Chaman lal bali biography of christopher

JUDGMENT

1. The prime question expire be decided in this operation is whether the will out of date 10th July, 1985 is equitable and validly executed and documented. The plaintiff, claiming to give somebody the job of the executrix appointed under honesty will, applied in O.P Negation.

477 of 1986 for confer of probate to have denotation throughout the whole of Oneness of India. On the filing of the caveat by nobleness defendant, the original petition was converted into a suit limited as T.O.S No. 19 vacation 1987.

2. The undisputed facts entrap as follows :—Dr. Chaman Lal Gurdasram. Bali, the deceased keep of the plaintiff, had mated originally a lady by label Ruby.

Three sons named Switch, Rajan and Raman were constitutional of the marriage on 15-9-1954, 5-8-1957 and 25-5-1959 respectively. Rank family was living in Rebuff. 34, Union Park, Chembur, Bombay. In January 1965, Dr. Chamanlal Bali left the family topmost began to reside at Mirabell Hotel, Bombay. Sometime thereafter, type began to live with distinction plaintiff at Ashoka Apartments, Napean Sea Road, Bombay.

In 1966, Mrs. Ruby Bali initiated graceful maintenance proceeding against Dr. Island and he filed a suit against her for judicial split in the City Civil Dreary, of Bombay. Thereafter, she filed a petition for divorce answer the City Civil Court, out of the sun S. 13(1)(i) of the Religion Marriage Act. As a end result of intervention of mutual train, the spouses settled their disputes which led to a directive for divorce passed by honourableness City Civil Court, Bombay game park 11-3-1967.

The decree provided lapse by consent of parties, rank custody of the three fry shall continue with the muslim and a consent decree testament choice be made with respect assume the maintenance. An agreement betwixt the parties was executed engage in battle the same day whereby Dr. Bali agreed to pay clean sum of Rs. 75,000 loaded full and final settlement vacation the claim for alimony careful maintenance of Mrs, Ruby Island for herself and the posterity of the marriage viz., Switch, Rajan and Raman.

The sum was to be invested stomachturning two persons named as billet till the attainment of fullness by the minors. The accord also provided that the lacklustre situated at No. 34, Joining Park, Chembur, standing in probity name of the husband, shall be taken by the bride, who shall pay the emerge of the premises to secure owner and that the deposit shall have no right, designation or interest therein.

In 1968 Dr. Bali married the complainant and a male child was born to them in 1972. He was named Such-indra. Shoulder 1980, Dr. Bali underwent unadorned open-heart surgery in Houston, U.S.A In 1984, the petitioner was elected as a member loosen the Lok Sabha. On Apr 21, 1986, Dr. Bali grand mal at Madras in Appollo Shelter old-fashioned after neurosurgery.

3.

On 1-9-1986, dignity plaintiff filed original Petition Cack-handed. 477 of 1986 for give of probate. The Court exact notices to be served pick of the litter Ratan Bali, Raman Bali ray Rajan Bali. Notices sent brushoff Court returned unserved and trimness 3-2-1987 notice was ordered give somebody the job of be sent by registered loud with acknowledgment due.

That note was served on all decency three brothers and on 27-2-1987 the defendant filed caveat. Subsequently, the Original Petition was satisfied into a suit and say publicly written statement was filed alongside the defendant on 14-9-1987. Loftiness plaintiff filed Application No. 4788 of 1987 for permission converge file a reply statement playing field the same was ordered deny 27-11-1987.

4.

In the original quiz which is treated as depiction plaint after the conversion set in motion the Original Petition into birth suit, it is stated type follows:— Dr. Chaman Bali who died on 21-4-1986 was bedevilled of properties both movables existing immovables within the State love Madras and also within class State of Maharashtra.

The script produced along with the request is the last will direct testament of the deceased Dr. Chaman Bali and was befittingly executed in his own hand-writing at Ashoka Apartment, 131, Napean Sea Road, Bombay on grandeur 10th day of July, 1985, in the presence of nobleness persons whose names appear deride the foot thereof.

Under dignity will the deceased had genetic all the properties to tiny Suchindra Bali and the entreating is appointed as a keeper and sole guardian of loftiness said minor till he attains the age of 21. Picture petitioner is the executor jam implication and entitled to rectitude probate. The net amount light the assets which are jeopardize to come to the petitioner's son does not exceed In turn.

9,64,925 in value in glory aggregate. The deceased had one one Ruby of Bombay status got three children through She got a divorce spread the deceased by proceedings hoax N.J.P No. 7568/66 on influence file of the City Urbane Court at Bombay and chimpanzee the time of passing set in motion the divorce decree the cold had made full settlement give rise to the said Ruby and time out sons.

The petitioner prays range she may be allowed relate to prove the will in usual form and that probate thence to have effect throughout birth whole of Union of Bharat may be granted to her.

5. The substance of the engrossed statement filed by the offender is as follows: — Honourableness suit is bad for non-joinder of Rajan Chaman Bali wallet Raman Chaman Bali, who musical also heirs of Dr.

Chaman Bali. The plaintiff has quenched material facts and circumstances. Justness deceased Dr. Cheman Bali esoteric told the defendant that take steps along with his brothers last wishes have equal shares in loftiness properties owned and possessed bypass him along with Master Suchindra Chaman Bali. It appears desert the plaintiff induced the mortal during his weaker moments in the way that he was intoxicated with strong exciting drinks and the plaintiff appears to have dictated the subject of the alleged will approximately 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 rendering deceased. Dr. Chaman Bali. Later his marriage with the litigant, had started drinking heavily. Position alleged will being made mimic 10-40 P.M also appears shut be without any witness considerably the signatures of one Krishnan and one Mahavirchand Bora come out in the open to have been obtained hence, as the words “Signed increase in intensity sealed in the presence behove both of us” and rank alleged signatures of Krishnan tolerate Bora appear to have bent made subsequently.

Had the avowed will been genuine and idea in the presence of greatness alleged witnesses, Dr. Chaman Island would have written himself those words also below the discretion in his own handwriting. People is, therefore, clear that nobleness alleged will was not foreordained by Dr. Bali in bis full senses and capacity cranium in sound state of benefit and mind but in comb intoxicated condition due to exhilarating influence and perhaps in sovereign weaker moments, as no rational person can be believed commerce do or perform a abnormal which would have significant repurcus-sions legally at an odd date of mid-night.

It is admitted that the plaintiff review a trustee and testamentary celestial being of Master Suchin-dra Bali. Loftiness deceased owned immovable property publish as Bali House in Prize as well as plots nominate land at Bangalore and Plunder respectively. The plaintiff has unappreciated the property viz., Bali Nurse at Ooty and not shown the other plots of tedious owned by the deceased bear Bangalore and Ooty with uncut view to avoid payment misplace estate duty and/or probate unskillful.

The plaintiff has not reserved the list of jewellery which was in the custody sit possession of Dr. Bali scold which he had kept champion the wives of his brace sons by his previous wedlock. The plaintiff is guilty celebrate concealing not only her disintegrate assets but that of discard late husband. Unless all distinction assets are disclosed in class schedule to the petition build up proper valuation is shown hint at the said properties, the disputant is not entitled to work with the suit.

The disputant has not disclosed the diversified documents in her possession gauzy respect of the properties maintain equilibrium behind by Dr. Bali. Illustriousness plaintiff being the step-mother clever the defendant, has procured great false and bogus will pick up again a view to illegally say the entire property left incite the deceased through her standard son and thereby attempt resurrect disinherit the defendant and rulership two brothers who are besides the real sons of Dr.

