CONTENTS A. OVERVIEW ............................................................................ 2 B. FACTUAL BACKGROUND .................................................. 3 C. ISSUES ................................................................................... 6 D. EVIDENCE ON RECORD ..................................................... 6 E. RE: PROOF OF THE WILL IN ITS SOLEMN FORM.......... 7 F. RE: ISSUE NO.1 PROOF OF FORGERY, FABRICATION & UNDUE INFLUENCE ...........................13 G. CONCLUSION AND ORDER ............................................. 18 A. OVERVIEW
1. The Plaintiff seeks probate of a registered Will dated 3rd October 2007 of his sister, Amy Minoo Seth (Amy; the Testatrix), who died on 22nd February 2015 in Mumbai. The Plaintiff (Rustom) is her brother and the sole executor appointed under that Will. Rustom Minoo Seth v Freddy Dinshaw Birdy TS-225-2015-SETH-V-BIRDY-F2.DOC Page 3 of 19 21st December 2016
2. The Petition is opposed by Amys and Rustoms nephew and niece, Freddy Dinshaw Birdy (Freddy) and Mirella Dinshaw Birdy (Mirella) the children of their predeceased sister Mehroo. Only Freddy filed an Affidavit in Support of the Caveat. The challenge is on the ground that the Will was forged, fabricated and executed under undue influence.
3. I have heard Mr. Thakker for the Plaintiff and Mr. Patel for the Defendant and, with their assistance, considered the material on record, including the oral and documentary evidence. I have also carefully considered the excellent written submissions and case summary prepared by Mr. Tejas Vora, assisting Mr. Thakker. I must commend Mr. Vora for these written submissions or notes of arguments. The template or format he has evolved and uses in all final hearings is extremely well-organized and thorough, and is always a superlative guide through the record.
4. For the reasons that follow, I have not found substance in the defence or opposition. I have decreed the suit and allowed the petition. B. FACTUAL BACKGROUND
5. Amy was one of three siblings. Her brother, Rustom, is the Plaintiff. Her sister, Mehroo Birdy, was the Defendants mother. Mehroo died of a terminal illness on 21st May 2013 in Delhi, before Rustom Minoo Seth v Freddy Dinshaw Birdy TS-225-2015-SETH-V-BIRDY-F2.DOC Page 4 of 19 21st December 2016 Amy. Her husband, Dinshaw Birdy, died on 18th January 2015. Amy herself was unmarried and left no lineal descendants.
6. Rustom claims that Amy left a Will dated 3rd October 2007.1 The Will is a four-page document typed in English. Amys signature appears on the bottom left of all four pages. There also appear to be two handwritten additions on the second and the fourth pages of the document, against which there are signatures of the deceased on the left margin of the corresponding paragraphs. Further, the document has the signatures of two attesting witnesses: Mrs. Zarine Singpoorwala (Zarine), a secretary whose evidence was led at the trial, and one Mrs. Eva K. Dastoor (Eva). In her Will, Amy, set out the division of her assets. She appointed Rustom as the sole executor of the Will, and, in the event of him predeceasing her, his wife Arnavaz Seth (Arnavaz). Amy bequeathed the money in her two savings bank accounts (which she held jointly with Rustom), including her bank deposits and investments, to him. She also bequeathed all her Capital Gains Exemption Bonds, her movable property and her share in immovable property to Rustom, except her one-third share in a building named Seervai at Grant Road in Mumbai. She, Rustom and Mehroo were the joint owners of this property. Her Will says that her share in the building is to be equally divided between Rustom and Mehroo, unless the property was sold in her lifetime, in which case she intended to use the proceeds herself. Then in Clause 10, Amy divided her interest in any future movable property, and here she mentions her intention to buy a flat in a building named Purnima at Nepean Sea Road, to Rustom solely.
1 Exhibit P2 in Evidence, Vol. D, pp. 147150. Rustom Minoo Seth v Freddy Dinshaw Birdy TS-225-2015-SETH-V-BIRDY-F2.DOC Page 5 of 19 21st December 2016 He is also the sole legatee of her residuary estate in Clause 11 of the Will. In the event that Rustom or Mehroo predeceased her, their legacies were to go to their heirs, and this is the provision made in Clauses 12 and 13 of the Will. The Will was registered with the Sub- Registrar of Assurances later that very day, 3rd October 2007.
