Bombay High Court
Mahesh Mithalal Trivedi. vs Dinesh Jethalal Soni. on 26 March, 2026
2026:BHC-OS:7468
TS-59-2008.doc
Priyanka
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
TESTAMENTARY SUIT NO.59 OF 2008
Madhavi alias Madhaviben
Dhirajlal Sagar ... Deceased
Mahesh Mithalal Trivedi
Hindu Inhabitant of Mumbai
residing at Room No.23, A Block,
1st Floor, 202-D, Prekh Wadi, V.P.
Road, Mumbai - 400 004,
being the sole Beneficiary named
under the Will of the deceased ... Petitioner/Plaintiff
v/s.
1. Dinesh Jethalal Soni,
Age - 63 years, Indian Inhabitant,
residing at E-804, Sumer Castle,
Castle Mill Compound, Near
Vikas Complex, Thane (W) - 400 601.
2(a). Kishor Kantilal Vaya
Age : 58 years, of Mumbai, Indian Inhabitant,
Residing at 501-A, Parimal Co-op. Housing
Society Ltd., Juhu Lane, Andheri (West),
Mumabi - 400 058.
2(b). Suresh Kantilal Vaya
Age : 57 years, of Mumbai, Indian Inhabitant,
Residing at Plot NO.7 & 8, Hem Colony,
Tulsidham Building, 3rd Floor,
S.V. Road, Vile Parle (West),
Mumbai - 400 056.
2(c). Pradeep Kantilal Vaya
Age : 53 years, of Mumbai, Indian Inhabitant,
Residing at Flat No.17, 5th Floor,
153/ Shri Krupa Prasad Housing
Digitally
signed by
SUMEDH
SUMEDH NAMDEO
NAMDEO SONAWANE
SONAWANE Date:
1
2026.03.27
15:55:03
+0530
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Society Ltd., Behding Sony Mony,
S.V. Road, Vile Parle (West),
Mumbai - 400 056. ... Caveators/Defendants
WITH
CAVEAT NO.139 OF 2015
IN
TESTAMENTARY SUIT NO.59 OF 2008
WITH
INTERIM APPLICATION NO.8117 OF 2025
IN
TESTAMENTARY SUIT NO.59 OF 2008
WITH
INTERIM APPLICATION NO.8118 OF 2025
IN
TESTAMENTARY SUIT NO.59 OF 2008
WITH
COURT RECEIVER'S REPORT NO.66 OF 2023
IN
TESTAMENTARY SUIT NO.94 OF 2011
WITH
TESTAMENTARY SUIT NO.94 OF 2011
IN
TESTAMENTARY PETITION NO.401 OF 2011
Mr. Aum J. Kini i/by Ms. Sapna Krishnappa for the Plaintiff in
TS/94/2011.
Mr. T.A. Vora a/w. N.R. Gandhi for the Plaintiff in TS/59/2008.
Mr. Udayan Shah i/by Tulsi Shah for Defendant Nos.2A to 2C in
TS/59/2008 and TS/94/2011.
Mr. K.K.Trivedi, Court Administrator.
Mrs. Nandini Deshpande, 1st Asst. to Court Receiver.
CORAM : KAMAL KHATA, J.
RESERVED ON : 28TH JANUARY 2026.
PRONOUNCED ON : 26TH MARCH 2026.
JUDGMENT:
1) By this Testamentary Petition, the Petitioner, Mahesh
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Mithalal Trivedi (Mahesh) seeks Letters of Administration with the
Will annexed in respect of the estate and credits of one late
Madhaviben Dhirajlal Sagar. Mahesh claims to be the sole beneficiary
under the said Will.
2) Upon a Caveat being filed by Dinesh Jethalal Soni, the
nephew of Madhaviben, opposing the grant of probate, the Petition
stood converted into Suit No. 59 of 2008.
Petitioner/Plaintiff’s Case:
3) Madhaviben Dhirajlal Sagar (Madhaviben) died in Bombay
on 27th August 2007. At the time of her demise she was residing at
31/A Madhav Bhuvan, (Sagarsamarat), 2nd floor, Maharshi Karve
Road, (Queen’s Road) Opposite Charni Road Railway Station, Mumbai –
400 004.