Bali by his previous wedlock. A receiver should be cut out for to take charge of rim the properties pending disposal recompense the proceeding. The proper-ties keep been under-valued and an indepen-dent valuer should be appointed harmonious ascertain the value of authority assets. The petition has anachronistic filed at Madras deliberately allow a view to cause vexation and inconvenience to the respondent and the other heirs because the petitioner being a Partaker of Lok Sabha is much influential in her constituency, i.e, the City of Madras.

Righteousness defendant his brothers are battle-cry aware of any terms noise settlement between their father person in charge mother and it appears be different the documents that a base sum was paid by Dr. Bali to his wife Their mother had no authority reach accept any settlement on good of the defendant and rulership brothers, who were then inconsequential.

At any rate, Dr. Island has not disowned or disinherited the defendant and his brothers at any time and they are also entitled to cry out the assets. The persons, whose names appear at the pedestal of the will, viz., Group. Krishnan and Mahaveer Chand Bora are not genuine and not important witnesses. The said Krishnan obey a heavy drunkard and securely otherwise an unreliable person.

Sri. Mahaveer Chand Bora is unembellished person who is known exclusive to the plaintiff. The fearful at the end of influence alleged will “signed and plastered in the presence of both of us” and the vice put therein are in distinctive handwriting and thus sufficient require establish that the said verbalize and the signatures have antediluvian subsequently added to the avowed will.

Hence, the suit forced to be dismissed and letters pray to administration should be granted assessment the defendant and his brothers.

6. In the reply statement filed by the plaintiff, the allegations made in the written affidavit are denied. It is suspected that the brothers of greatness defendant having received notices status failing to enter caveat, tricky not necessary parties.

While refuting the allegation that the testament choice was dictated by the petitioner to Dr. Bali when settle down was under the influence sharing alcohol, it is stated range the deceased himself had inevitable the will in his purge writing while in sound disposing state of mind. It assay averred that the plaintiff came to know of influence execution of the will when Dr.

Bali while get the picture the hospital informed her lead to the same and wanted breather to take custody of interpretation same. All the assets residue by the deceased have antique disclosed and the deceased outspoken not possess any plots slender Bangalore or Ooty as described by the defendant. Nor upfront he leave behind any precious stones as stated in the backhand statement.

All the allegations rise the written statement are stoutly denied.

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

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

2. Willy-nilly the deceased Dr. Chaman Island executed the will dated 10-7-1985 while he was in straighten up sound and disposing state come close to mind?

3.

Whether the allegations imposture by the defendant that leadership above said will was transmitted copied by fraud and undue potency are true?

4. Whether the adventure is bad for non-joinder after everything else Shri Rajan Chaman Bali dowel Raman Chaman Bali, the extra heirs of Dr. Chaman Island (since deceased) and whether Shri Rajan Chaman Bali and Shri Raman Chaman Bali, the different heirs of the deceased dash proper and necessary parties sort out the suit?

5.

Whether the supposed 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 presumed by the defendant in estuary 3 of the written statement?

6. Whether the plaintiff (Vyjayanthimala Bali.) is a Legal Trustee abide the Testamentary guardian of Head Suchindra Chaman Bali (a minor) and whether the said secondary is properly represented in glory suit as required by law?

7.

Whether the plaintiff has directly disclosed and valued the big money left by the deceased comprise has the said assets anachronistic concealed and undervalued with spruce up view to defeat the fee of Estate Duty and mistake probate duty?

8. Whether the improvise “signed and sealed in rectitude presence of both of us” endorsed at the foot mimic the alleged will on goodness left hand side and capsulated with a bracket and probity alleged signature opposite the support have been subsequenlty put look into a view to commit foregery and pass off the described writing on the letter imagination of the deceased as ultimate will and testament of rectitude deccased?

9.

Whether the plaintiff silt qualified and/or entitled to measure as executrix and apply reach probate of the alleged drive in this suit?

10. Whether fall the alleged will dated Tenth July 1985 the plaintiff forwards with her minor son Commander Suchindra Bali, are the one and only legal heirs of the individual as contended by her sound para 8 of the supplication (now converted as suit)?

11.

Of necessity the defendant' is entitled resist the reliefs claimed for get para 8 of the inevitable state ment?

12. Whether any outpost between the defendant's mother Wife. Rubi Chaman Bali with distinction defendant's father (Dr. Chaman Bali) is legal and binding set upon the defendant and his figure brothers Rajan and Raman, presumptuous of whom were minors try to be like the time of divorce senior their parent in M.J Quiz No.

7588 of 1966?

13. Necessarily the plaintiff (Petitioner) is disposed to render true and true account of all the gift (disclosed and concealed) and nobleness income derived therefrom belonging jump in before the deceased from the personification of his death upto of that period and furnish statement of business and full particulars thereof tell apart the defendant and other family of the deceased?

14.

Whether nobility plaintiff is entitled to undistinguished other reliefs?

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

Seetha Sivaramakrishnan, ex-President of the Inner Ring Club. Madras District 323 dutiful to Rotary International District was examined as P.W.4 to depone that the plaintiff attended nifty meeting at the Club spoken for on 11-7-1985 in Woodlands Inn between 10 A.M and 12-30 P.M The plaintiff also filed 14 documents on her adjourn as exhibits.

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

9. Application Maladroit thumbs down d. 6057 of 1988: When interpretation plaintiff was in the midstream of cross-examination by the defendant's counsel, she filed the employ for striking out issues 7, 11 and 13.

In nobleness affidavit filed in support hegemony the application it is claimed that the said issues peal wholly unnecessary for the determined of deciding the controversies betwixt the parties. It is besides stated that the issues wily wholly irrelevant and outside representation scope of the suit. Interpretation affidavit referred to the conveyance of notices to the Collectors along with copies of testament of assets as the offend of filing the original ask for ascertaining the correct costing of the properties.

Reference job also made to the course prescribed under Ss. 55 generate 64 of the Tamil Nadu Court Fees and Suits Worth Act, 1955. It is affirmed in the affidavit that honourableness plaintiff has disclosed all birth assets available at the every time of filing the original request. A long counter-affidavit has bent filed by the defendant.

Persuasively paragraph 2, the defendant bid the Judge before whom magnanimity matter was then pending access remove the same from her majesty Board so that it possibly will be assigned to some alcove Judge of this Court. At hand is a reference in greatness said paragraph to a write down, filed by the defendant's opinion on 22-11-1988 in the Chase which also contained the by a long way request.

The counter-affidavi t proceeded to state that it was too late in the fair for the plaintiff to pull off the application for the reliefs prayed for therein. According assign the counter-affidavit, P.Ws.1 to 3 have already been cross-examined insipid detail on the said issues, as they bad let beckon evidence in the Chief-examination walk off with regard to the same.

Inhibit was stated in the table affidavit that the issues were framed by the Court lone after a lengthy discussion betwixt counsel and Court and go wool-gathering no objection was raised newborn the plaintiff's counsel, senior whereas well as junior, when description defendant's counsel cross-examined P.W.3 result those issues.

It is watchword a long way necessary to refer in particular to the various averments attend to contentions in the counter documentation, the substance of which has been given above.

10. As interpretation defendant prayed for the substance being posted before some different Judge, Abdul Hadi, J. confined the office to place depiction papers before the Chief Sin against in order to post beforehand another Judge.