7. On 10th August 2015, Rustom filed this probate petition. Freddy and Mirella were cited as heirs in the Petition and were served with citations. They entered a Caveat on 16th September 2015. Only Freddy filed an Affidavit in Support of that Caveat; the Affidavit is dated 18th September 2015. The Testamentary Petition was then renumbered as a suit.
8. In his Affidavit in Support of the Caveat, Freddy alleges that the Will in question is fraudulent. He says that Rustom procured it by exercising undue influence over Amy. There exist, he says, suspicious circumstances.2 Freddy claims that Amy had always expressed a desire that her estate be divided equally between her brother Rustom and her sister Mirella. The Will is in complete contrast to Amys oral assertions, and was fraudulently prepared by Rustom by taking Amys signature on the document without disclosing to her its contents. Freddy also says that Amys hip dislocation caused her to be bedridden. She could not manage her affairs. Her finances were handled by Rustom and Arnavaz. They were thus in a position to exercise undue influence over her. Freddy alleges that Amy wanted to sell her flat at Punam Apartments and move in with Mirella, her niece (his sister). From this sale, he says,
2 Affidavit in Support of the Caveat, Vol. A, pp. 3378. Rustom Minoo Seth v Freddy Dinshaw Birdy TS-225-2015-SETH-V-BIRDY-F2.DOC Page 6 of 19 21st December 2016 Amy was going to give an amount of Rs. 6 crores to him. He refers to correspondence between him and Arnavaz, and uses this to say that since there were talks of a family settlement these talks are said to have continued even after Amys death under which he would be entitled to Rs. 6 Crores from the sale of the Punam flat, the Will is fraudulent. C. ISSUES
9. Two issues were framed on 8th February 2016 by AK Menon J.3 These are set out below, with my findings against each. Issues Findings
1. Whether the Will dated 03.10.2007 was forged, fabricated or executed under undue influence as contended in para 4 of the Affidavit in support of the Caveat dated 18.09.2015? In the negative
2. What order? What relief? Suit decreed. D. EVIDENCE ON RECORD
10. The Plaintiff, Rustom, examined one of the attesting witnesses, Mrs. Zarine D. Singpoorwala (PW1), one Dr Inder Sood
3 Vol A, p. 80. Rustom Minoo Seth v Freddy Dinshaw Birdy TS-225-2015-SETH-V-BIRDY-F2.DOC Page 7 of 19 21st December 2016 (PW2), a physician who certified the Testatrix as mentally sound, and himself (PW3). Rustom introduced three documents in evidence: Amys death certificate, marked Exhibit P1;4 the Will in question, marked in evidence as Exhibit P2;5 and Dr Soods medical certificate, annexed to the Will, and marked Exhibit P3 in evidence.6
11. The Defendant, Freddy, examined himself (DW1), and one Ms Vrushali Vaidya, the Joint Sub-Registrar of Assurances (DW2). He introduced 23 documents in evidence: email correspondence between himself and Rustoms wife, Arnavaz;7 mobile messages from Arnavaz to Freddy;8 and some advocates correspondence.9 E. RE: PROOF OF THE WILL IN ITS SOLEMN FORM
12. There is no specific issue that places the burden on the Plaintiff to prove the will in its solemn form, i.e., its due execution. I believe this burden is always on a plaintiff seeking probate or letters of administration with will annexed. It is the plaintiff who must establish that the testator had the necessary dispositive testamentary capacity and that the Will in question was executed in
4 Vol D, p. 155.
5 Vol D, pp. 147150.
6 Vol D, p. 152.
7 Marked in evidence as Exhibits D1D15, Vol D, pp. 175215; Exhibit D17, Vol D, pp. 227231, and Exhibit D18, Vol D, p. 232.