4) Madhaviben executed her last Will and testament dated
29th December 2006 at Mumbai.
5) Madhaviben’s husband pre-deceased her; the couple was
issueless; and that the parents of both Madhaviben and her husband
had also pre-deceased them.
6) The Petition further states that the deceased left no heirs in
Class I to Class IV and (Entries 1 to 8) and that the Petitioner has no
knowledge of any person claiming to be an heir of the deceased or her
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husband. On this basis, the Petitioner seeks grant of Letters Of
Administration in his favour. This Petition was instituted on 19th
November 2007. Two attesting witnesses filed their affidavits in
support of the said petition. One is filed by Ramswaroop Jethmalji Soni
and the other by Paresh Sitaram Brahmabhatt both dated 3 rd
November 2007.
7) On 17th June 2008, Dinesh Jethalal Soni, the nephew of
Madhaviben, claiming to be a Trustee under Madhaviben’s Will dated
17th May 2004, lodged a caveat along with an affidavit in support
thereof. The Caveator asserts being in possession of a Will dated 17th
May 2004 and alleges that the Will propounded by the Petitioner is
fabricated.
8) It is further contended that the Petitioner has no
relationship whatsoever with Madhaviben and is seeking to
appropriate the entire estate on the basis of certain documents.
According to the Caveator, the Will dated 17th May 2004 is a genuine
and operative testament, under which he has been appointed as a
trustee of the estate.
9) The Caveator further alleges that the nephews were
neither disclosed in the Petition nor furnished with a copy of the
alleged Will of 2006.
10) It is alleged that the Plaintiff lodged criminal complaints on
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24th April 2010 at the local police station and subsequently before the
learned Metropolitan Magistrate against the executors of the earlier
Will dated 17th May 2004, as well as against the nephews, attesting
witnesses and their Advocate. Pursuant to these proceedings, the
Caveator states that he was arrested on 27th October 2010 and
remained in custody until his release on 11th November 2010, during
which period he and his family were subjected to considerable physical
and mental distress. According to the Caveator, these proceedings
were initiated with the ulterior motive of intimidating him into
withdrawing his Caveat.
11) On 25th January 2011, the Caveator, who is a Defendant in
the present Suit, filed an Affidavit dated 11th January 2011,
withdrawing his Caveat to the grant of probate in favour of the
Plaintiff.
12) In the said Affidavit, the Caveator states that he is unaware
of the origin or execution of the alleged Will dated 17th May 2004, and
that he had filed the Caveat solely on account of being named as a
trustee therein.
13) The Caveator also made a statement that upon making
inquiries with the purported attesting witnesses to the said Will, he
was informed that their signatures had been obtained in the year 2008
at the instance of one Deepak Sagar, the nephew of Madhaviben.
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14) In the aforesaid backdrop, an Order dated 16th April 2012
came to be passed whereby this Court, by consent of the parties,
permitted the heirs of the deceased in Testamentary Suit No. 94 of
2011 to be treated as Caveators in the present Suit and to cross-
examine the Plaintiff and his witnesses. By the same Order, and having
regard to the pleadings on record, this Court framed the following
issues:
i) Whether the Will of the deceased Madhaviben
Dhirajlal Sagar dated 29th December 2006 was
validly executed?
ii) Whether the said Will was forged or fabricated?
iii) Whether the Will of Madhaviben D Sagar dated 17 th
May 2004 was validly executed?
iv) Whether the said will was forged and fabricated?
v) What relief if any other parties entitled to?
15) The Court held that since the Will dated 29th December
2006 is the later testament propounded by the Plaintiff, the burden lies
upon him to prove its due execution in the first instance and was
directed to file his Affidavit of Examination in Chief as the propounder
of the later Will dated 29th December 2006.
16) On 23rd June 2015, Smt. Champaben Kantilal Vaya (now
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raising objections to grant of probate to the Plaintiff. Consequently, she
was arrayed as Defendant No.2. After her death her legal heirs 2(a) to
2 (c) were brought on record by an order dated 25th July 2017.