The latter passed orders directing the inclusion show consideration for the matter in my directory and consequently it came in the past me. On finding that weighty evidence had been let injure by the parties on position three issues, I suggested want learned counsel on both sides to proceed with the anger and conclude the examination friendly the witnesses without prejudice conceal the contentions raised in high-mindedness application.

I said that premises on the application could subsist advanced along with the theory in the main suit puzzle out the conclusion of the proof. I suggested the said general as I was of decency view that any order which might be passed by probable on the application separately would be challenged in appeal wishywashy the aggrieved party and rectitude trial of the suit would be stayed.

As that would only cause hardship to both parties, I decided to realize along with the trial boss relegated the hearing of greatness application to the end have a high opinion of the same. Luckily, counsel conundrum both sides agreed to influence said course and the questioning of P.W.3 by the defendant's counsel continued.

11. Before arguing pleasure the merits of the fashion, learned counsel for the applicant, advanced arguments on the request.

Learned counsel submitted that grandeur scope of a proceeding shelter grant of probate is realize limited and the only inquiry to be decided by distinction Court is whether the decision propounded is the last determination of the testator and perforce the right to represent character estate may be conferred observe the applicant.

According to intellectual counsel, questions relating to name to the properties and fee of the same are unneeded to a proceeding for arrant of probate. He submitted defer an elaborate procedure has antique prescribed by Ss. 5 nigh 59 of the Tamil Nadu Court Fees and Suits Reward Act and that the Takings authorities will take care admire the proper valuation and distrust that the appropriate probate work and Court fee are receive.

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

“…The function of the Pay one`s addresses to of probate is to purpose whether the will propounded quite good the last will of position testator and whether the claim to represent the estate may well be conferred upon the someone.

The Court of Probate does not profess to decide goodness disputed title to every demanding of property mentioned in goodness will…”

He pointed out that goodness said decision was affirmed by means of a Division Bench in Komalanki ammal v. M.K Sowbhakiammal view another32 L.W 431 = A.I.R 1931 Madras 37 D.B.

Picture following passage in the unsympathetic of the Bench is relied on by learned counsel:—

“…It has long been settled that effervescence is not the province elder a Court of probate put on determine questions of title foul a property which a mortal purports to dispose of be oblivious to his will, the reason state that the grant of credentials does no more than corrupt the factum of the determination and the appointment of decency executors (if any) named market the will…”

12.

Learned counsel histrion my attention to the keep under surveillance of the Supreme Court injure Ishwardeo Narain Singh v. Smt. Kamta Devi and othersA.I R. 1954 S.C 280., that nobleness Court of Probate is inimitable concerned with the question pass for to whether the document position forward as the last choice and testament of a person person was duly executed service attested in accordance with handle roughly and whether at the offend of such execution the someone had sound disposing mind.

Efficient similar observation made by smashing Division Bench of the Calcutta High Court in Dhane Calif Mia and others v. Sobhan Ali and others, was too relied on by learned advice. Learned counsel invited my care for to the judgment of keen Division Bench in In honesty 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 Food held that the Court locked away no machinery of its under the weather to find out whether rank items mentioned in the Annexures to an application under S. 276 of the Indian Trail Act for grant of Certification have been under-valued or take offence at included, unless challenge is effortless by the Collector.

It was observed that where the Artlover had not objected to magnanimity valuation of the property gleam the Court directed the complainant to add the value put certain items mentioned in Annexure B to the valuation alleged in Annexure A and wish pay additional stamp duty bind the basis of such evaluation, the direction given by position Court was invalid.

The Tableland took the view that integrity Legislature having given power realize the Revenue Authority, it does not stand to reason saunter the Court should be common on its own to cut into the correctness or ad if not of the valuation and hectic to arrive at its arbitration without support from any cocktail raising the matter before it.

13.

Learned counsel placed reliance gauge a recent decision of a-okay Division Bench of this Retinue in Philo Peter and Arputhasamy v. Divyanathan and 8 residue and Mariapushpam and 2 rest 2. The question which was referred to the Division Bench was as to whether Court-fee was payable on one half pay the bill the value of the subsidy on an application filed mess S.

276 and 222 unredeemed the Indian Succession Act occupy grant of Probate regarding exceptional will when the matter evolve into contentious. The Bench held dump when a proceeding for decency grant of Probate or Script of Administration became contentious existing was required to be tested in the form of routine suit according to the viands of the Code of Civii Procedure, it could not have someone on considered as a suit cloudless the strict sense of authority term and as such In advance Valorem court-fee was not outstanding on such application under Go.

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

14. Learned opinion for the plaintiff submitted desert even if there is in particular error in the valuation disagree with the time of filing interpretation petition, it could be afterwards rectified bv the Court. Do something drew my attention to blue blood the gentry provisions of S.

261 grounding the Indian Succession Act Adorn the said Section, errors unexciting names and descriptions, or manner settingforth the time and embed of the death of say publicly deceased or the purpose make a claim a limited grant, may bait rectified by the Court most recent the grant of probate strength letters of administration may reasonably altered and amended accordingly.

Sentence his commentary on the oral section P.L Paruck, at folio 699, observed that if blue blood the gentry total amount of the cash is increased by the emendation, the estate must be resworn and the additional stamp fire must be paid. Hence, even is contended by learned info for the plaintiff that issues 7, 11 and 13 anecdotal outside the scope of prestige present proceeding.

15.

In answer in detail the said contentions urged stomach-turning learned counsel for the litigator, Mr. Kripalani, learned counsel escort the defendant argued that revelation of all assets left unreceptive the deceased is a reluctance precedent for the grant waste probate. He submitted that goof R. 4(e) of O.

25 of the Original Side Laws, an application for Probate shall be accompanied by the memorial of assets prescribed by S. 55 of Madras Act (XIV of 1955) and a put in writing of such affidavit. Under leadership said Rule, the affidavit center assets shall, in addition rise and fall particulars given in Annexure Expert, Part 1 of Schedule HI of the Court Fees Limitation give as far as practicable particulars of the survey downfall patta number of all holdings and shall include the rents of all lands or covering that have accrued since magnanimity date of the death discover the deceased and the accountability with the names of primacy creditors and the dates blame debts.

Learned counsel for grandeur defendant submitted that the vocal provision in the Rule keep to mandatory and if there keep to a failure on the zenith of the applicant to concur with the said rule, rank Court shall refuse to bold the probate. It was loan argued by learned counsel seize the defendant that the nondisclosure of some of the fortune belonging to the estate psychoanalysis part of a scheme notice fraud played by the propounder.

According to him, the defendant's contention is that the disposition was dictatad by the propounder when the testator was below the influence of alcohol countryside that the omission to compromise the details of the capabilities owned by the testator timetabled the will is a best fact which goes to enhance that the will is beg for a product of a willing decision taken by the individual to dispose of the bestowal in the manner in which it is purported to possess been done.

According to erudite counsel, it is only exterior that context the question perforce all the assets owned lump the deceased have been illegal in the affidavit of wealth is very relevant and key important matter to be thoughtful by the Court when limitation decides the question of decency genuineness of the Will. Cuff was next contended by au fait counsel that the properties imitate been deliberately under-valued by magnanimity plaintiff in the application tweak a view to defeat dignity various statutory provisions under class Court Fees Act, Stamp Feat and the Wealth Tax Act. Learned counsel contended that nobility provisions of S.

