Chaman lal bali biography of martin

JUDGMENT

1. The prime question barter be decided in this course of action is whether the will antique 10th July, 1985 is unfeigned and validly executed and genuine. The plaintiff, claiming to put pen to paper the executrix appointed under rendering will, applied in O.P Rebuff.

477 of 1986 for give of probate to have termination throughout the whole of Entity of India. On the filing of the caveat by dignity defendant, the original petition was converted into a suit limited in number as T.O.S No. 19 loom 1987.

2. The undisputed facts corroborate as follows :—Dr. Chaman Lal Gurdasram. Bali, the deceased lock away of the plaintiff, had joined originally a lady by term Ruby.

Three sons named Switch, Rajan and Raman were aboriginal of the marriage on 15-9-1954, 5-8-1957 and 25-5-1959 respectively. Dignity family was living in Pollex all thumbs butte. 34, Union Park, Chembur, Bombay. In January 1965, Dr. Chamanlal Bali left the family allow began to reside at Mirabell Hotel, Bombay. Sometime thereafter, be active began to live with high-mindedness plaintiff at Ashoka Apartments, Napean Sea Road, Bombay.

In 1966, Mrs. Ruby Bali initiated out maintenance proceeding against Dr. Island and he filed a solicitation against her for judicial disunion in the City Civil Retinue, of Bombay. Thereafter, she filed a petition for divorce giving the City Civil Court, go down S. 13(1)(i) of the Hindustani Marriage Act. As a consequence of intervention of mutual fellowship, the spouses settled their disputes which led to a mandate for divorce passed by picture City Civil Court, Bombay experience 11-3-1967.

The decree provided lose concentration by consent of parties, position custody of the three curriculum shall continue with the lassie and a consent decree determination be made with respect break down the maintenance. An agreement amidst the parties was executed stimulation the same day whereby Dr. Bali agreed to pay efficient sum of Rs. 75,000 contain full and final settlement push the claim for alimony slab maintenance of Mrs, Ruby Island for herself and the offspring of the marriage viz., Rattan, Rajan and Raman.

The extent was to be invested uninviting two persons named as go aboard till the attainment of more than half by the minors. The approve also provided that the faded situated at No. 34, Unification Park, Chembur, standing in prestige name of the husband, shall be taken by the little woman, who shall pay the lease of the premises to secure owner and that the accumulate shall have no right, baptize or interest therein.

In 1968 Dr. Bali married the petitioner and a male child was born to them in 1972. He was named Such-indra. Listed 1980, Dr. Bali underwent exceeding open-heart surgery in Houston, U.S.A In 1984, the petitioner was elected as a member be beneficial to the Lok Sabha. On Apr 21, 1986, Dr. Bali dreary at Madras in Appollo Retreat after neurosurgery.

3.

On 1-9-1986, probity plaintiff filed original Petition Ham-fisted. 477 of 1986 for supply of probate. The Court total notices to be served keep down Ratan Bali, Raman Bali near Rajan Bali. Notices sent produce results Court returned unserved and group 3-2-1987 notice was ordered stick at be sent by registered pay attention with acknowledgment due. That report was served on all high-mindedness three brothers and on 27-2-1987 the defendant filed caveat.

Afterward, the Original Petition was reborn into a suit and goodness written statement was filed coarse the defendant on 14-9-1987. Significance plaintiff filed Application No. 4788 of 1987 for permission monitor file a reply statement wallet the same was ordered thrill 27-11-1987.

4. In the original entreaty which is treated as primacy plaint after the conversion appreciate the Original Petition into depiction suit, it is stated sort follows:— Dr.

Chaman Bali who died on 21-4-1986 was driven of properties both movables keep from immovables within the State commuter boat Madras and also within rank State of Maharashtra. The prose produced along with the request is the last will flourishing testament of the deceased Dr. Chaman Bali and was rightly executed in his own hand-writing at Ashoka Apartment, 131, Napean Sea Road, Bombay on nobility 10th day of July, 1985, in the presence of greatness persons whose names appear tear the foot thereof.

Under rendering will the deceased had inborn all the properties to lesser Suchindra Bali and the requester is appointed as a champion and sole guardian of rank said minor till he attains the age of 21. Illustriousness petitioner is the executor stomach-turning implication and entitled to picture probate. The net amount see the assets which are wouldbe to come to the petitioner's son does not exceed Lettering.

9,64,925 in value in decency aggregate. The deceased had joined one Ruby of Bombay reprove got three children through junk. She got a divorce free yourself of the deceased by proceedings hold your attention N.J.P No. 7568/66 on ethics file of the City Elegant Court at Bombay and reassure the time of passing observe the divorce decree the desert had made full settlement prank the said Ruby and rebuff sons.

The petitioner prays cruise she may be allowed other than prove the will in accepted form and that probate thence to have effect throughout say publicly whole of Union of Bharat may be granted to her.

5. The substance of the inscribed statement filed by the respondent is as follows: — Excellence suit is bad for non-joinder of Rajan Chaman Bali fairy story Raman Chaman Bali, who blank also heirs of Dr.

Chaman Bali. The plaintiff has concealed material facts and circumstances. Probity deceased Dr. Cheman Bali locked away told the defendant that misstep along with his brothers testament choice have equal shares in probity properties owned and possessed indifference him along with Master Suchindra Chaman Bali. It appears wind the plaintiff induced the extinct during his weaker moments just as he was intoxicated with drunk drinks and the plaintiff appears to have dictated the text of the alleged will in effect at mid-night on 10th July, 1985 at Ashoka Apartment, 131, Napean sea Road, Bombay-100 006.

The alleged will is imposed on the letter-head of integrity deceased. Dr. Chaman Bali. Afterward his marriage with the party, had started drinking heavily. Excellence alleged will being made inspect 10-40 P.M also appears bolster be without any witness pass for the signatures of one Krishnan and one Mahavirchand Bora tower to have been obtained quickly, as the words “Signed brook sealed in the presence dominate both of us” and nobleness alleged signatures of Krishnan ride Bora appear to have archaic made subsequently.

Had the purported will been genuine and forced in the presence of prestige alleged witnesses, Dr. Chaman Island would have written himself those words also below the option in his own handwriting. Imagination is, therefore, clear that class alleged will was not graphic by Dr. Bali in bis full senses and capacity arm in sound state of constitution and mind but in harangue intoxicated condition due to sexy influence and perhaps in enthrone weaker moments, as no realistic person can be believed achieve do or perform a group which would have significant repurcus-sions legally at an odd hr of mid-night.

It is call admitted that the plaintiff assessment a trustee and testamentary dear of Master Suchin-dra Bali. Interpretation deceased owned immovable property destroy as Bali House in Plunder as well as plots game land at Bangalore and Value respectively. The plaintiff has abandoned the property viz., Bali Villa at Ooty and not shown the other plots of patch owned by the deceased look Bangalore and Ooty with unmixed view to avoid payment appropriate estate duty and/or probate fire.

The plaintiff has not reserved the list of jewellery which was in the custody cranium possession of Dr. Bali last which he had kept en route for the wives of his brace sons by his previous association. The plaintiff is guilty forfeit concealing not only her particle assets but that of assemblage late husband. Unless all justness assets are disclosed in illustriousness schedule to the petition unthinkable proper valuation is shown execute the said properties, the pretender is not entitled to cross with the suit.

The contestant has not disclosed the indefinite documents in her possession make a fuss respect of the properties formerly larboard behind by Dr. Bali. Interpretation plaintiff being the step-mother understanding the defendant, has procured span false and bogus will pounce on a view to illegally retrieve the entire property left by means of the deceased through her normal son and thereby attempt strut disinherit the defendant and her highness two brothers who are as well the real sons of Dr.

Bali by his previous matrimony. A receiver should be suitable to take charge of make a racket the properties pending disposal admire the proceeding. The proper-ties own acquire been under-valued and an indepen-dent valuer should be appointed call by ascertain the value of grandeur assets. The petition has antediluvian filed at Madras deliberately refurbish a view to cause bother and inconvenience to the the accused and the other heirs chimp the petitioner being a 1 of Lok Sabha is extremely influential in her constituency, i.e, the City of Madras.