Rival Submissions:
17) Mr. Vora, learned Advocate for the Plaintiff, submitted that
the Will dated 29th December 2006 was duly executed by the testatrix
in the presence of two attesting witnesses and Dr. Sudhir Shah, all of
whom were present at the same time and place. He contended that the
attesting witnesses identified the document as the Will dated 29th
December 2006 and proved the signatures of the testatrix as well as
their own signatures appearing thereon. It was further submitted that
Dr. Sudhir Shah had issued a medical certificate dated 29th December
2006 certifying that the testatrix was of sound and disposing mind,
which certificate forms part of the original Will.
18) In support of these submissions, reliance was placed on the
deposition of Mr. Ramswaroop Soni recorded before the learned
Commissioner, particularly answers to Question Nos. 111 to 117
(pages 46-47), Question Nos. 118-119 and 135 (pages 47-50), and
Question Nos. 265-266 (pages 82-83) of the Commissioner’s Report.
Mr. Vora further relied upon portions of the cross-examination of Mr.
Ramswaroop Soni, particularly Question Nos. 66-71 (pages 138-139),
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Question Nos. 90 and 91 (page 142), Question Nos. 112 and 114 (pages
147-148) of the Commissioner’s report, to submit that the presence of
Dr. Sudhir Shah at the time of execution, as well as the sound condition
of the testatrix, stood duly established.
19) Mr. Vora next relied upon the evidence of the second
attesting witness, Mr. Paresh Brahmabhatt, particularly answers to
Question No. 62 (page 178), Question Nos. 97, 99, 103 and 104 (pages
186-187), Question Nos. 109, 110, 119, 120, 122, 133 and 134 (page
191), Question Nos. 125, 137 and 141 (pages 198-199), and Question
Nos. 175 and 176 (page 208) of the Commissioner’s Report. It was
submitted that the testimony of both attesting witnesses remained
consistent and unshaken despite extensive cross-examination, and
that due execution and attestation stood proved in accordance with
law.
20) Mr. Vora further relied upon the evidence of Mr. Jonathan
Solomon Raymond, learned Advocate for the deceased. It was
submitted that Mr. Raymond had been in practice for over four
decades in this Court and had represented Madhaviben and her
husband since 1992 in various litigations. After the demise of Dhirajlal
Sagar, Madhaviben instructed him to continue conducting her matters
and informed him that Mr. Mahesh Trivedi would follow up the
proceedings on her behalf. For that purpose, a Power of Attorney came
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to be executed in favour of Mr. Trivedi in December 2004.
21) It was further submitted that in May 2006, Madhaviben
called Mr. Raymond to her residence and gave detailed instructions for
preparation of her Will. According to the witness, she clearly expressed
her intention to bequeath her entire estate to Mr. Mahesh Trivedi and
specifically instructed that none of her relatives should receive any
part thereof. The draft Will was prepared accordingly and discussed on
more than one occasion. In December 2006, she informed Mr.
Raymond that she was ready to execute the Will. The names of the
attesting witnesses were inserted on 28th December 2006. She had
also informed him that she had requested Dr. Sudhir Shah to issue a
medical certificate regarding her health condition.
22) Mr. Raymond deposed that on 29th December 2006,
Madhaviben collected the draft Will from his office in the morning and
returned later that evening with the duly executed Will together with
the medical certificate. At her specific request, the Will was stitched
with red thread instead of the usual green thread. In January 2007,
she handed over to him two sealed envelopes containing the original
Will and a photocopy thereof, with instructions that the same be
opened 10 to 15 days after her demise in the presence of Mr. Mukesh
Shah and Mr. Mahesh Trivedi. After her death, meetings were held on
26th and 28th September 2007, at which the Will was opened and read
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out in the presence of the persons named. Reliance was also placed on
the Minutes of Meeting dated 28th September 2007.
23) Mr. Vora submitted that minor inconsistencies elicited in
cross-examination of Mr. Raymond do not detract from the core of his
testimony, which clearly establishes that the Will was drafted strictly
in accordance with the instructions of the testatrix.