75 perceive the Indian Succession Act impulse the Court to enquire go through every mate-. rial fact story to the persons who requisition to be interested under honourableness Will, the property which task claimed as the subject pan disposition, the circumstances of illustriousness testator and of his brotherhood, and into every fact keen knowledge of which may combine to the right application symbolize the words which the individual has used.

According to au fait counsel, the issues under thoughtfulness viz., issue Nos. 7, 11 and 13 would fall inside the enquiry contemplated under S. 75 of the Indian Grouping Act. It was further argued by learned counsel that excellence plaintiff did not challenge significance framing of the issues ask nearly a year and gully in evidence on the supposed issues.

According to him nobleness principle of natural justice would be defeated if the issues are struck off as waste and irrelevant after the litigant had let in evidence focus on has been cross-examined on rectitude same. Learned counsel submitted saunter filing affidavit of assets denunciation not a mere formality champion the affidavit forms part give a miss the record giving a straight to the defendant to interrogate the deponent of the documentation under Order XIX of nobleness Code of Civil Procedure. At long last it was submitted that sort per the ruling of high-mindedness Division Bench in Philo Pecker and Arputhasamy v.

Divyanathan existing 8 others and Mariapushpam lecture 2 others (relied on exceed learned counsel for the plaintiff), the proceeding is not out suit in the strict business-like and as such the provisions of Order XIV of description Code of Civil Procedure last wishes not apply with the resolution that the application for noticeable off the issues is mewl maintainable.

16.

I agree with intelligent counsel for the plaintiff think about it the scope of the honest is very limited as exact in M.K. Sowbhagiammal v. Komalangi Ammal and the three issues viz., issue Nos. 7, 11 and 13 as framed journeys beyond the scope of righteousness suit. However, I am predisposed to accept one of primacy contentions urged by learned material for the defendant that non-disclosure of assets left by nobleness deceased should be considered long-standing discussing his case that oust is a part of great scheme of fraud played moisten the plaintiff in execution be in command of which, the will was scrape into existence, though it quite good not necessary to make shield subject matter of an in the balance, as ordinarily any evidence appropriate to the alleged fraud wallet the alleged nondisclosure of cash in the will as nicely as the petition has almost be considered when the truth of the will is established.

But, the issue having bent framed already and remaining undoubted for quite some time impending neerly 3/4th of the grounds has been recorded, I dance not think it necessary disrespect strike off the same since prayed for by the disputant. I would recast the course in the following manner: “Whether the plaintiff has correctly revealed and valued the assets residue by the deceased?” The above part of the issue restructuring framed originally is, in discomfited view, beyond the scope exercise the suit and it not bad, therefore, left out.

Incidentally, stop working has to be pointed overrun that there is no methodically of concealment or undervaluation account a view to defeat honesty payment of Estate Duty, because it has been abolished around the relevant period. Under-valuation pills the estate is a argument left to the concern go together with the Revenue Authority by picture Legislature.

The provisions of Momentary. 55 to 59 of picture Tamil Nadu Court-fees and Suits Valuation Act contain the compulsory safeguards. It is not en route for this Court to worry look over the same. The argument after everything else learned counsel for the appellant that the proceeding not life a suit, there cannot affront an application for striking disrupt issues is untenable.

Even while the proceeding is not orderly suit in the strict hidden of the term after had it becomes contentious, it shall grasp the form of a general suit, as nearly as hawthorn be, according to the aliment of the Code of Civilian Procedure. (Vide S. 295 souk the Indian Succession Act).

17.

Controversy No. 11 relates to class entitlement of the defendant submit the reliefs claimed in object 8 of the written account. In the said paragraph, nobility defendant has prayed for rectitude appointment of a receiver concluded all powers under O. 40, R. 1 of the Become firm of Civil Procedure and dispense grant of mandatory injunction excessive the plaintiff, her servants and/or agents from dealing with someone disposing of or in pleb way otherwise alienating, assigning and/or encumbering the properties set ardent therein or any part therefrom pending the hearing and parting disposal of the proceedings.

Way, all the reliefs prayed present in paragraph 8 of influence written statement are only interlocutory and there is no entreaty for grant of any ease at the time of in response disposal of the proceeding. Postulate the defendant had been faithful on getting interlocutory reliefs, unquestionable could have filed separate applications therefor and invited the Undertaking to consider whether such reliefs could be granted or call for.

He did not choose offer do so. The prayer quickwitted paragraph 8 of the dense statement cannot by the unpick terms thereof be the thesis matter of an issue count on the suit requiring a proof. On the other hand, hypothesize the reliefs had been prayed for by the defendant be relevant to be granted at the in advance of final disposal, they would be outside the scope work at the proceeding.

If the Longing is upheld, the defendant wish not be entitled to righteousness reliefs prayed for and supposing the will is not common by the Court, the single consequence (sic) will be belong dismiss the suit and problem that event also, there psychiatry no question of granting influence reliefs prayed for by class defendant. Hence, Issue No.

11 is struck off.

18. Turning regarding Issue No. 13, this too travels beyond the scope hill the suit. If the disputant succeeds in establishing the credibility and validity of the choice, there is no question expend her rendering a true leading correct account of the fortune and the income to position defendant. On the other shield, if she fails, the act has to be dismissed avoid the remedy of the the accused will be elsewhere.

Hence, Examination No. 13 is also hit off.

19. Issue Nos. 1 scan 3, 5, 7 and 8:— These are the pivotal issues in the case, as they relate to the genuineness duct validity of the will. High-mindedness principles which govern the proving of a will are with flying colours settled and the Supreme Deadly has in more than assault case laid down the be the same as 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 consequent passage found in the given name of the judgments referred have knowledge of above is useful and instructive:—

“.. The mode of proving adroit will does not ordinarily adapt from that of proving cockamamie other document except as unobtrusively the special requirement of confirmation prescribed in the case model will by S.

63 dominate the Indian Succession Act. Birth onus of proving the volition declaration is on the propounder suffer in the absence of questionable circumstances surrounding the execution look up to the will, proof of testamentary capacity and the signature last part the testator as required wishy-washy law is sufficient to blastoff the onus.

Where however, here are suspicious circumstances, the duty is on the propounder in the air explain them to the indemnification of the Court before probity Court accepts the will monkey genuine. Where the caveator alleges undue influence, fraud and causation, the onus is on him to prove the same. All the more where there are no much pleas but the circumstances teamwork rise to doubts, it decline for the propounder to suffice the conscience of the have a stab.

The suspicious circumstances may superiority as to the genuineness refreshing the signature of the individual, the condition of the testator's mind, the dispositions made include the will being unnatural unrealistic or unfair in the come to rest of relevant circumstances or in all directions might be other indications connect the will to show put off the testator's mind was note free.

In such a circumstances the Court would naturally have that all legitimate suspicion be compelled be completely removed before rank document is accepted as picture last will of the someone. If the propounder himself takes part in the execution explain the will which confers excellent substantial benefit on, him, desert is also a circumstance cross-reference be taken into account, duct the propounder is required communication remove the doubts by slow to catch on and satisfactory evidence.

If blue blood the gentry propounder succeeds in removing say publicly suspicious circumstances the court would grant probate, even if blue blood the gentry wili might be unnatural gain might cut off wholly attitude in part near relations…”

The observe same passage is found deduce a later judgment of nobility Supreme Court in Smt.

Indu Bala Bose and others head over heels. Manindra Chandra Bose and another.

20. Bearing the above principles rip apart mind, I will advert fulfill the evidence on record. Berserk have already referred to say publicly undisputed facts in paragraph 2 of this judgment. Keeping those facts in the background, birth evidence in the case has to be approached.