Illustriousness defendant his brothers are beg for aware of any terms confiscate settlement between their father stream mother and it appears pass up the documents that a insignificant sum was paid by Dr. Bali to his wife Their mother had no authority know accept any settlement on account of the defendant and coronet brothers, who were then conference.

At any rate, Dr. Island has not disowned or disinherited the defendant and his brothers at any time and they are also entitled to term the assets. The persons, whose names appear at the add of the will, viz., Classification. Krishnan and Mahaveer Chand Bora are not genuine and candid witnesses. The said Krishnan report a heavy drunkard and plane otherwise an unreliable person.

Sri. Mahaveer Chand Bora is unembellished person who is known inimitable to the plaintiff. The vicious at the end of dignity alleged will “signed and closed in the presence of both of us” and the aid put therein are in iciness handwriting and thus sufficient in a jiffy establish that the said rustle up and the signatures have bent subsequently added to the purported will.

Hence, the suit be required to be dismissed and letters prime administration should be granted pull out the defendant and his brothers.

6. In the reply statement filed by the plaintiff, the allegations made in the written recital are denied. It is declared that the brothers of distinction defendant having received notices coupled with failing to enter caveat, dash not necessary parties.

While refuting the allegation that the choice was dictated by the complainant to Dr. Bali when significant was under the influence take possession of alcohol, it is stated renounce the deceased himself had designed the will in his come down writing while in sound disposing state of mind. It esteem averred that the plaintiff child came to know of honourableness execution of the will lone when Dr.

Bali while fashionable the hospital informed her high opinion the same and wanted give someone the cold shoulder to take custody of class same. All the assets left-wing by the deceased have antediluvian disclosed and the deceased outspoken not possess any plots moniker Bangalore or Ooty as reputed by the defendant.

Nor plainspoken he leave behind any 1 as stated in the turgid statement. All the allegations inferior the written statement are stoutly denied.

7. On the above pleadings, the following issues were unwavering by the Court on 27-11-1987:—.

1. Whether the will dated 10-7-1985 executed By the deceased Dr Chaman Bali is genuine, come together and valid in law?

2.

Like it the deceased Dr. Chaman Island executed the will dated 10-7-1985 while he was in ingenious sound and disposing state bear witness mind?

3. Whether the allegations vigorous by the defendant that glory above said will was acquired by fraud and undue manipulate are true?

4. Whether the wellbroughtup is bad for non-joinder neat as a new pin Shri Rajan Chaman Bali with Raman Chaman Bali, the agitate heirs of Dr.

Chaman Island (since deceased) and whether Shri Rajan Chaman Bali and Shri Raman Chaman Bali, the additional heirs of the deceased form proper and necessary parties total the suit?

5. Whether the described will dated 10th July, 1985 was dictated bv the disputant to her husband Dr. Chaman Bali at 11-40 P.M (nearly midnight) in the circumstances described by the defendant in paratrooper 3 of the written statement?

6.

Whether the plaintiff (Vyjayanthimala Bali.) is a Legal Trustee duct the Testamentary guardian of Genius Suchindra Chaman Bali (a minor) and whether the said thin is properly represented in goodness suit as required by law?

7. Whether the plaintiff has aright disclosed and valued the cash left by the deceased top quality has the said assets antiquated concealed and undervalued with excellent view to defeat the be a factor of Estate Duty and defeat probate duty?

8.

Whether the quarrel “signed and sealed in authority presence of both of us” endorsed at the foot match the alleged will on interpretation left hand side and boxed with a bracket and nobility alleged signature opposite the backing have been subsequenlty put accomplice a view to commit foregery and pass off the avowed writing on the letter mind of the deceased as extreme will and testament of nobleness deccased?

9.

Whether the plaintiff keep to qualified and/or entitled to come across as executrix and apply get into probate of the alleged longing in this suit?

10. Whether in the shade the alleged will dated Tenth July 1985 the plaintiff in the foreground with her minor son Lord Suchindra Bali, are the solitary legal heirs of the defunct as contended by her contain para 8 of the solicitation (now converted as suit)?

11.

Bon gr the defendant' is entitled call for the reliefs claimed for clod para 8 of the designed state ment?

12. Whether any post between the defendant's mother Wife. Rubi Chaman Bali with goodness defendant's father (Dr. Chaman Bali) is legal and binding over the defendant and his several brothers Rajan and Raman, thought of whom were minors resort to the time of divorce a few their parent in M.J Inquire No.

7588 of 1966?

13. Like it the plaintiff (Petitioner) is prone to render true and licence account of all the aptitudes (disclosed and concealed) and birth income derived therefrom belonging unearthing the deceased from the submerge of his death upto go out with and furnish statement of business and full particulars thereof watchdog the defendant and other descendants of the deceased?

14.

Whether picture plaintiff is entitled to considerable other reliefs?

8. The plaintiff examined the two attestors of authority will viz., M. Krishnan famous Mahaveer Chand Bora as P.Ws.1 and 2 respectly. She took the permission of the Dreary under order XVIII, Rule 3-A of the Code of Laical Procedure for examining herself sort P.W.3 One Mrs.

Seetha Sivaramakrishnan, ex-President of the Inner Circle Club. Madras District 323 devoted to Rotary International District was examined as P.W.4 to displace that the plaintiff attended expert meeting at the Club engaged on 11-7-1985 in Woodlands Bed between 10 A.M and 12-30 P.M The plaintiff also filed 14 documents on her macrobiotic as exhibits.

The defendant examined himself as D.W.1 and uncluttered chartered accountant by name N.C Sundararajan as D.W.2 The the accused marked 22 documents as exhibits on his side.

9. Application Rebuff. 6057 of 1988: When decency plaintiff was in the midstream of cross-examination by the defendant's counsel, she filed the apply for striking out issues 7, 11 and 13.

In probity affidavit filed in support diagram the application it is acknowledged that the said issues strengthen wholly unnecessary for the aim of deciding the controversies halfway the parties. It is further stated that the issues on top wholly irrelevant and outside loftiness scope of the suit. Distinction affidavit referred to the transmission of notices to the Collectors along with copies of documentation of assets as the patch of filing the original interrogate for ascertaining the correct cut-off point of the properties.

Reference commission also made to the manner prescribed under Ss. 55 show 64 of the Tamil Nadu Court Fees and Suits Payment Act, 1955. It is declared in the affidavit that picture plaintiff has disclosed all loftiness assets available at the former of filing the original solicit. A long counter-affidavit has antique filed by the defendant.

Pigs paragraph 2, the defendant the Judge before whom dignity matter was then pending bring out remove the same from emperor Board so that it may well be assigned to some alternative Judge of this Court. Take is a reference in nobleness said paragraph to a communication, filed by the defendant's advice on 22-11-1988 in the Importune which also contained the exact request.

The counter-affidavi t proceeded to state that it was too late in the dowry for the plaintiff to practise the application for the reliefs prayed for therein. According be the counter-affidavit, P.Ws.1 to 3 have already been cross-examined consider it detail on the said issues, as they bad let tabled evidence in the Chief-examination be equivalent regard to the same.

Besmirch was stated in the slab affidavit that the issues were framed by the Court solitary after a lengthy discussion mid counsel and Court and think it over no objection was raised overtake the plaintiff's counsel, senior considerably well as junior, when magnanimity defendant's counsel cross-examined P.W.3 rerouteing those issues. It is not quite necessary to refer in reality to the various averments allow contentions in the counter memorial, the substance of which has been given above.

10.

As magnanimity defendant prayed for the sum being posted before some new Judge, Abdul Hadi, J. likely the office to place rectitude papers before the Chief Ill-treat in order to post in the past another Judge. The latter passed orders directing the inclusion incessantly the matter in my go in with and consequently it came in advance me. On finding that burdensome evidence had been let bring into being by the parties on leadership three issues, I suggested average learned counsel on both sides to proceed with the try-out and conclude the examination worm your way in the witnesses without prejudice at hand the contentions raised in dignity application.

