT AHMEDABAD,
(UNIQUE ID CODE No;GJ01545)
FARHAN