24) Mr. Vora also relied upon the evidence of the propounder,
Mr. Mahesh Trivedi. It was submitted that he had longstanding
business dealings and close personal association with the deceased and
her husband. During the illness of Dhirajlal Sagar in 2003, and
thereafter during Madhaviben’s hospitalization in 2004, Mr. Trivedi
assisted them and claims to have borne certain medical expenses. A
tenancy agreement dated 21st July 2004 was executed in his favour in
respect of Flat No. 6 in the building. He was also appointed as
constituted attorney in December 2004 in respect of pending
litigations.
25) It was further submitted that upon the demise of
Madhaviben on 27th August 2007, Mr. Trivedi informed the concerned
authorities, organised the funeral rites, and bore related expenses.
Meetings were subsequently held in September 2007, when the Will
was opened and read. The present Petition was filed on 19th November
2007. Correspondence thereafter ensued with the nephews, who
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claimed possession of an earlier Will dated 17th May 2004. It was also
pointed out that a suit subsequently filed by the nephews in the City
Civil Court came to be dismissed on 13th December 2012, the Court
holding that there was no cogent evidence of trespass or encroachment
by Mr. Trivedi.
26) Mr. Vora invited attention to the cross-examination of Mr.
Mahesh Trivedi to emphasise certain aspects of his conduct and
association with the deceased. In relation to the tenancy agreement
dated 21st July 2004, it was submitted that the same was executed in
the office of the Advocate for Madhaviben, with two witnesses
arranged by her and two by Mr. Trivedi (answers to Question Nos. 73
and 74, page 389). It was further submitted that on that date
Madhaviben was ambulatory with the support of a stick and was not
physically incapacitated (answers to Question Nos. 76 to 79 and 90).
27) Mr. Vora also referred to correspondence received from
Advocate Bhavesh Parmar enclosing a photocopy copy of the alleged
Will dated 17th May 2004, under which Mukesh Shah, Dinesh Soni
and Narendra Shah were shown as beneficiaries (answers to Question
Nos. 82 to 86, pages 390-391). Reference was further made to
answers to Question Nos. 93 to 96 (page 392) to show that Advocate
Raymond had been introduced to Mr. Trivedi by Dhirajlal Sagar in
1997 and that Mr. Gandhi was first introduced at the time of opening
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of the Will on 28th September 2007.
28) It was also submitted that under the Power of Attorney
executed in December 2004, Mr. Trivedi had deposed on behalf of
Madhaviben in two proceedings before the Small Causes Court
(answers to Question Nos. 112 and 120). Hospital records were relied
upon to demonstrate that he had admitted Madhaviben to Bhatia
Hospital on 17th May 2004 and had borne the hospital, ambulance and
funeral expenses (answers to Question Nos. 121, 123, 125, 131 and
132). It was further contended that on 26th August 2007 she was in
stable condition (answers to Question Nos. 71 and 72), and that the
present Petition was filed on legal advice (answer to Question No. 80,
page 432).
Issue-wise submissions of Mr. Vora
29) Issue No. 1: Whether the Will dated 29th December 2006 of
deceased Madhaviben Dhirajlal Sagar was validly executed?
i. Mr. Vora submitted that the Will dated 29th December
2006 was validly executed by Madhaviben at her
residence, Flat Nos. 4 and 5, Madhav Bhuvan, Opposite
Charni Road Railway Station, Mumbai – 400 004, in the
presence of two attesting witnesses, namely Mr.
Ramswaroop Soni and Mr. Paresh Brahmabhatt, and
also in the presence of Dr. Sudhir Shah. It was
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contended that the execution and attestation were
carried out in the simultaneous presence of all
concerned.
ii. It was further submitted that at the time of execution,
Madhaviben was in a sound and disposing state of mind,
fully conscious, and acting of her own free will, without
any coercion or undue influence. The attesting witnesses
have deposed that the testatrix signed first, followed by
Mr. Ramswaroop Soni and thereafter Mr. Paresh
Brahmabhatt. Dr. Sudhir Shah issued a certificate
certifying her to be of sound mind and disposing
capacity, and his presence at the time of execution was
identified in the cross-examination of Mr. Brahmabhatt.
iii. Mr. Vora submitted that although Dr. Sudhir Shah
expired on 5th August 2009 before his evidence could be
recorded in Testamentary Suit No. 59 of 2008, the
essential facts regarding execution and mental capacity
remain unrebutted. It was contended that the
Defendants have failed to elicit anything in cross-
examination to discredit the testimony of the Plaintiff’s
witnesses, nor have they led any independent evidence
to establish that the Will is false or fabricated.