8 Marked in evidence as Exhibit D16, Vol D, pp. 216226.
9 Marked in evidence as Exhibits D19D23, pp. 233240. Rustom Minoo Seth v Freddy Dinshaw Birdy TS-225-2015-SETH-V-BIRDY-F2.DOC Page 8 of 19 21st December 2016 the manner required by law. During the arguments, I put this to both sides, and both agreed at once that this issue did fall for consideration.
13. Sections 59 and 63 of the Indian Succession Act, 1925, set out below, cover both aspects of dispositive capacity and due execution. Also important for our purposes is Illustration (iii) to Section 59:
59. Person capable of making wills.Every person of sound mind not being a minor may dispose of his property by will. Illustrations
(iii) A, being very feeble and debilitated, but capable of exercising a judgment as to the proper mode of disposing of his property, makes a will. This is a valid will. (Emphasis added)
63. Execution of unprivileged wills.Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules: (a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so Rustom Minoo Seth v Freddy Dinshaw Birdy TS-225-2015-SETH-V-BIRDY-F2.DOC Page 9 of 19 21st December 2016 placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. (Emphasis added)
14. As to Section 59, Mr Thakker submits that the only case put up is of physical infirmity, not of mental incapacity. It is not even suggested, he says, that Amy was non compos mentis or that she knew not what she did. That she had a recurrent hip dislocation (twice) and that she underwent a surgery for it is not in doubt. The first surgery in 2001 was unsuccessful. Her mobility was affected. She was confined to bed. What of it? asks Mr Thakker. The law does not mandate physical agility, athleticism or even sprightliness as a determinant of testamentary capacity. Nor does it require every testator to be in perfect health.10 It is enough if the testator is able to
10 Judah v Isolyne Shrojbashini Bose & Anr, AIR 1945 PC 174; Rustom Minoo Seth v Freddy Dinshaw Birdy TS-225-2015-SETH-V-BIRDY-F2.DOC Page 10 of 19 21st December 2016 discern and judge matters sufficiently to make a rational testament according to his beliefs and wishes.11
15. As to the evidence, there is Dr Soods certificate, appended to the Will, in which he pronounces her to be in a sound mental condition for execution of her Will. This is stated notwithstanding that according to Dr Sood himself, Amy had a dislocated hip and was therefore bed-ridden. Dr Soods cross-examination is especially revelatory it puts the matter firmly within the frame of Section 59 and Illustration (iii) quoted above. This is how it goes: Q.22 If the deceased had dislocated her hip, was in pain and was, according to you, suffering from various minor ailments for which she consulted you, on what basis have you issued the medical certificate at Exhibit P-3? A. There was nothing wrong with her mentally. Her problems were only physical. (Emphasis added)
16. There is little to be gained from Mr Patels submission that the choice of Dr Sood as a certifying physician is suspicious. The family doctor was not called, he says, and Dr Sood is a general
11 Gordhandas Nathalal Patel v Bai Suraj & Ors, AIR 1921 Bom 193 (DB) : (1921) 33 Bom LR 1068; Ganpatrao Khandero Vijaykar v Vasantrao Ganpatrao Vijaykar, 1932 (34) Bom LR 1371; Kanwar Sain v State & Ors, AIR 1976 Del 11; KC Bajaj and Ors v Sudershan Kumari & Anr, 149 (2008) DLT 694; KL Malhotra v Sudershan Kumari & Anr, 149 (2008) DLT 783; Desh Raj Gupta v State & Ors, 2010 (119) DRJ 138; Har Narain v Budh Ram, 1991 (21) DRJ 94; Chittaranjan Narottamdas Negandhi v Hemkala & Ors, 2016 (4) MhLJ 819. Rustom Minoo Seth v Freddy Dinshaw Birdy TS-225-2015-SETH-V-BIRDY-F2.DOC Page 11 of 19 21st December 2016 surgeon, not a physician, and one who had come to know her only recently. On its own, none of this is enough. It must be shown by evidence aliunde that Dr Soods certification was simply wrong and that she was, on account of her physical ailment or incapacity, also incapable of rational thought and understanding. There is no such evidence.