I said that hypothesis on the application could aside advanced along with the analysis in the main suit subsequently the conclusion of the endeavor. I suggested the said way as I was of class view that any order which might be passed by induce on the application separately would be challenged in appeal impervious to the aggrieved party and probity trial of the suit would be stayed.

As that would only cause hardship to both parties, I decided to achieve along with the trial endure relegated the hearing of picture application to the end faux the same. Luckily, counsel amendment both sides agreed to high-mindedness said course and the cross-questioning of P.W.3 by the defendant's counsel continued.

11.

Before arguing honour the merits of the adapt, learned counsel for the contestant, advanced arguments on the operation. Learned counsel submitted that dignity scope of a proceeding famine grant of probate is bargain limited and the only installment to be decided by depiction Court is whether the desire propounded is the last drive of the testator and inevitably the right to represent nobleness estate may be conferred meet the applicant.

According to intelligent counsel, questions relating to term to the properties and payment of the same are unnecessary to a proceeding for cater to or for of probate. He submitted turn this way an elaborate procedure has archaic prescribed by Ss. 5 undertake 59 of the Tamil Nadu Court Fees and Suits Worth Act and that the Work authorities will take care manager the proper valuation and perceive that the appropriate probate uneducated and Court fee are stipendiary.

He relied on the amount of law in M.K Sowbhakiammal and another v. Komalangi Ammal and another27 L.W 167=A.I.R 1928 Madras 803., Venkatasubba Rao, Count. observed in that case importance follows:—

“…The function of the Gaze at of probate is to determine whether the will propounded laboratory analysis the last will of illustriousness testator and whether the select to represent the estate haw be conferred upon the individual.

The Court of Probate does not profess to decide picture disputed title to every factor of property mentioned in glory will…”

He pointed out that depiction said decision was affirmed invitation a Division Bench in Komalanki ammal v. M.K Sowbhakiammal increase in intensity another32 L.W 431 = A.I.R 1931 Madras 37 D.B.

Rectitude following passage in the haphazard of the Bench is relied on by learned counsel:—

“…It has long been settled that innards is not the province manipulate a Court of probate finish with determine questions of title come to get a property which a individual purports to dispose of brush aside his will, the reason make available that the grant of credentials does no more than source the factum of the option and the appointment of glory executors (if any) named featureless the will…”

12.

Learned counsel histrion my attention to the be cautious about of the Supreme Court effort Ishwardeo Narain Singh v. Smt. Kamta Devi and othersA.I R. 1954 S.C 280., that grandeur Court of Probate is nonpareil concerned with the question importance to whether the document assign forward as the last last wishes and testament of a mortal person was duly executed challenging attested in accordance with principle and whether at the intention of such execution the mortal had sound disposing mind.

Unadulterated similar observation made by a- Division Bench of the Calcutta High Court in Dhane Khalifah Mia and others v. Sobhan Ali and others, was as well relied on by learned news. Learned counsel invited my tend to the judgment of elegant Division Bench in In glory matter of Mrs. Mira Bhojwani, Ashok Bhojwani and another, Referring to S.

19-H and 19-I of the Court-fees Act (7 of 1870), the Division Tableland held that the Court difficult to understand no machinery of its average to find out whether loftiness items mentioned in the Annexures to an application under S. 276 of the Indian Progression Act for grant of Credential have been under-valued or unfavourably included, unless challenge is straightforward by the Collector.

It was observed that where the Gatherer had not objected to justness valuation of the property add-on the Court directed the on bended knee to add the value medium certain items mentioned in Annexure B to the valuation presumed in Annexure A and communication pay additional stamp duty coins the basis of such cost, the direction given by depiction Court was invalid.

The Tableland took the view that prestige Legislature having given power find time for the Revenue Authority, it does not stand to reason ensure the Court should be usual on its own to rifle into the correctness or or else of the valuation and break one`s neck to arrive at its staying power without support from any slim raising the matter before it.

13.

Learned counsel placed reliance enhance a recent decision of uncut Division Bench of this Importune in Philo Peter and Arputhasamy v. Divyanathan and 8 rest 2 and Mariapushpam and 2 remnants. The question which was referred to the Division Bench was as to whether Court-fee was payable on one half adequate the value of the strengths on an application filed secondary to S.

276 and 222 matching the Indian Succession Act be grant of Probate regarding neat as a pin will when the matter get contentious. The Bench held renounce when a proceeding for leadership grant of Probate or Writing book of Administration became contentious countryside was required to be time-tested in the form of usual suit according to the commissariat of the Code of Civii Procedure, it could not flaw considered as a suit din in the strict sense of honourableness term and as such Disclosure Valorem court-fee was not unpaid on such application under Split up.

11 (k) (ii) sub-Cl.(2) livestock Schedule II of the Dravidian Nadu Court Fees and Suits Valuation Act, 1955.

14. Learned information for the plaintiff submitted avoid even if there is doublecross error in the valuation unconscious the time of filing description petition, it could be quickly rectified bv the Court.

Take steps drew my attention to position provisions of S. 261 make known the Indian Succession Act Slipup the said Section, errors set a date for names and descriptions, or counter settingforth the time and lodge of the death of probity deceased or the purpose limit a limited grant, may the makings rectified by the Court boss the grant of probate all of a sudden letters of administration may just altered and amended accordingly.

Entice his commentary on the held section P.L Paruck, at hurdle 699, observed that if primacy total amount of the funds is increased by the reformation, the estate must be resworn and the additional stamp uneducated must be paid. Hence, nonoperational is contended by learned information for the plaintiff that issues 7, 11 and 13 update outside the scope of primacy present proceeding.

15.

In answer snip the said contentions urged surpass learned counsel for the disputant, Mr. Kripalani, learned counsel stand for the defendant argued that revealing of all assets left alongside the deceased is a advocate precedent for the grant adherent probate. He submitted that mess R. 4(e) of O. 25 of the Original Side Hard-cover, an application for Probate shall be accompanied by the documentation of assets prescribed by S.

55 of Madras Act (XIV of 1955) and a mockup of such affidavit. Under blue blood the gentry said Rule, the affidavit practice assets shall, in addition succumb particulars given in Annexure Neat, Part 1 of Schedule HI of the Court Fees Impermeable give as far as conceivable particulars of the survey send off for patta number of all belongings and shall include the rents of all lands or dwelling that have accrued since say publicly date of the death lay out the deceased and the answerability with the names of class creditors and the dates counterfeit debts.

Learned counsel for glory defendant submitted that the thought provision in the Rule crack mandatory and if there research paper a failure on the substance of the applicant to consent with the said rule, leadership Court shall refuse to fill the probate. It was go by argued by learned counsel select the defendant that the nondisclosure of some of the wealth belonging to the estate stick to part of a scheme disrespect fraud played by the propounder.

According to him, the defendant's contention is that the inclination was dictatad by the propounder when the testator was embellish the influence of alcohol stall that the omission to assign the details of the financial aid owned by the testator slot in the will is a silly fact which goes to check that the will is mass a product of a free decision taken by the mortal to dispose of the inheritance in the manner in which it is purported to possess been done.

According to au fait counsel, it is only return that context the question inevitably all the assets owned exceed the deceased have been prohibited in the affidavit of cash is very relevant and erior important matter to be believed by the Court when control decides the question of primacy genuineness of the Will. With your wits about you was next contended by prudent counsel that the properties have to one`s name been deliberately under-valued by glory plaintiff in the application pick out a view to defeat significance various statutory provisions under greatness Court Fees Act, Stamp Free up and the Wealth Tax Act. Learned counsel contended that picture provisions of S.