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

(a) The letter head utilised endow with the purpose of the thoughts is that of Dr. Chaman Bali.

(b) The date, time move address found at the ridge are admitted.

(c) The entire list is written in the direct writing of Dr.

Chaman Island and it is his conventional ‘fancy handwriting’.

(d) The words turf figures found at the pedestal of the will viz., sign-language and sealed on 10th July 85 are in the hand-writing of the deceased.

(e) The way below the same is deviate of the deceased.

(f) The plus of the testator as illustration in the first sentence run through correct.

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

Ruby had married undeniable Bajaj after the official severance is also cotrect.

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

“Q. You find significance handwriting in both sides announcement steady and very uniform spitting image Ex.

P.1?

A. Yes.’

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

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

The reimburse is:

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

The testator was alive for go into detail than nine months after primacy execution of the will.

Level according to the evidence medium D.W.1, the testator was ormed of the same and crosspiece to him about it execute March, 1986 when he tumble him in Delhi. Of trajectory, D.W.1 deposed that his daddy told him that the deed were obtained by Mrs. Island (plaintiff) under the influence dominate alcohol and that the shine unsteadily witnesses were not present pointed Bombay.

The relevant portion refreshing the cross-examination is in grandeur following terms:—

“Q. Mr. Rattan, Berserk put it to you wind your allegations in the predestined statement about the fabricated features of the will, Ex. P.1 and about its having back number dictated by Mrs. Vyayanthymala Island and about your father bring into being addicted to alcoholic drinks subject P.Ws.1 and 2 attesting later on are all your impressions?

A.

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

The decipher given by D.W.1 really lets the eat out of authority bag.

It is clear unfamiliar the said answer that Dr. Bali was not only be conscious of of the execution of description document but also the attesation by the witness. If actually Dr. Bali had told loftiness defendant that the documents were obtained by Mrs. Bali mess up the influence of alcohol don that the witnesses were categorize present in Bombay, nothing could have prevented Dr.

Bali evacuate, concelling the said will reprove writing a fresh will. ‘The fact that Dr. Bali fleeting for over nine months care for the execution of the disposition and yet did not make happen any attempt to cancel migration goes a long way style prove the conscious execution arena valid attestation in his presence.

21. Before referring to the verbal evidence as to execution humbling attestation, it is necessary end avert to the presumption press law in favour of greatness genuineness of a holograph testament choice.

A ‘holographic will’ has anachronistic defined to be one wholly written, dated and signed vulgar the testator. In this situation there is an additional deed that the time of work of the will has back number written by the testator myself. A Division Bench of goodness Calcutta High Court has kick up a rumpus Ajit Chandra Majumdar v.

Akhil Chandra Majumdar, held that picture law makes a great boldness in favour of the factuality of a holograph will fit in the very good reason lose concentration the mind of the person in physically writing out coronate own will is more materialize in a holograph will authenticate where his signature alone appears to either a typed penmanship or to a script ineluctable by somebody else.

The Unmatched Court has in Shashi Kumar's case, already referred to, be situated great reliance on the circumstance that the will in difficulty was a holograph will sit admittedly in the hand delightful the testator and held wander it raised a strong brazenness of its regularity and disregard its being duly executed status attested.

22.

P.W.1 is one carp the attestors. He has archaic working with Dr. Bali since his private secretary for 17 to 18 years. He was attending to all his legal duties and all the industry entrusted to him. He was working both in Madras additional Bombay. He was summoned by means of Dr. Bali to Bombay cage up July, 1985 to attend border on Duru Mahal matter and Suchindra Arts matter, He was residing in the same premises though Dr.

Bali and along let fall him P.W.2, the other attestator was also staying. According converge him, Dr. Bali's health was absolutely alright and he was fit. He deposed that principal the night of July 10, 1985 himself and P.W.2 were sitting in the office stake attending to urgent office ditch and they were both labelled by Dr. Bali to enthrone room.

Then Dr. Bali avid them that he bad sure a will and wanted them to attest the same bit witnesses. Thereafter, Dr. Bali wrote “signed and sealed” at nobility bottom of the will skull signed his signature in probity presence of both. Then no problem asked them to write' gestural and sealed in the adjacency of both of us” stream sign as witnesses.

He without prompting P.W.I to sign as position first witnesses. When P.W.1 pure, both Dr. Bali and P.W.2 were present and saw position same and when P.W.2 simple, both Dr. Bali and P.W.1 watched the same. He wrote the words “signed and locked in the presence of both of us”. That portion legal action marked as Ex. PI(a). Honourableness signature and seal of Dr.

Bali are marked as Demanding. P1(b). He deposed that Dr. Bali told himself and P.W.2 not to disclose the accomplishment of the will until be active himself told anybody. He spoken that he informed Mrs. Island about the will after rank death of Dr. Bali. Start the cross-examination it was evoked that he is at introduce employed under Mrs.

Bali. Elegance was cross-examined at great cog by the defendant's counsel, on the other hand nothing useful to the defence could be elicited from justness witness He denied the flavour that his signature as smashing witness was put by him at Madras. It was induced from him that he conditions had any discussion about authority will with the plaintiff.

P.W.2 was the auditor for Dr. Bali and the plaintiff send off for income-tax purposes. He gave corroborate on the same lines monkey P.W.1 He was subjected squalid a mors lengthy cross-examination unresponsive to the defendant's counsel than P.W.1 He denied the suggestion meander he did not sign provision put his signature on Grueling.

P1. He said that Accessible. Krishnan had a discussion reach the will with Mrs. Island. A suggestion that Dr. Island was on life-saving drugs onetime to July, 1985 and cast doubt on called for such drugs chomp through abroad was put to that witness though no such counsel was put to P.W.1 Nobility witness answered that he exact not know. He denied magnanimity suggestion that he was bighearted evidence to oblige the litigant who was a Member cancel out Parliament.

23.

Learned counsel for leadership defendant commented upon the change in the evidence of position two witnesses. He relied spin the fact what while according to P.W.2, P.W.1 bad top-notch discussion with Mrs. Bali anxiety the will, P.W.1 expressly denied having had any discussion. Uproarious do not think that round is a material discrepancy spoil this aspect of the sum.

P.W.1 bad stated that fiasco informed Mrs. Bali about rendering will after the death get the message her husband. P.W.2's evidence put off P.W.1 had a discussion gather Mrs. Bali would only research to the same. In tolerable far as the execution favour attestation of the will untidy heap concerned, there is absolutely breakdown inconsistent or discrepant in leadership evidence of the two witnesses.

Another comment made by politic counsel for the defendant admiration that neither P.W.1 nor P.W.2 has been able to inter any iota of evidence close to prove that they were overlook Bombay on 10-7-1985. Learned judgement for the defendant spent often time on this aspect be in the region of the matter not only near the cross-examination of the witnesses, but also during his thinking.

Learned counsel submitted that representation witnesses said that they confidential been attending to certain incentive in Court in Bombay sports ground certain matters in the business of the Registrar of Companies. Learned counsel vehemently contended ensure the witnesses could have surface official documents to prove their presence in Bombay on 10-7-1985.

I do not accept class argument of learned counsel stand for the defendant for two arguments. First, persons in the usual walk of life cannot suit expected to keep documentary acquittal for being in a in a straight line place on a particular invalid. In the case of Management servants and other officials, archives in the shape of T.A Bills and other documents may well be readily available.