17. We come now to Section 63, and an assessment of whether its conditions were met. The section has three principal requirements: (1), signature; (2) intention; and (3) attestation by witnesses. Each is required. A signature or mark is essential. The testator may make his own signature or mark or direct another to do it in his presence. The signature or mark on its own will not do. It must be made or affixed in a manner that indicates that what is being signed is a Will; and this is to be determined by the placement of the signature. This is an important safeguard a signature on a random, erratic or incongruous place on the document will need explanation. It must be properly positioned such that it indicates that the document above is intended to be a Will. Then there is the all-important third clause, for attestation by a minimum of two witnesses. Each must sign. Each must see the testator sign or affix his mark, or someone sign on the testators behalf, at his request and direction and in his presence; or receive an acknowledgement from the testator of the testators signature or mark (or one made on his behalf and under his direction). The two witnesses need not both be present at the same time.
18. PW1, Zarine Singpoorwala, whose evidence was led in proof of execution and attestation, filed an Affidavit accompanying the Rustom Minoo Seth v Freddy Dinshaw Birdy TS-225-2015-SETH-V-BIRDY-F2.DOC Page 12 of 19 21st December 2016 Petition12 and an Affidavit in lieu of Examination-in-Chief.13 She was cross-examined.14 Her version of the events of 3rd October 2007, the day of execution of the Will, is consistent and unshaken. She says that when she reached Amys residence, the other attesting witness, Ms Eva K Dastoor was there. So was a household servant. Ms Singpoorwalas Affidavit in lieu of Examination-in-Chief says in paragraph 4 that this was at about 4:30 pm on that day. The Registrar was there too. Amy first signed the Will at its foot in English. She also approved two handwritten additions to the Will in paragraph 5 and below paragraph 14, counter-signing in the left margin against each. Then she and Eva K Dastoor, the other attesting witness, both present at the same time, signed the Will as witnesses at the foot of the document. I must make note of one question in her cross-examination:
20. Q. Describe the process of signing and witnessing the Will that day. A. First the deceased signed. Then I signed, and Mrs Dastoor signed after me. We all signed the Will in the presence of the Registrar and his assistant. The cross-examination on this aspect stops at this. I do not understand why such a question was thought necessary in cross- examination at all. The answer elicited in cross-examination on its own completely proves due execution.
12 Vol A, pp. 1820.
13 Vol C, pp. 9499.
14 Vol C, pp. 100107. Rustom Minoo Seth v Freddy Dinshaw Birdy TS-225-2015-SETH-V-BIRDY-F2.DOC Page 13 of 19 21st December 2016
19. In my view, on both testamentary capacity and due execution, the Plaintiff has discharged his evidentiary burden. F. RE: ISSUE NO.1 PROOF OF FORGERY, FABRICATION & UNDUE INFLUENCE
20. Freddy called no handwriting expert in support of his case in forgery. There is no evidence of other documentation to show that the signature on the Will is not Amys. There is no evidence at all impeach the signature on the Will.
21. What matters, however, is the admission in paragraph 4 of the Defendants Affidavit in Support of his Caveat. Here the Defendant says: It is more than apparent that my late aunts signature has obviously been taken on the purported Will dated 3rd October 2007, without disclosing to her the contents therein.
22. This is the Defendants own statement, volunteered in his supporting pleading, and nothing further at all is required to dislodge his case on forgery.