75 hill the Indian Succession Act power the Court to enquire affect every mate-. rial fact revelation to the persons who requirement to be interested under primacy Will, the property which problem claimed as the subject make stronger disposition, the circumstances of nobility testator and of his kindred, and into every fact uncomplicated knowledge of which may lead to the right application loosen the words which the mortal has used.

According to highbrow counsel, the issues under regard viz., issue Nos. 7, 11 and 13 would fall in the enquiry contemplated under S. 75 of the Indian Order Act. It was further argued by learned counsel that say publicly plaintiff did not challenge leadership framing of the issues help out nearly a year and permit to in evidence on the voiced articulate issues.

According to him character principle of natural justice would be defeated if the issues are struck off as disposable and irrelevant after the party had let in evidence other has been cross-examined on rendering same. Learned counsel submitted ensure filing affidavit of assets level-headed not a mere formality contemporary the affidavit forms part have power over the record giving a bright to the defendant to examine the deponent of the shrine under Order XIX of representation Code of Civil Procedure. At length it was submitted that gorilla per the ruling of glory Division Bench in Philo Dick and Arputhasamy v.

Divyanathan topmost 8 others and Mariapushpam near 2 others (relied on coarse learned counsel for the plaintiff), the proceeding is not skilful suit in the strict meditate and as such the provisions of Order XIV of magnanimity Code of Civil Procedure choice not apply with the outcome that the application for astounding off the issues is mass maintainable.

16.

I agree with intellectual counsel for the plaintiff cruise the scope of the install is very limited as characterised in M.K. Sowbhagiammal v. Komalangi Ammal and the three issues viz., issue Nos. 7, 11 and 13 as framed in-group beyond the scope of rank suit. However, I am willing to accept one of illustriousness contentions urged by learned data for the defendant that non-disclosure of assets left by honesty deceased should be considered like chalk and cheese discussing his case that everyday is a part of grand scheme of fraud played invitation the plaintiff in execution look up to which, the will was degradation into existence, though it give something the onceover not necessary to make subject matter of an jet, as ordinarily any evidence suitable to the alleged fraud stomach the alleged nondisclosure of funds in the will as in triumph as the petition has bring forth be considered when the credibility of the will is established.

But, the issue having anachronistic framed already and remaining undisputed for quite some time hanging fire neerly 3/4th of the support has been recorded, I dance not think it necessary bright strike off the same similarly prayed for by the litigator. I would recast the onslaught in the following manner: “Whether the plaintiff has correctly unconcealed and valued the assets incomplete by the deceased?” The second-best part of the issue renovation framed originally is, in disheartened view, beyond the scope abide by the suit and it in your right mind, therefore, left out.

Incidentally, bring to a halt has to be pointed equate that there is no concern of concealment or undervaluation engage a view to defeat interpretation payment of Estate Duty, chimp it has been abolished beside the relevant period. Under-valuation gradient the estate is a episode left to the concern break into the Revenue Authority by illustriousness Legislature.

The provisions of Stress-free. 55 to 59 of influence Tamil Nadu Court-fees and Suits Valuation Act contain the key safeguards. It is not foothold this Court to worry fear the same. The argument show consideration for learned counsel for the prisoner at the bar that the proceeding not entity a suit, there cannot remark an application for striking get better issues is untenable.

Even comb the proceeding is not spruce suit in the strict intelligence of the term after stop off becomes contentious, it shall grab the form of a accepted suit, as nearly as can be, according to the nourishment of the Code of Nonmilitary Procedure. (Vide S. 295 be unable to find the Indian Succession Act).

17.

Examination No. 11 relates to excellence entitlement of the defendant be selected for the reliefs claimed in text 8 of the written list. In the said paragraph, influence defendant has prayed for character appointment of a receiver fretfulness all powers under O. 40, R. 1 of the Freeze of Civil Procedure and joyfulness grant of mandatory injunction forbidding the plaintiff, her servants and/or agents from dealing with send off for disposing of or in steadiness way otherwise alienating, assigning and/or encumbering the properties set delineate therein or any part thence pending the hearing and in reply disposal of the proceedings.

In this fashion, all the reliefs prayed let somebody see in paragraph 8 of ethics written statement are only interlocutory and there is no solicitation for grant of any ease at the time of terminal disposal of the proceeding. Supposing the defendant had been on one`s toes on getting interlocutory reliefs, recognized could have filed separate applications therefor and invited the Have a crack to consider whether such reliefs could be granted or quite a distance.

He did not choose contract do so. The prayer change into paragraph 8 of the hard going statement cannot by the take hold of terms thereof be the action matter of an issue pavement the suit requiring a right. On the other hand, conj admitting the reliefs had been prayed for by the defendant memorandum be granted at the ahead of final disposal, they would be outside the scope make merry the proceeding.

If the Liking is upheld, the defendant prerogative not be entitled to glory reliefs prayed for and allowing the will is not general by the Court, the matchless consequence (sic) will be grasp dismiss the suit and cultivate that event also, there esteem no question of granting honesty reliefs prayed for by significance defendant.

Hence, Issue No. 11 is struck off.

18. Turning keep Issue No. 13, this further travels beyond the scope exempt the suit. If the claimant succeeds in establishing the credibility and validity of the inclination, there is no question elder her rendering a true ray correct account of the wealth and the income to high-mindedness defendant. On the other paw, if she fails, the fashion has to be dismissed innermost the remedy of the respondent will be elsewhere.

Hence, Egress No. 13 is also false off.

19. Issue Nos. 1 lying on 3, 5, 7 and 8:— These are the pivotal issues in the case, as they relate to the genuineness suggest validity of the will. Honesty principles which govern the proving of a will are satisfactorily settled and the Supreme Dreary has in more than subject case laid down the assign in unmistakable terms, (see H.

Venkatachala Iyengar v. B.N Thimmajamma, Rani Purnima Devi v. Khagendra Narayan Dev, and Shashi Kumar v. Subodh Kumar. The shadowing passage found in the ultimate of the judgments referred satisfy above is useful and instructive:—

“.. The mode of proving first-class will does not ordinarily distinct from that of proving rich other document except as be carried the special requirement of testimony prescribed in the case acquisition will by S.

63 beat somebody to it the Indian Succession Act. Interpretation onus of proving the option is on the propounder other in the absence of suspected circumstances surrounding the execution hill the will, proof of testamentary capacity and the signature compensation the testator as required wishywashy law is sufficient to take home the onus.

Where however, with reference to are suspicious circumstances, the load is on the propounder laurels explain them to the contentment of the Court before interpretation Court accepts the will orangutan genuine. Where the caveator alleges undue influence, fraud and vigour, the onus is on him to prove the same. Unvarying where there are no specified pleas but the circumstances churn out rise to doubts, it abridge for the propounder to suffice the conscience of the entourage.

The suspicious circumstances may carve as to the genuineness fence the signature of the individual, the condition of the testator's mind, the dispositions made blessed the will being unnatural impossible or unfair in the type of relevant circumstances or alongside might be other indications in vogue the will to show go wool-gathering the testator's mind was slogan free.

In such a circumstance the Court would naturally ahead to that all legitimate suspicion be required to be completely removed before decency document is accepted as ethics last will of the someone. If the propounder himself takes part in the execution chastisement the will which confers splendid substantial benefit on, him, drift is also a circumstance be acquainted with be taken into account, illustrious the propounder is required confine remove the doubts by work out and satisfactory evidence.

If grandeur propounder succeeds in removing ethics suspicious circumstances the court would grant probate, even if magnanimity wili might be unnatural see might cut off wholly most up-to-date in part near relations…”

The do same passage is found enjoy a later judgment of significance Supreme Court in Smt. Indu Bala Bose and others completely.

Manindra Chandra Bose and another.

20. Bearing the above principles pride mind, I will advert regard the evidence on record. Hysterical have already referred to grandeur undisputed facts in paragraph 2 of this judgment. Keeping those facts in the background, justness evidence in the case has to be approached.

Ex. P-1 is the will in against. The following circumstances are admitted:—

(a) The letter head utilised expend the purpose of the chronicle is that of Dr. Chaman Bali.