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iv. It was further submitted that the Defendants have failed
to substantiate their allegations that the Will dated 29th
December 2006 was forged, fabricated, or brought about
by undue influence.
v. On the basis of the evidence of the five witnesses
examined by the Plaintiff, it was contended that the Will
stands proved in accordance with Sections 59 and 63 of
the Indian Succession Act, 1925. According to Mr. Vora,
the due execution and attestation of the Will have
remained uncontroverted and stand duly established.
30) Issue No. 2: Whether the Will dated 29th December 2006
was forged and fabricated?
i) Mr. Vora submitted that Mr. Mukesh Shah, who is
stated to be the propounder of the earlier Will dated
17th May 2004, has neither filed a caveat opposing
the grant of probate in respect of the Will dated 29th
December 2006 nor offered himself for cross-
examination.
ii) It was further submitted that the only witnesses
examined on behalf of the Defendants were Mr.
Kamlesh Ginandra and Mr. Deepak Sagar. According
to Mr. Vora, neither witness was able to controvert
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the Plaintiff’s case regarding the execution of the
subsequent Will. It was contended that no cogent
evidence has been produced to establish that the Will
dated 29th December 2006 is forged or fabricated,
and that the Defendants have failed to discharge the
burden of proving such allegation.
iii) Lastly, Mr. Vora submitted that the Will dated 29th
December 2006 presently stands uncontested. He
pointed out that, by Consent Terms dated 11th July
2025 executed between the Plaintiff and Defendant
Nos. 2(a), 2(b) and 2(c), the said Defendants have
withdrawn their caveats in the present Suit. He
further submitted that Defendant No. 1, Mr. Dinesh
Soni, had earlier withdrawn his caveat by an Affidavit
dated 14th January 2011.
31) In these circumstances, it was contended that there is no
subsisting opposition to the grant of probate and, consequently, the
Plaintiff is entitled to probate of the said Will in accordance with
Section 276 of the Indian Succession Act, 1925.
32) Reliance is placed on the following judgements in support of
his aforesaid contentions.
i. Iswarbhai C. Patel Alias Bachubhai Patel Vs. Harihar
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Behera and Anr1
ii. Madhukar D. Shende Vs. Tarubai Shende2
iii. Meenakshi Ammal (Dead) through LRs & Ors. Vs.
Chandrasekaran & Anr.3
iv. Daulatram & Ors. Vs. Sodha & Ors.4
v. Pentakota Satyanarayana. & Ors. Vs. Pentakota
Seetharatnam & Ors.5
vi. Savithri & Ors. Vs. Karthyayani Amma & Ors.6
vii. Man Kaur Vs. Hartar Singh Sangha7
viii. Mahesh Kumar (Dead) by LRs Vs. Vinod Kumar &
Ors.8
ix. Rustom Minoo Seth Vs. Freddy Dinshaw Birdy9
x. Iqbal Basith & Ors Vs. N.Subbalakshmi & Ors.10
xi. Saroj Kumar Chatterjee11
xii. Derek AC Lobo Vs. Ulric MA Lobo12
xiii. Shonali Kedar Dighe Vs. Ashita Tham13
xiv. Leela and Ors. Vs. Muruganantham and Ors.14
33) Per contra, Mr. Kini, learned Advocate for the Defendants,
1
1999 3 Supreme Court Cases 457
2
(2002) 2 SCC 85
3
(2005) 1 SCC 280
4
(2005) 1 SCC 40
5
(2005) 8 SCC 67
6
(2007) 11 SCC 621
7
(2010) 10 SCC 512
8
(2012) 4 SCC 387
9
TS No.225 of 2015 dated 21.12.2026 BHC
10
(2021) 2 SCC 718
11
2021 AIR CC 3097
12
2023 SCC Online SC 1893
13
AIR 2024 (NOC) 242 BOM
14
(2025) 4 SCC 289
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being the heirs of Madhaviben, vehemently opposed the grant of
Letters of Administration along with the Will dated 29th December
2006 on the grounds of suspicious circumstances surrounding its
execution.