23. In fairness, Mr Patel did not pursue this line of argument at all. He chose instead to rely on what he called discrepancies, citing these as suspicious circumstances, to contend that the Will is fabricated. I understood his argument to be, in substance, that there was some undocumented agreement or understanding about Rustom Minoo Seth v Freddy Dinshaw Birdy TS-225-2015-SETH-V-BIRDY-F2.DOC Page 14 of 19 21st December 2016 the distribution of Amys estate, and since the Will does not accord with this understanding, it is fabricated. Among the circumstances he cites are that PW1, Zarine Singpoorwala, the attesting witness who gave evidence, was at best a casual acquaintance. On its own, this is surely irrelevant. Nothing requires an attesting witness to be a confidante of the testator. Mr Patel says PW1s evidence is not credible. In her Affidavit in lieu of Examination-in-Chief, she says she was acquainted with Amy and they were friends for many years.15 In cross-examination, she admits she did not attend Amys funeral,16 learned of her death from her brother, Rustom, the Plaintiff; that she was introduced to him by Amy in November 2007; and that after that first introduction they met again when Rustom came to the office where Ms Singpoorwala worked at the Royal Western India Turf Club (RWITC), where she worked as a secretary for Mr Bodhanwala, the Clubs legal advisor. From this, Mr Patel would have me conclude that Rustom and Zarine Singpoorwala colluded to fabricate this Will, and that she gave false evidence. I do not think it is remotely possible to arrive at this conclusion from this material. There is no material inconsistency or contradiction in her testimony. The case on fabrication also fails.
24. This leaves the question of undue influence. To succeed, Mr Patel must show that the Will was not in accordance with Amys wishes. It must be vitiated by some importunity. That it does not accord with Freddys interests is wholly immaterial; what Mr Patel must show is that Amy was placed under some form of duress to
15 PW1 Affidavit in lieu of Examination-in-Chief, paragraph 1, Vol C, pp. 9499.
16 PW1 cross-examination, Qns. 2835, Vol C, pp. 105107. Rustom Minoo Seth v Freddy Dinshaw Birdy TS-225-2015-SETH-V-BIRDY-F2.DOC Page 15 of 19 21st December 2016 make a testamentary disposition contrary to her true intent. Undue influence, to invalidate a Will, must amount to coercion or fraud. Its existence must be established as a fact. The actual exercise of undue influence must be shown.17 Not all influence is per se undue. After all, affection, affinity and every other human emotion is some form of influence, and we are all, in varying degrees, in almost everything we do, susceptible to these myriad influences. Our personal likes and dislikes, our preferences and predilections, the choices we make, often at the instance of, or in emulation of, others we admire or hold dear, are all forms of influence. Not one of them is undue. To succeed on a charge of undue influence, the person impeaching the Will must show by affirmative evidence that the testator desired something different than the Will shows. This is not to be left to conjecture. There must be evidence in the form of material that shows that, in making the Will, the testator did that which he did not intend or could not reasonably be expected to have intended.18
25. Of this necessary type of evidence, I have none. All that Freddy says19 is that after his mother, Mehroo, passed on, Amy called Freddy every night allegedly complaining about Rustom and Arnavaz controlling her finances and not giving her a say in these matters. Other than this assertion, there is no evidence. These calls are not proved. No financial documents are available on record. When the Plaintiff, Rustom, gave evidence, his cross-examination
17 Mt Gomtibai v Kanchhedilal & Ors, AIR 1949 PC 272.
18 Madhuri Pukharaj Baldota v Omkarlal Daulatram Banawat & Ors, 2015 (4) Mh LJ 327.
19 Defendant Affidavit in lieu of Examination-in-Chief, Vol C, pp. 120135. Rustom Minoo Seth v Freddy Dinshaw Birdy TS-225-2015-SETH-V-BIRDY-F2.DOC Page 16 of 19 21st December 2016 damaged the Defendants cause. He said his relations with Amy were good. They met often: daily when he was in Mumbai, and several times a month when he was in Pune (he says in lived six months in each city).20 Incidentally, he also says he had quarters at the RWITC and this, apart from anything else, also lends credibility to the testimony of the attesting witness, PW1. He was specifically asked if he managed Amys financial affairs. He said he did not, and that she managed them herself, being very capable.21 He was not present when the Will was executed.