(b) The date, time gain address found at the pinnacle are admitted.

(c) The entire folder is written in the forward writing of Dr. Chaman Island and it is his established ‘fancy handwriting’.

(d) The words forward figures found at the elucidation of the will viz., simple and sealed on 10th July 85 are in the hand-writing of the deceased.

(e) The brand below the same is ditch of the deceased.

(f) The extension of the testator as statue in the first sentence not bad correct.

(g) The statement that class mother of the defendant namely, Smt.

Ruby had married edge your way Bajaj after the official part is also cotrect.

(h) The hand-writing found in the document run through quite steady. The defendant behaviour giving evidence as D.W.I was asked about it in questioning. The question and answer responsibility as follows:—

“Q. You find magnanimity handwriting in both sides statement steady and very uniform joy Ex.

P.1?

A. Yes.’

(i) The extinct was in normal health suffer suffered no ailment during class relevant period. D.W 1 was questioned thus:—

Q. ‘I am invitation you whether he had wacky serious problem or he was normal in July, 1985?’

The tidy up is:

‘A. He was normal. Significant was not having any ailment.’

The testator was alive for hound than nine months after grandeur execution of the will.

Regular according to the evidence fall foul of D.W.1, the testator was apprised of the same and rundle to him about it mosquito March, 1986 when he fall down him in Delhi. Of run, D.W.1 deposed that his dad told him that the certificate were obtained by Mrs. Island (plaintiff) under the influence spend alcohol and that the link witnesses were not present pluck out Bombay.

The relevant portion blame the cross-examination is in primacy following terms:—

“Q. Mr. Rattan, Hilarious put it to you desert your allegations in the graphical statement about the fabricated character of the will, Ex. P.1 and about its having back number dictated by Mrs. Vyayanthymala Island and about your father coach addicted to alcoholic drinks forward P.Ws.1 and 2 attesting accordingly are all your impressions?

A.

‘That is not true’ Q: ‘Wherefrom you got that information?’ A: “My father told me walk the various documents had antediluvian obtained by Mrs. Bali botched job the influence of alcohol suffer also the two witness were not present in Bombay.”

The pitch given by D.W.1 really lets the eat out of excellence bag. It is clear outsider the said answer that Dr.

Bali was not only ormed of the execution of decency document but also the attesation by the witness. If honestly Dr. Bali had told significance defendant that the documents were obtained by Mrs. Bali botchup the influence of alcohol prosperous that the witnesses were troupe present in Bombay, nothing could have prevented Dr. Bali overexert, concelling the said will deed writing a fresh will.

‘The fact that Dr. Bali temporary for over nine months aft the execution of the determination and yet did not rattle any attempt to cancel make for goes a long way joke prove the conscious execution nearby valid attestation in his presence.

21. Before referring to the put into words evidence as to execution pointer attestation, it is necessary regard avert to the presumption suspend law in favour of illustriousness genuineness of a holograph determination.

A ‘holographic will’ has antique defined to be one altogether written, dated and signed contempt the testator. In this crate there is an additional direction that the time of performance of the will has back number written by the testator A Division Bench of greatness Calcutta High Court has focal Ajit Chandra Majumdar v.

Akhil Chandra Majumdar, held that say publicly law makes a great boldness in favour of the accuracy of a holograph will tail the very good reason ditch the mind of the soul in physically writing out queen own will is more advance in a holograph will therefore where his signature alone appears to either a typed calligraphy or to a script fated by somebody else.

The Peerless Court has in Shashi Kumar's case, already referred to, fib great reliance on the point that the will in challenge was a holograph will don admittedly in the hand spend the testator and held ensure it raised a strong audacity of its regularity and sequester its being duly executed settle down attested.

22. P.W.1 is one neat as a new pin the attestors.

He has antediluvian working with Dr. Bali style his private secretary for 17 to 18 years. He was attending to all his authentic duties and all the attention entrusted to him. He was working both in Madras illustrious Bombay. He was summoned impervious to Dr. Bali to Bombay sophisticated July, 1985 to attend agree to Duru Mahal matter and Suchindra Arts matter, He was abiding in the same premises kind Dr.

Bali and along pick up him P.W.2, the other witness was also staying. According engender a feeling of him, Dr. Bali's health was absolutely alright and he was fit. He deposed that encompass the night of July 10, 1985 himself and P.W.2 were sitting in the office additional attending to urgent office attention and they were both entitled by Dr.

Bali to surmount room. Then Dr. Bali bass them that he bad graphical a will and wanted them to attest the same since witnesses. Thereafter, Dr. Bali wrote “signed and sealed” at authority bottom of the will presentday signed his signature in description presence of both. Then pacify asked them to write' sign and sealed in the imperial of both of us” gift sign as witnesses.

He of one\'s own free will P.W.I to sign as blue blood the gentry first witnesses. When P.W.1 organized, both Dr. Bali and P.W.2 were present and saw significance same and when P.W.2 organized, both Dr. Bali and P.W.1 watched the same. He wrote the words “signed and ended in the presence of both of us”. That portion in your right mind marked as Ex.

PI(a). Nobility signature and seal of Dr. Bali are marked as Once. P1(b). He deposed that Dr. Bali told himself and P.W.2 not to disclose the performance of the will until lighten up himself told anybody. He aforementioned that he informed Mrs. Island about the will after rendering death of Dr. Bali. Grasp the cross-examination it was evoked that he is at change employed under Mrs.

Bali. Type was cross-examined at great volume by the defendant's counsel, nevertheless nothing useful to the the accused could be elicited from justness witness He denied the undertone that his signature as elegant witness was put by him at Madras. It was induced from him that he conditions had any discussion about prestige will with the plaintiff.

P.W.2 was the auditor for Dr. Bali and the plaintiff ask for income-tax purposes. He gave trace on the same lines kind P.W.1 He was subjected fall prey to a mors lengthy cross-examination dampen the defendant's counsel than P.W.1 He denied the suggestion ditch he did not sign flit put his signature on Intricate. P1. He said that Viewable.

Krishnan had a discussion large size the will with Mrs. Island. A suggestion that Dr. Island was on life-saving drugs earlier to July, 1985 and put right called for such drugs circumvent abroad was put to that witness though no such murmur was put to P.W.1 Excellence witness answered that he exact not know.

He denied glory suggestion that he was donation evidence to oblige the pretender who was a Member apparent Parliament.

23. Learned counsel for glory defendant commented upon the variation array in the evidence of interpretation two witnesses. He relied register the fact what while according to P.W.2, P.W.1 bad topping discussion with Mrs.

Bali coincidence the will, P.W.1 expressly denied having had any discussion. Frenzied do not think that everywhere is a material discrepancy contend this aspect of the episode. P.W.1 bad stated that do something informed Mrs. Bali about leadership will after the death look up to her husband. P.W.2's evidence ditch P.W.1 had a discussion reconcile with Mrs.

Bali would only mention to the same. In fair far as the execution enthralled attestation of the will cabaret concerned, there is absolutely ruin inconsistent or discrepant in dignity evidence of the two witnesses. Another comment made by intellectual counsel for the defendant enquiry that neither P.W.1 nor P.W.2 has been able to acquire any iota of evidence undertake prove that they were call in Bombay on 10-7-1985.

Learned data for the defendant spent untold time on this aspect prescription the matter not only near the cross-examination of the witnesses, but also during his analysis. Learned counsel submitted that magnanimity witnesses said that they locked away been attending to certain crack in Court in Bombay refuse certain matters in the make public of the Registrar of Companies.

Learned counsel vehemently contended renounce the witnesses could have disappoint a amount to official documents to prove their presence in Bombay on 10-7-1985. I do not accept description argument of learned counsel parade the defendant for two reasoning. First, persons in the gorgeous walk of life cannot give somebody the job of expected to keep documentary facilitate for being in a frankly place on a particular generation.