34) It submitted that the estate of the deceased comprises
three buildings situated opposite Charni Road Railway Station,
Mumbai, namely: (i) Varsha (ground plus three upper floors), (ii)
Roshni (ground plus one upper floor), and (iii) Sagarsamrat (ground,
mezzanine and five upper floors). According to him, the estate is of
considerable value, running into several crores of rupees. He
submitted that Dhirajlal Sagar and Madhaviben Sagar, a childless
couple, were the admitted owners. Dhirajlal Sagar expired on 20th
April 2004 and Madhaviben on 27th August 2007.
Issue-wise submissions by Mr. Kini Defendant’s Advocate.
35) With regard to the first issue: whether the Will dated 29 th
December 2006 was validly executed, Mr. Kini submitted that two
Wills are in question. The first is a ten-page handwritten Will dated
17th May 2004, signed on each page in Gujarati and English, by which
the estate is bequeathed largely to charitable purposes. It is attested by
Dilip Suru and Kamlesh Ginandra and appoints trustees, namely
Mukesh Shah, Dilip Soni and Narendra Shah (Ramban), with
discretion to utilise the funds for the purposes stated therein. The
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second is a six-page typed Will in English dated 29th December 2006,
signed only on the last page, under which Mr. Mahesh Trivedi is the
sole beneficiary. It was emphasised that Mr. Trivedi is not a relative
but claims to have acted as a constituted attorney of the deceased.
36) Mr. Kini invited attention to paragraph 8 of the Petition,
wherein it is stated that the deceased had no heirs falling within Class I
to Class IV and that the Petitioner had no knowledge of any such
persons. He submitted that this assertion stands contradicted by the
Plaintiff’s own admission in cross-examination, particularly in answer
to Question No. 86, wherein he acknowledged that Bharat Sagar and
Deepak Sagar are nephews of Dhirajlal Sagar. On this basis, it was
contended that the Petitioner had prior knowledge of the existence of
heirs and that the statement made in the Petition is demonstrably
incorrect.
37) Mr. Kini identified several suspicious circumstances
surrounding the Will dated 29th December 2006, namely:
i. The entire estate being bequeathed to a non-relative who
was at best a constituted attorney;
ii. The Will being typed in English, though the deceased
was accustomed to signing documents on each page,
including the earlier Will and the Power of Attorney;
iii. Signature appearing only on the last page of six loose
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iv. Incorrect recitals regarding possession of portions of
Sagarsamrat, despite existing tenancy agreements and
receipt of substantial consideration;
v. Inaccurate description of several flats as being in
possession of the deceased;
vi. Discrepancy in the date of birth stated in the Will as
compared to income tax records;
vii.The alleged visit of the deceased to the office of Advocate
Raymond on 29th December 2006 despite her physical
condition;
viii. The limited acquaintance of the attesting witnesses
with the deceased;
ix. The absence of any apparent reason for disinheriting
relatives and charities, if the earlier Will were genuine.
38) It was further submitted that if the Will dated 29th
December 2006 were genuine, there would have been no occasion for
the series of criminal proceedings and complaints initiated thereafter.
According to Mr. Kini, these circumstances cumulatively give rise to
grave suspicion regarding the genuineness of the Will.
39) Mr. Kini submitted that the Plaintiff has sought to prove
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the execution of the Will dated 29th December 2006 on the basis of the
oral evidence of four witnesses. According to him, the evidence on
record, far from supporting the Plaintiff’s case, exposes its falsity. He
contended that the depositions are replete with glaring inconsistencies
and material contradictions which, taken cumulatively, establish that
the Will is forged and fabricated and, consequently, not validly
executed.
40) Mr. Kini refers to the evidence of Mr. Ramswaroop
Jethmalji Soni (PW-1), the first attesting witness, and particularly to
his responses given to the following questions during his cross-
examination: Q.3 & Q.158 (pages 13 and 58), Q.28 & Q.71 to 74 (pages
23, 38 & 39), Q.39, Q.51 to Q.54 (pages 25 to 28), Q.80 (page 40),
Q.102, Q.104-105 (pages 44 & 45), Q.114 and Q.197 to 199 (pages 46,
67 & 68), Q.132 & 137 (pages 49 & 50), Q 195 (page 67), Q 202 (page
68), Q 233 (page 76), and Q 322 (page 93) of the Commissioner’s
Report.