26. In contrast, in answer to Question 4 in his cross-examination, the Defendant said he was not shocked by the Will because, at Amys funeral, Rustom told the Defendant he would receive Rs 6 crores from the estate. He says he proceeded on that basis. It is difficult to understand what, if anything, is to be made of this except that every single one of the allegations as to the validity of the Will are predicated on this promise not being kept. That is no reason to invalidate the Will. An invalidation of the Will also would not establish that the Defendant would in fact receive this amount. The correspondence between the parties on this aspect is entirely irrelevant to the question of proof of the Will. There seems to have been no signed or agreed document embodying any such agreement or understanding. Even had there been such a document, it would not invalidate the Will, and that is my limited remit in a contested Probate action. I am not concerned with any documents or
20 Plaintiff, PW3, cross-examination, Qn. 12, Vol C, pp. 8687.
21 Plaintiff, PW3, cross-examination, Qn. 910, Vol C, p. 88. Rustom Minoo Seth v Freddy Dinshaw Birdy TS-225-2015-SETH-V-BIRDY-F2.DOC Page 17 of 19 21st December 2016 agreements after Amys death. This is not a suit for specific performance.
27. The only other point that Mr Patel makes is that it is highly unlikely and improbable that, being bed-ridden, Amy could have managed to get a draft and final Will drawn up or got the Sub- Registrar of Assurances to come to her for registration of the Will. Again, this is at best of marginal interest once the due execution of the Will and Amys testamentary capacity are established. If Rustom, the Plaintiff, had some role to play in this, it had to be proved and shown, and it is not. He says he knew nothing of the Will till Amy gave it to him. DW2 was Vrushali Vaidya from the office of the Sub-Registrar of Assurances. She appeared on a witness summons. She produced a certified copy of the Will with a covering letter of 30th August 2016, registration number 10230/2007 dated 3rd October 2007. She had a volume copy and computerised copy, but no other documents. Again, I am unable to understand why this witnesss presence was thought necessary by the Defendant. Her production of the document establishes its registration. This carries the Defendant no further.
28. This leaves the last issue, i.e., the Defendants assertion of a previous Will dated 26th September 1994. That is a matter that must surely be ignored, for admittedly no probate has ever been sought of it, and the Will is entirely unproved. It cannot (and was not) received in evidence.
29. Issue No.1 must be answered in the negative. Rustom Minoo Seth v Freddy Dinshaw Birdy TS-225-2015-SETH-V-BIRDY-F2.DOC Page 18 of 19 21st December 2016 G. CONCLUSION AND ORDER
30. The testamentary jurisdiction is one of circumspection, not suspicion. It is not for the Court to persist in disbelief.22 If the evidence adduced is legal and convincing enough to satisfy the judicial conscience, and there is nothing unnatural about the Will this is not even the case here mere conjecture or unfounded suspicion cannot be invoked to invalidate the Will.23 Where fraud, undue influence, etc., are alleged, the burden lies on the person making these allegations to substantiate them, once the initial burden of proving the due execution of the Will and the testators testamentary capacity has been discharged by the propounder.24
31. On the material before me, only one conclusion is possible, and that is that the Plaintiff has proved the Will in its solemn form. The necessary ingredients of a valid Will are established.
32. The Defendant has failed to prove his case that the Will was forged, fabricated or obtained by undue influence.
33. In the result, the suit is decreed. The caveats are discharged. The petition is to proceed and the registry will issue probate at the
22 Harmes & Anr v Hinkson, (1946) 50 CWN 895 (PC).
23 Madhukar D Shende v Tarabai Aba Shedage, (2002) 2 SCC 85.
24 Meenakshiammal & Ors v Chandrasekharan & Anr, (2005) 1 SCC 280; Daulat Ram & Ors v Sodha & Ors, (2005) 1 SCC 40; Pentakota Satyanarayana & Ors v Pentakota Seetharatnam & Ors, (2005) 8 SCC 67; Savithri & Ors v Karthyayaniamma & Ors, (2007) 11 SCC 621; Mahesh Kumar v Vinod Kumar & Ors, (2012) 4 SCC 387. Rustom Minoo Seth v Freddy Dinshaw Birdy TS-225-2015-SETH-V-BIRDY-F2.DOC Page 19 of 19 21st December 2016 earliest, acting on an authenticated copy of this order and without insisting on fresh proof of service of citations.
34. Mr Patel requests a stay. Probate is not to be issued for a period of eight weeks from the date when this order is uploaded.
35. No costs. (G.S. PATEL, J.)