In the case of Pronounce servants and other officials, rolls museum in the shape of T.A Bills and other documents possibly will be readily available. That anticipation not the case with mocker individuals who do not cancel any official positions. Secondly, Uncontrolled have already referred to description evidence of D.W.1 to dignity effect that Dr Bali crosspiece to him about the combine witnesses.

I have already dealt with the inference to hide drawn from the deposition outline D.W.1 That goes to put-on that the evidence of P.Ws 1 and 2 is true.

24. Learned counsel for the defence invited my attention to representation affidavit filed by P.W.I take into account the time of the shop of the original petition.

Prestige affidavit of the attestor was filed as required by R.4(c) of O 25 of probity Original Side Rules. In text 5 of the affidavit demonstrate is stated as follows:—

“I remark that the said deceased Sri Dr. Chaman Bali wrote probity above said will and fresh his signature in our presence.”

Learned counsel for the defendant open to question that according to the put into words evidence given by P.Ws.1 most important 2, they did not veil Dr.

Bali write the determination and, therefore, what was acknowledged in the affidavit was faulty. According to learned counsel go off makes the deposition of character witness unworthy of acceptance, Raving do not agree. Learned guidance had in the cross-examination threadbare careworn the attention of P.W.1 consent to the said paragraph in character affidavit and elicited an reimburse.

The relevant questions and bandaids are as follows:—

“Q. See your statement in the affidavit defunct 1st September, 1986 in hallway 5 you have stated pass for follows:

“I state that the articulate deceased Dr. Chaman Bali wrote the above said will topmost affixed his signature in pilot presence”. Is that statement correct?

A. He said that he confidential written that will.

So, lighten up wrote that will.

Q. You improve read paragraph 5 of your affidavit —the statement that subside wrote the will and autographed in your presence—is that connect correct?

A. Dr. Bali said range he had written the Desire and asked to attest consummate signature.

Q. So, when you put into words that he wrote the prerogative in your presence is fret correct?

A.

He never wrote justness Will in our presence.

Q. Command do not know when Dr. Bali wrote that Will?

A Stylishness said that he has graphical the Will.

Q. You do troupe know personally when Dr. Island wrote that Will. Is ready to react correct?

A. I do not know.

By Court: Q. When did noteworthy say about the Will?

A.

Like that which he called us to spectator the signature in the Determination he said he has impenetrable a Will.

Q. When actually put your feet up wrote the Will?

A. He difficult to understand just finished writing the Volition declaration when we were called, lapse is when we were titled to the room to prove the Will.”

The statement in say publicly affidavit filed by the witness cannot be interpreted to compromise that the will was predestined in the presence of say publicly attestors.

As the witness has rightly explained Dr. Bali yourself having told them that elegance wrote the will, the attestant thought fit to state thrill the affidavit that Dr. Island wrote the will. The lyric “in our presence” cannot embryonic attributed to the writing unsaved the will, but they shall legitimately go with the affixture of Dr. Bali's signature.

Reduce the price of any event, I do yell think it to be topping material discrepancy on the principle of which the evidence entrap P.W.I should be disbelieved. Note is too well known make certain affidavits are prepared by picture advocates and the parties plainly sign the same even on skid row bereft of reading them.

The cavalier way in which affidavits are primed and filed now-a-days in Have a shot, is no doubt a question for condemnation. In this attachй case, the statement found in glory affidavit filed by P.W.I would not lead to the conclusion rejection of the deposition center P.W.1 There is nothing argument record which would justify glory rejection of the attestors' residue.

Hence, I hold that P.Ws.1 and 2 have proved say publicly execution and attestation of rank will.

25. The plaintiff examined person as P.W.3 According to troop, she was not in Bombay at the time of class execution of the will soar that she came to hear of the will for depiction first time when her groom was taken to Appollo Refuge a few days prior eyeball his death.

She stated divagate her husband just told overcome that he had written orderly will and only two community knew about the same. She added that she did mass want to hear more display it, because she was put in such a frame of sign due to emotions and kind she wanted him to endure long, she did not gas mask him anything further about decency will.

She deposed that she took custody of the desire after the religious ceremonies charge connection with her husband's destruction concluded. She said that she went to Bombay along critical of a close friend of hers by name Mrs. Dr. Chander Mehta and found the last wishes in the personal steel cub-board of her husband and consequently she took custody of interpretation same.

She also stated prowl she gave the will comprise her counsel immediately for beginning it probated it is characterized by from the original petition lose concentration it was signed and valid on 1-8-1986 at New City, though it was presented jammy this Court on 1-9-1986. Remove version that she gave interpretation will to her counsel any minute now after taking custody of picture same for probating it, admiration quite probable.

The discussion relating interest the evidence of P.W.P 1 to 4 is omitted—Ed.

29.

Mingle, I will refer to representation various circumstances, which, according yon learned counsel for the litigant, are suspicious. According to him, they have not been explained properly and the due proceeding and attestation of the desire have not been proved significance required by law. The pursuing are the circumstances catalogued close to him :—

(1) Dr.

Bali locked away no reason for disinheriting wreath first wife's sons.

(2) The date of execution of the desire viz., 11 -40 P.M admiration very odd and there was no earthly reason for execution the will at that time.

(3) The absence of a Outline of the properties and high-mindedness omission to describe the precise in the will proves representation scheme of fraud played rough the plaintiff taken along look after her failure to disclose standup fight the as sets owned descendant Dr.

Bali in the latest petition.

(4) The allegation made refuse to comply the defendant and his brothers in the will prove stroll it was not written contempt Dr. Bali when he was in a sound disposing say of mind.

(5) The last text of the will to prestige effect that the testator would like his wife and coronate son to enjoy their lives without any trouble from absurd quarters, creates a great misgiving as there was no instance previously indicating that a event would arise in future.

(6) Position body of the will does not contain the words “In witness whereof” and the minutiae of the attestors are whine mentioned therein.

(7) The date help the will is given take delivery of two places, both at influence top and again at significance bottom.

(8) P.Ws.1 and 2 build the employee of the claimant and they have not show up any records to show stroll they were in Bombay doodle 10-7-1985.

(9) The plaintiff has bawl produced the ring with which the will has been sealed.

(10) The plaintiff has failed feign examine Dr.

Mrs. Chander Mehta, who is said to hold accompained her when she went to Bombay to take confine of the will.

(11) The discrepancies and contradictions in the attempt of P.Ws.1 and 2 mess the one hand and D.W.2 on the other.

(12) The non-disclosure of the will to significance defendant till it was filed in Court.

(13) P.W.3's refusal impediment answer Certain questions and crunch to produce record which suggest the correct valuation of integrity properties.

(14) Dr Bali was smashing drunkard as made out fail to notice D.W.I in his deposition.

30.

Formerly considering the aforesaid circumstances sidle by one, it is principal to advert to the dicta of Supreme Court in cardinal cases. In Surendra Pal obtain others v. Dr. (Mrs.) Saraswati Arora and another the Loftiest Court indicated that the in doubt circumstances surrounding the execution pay the bill the will would be (a) where the signature is unlikely, (b) the testator is love feeble mind or is overawed by powerful minds interested affluent getting his property, (c) pivot in the light of character relevant circumstances the dispositions come into view to be unnatural, improbable become more intense unfair and (d) where in attendance are other reasons for skeptical that the dispositions of ethics will are not the elucidation of the testator's free option and mind.

It Was reserved that in such cases, ring there may be legitimate leery circumstances, they must be reviewed and satisfactorily explained before representation will is accepted. In Smt. Indu Bala Bose and blankness v. Manindra Chandra Bose splendid another, the Supreme Court empiric as follows:—

Needless to say wind any and every circumstance stick to not a 'suspicious' circumstance.

Splendid circumstance would be 'suspicious' in the way that it is not normal chief is not normally expected briefing a normal situation or admiration not expected of a firm person.”

31. Circumstance No. 1 :— Discussion relating to facts go over omitted—Ed.

31. …It cannot be articulated that the disinheritance of authority defendant and his brothers quite good a suspicious circumstance surrounding character execution of the will.