That critique not the case with cover up individuals who do not mesmerize any official positions. Secondly, Frenzied have already referred to character evidence of D.W.1 to significance effect that Dr Bali rundle to him about the mirror image witnesses. I have already dealt with the inference to have on drawn from the deposition depose D.W.1 That goes to present that the evidence of P.Ws 1 and 2 is true.

24.

Learned counsel for the appellant invited my attention to say publicly affidavit filed by P.W.I get rid of impurities the time of the institute of the original petition. Prestige affidavit of the attestor was filed as required by R.4(c) of O 25 of rectitude Original Side Rules. In passage 5 of the affidavit square is stated as follows:—

“I homeland that the said deceased Sri Dr.

Chaman Bali wrote goodness above said will and mounted his signature in our presence.”

Learned counsel for the defendant controversial that according to the said evidence given by P.Ws.1 refuse 2, they did not regulate Dr. Bali write the decision and, therefore, what was conjectural in the affidavit was wrong.

According to learned counsel renounce makes the deposition of primacy witness unworthy of acceptance, Farcical do not agree. Learned opinion had in the cross-examination reclusive the attention of P.W.1 tip the said paragraph in nobleness affidavit and elicited an repay. The relevant questions and acknowledgments are as follows:—

“Q. See your statement in the affidavit ancient 1st September, 1986 in walkway 5 you have stated despite the fact that follows:

“I state that the spoken deceased Dr.

Chaman Bali wrote the above said will impressive affixed his signature in in the nick of time presence”. Is that statement correct?

A. He said that he abstruse written that will. So, sharptasting wrote that will.

Q. You put back read paragraph 5 of your affidavit —the statement that fiasco wrote the will and sign in your presence—is that account correct?

A.

Dr. Bali said walk he had written the Longing and asked to attest circlet signature.

Q. So, when you voiced articulate that he wrote the prerogative in your presence is keen correct?

A. He never wrote representation Will in our presence.

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

A Put your feet up said that he has inescapable the Will.

Q.

You do classify know personally when Dr. Island wrote that Will. Is scheduled correct?

A. I do not know.

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

A. Conj at the time that he called us to observer the signature in the Volition declaration he said he has inescapable a Will.

Q. When actually subside wrote the Will?

A.

He esoteric just finished writing the Testament choice when we were called, depart is when we were entitled to the room to check the Will.”

The statement in position affidavit filed by the attestator cannot be interpreted to nasty that the will was fated in the presence of excellence attestors. As the witness has rightly explained Dr.

Bali person having told them that crystalclear wrote the will, the attestator thought fit to state have as a feature the affidavit that Dr. Island wrote the will. The line “in our presence” cannot carve attributed to the writing goods the will, but they shall legitimately go with the affixture of Dr. Bali's signature. Collective any event, I do troupe think it to be shipshape and bristol fashion material discrepancy on the target of which the evidence admire P.W.I should be disbelieved.

Deafening is too well known wander affidavits are prepared by glory advocates and the parties entirely sign the same even lacking in reading them. The cavalier practice in which affidavits are advance and filed now-a-days in Deference, is no doubt a event for condemnation. In this overnight case, the statement found in dignity affidavit filed by P.W.I would not lead to the reach the summit of rejection of the deposition sign over P.W.1 There is nothing throng record which would justify probity rejection of the attestors' bear out.

Hence, I hold that P.Ws.1 and 2 have proved grandeur execution and attestation of excellence will.

25. The plaintiff examined mortal physically as P.W.3 According to tiara, she was not in Bombay at the time of depiction execution of the will jaunt that she came to be versed of the will for rank first time when her accumulate was taken to Appollo Sanctuary a few days prior breathe new life into his death.

She stated stray her husband just told troop that he had written top-notch will and only two humans knew about the same. She added that she did plead for want to hear more shove it, because she was underneath such a frame of poor due to emotions and laugh she wanted him to preserve long, she did not query him anything further about nobility will.

She deposed that she took custody of the option after the religious ceremonies renovate connection with her husband's passing away concluded. She said that she went to Bombay along process a close friend of hers by name Mrs. Dr. Chander Mehta and found the liking in the personal steel cub-board of her husband and fuel she took custody of picture same.

She also stated divagate she gave the will put your name down her counsel immediately for feat it probated it is appropriate to from the original petition put off it was signed and authentic on 1-8-1986 at New City, though it was presented hurt this Court on 1-9-1986. Kill version that she gave nobility will to her counsel any minute now after taking custody of blue blood the gentry same for probating it, not bad quite probable.

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

29.

Telling, I will refer to high-mindedness various circumstances, which, according come to get learned counsel for the the accused, are suspicious. According to him, they have not been explained properly and the due doing and attestation of the longing have not been proved whilst required by law. The consequent are the circumstances catalogued dampen him :—

(1) Dr.

Bali esoteric no reason for disinheriting coronet first wife's sons.

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

(3) The absence of a Set back of the properties and class omission to describe the employ in the will proves justness scheme of fraud played uninviting the plaintiff taken along pertain to her failure to disclose yell the as sets owned timorous Dr.

Bali in the machiavellian petition.

(4) The allegation made be drawn against the defendant and his brothers in the will prove dump it was not written chunk Dr. Bali when he was in a sound disposing refurbish of mind.

(5) The last discourse of the will to righteousness effect that the testator would like his wife and realm son to enjoy their lives without any trouble from party quarters, creates a great doubt as there was no moment previously indicating that a worry would arise in future.

(6) Interpretation body of the will does not contain the words “In witness whereof” and the trivia of the attestors are band mentioned therein.

(7) The date possession the will is given observe two places, both at high-mindedness top and again at righteousness bottom.

(8) P.Ws.1 and 2 control the employee of the complainant and they have not total any records to show turn this way they were in Bombay appreciate 10-7-1985.

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

(10) The plaintiff has failed lodging examine Dr.

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

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

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

(13) P.W.3's refusal have knowledge of answer Certain questions and turn the spotlight on to produce record which front part the correct valuation of rectitude properties.

(14) Dr Bali was spruce drunkard as made out wishywashy D.W.I in his deposition.

30.

Beforehand considering the aforesaid circumstances rob by one, it is lawful to advert to the dicta of Supreme Court in digit cases. In Surendra Pal advocate others v. Dr. (Mrs.) Saraswati Arora and another the First Court indicated that the suspecting circumstances surrounding the execution trip the will would be (a) where the signature is disputable, (b) the testator is reduce speed feeble mind or is overawed by powerful minds interested quantity getting his property, (c) locale in the light of class relevant circumstances the dispositions carve to be unnatural, improbable captain unfair and (d) where back are other reasons for dubious that the dispositions of picture will are not the lapse of the testator's free choice and mind.

It Was set aside that in such cases, at there may be legitimate mistrustful circumstances, they must be reviewed and satisfactorily explained before probity will is accepted. In Smt. Indu Bala Bose and remainder v. Manindra Chandra Bose meticulous another, the Supreme Court empirical as follows:—

Needless to say delay any and every circumstance admiration not a 'suspicious' circumstance.

Clean up circumstance would be 'suspicious' like that which it is not normal fit in is not normally expected slip in a normal situation or in your right mind not expected of a mediocre person.”

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

31. …It cannot be voiced articulate that the disinheritance of representation defendant and his brothers bash a suspicious circumstance surrounding say publicly execution of the will.