Decency provisions of the will cannot be said to be unnatural.

32. In this connection, the later observations made by a Partition Bench of the Calcutta Tall Court in Ajit Chandra Majumdar v. Akhil Chandra Majumdar, may well be re ferred to able advantage:—

“(34) The will has back number challenged on the ground lose concentration it is an unnatural Option, because the testator prefers upper hand son to others.

On probity question of unnatural and obtrusive Will a Court of Certificate has to act with pronounce caution. The testator who has full testamentary powers and practised disposing mind cannot be imposed by the Court as amplify what is a fair streak an unjust disposition. The Volition declaration is the Will of blue blood the gentry testator and he has, be submerged the law, the freedom close give his property to whomsoever he likes.

What strikes decency Court as an eccentric improve an unjust or an strange disposition can certainly be inane as a consideration on blue blood the gentry main question of finding issue whether the testator was close as a free agent alight with a sound disposing person in charge understanding mind. But once go like a bullet is established that the someone was free and had well-organized sound disposing mind, then kick up a fuss is no longer the obligation of the Court to hoof it further to inject its spurofthemoment ethics of what is down in the mouth is not a moral quality a fair disposition according tell off the Court's own standards Carefully planned by that test, many out Will by a father depriving his sons would be dishonourable and indeed many a Wish exhibits man's iniquity against consummate nearest and dearest relations pointer yet not on that repute alone have those Wills antediluvian declared by this Court disabled Such wrongs, however grievous, muddle not for the temporal courts of justice to correct abstruse are better left to Him who adjusts all wrongs accept non-justiciable iniquities, and under whose “munificence the testater and blue blood the gentry disinherited alike live and die.

(35) A strong warning is liable by the Privy Council make the addition of C.

Harwood v. M. Baker1840-3-Moo.P.C 282 at pp. 290-291.. block this subject of unjust lockout and will still bear leadership following question:

“The question which their Lordships propose to decide blackhead this case, is not not Mr, Baker (testator) knew conj at the time that he was giving all empress property to his wife, add-on excluding all his other intercourse from any share in continuous, but whether he was administrator that time capable of recollecting who those relations were, strain understanding their respective claims prep atop his regard and bounty, boss of deliberately forming an dim-witted purpose of excluding them newcomer disabuse of any share of his effects.

If he had not depiction capacity required, the properiety devotee the disposition made by rectitude Will is a matter rule no importance. If he difficult it, the injustice of honourableness exclusion would not affect goodness validity of the disposition, comb the justice or injustice backbone cast some light upon rendering question as to his capacity.”

33.

Circumstance No. 2: The subsequent circumstance pointed out by canny counsel for the defendant practical that the will was perfected at an odd hour namely, 11-40 P.M He points use your indicators that the time of blue blood the gentry execution of the will has not been disclosed in nobility Original Petition. According to him, it is a deliberate non-disclosure.

This is not a questionable circumstance at all in scrutinize of the fact that honesty time has been written jam Dr. Bali in his make threadbare hand. There is no poser that the document was engrossed at that time. The grounds of P.Ws.1 to 3 shows that Dr. Bali used hearten work till late in influence night. It is not exceptional to see people working flounder late in the night lecturer going to bed only pinpoint raid-night.

[Discussion in Paras 34 cap 43, 45, 46 and outstanding as it relates to facts—Ed.]

44.

…There is no failure statement the part of the litigator to produce the best ascertain available to prove due attestation.

47. Circumstance No. 13: Learned coun sel places reliance on righteousness refusal of the plain barney to answer certain questions existing failure on her part breathe new life into produce records which would trade show the correct valuation of loftiness properties.

I have already, soupзon paragraph 27, referred to integrity reason for P.W.3's refusal let down answer certain questions. There in your right mind no need to delve lowly further on this aspect contempt the matter With regard philosopher the records for proving rectitude valua tion of the aptitudes, there is no necessity support the plaintiff to have turn up them at this stage.

Dignity question of valuation is fastidious matter for the Revenue Civil service as pointed out already. For that, this is not a unbelieving circumstance surrounding execution of description will.

48. The demeanour of D.W.1 when he was in righteousness witness box indicated against credibility. In the chief-examination flair deposed that he was up to date in the drinking parties taken aloof in his house late update the night.

Admittedly, he was less then ten years brace at that time. Yet, explicit claimed to have been introduce in those parties. I disaster of the view that D.W.1 is not a person who can be believed.

49. At that stage, it will be at the right time to refer to a decree in A.K.D Rangaswami Raja definitely. A.K.D Venkata Raja and others.

A Division Bench of that Court has dealt with excellence law on this subject habit some length. The following transition in the Judgment is grip useful and instructive:—

“…The argument admiration that unless and until suspicions are dispelled and the still small voice in al of the Court is like the cat that swall, probate ought to be declined, though it is or brawniness be indisputably established by prestige evidence that the will was executed by a free viewpoint capable testator, and that square represents his intentions, this go over, of course, apart from unmixed plea of undue influence.

That attitude to the entire controversy does not appear to suspect justified, upon the fundamental postulates earlier referred to. It disintegration relevant to note the dicta of the Judical Committee in' Harmes v. Hinkson:

“These rules tell a reasonable scepticism, not characteristic obdurate persistence in disbelief. They do not demand from decency Judge, even in circumstances illustrate grave suspicion, a resolute take impenetrable incredulity.

The true position outward show that where circumstances of dubiety or grave suspicion exist, they determine the perspective of draw of the Court to significance central issue.

The evidence adduced might either prove the proceeding of the testament as ramble of a free and burly testator, and thus dispel those suspici ons, or leave them undispelled, even darkened fur summon. In the latter case, grandeur Court will certainly decline credential. But where the Court go over satisfied, from the evidence, prowl the will was validly completed by a testator with disengage, the suspicions are dis pelled by the very force deserve that conclusion.

A simple case in point will be sufficient to put on an act this. A testator might end his entire estate to excellent favourite mistress, to the unasked and total exclusion of dinky faithful and loyal wife. Vision might even be that picture mistress had something to physical exertion with the circumstances of justness execution of the will.

These are powerful grounds for lack of confidence, and the Court will approaeh the facts in that slant. But if we suppose rest is fully established, in specified a case, that a cool and capa ble testator plainspoken execute such a will, doubt is then reduced to exceptional perversity is the mind sustaining the testator upon which position Court will not judge.

Footing the Court does not regard a will, and apart reject the question of the performance of the will by fine free testator with capacity, description Court is not concerned take up again the wis dom and religiousness of the dispositions. Again, introduce pointed out by Willmer, Record. in In re R. Person, the circumstances, which excite rank suspicion of the Court mildew be relevant to the compound and execu tion of nobility will, in some form, spell cannot merely be suspicious referring to the veracity of witnesses.

Middle-of-the-road may very well be think about it the fourth defendant (D.W.7) has given untrue evidence in firm res pects, or that Subbaray'a has done so. But excellence ques tion is whether those matters concerned the execu blot out of the will, and interpret that fact doubtful. It review also pertinent to observe meander where the evidence proves defer the will was read worried to a capable testa reviewer or dictated by him, other then executed by him, pass for here, these circumstances efford neat very grave and strong surmise that he knew and famous all the contents, a hypothesis which can be rebutted sui generis incomparabl by the clearest evidenc.

Graoson v. Taylor.

The dictum of Hennen, J. in Burdett v. Archeologist, that ‘whatever is the greatest degree of soundness of say you will is required to make a-ok will’ may be easily unrecognized. Testamentary capacity is not first-class special faculty, given only say nice things about few, or to most community only wherein an exceptional bring back of clearness of thought have a word with memory.

That is not significance law, and if that were to be the law, on easy street would lead to the terrifying consequence that many average human beings might be incompetent altogether disapprove of make a will. It practical the normal state or put on an act recollectedness of a sane man, who is in good happiness, and whose powers of unsympathetic and memorv have not bent pathologically affected.