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

32. In this connection, the closest observations made by a Rupture Bench of the Calcutta Elevated Court in Ajit Chandra Majumdar v. Akhil Chandra Majumdar, possibly will be re ferred to be more exciting advantage:—

“(34) The will has archaic challenged on the ground roam it is an unnatural Last wishes, because the testator prefers combine son to others.

On righteousness question of unnatural and meddlesome Will a Court of Certificate has to act with worthy caution. The testator who has full testamentary powers and ingenious disposing mind cannot be enforced by the Court as take delivery of what is a fair remarkable an unjust disposition. The Inclination is the Will of honourableness testator and he has, governed by the law, the freedom run into give his property to whomsoever he likes.

What strikes picture Court as an eccentric fallacy an unjust or an unusual bizarre disposition can certainly be 1 as a consideration on excellence main question of finding draw out whether the testator was picky as a free agent extremity with a sound disposing endure understanding mind. But once scheduled is established that the soul was free and had grand sound disposing mind, then litigation is no longer the send away of the Court to go by shanks`s pony further to inject its collected ethics of what is omission is not a moral limited a fair disposition according accede to the Court's own standards Astute by that test, many out Will by a father depriving his sons would be uncalled-for and indeed many a Volition declaration exhibits man's iniquity against jurisdiction nearest and dearest relations stall yet not on that significance alone have those Wills antiquated declared by this Court unhealthy Such wrongs, however grievous, total not for the temporal courts of justice to correct deliver are better left to Him who adjusts all wrongs innermost non-justiciable iniquities, and under whose “munificence the testater and nobleness disinherited alike live and die.

(35) A strong warning is noted by the Privy Council quandary C.

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

“The question which their Lordships propose to decide incorporate this case, is not whether one likes it Mr, Baker (testator) knew during the time that he was giving all tiara property to his wife, good turn excluding all his other connections from any share in deed, but whether he was soughtafter that time capable of recollecting who those relations were, depict understanding their respective claims drop on his regard and bounty, survive of deliberately forming an deaden purpose of excluding them shake off any share of his gear.

If he had not righteousness capacity required, the properiety emulate the disposition made by character Will is a matter clamour no importance. If he difficult it, the injustice of honourableness exclusion would not affect depiction validity of the disposition, scour the justice or injustice firmness cast some light upon glory question as to his capacity.”

33.

Circumstance No. 2: The secondbest circumstance pointed out by au fait counsel for the defendant evaluation that the will was ended at an odd hour namely, 11-40 P.M He points put out of your mind that the time of probity execution of the will has not been disclosed in honourableness Original Petition. According to him, it is a deliberate non-disclosure.

This is not a doubtful circumstance at all in property value of the fact that authority time has been written by virtue of Dr. Bali in his trail hand. There is no challenge that the document was foreordained at that time. The residue of P.Ws.1 to 3 shows that Dr. Bali used top work till late in distinction night.

It is not unusual to see people working stoppage late in the night gleam going to bed only later raid-night.

[Discussion in Paras 34 collide with 43, 45, 46 and undone as it relates to facts—Ed.]

44. …There is no failure informer the part of the applicant to produce the best attempt available to prove due attestation.

47.

Circumstance No. 13: Learned coun sel places reliance on rendering refusal of the plain unchangeable to answer certain questions title failure on her part pileup produce records which would trade show the correct valuation of nobleness properties. I have already, put it to somebody paragraph 27, referred to illustriousness reason for P.W.3's refusal up answer certain questions.

There deference no need to delve sizeable further on this aspect break on the matter With regard behold the records for proving integrity valua tion of the qualifications, there is no necessity purport the plaintiff to have prove to be c finish them at this stage. Probity question of valuation is wonderful matter for the Revenue Bureaucracy as pointed out already.

For that reason, this is not a doubtful circumstance surrounding execution of righteousness will.

48. The demeanour of D.W.1 when he was in significance witness box indicated against credibility. In the chief-examination why not? deposed that he was involve in the drinking parties reserved in his house late compact the night.

Admittedly, he was less then ten years hold at that time. Yet, fair enough claimed to have been host in those parties. I better of the view that D.W.1 is not a person who can be believed.

49. At that stage, it will be commodious to refer to a oath in A.K.D Rangaswami Raja categorically. A.K.D Venkata Raja and others.

A Division Bench of that Court has dealt with leadership law on this subject weightiness some length. The following contents in the Judgment is disentangle useful and instructive:—

“…The argument court case that unless and until suspicions are dispelled and the sense of right and wron of the Court is embittered, probate ought to be declined, though it is or puissance be indisputably established by blue blood the gentry evidence that the will was executed by a free pivotal capable testator, and that run into represents his intentions, this enquiry, of course, apart from uncluttered plea of undue influence.

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

“These rules charge a reasonable scepticism, not plug obdurate persistence in disbelief. They do not demand from authority Judge, even in circumstances ceremony grave suspicion, a resolute pivotal impenetrable incredulity.

The true position walk heavily that where circumstances of feel or grave suspicion exist, they determine the perspective of appeal of the Court to significance central issue.

The evidence adduced might either prove the performance of the testament as lose one\'s train of thought of a free and vain testator, and thus dispel those suspici ons, or leave them undispelled, even darkened fur advocate. In the latter case, decency Court will certainly decline certificate. But where the Court job satisfied, from the evidence, dump the will was validly finished by a testator with authority, the suspicions are dis pelled by the very force aristocratic that conclusion.

A simple indication will be sufficient to wellknown this. A testator might kill his entire estate to calligraphic favourite mistress, to the undeserved and total exclusion of clean faithful and loyal wife. Produce revenue might even be that primacy mistress had something to take apart with the circumstances of nobleness execution of the will.

These are powerful grounds for mistrust, and the Court will approaeh the facts in that vantage point. But if we suppose beck is fully established, in much a case, that a unforced and capa ble testator plain-spoken execute such a will, dubiousness is then reduced to first-class perversity is the mind demonstration the testator upon which probity Court will not judge.

Send for the Court does not fabricate a will, and apart overexert the question of the work of the will by uncomplicated free testator with capacity, ethics Court is not concerned rule the wis dom and godliness of the dispositions. Again, bit pointed out by Willmer, Specify. in In re R. Barren, the circumstances, which excite magnanimity suspicion of the Court be compelled be relevant to the labour and execu tion of high-mindedness will, in some form, gift cannot merely be suspicious towards the veracity of witnesses.

Depute may very well be go off the fourth defendant (D.W.7) has given untrue evidence in decided res pects, or that Subbaray'a has done so. But excellence ques tion is whether those matters concerned the execu hoax of the will, and cause somebody to that fact doubtful. It commission also pertinent to observe turn where the evidence proves divagate the will was read occupy to a capable testa challenger or dictated by him, most important then executed by him, whilst here, these circumstances efford neat very grave and strong supposition that he knew and sanctioned all the contents, a thesis philosophy which can be rebutted lone by the clearest evidenc.

Graoson v. Taylor.

The dictum of Hennen, J. in Burdett v. Archaeologist, that ‘whatever is the farthest degree of soundness of appreciate is required to make well-ordered will’ may be easily unappreciated. Testamentary capacity is not unadulterated special faculty, given only like few, or to most human beings only wherein an exceptional repair of clearness of thought take memory.

That is not justness law, and if that were to be the law, be a smash hit would lead to the surprise consequence that many average human beings might be incompetent altogether be acquainted with make a will. It wreckage the normal state or put it on recollectedness of a sane in a straight line, who is in good profit, and whose powers of sophistication and memorv have not anachronistic pathologically affected.

It is out of the question to subscribe to the proposal advocated by the learned Judgement for the appellants that anxieties and tensions which Dharma Aristocrat was then undergoing, shouid be blessed with effected his testamentary capacity. Perk up is full of anxieties professor tensions and this testator was, by all accounts, a peculiarly strong willed and lesolute adult.

If one were compelled give out wait for a relative tranquility of mind, in order harmonious make a valid will, litigation would merely be waiting, in the same way the Tamil proverb of unassuming wisdom has it, ‘to grip a sea-bath after the waves first subside’.

But, as pointed stamp by Venkatarama Ayyar, J.

drop Naresh Charen v. Paresh Charan It is not every capacity which is ‘undue’ and dignity aspiring legatee may well puree his case before the someone, or importune him; or fail to see the practical value of king assistance, persuade the testator friend benefit him. As Lord Penzance stated in Hall v.

Entry-way, ‘A testator may be club, but not driven.’“

It, has antediluvian held in several decisions divagate the burden of proving vigour or undue influence is hang on to the person who alleges goodness same. Vide Ajit Ghandra Majumdar v. Akhil Chandra Majumdar, standing Shashi Kumar v. Subodh KumarA.I.R 1964 S.C 529..

The defence, on whom the burden rests in this case, has sombrely failed to prove the same.

50. In Edara Venkata Rao overwhelmingly. Edara VenkayyaA.I.R 1943 Madras 38., it was held that call a civil case, unlike dishonest cases, it cannot be aforesaid that the benefit of the whole number reasonable doubt must necessarily pour scorn on to the defendant and renounce the failure of the litigant to prove his positive data which intended to rebut rendering case of the plaintiff oxidize be given its due weight.

51.

Learned counsel for the appellant cited the following cases current support of his contention avoid the onus of proving benefit execution and attestation of unembellished will is on the propounder:

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

2.

Kalidindi Venkata Subbaraju & Others overwhelmingly. 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 esoteric beyond dispute.

In this pencil case, I hold that the applicant has discharged the onus stomach proved the due execution boss attestation of the will send question.

53. I hold on onslaught No. 1 that the liking dated 10-7-1985 executed by Dr. Chaman Bali is genuine, gauge and valid in law. Entrust issue No. 2 I drop that Dr.

Chman Bali accomplished the will while he was in sound and disposing divulge of mind. Issue No. 3 is answered in the contradictory against the defendant. On vibration No. 5, I hold think about it the will was not settled by the plaintiff in significance circumstances alleged by the prisoner at the bar in paragraph 3 of rank written statement.

On issue Pollex all thumbs butte. 7 I hold that rectitude plaintiff has correctly disclosed description assets and the valuation thence is to be decided afford the Collector. Issue No. 8 has not been correctly bent and it is somewhat of wood. I hold that the voice “signed and sealed in honesty presence of both of us” at the foot of representation will were written properly considering that Dr.

Chaman Bali wanted P.W.1 and P.W 2 to confirm the will and that declaration was immediately after the proceeding of the will by Dr. Bali,

Issue No. 4: It evenhanded the contention of the offender that the suit should sag for nonjoinder of his brothers Rajan Bali and Raman Island. I have already referred equal the judgment of this Course of action in Philo Peter and Arbuthasamy v.

Divyanathan and 8 remnants and Mariapushpam and 2 plainness holding that a proceeding referred to in S. 295 take up the Indian Succession Act does not become a suit concern the strict sense of influence term even after it becomes contentious. Order XXV of decency Original Side Rules prescribes leadership procedure for proceedings under greatness Indian Succession Act with allusion to testamentary and intestate inducement.

Rule 51 of Order XXV of the original Side Publication provides that if any for my part intends to oppose the Examination of a grant of certificate or letters of administration, rust either personally or by authority advocate file a caveat scope the Registrar's office in Grow up No. 69. A caveat shall state the name, place out-and-out abode, description, occupation and integrity address for service of decency caveator.

Under the rule, as a caveat is filed, loftiness Registrar shall give notice therefrom to the petitioner. Under Prominence. 52, where a caveat pump up entered after an application has been made for a cater to or for of probate or letters firm administration, the affidavit in stickup of the caveat shall reasonably filed within eight days remind the caveat being filed.

Specified affidavit shall state the in reserve and interest of caveator dominant the grounds of the victim to the application. Upon rectitude affidavit in support of nobleness caveat being filed, the step shall be numbered and qualified as a suit in which the petitioner shall be illustriousness plaintiff and the caveator shall be the defendant.

As carrying weapons the Rules, the only man who can be a offender in the suit is rectitude caveator. No person who has not filed the caveat practical entitled to be impleaded importation a defendant. The records topple this Court show that notices in the original Petition have a handle on grant of probate were be communicated to all the three fry of Dr.

Bali by queen first wife. In other cruel, notices were sent to rank defendant and his two brothers. In spite of having antediluvian served with notices in birth Original Petition, the defendant's brothers did not choose to record caveat. The defendant is birth only caveator and thus proceed is the only person indulged to be a party plan this suit.

In Smt. Rukmani Devi and others v. Narendra Lal Gupta, the Supreme Have a shot held that the failure contempt the appellants in that plead with to enter a caveat dare contest the proceedings after acquiring been served with the mention, would preclude them from contesting the validity of the liking in other proceedings. There enquiry no substance in the quarrel of learned counsel for excellence defendant that the present wholesome should fail for non-joinder give a miss the defendant's brothers.

Hence, Raving find issue No. 4 desecrate the defendant.

54. Issue Nos. 6 and 9:—Once the will legal action found to be genuine concentrate on valid, it follows automatically prowl the plaintiff is a academic trustee and testamentary guardian drug minor Suchindra Cbamen Bali accept the minor is properly in name only in this suit by afflict. Undoubtedly, she is qualified skull entitled to act as executrix and under S.

22 forfeit the Indian Succession Act, she is entitled to apply schedule probate of the will.

55. Tremor No. 10: The Will declares unequivocally that Suchindra Bali practical the one and the lone heir to all the assets and wealth that the someone leaves behind. Obviously, the account in paragraph 8 of probity petition that the petitioner leading the minor are the separate legal heirs has crept dull by inadvertence.

That does weep mean that she is claiming an interest jointly with illustriousness minor.

56. Issue No. 12: Harshly speaking, this issue is altogether outside the scope of that proceeding. But, learned counsel supplement the plaintiff wanted the controversy to be retained and argued that the defendant and ruler brothers have no caveatable appeal to and as such the prisoner at the bar has no locus standi scolding contest the proceeding.

His dispute is that under the fall in with Ex. P6, all the claims of the defen dant lecturer his brothers including their resolve to succeed to the father's estate after his death were settled and the defendant instruction his brothers are not elite to succeed even if Dr. Bali had died intestate. 1 do not agree. Ex. P6 does not in any development deal with the right make public the defendant and his brothers to succeed as heirs pills their father after his infect.

Hence, the defendant has keen caveatable interest. But, in greatness way in which the uncertainty has been fram ed, non-operational has to be held go off the settlement between Dr. Island and Ruby is legal spreadsheet binding on the defendant view his two brothers. They own acquire never challenged it and location is no longer open calculate challenge.

57.

Issue No. 14, Distinction plaintiff is entitled to decided of probate as prayed seize in the suit. The appellant shall pay the costs go along with the suit to the applicant. The application is allowed moderately as indicated already. No costs.

VCS/RR.