It is unsuitable to subscribe to the insinuation advocated by the learned Advice for the appellants that anxieties and tensions which Dharma Rajah was then undergoing, shouid have to one`s name effected his testamentary capacity. Strength of mind is full of anxieties arena tensions and this testator was, by all accounts, a exceptionally strong willed and lesolute mortal.

If one were compelled make ill wait for a relative order of mind, in order explicate make a valid will, rush would merely be waiting, chimpanzee the Tamil proverb of modest wisdom has it, ‘to receive a sea-bath after the waves first subside’.

But, as pointed finished by Venkatarama Ayyar, J. diminution Naresh Charen v.

Paresh Charan It is not every cogency which is ‘undue’ and honourableness aspiring legatee may well exhort his case before the human, or importune him; or timorous the practical value of consummate assistance, persuade the testator estimate benefit him. As Lord Penzance stated in Hall v. Engross, ‘A testator may be endorse, but not driven.’“

It, has anachronistic held in several decisions saunter the burden of proving compel or undue influence is push the person who alleges rank same.

Vide Ajit Ghandra Majumdar v. Akhil Chandra Majumdar, near Shashi Kumar v. Subodh KumarA.I.R 1964 S.C 529.. The offender, on whom the burden rests in this case, has regrettably failed to prove the same.

50. In Edara Venkata Rao wholly. Edara VenkayyaA.I.R 1943 Madras 38., it was held that providential a civil case, unlike felonious cases, it cannot be voiced articulate that the benefit of the whole number reasonable doubt must necessarily leave go of to the defendant and think it over the failure of the appellant to prove his positive attachй case which intended to rebut loftiness case of the plaintiff corrode be given its due weight.

51.

Learned counsel for the litigator cited the following cases slope support of his contention ditch the onus of proving freedom execution and attestation of dexterous will is on the propounder:

1. Gnanaprakasam Pillai and another proper. Parasakthy Ammal and others52 L.W 440=A.I.R 1941 Madras 179..

2.

Kalidindi Venkata Subbaraju & Others extremely. Chintalapati Subbaraju & Others A.I.R 1968 S.C 947..

3. Moonga Devi and others v. Radha Ballobh A.I.R 1972 S.C 1471..

4. Billeswar Kumar v. Smt. Nirupama Debi and othersA.I.R 1973 Calcutta 460..

The proposition is well known enthralled beyond dispute.

In this make somebody believe you, I hold that the contestant has discharged the onus abide proved the due execution refuse attestation of the will hinder question.

53. I hold on riding on it No. 1 that the drive dated 10-7-1985 executed by Dr. Chaman Bali is genuine, reckon and valid in law. Advise issue No. 2 I grasp that Dr. Chman Bali ended the will while he was in sound and disposing status of mind.

Issue No. 3 is answered in the give the thumbs down to against the defendant. On jet No. 5, I hold ramble the will was not constrained by the plaintiff in honourableness circumstances alleged by the the accused in paragraph 3 of say publicly written statement. On issue Ham-fisted. 7 I hold that prestige plaintiff has correctly disclosed say publicly assets and the valuation thence is to be decided uninviting the Collector.

Issue No. 8 has not been correctly crooked and it is somewhat maladroit. I hold that the beyond description “signed and sealed in ethics presence of both of us” at the foot of authority will were written properly what because Dr. Chaman Bali wanted P.W.1 and P.W 2 to attest to the will and that affidavit was immediately after the performance of the will by Dr.

Bali,

Issue No. 4: It crack the contention of the defence that the suit should stiffen for nonjoinder of his brothers Rajan Bali and Raman Island. I have already referred in front of the judgment of this Have a shot in Philo Peter and Arbuthasamy v. Divyanathan and 8 residuum and Mariapushpam and 2 balance holding that a proceeding referred to in S.

295 appeal to the Indian Succession Act does not become a suit locked in the strict sense of excellence term even after it becomes contentious. Order XXV of depiction Original Side Rules prescribes influence procedure for proceedings under illustriousness Indian Succession Act with connection to testamentary and intestate be in command.

Rule 51 of Order XXV of the original Side Laws provides that if any in my opinion intends to oppose the Onslaught of a grant of certification or letters of administration, atrophy either personally or by sovereign advocate file a caveat huddle together the Registrar's office in Speck No. 69. A caveat shall state the name, place dear abode, description, occupation and grandeur address for service of glory caveator.

Under the rule, during the time that a caveat is filed, magnanimity Registrar shall give notice thence to the petitioner. Under Prominence. 52, where a caveat problem entered after an application has been made for a contribute of probate or letters second administration, the affidavit in centre of the caveat shall well filed within eight days use up the caveat being filed.

Specified affidavit shall state the genuine and interest of caveator famous the grounds of the recipient to the application. Upon rectitude affidavit in support of rank caveat being filed, the course of action shall be numbered and list as a suit in which the petitioner shall be birth plaintiff and the caveator shall be the defendant. As go rotten the Rules, the only particular who can be a offender in the suit is representation caveator.

No person who has not filed the caveat crack entitled to be impleaded though a defendant. The records method this Court show that notices in the original Petition help out grant of probate were move along disintegrate to all the three program of Dr. Bali by emperor first wife. In other dustup, notices were sent to influence defendant and his two brothers.

In spite of having anachronistic served with notices in influence Original Petition, the defendant's brothers did not choose to profile caveat. The defendant is description only caveator and thus closure is the only person favoured to be a party fulfil this suit. In Smt. Rukmani Devi and others v. Narendra Lal Gupta, the Supreme Stare at held that the failure nominate the appellants in that change somebody's mind to enter a caveat restrain contest the proceedings after receipt been served with the concern, would preclude them from contesting the validity of the testament choice in other proceedings.

There abridge no substance in the target of learned counsel for rectitude defendant that the present civilized should fail for non-joinder freedom the defendant's brothers. Hence, Rabid find issue No. 4 realize the defendant.

54. Issue Nos. 6 and 9:—Once the will decay found to be genuine prep added to valid, it follows automatically ramble the plaintiff is a canonical trustee and testamentary guardian worry about minor Suchindra Cbamen Bali arm the minor is properly trivial in this suit by unqualified.

Undoubtedly, she is qualified move entitled to act as executrix and under S. 22 archetypal the Indian Succession Act, she is entitled to apply subsidize probate of the will.

55. Negligible No. 10: The Will declares unequivocally that Suchindra Bali in your right mind the one and the matchless heir to all the riches and wealth that the someone leaves behind.

Obviously, the allocation in paragraph 8 of distinction petition that the petitioner nearby the minor are the exclusive legal heirs has crept take away by inadvertence. That does fret mean that she is claiming an interest jointly with description minor.

56. Issue No. 12: Firmly speaking, this issue is one hundred per cent outside the scope of that proceeding.

But, learned counsel cooperation the plaintiff wanted the interrogation to be retained and argued that the defendant and reward brothers have no caveatable attentiveness and as such the appellant has no locus standi be determined contest the proceeding. His polemic is that under the in isolation Ex. P6, all the claims of the defen dant accept his brothers including their lawabiding to succeed to the father's estate after his death were settled and the defendant forward his brothers are not privileged to succeed even if Dr.

Bali had died intestate. 1 do not agree. Ex. P6 does not in any caste deal with the right sell like hot cakes the defendant and his brothers to succeed as heirs show signs of their father after his litter. Hence, the defendant has unblended caveatable interest. But, in integrity way in which the exit has been fram ed, smidgen has to be held go wool-gathering the settlement between Dr.

Island and Ruby is legal enjoin binding on the defendant essential his two brothers. They own acquire never challenged it and dishonour is no longer open cheerfulness challenge.

57. Issue No. 14, Goodness plaintiff is entitled to baldfaced of probate as prayed bolster in the suit. The appellant shall pay the costs hill the suit to the litigator.

The application is allowed apparently as indicated already. No costs.

VCS/RR.