41) He submitted that the witness claims to have been
acquainted with the deceased couple and to have visited the residence
of Madhaviben Sagar on 29th December 2006 between 4:00 p.m. and
4:30 p.m., where he allegedly witnessed her signing the Will. However,
according to Mr. Kini, the testimony of this witness is wholly
unreliable, being riddled with material contradictions and inherent
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improbabilities. It was pointed out that, while the witness initially
denied any knowledge of an FIR in relation to the Will, he subsequently
admitted to having filed an Anticipatory Bail Application merely six
days prior to such denial, thereby seriously undermining his
credibility.
42) It was further submitted that the witness gave inconsistent
answers regarding his knowledge of the contents of the Will. While he
initially claimed ignorance as to the identity of the beneficiary, he later
admitted that the Plaintiff was the beneficiary, and further stated that
he became aware that all properties were bequeathed to the Plaintiff on
29th December 2006. According to Mr. Kini, this raises serious doubt
as to whether the witness had, in fact, witnessed the execution of the
Will or understood the nature of the document he purportedly attested.
It was also pointed out that the witness admitted that Madhaviben
Sagar had a servant, which stands in contradiction to the testimony of
Mr. Brahmabhatt.
43) Mr. Kini further submitted that the witness admitted to
having visited the residence of Mr. Mahesh Trivedi at Parekhwadi both
prior and subsequent to the death of Madhaviben Sagar, and to having
business dealings and cordial relations with him, including meeting
him on several occasions. It was therefore contended that the witness
cannot be regarded as an independent witness, but is closely connected
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with the sole beneficiary under the Will.
44) It was also submitted that the witness stated that he
became aware of Madhaviben Sagar’s ownership of three buildings
only 12 to 15 days prior to his deposition, which casts doubt on the
extent of his familiarity with the deceased and her affairs. Further, his
claim that Madhaviben Sagar herself opened the door to admit him was
described as inherently improbable, particularly in light of his own
admission that she was physically handicapped, required the support
of a walking stick, and had limited mobility. According to Mr. Kini, it is
unlikely that a person in such condition would open the door herself,
especially when she had a servant. It was also pointed out that the
witness was unaware whether the Will was executed on stamp paper or
ordinary paper.
45) Lastly, Mr. Kini submitted that the witness admitted that
the Will was not read out aloud either to the testatrix or to the
attesting witnesses prior to its execution, and that he did not notice
any other signatures on the document at the time when he signed it.
These admissions, it was contended, further weaken the credibility of
the witness and the case of due execution.
46) Mr. Kini referred to the evidence of Mr. Paresh
Sitarambhai Brahmabhatt, the second attesting witness, and in
particular his answers in cross-examination to Question Nos. 1 and 25
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(pages 164 and 168), Question No. 22 (page 167), Question No. 30
(page 168), Question Nos. 100 to 102 (pages 186-187), Question Nos.
106 and 107 (page 188), Question No. 120 (page 193), Question No.
127 (page 195), Question No. 143 (page 201), Question No. 168 (page
206), and Question No. 177 (page 209) of the Commissioner’s Report.
47) Referring to the aforesaid testimony, Mr. Kini submitted
that the evidence of this witness suffers from serious infirmities and
raises grave suspicion regarding the genuineness of the alleged
execution of the Will. It was pointed out that the witness admitted to
having visited the residence of Madhaviben Sagar only once in his
lifetime, namely on 29th December 2006, and to having met her only
on that single occasion.
48) Mr. Kini further submitted that the witness admitted his
inability to properly read or comprehend English, and yet purported to
attest a Will drafted in English. It was also contended that the witness
is not independent, having admitted to being connected with the
Plaintiff. Additionally, his testimony was stated to be inconsistent with
that of PW-1 in material particulars, including with regard to the
presence of a servant in the room and the physical condition of the
testatrix, particularly whether she required the assistance of a
walking stick or walker.
49) It was further submitted that the witness admitted that Dr.
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Sudhir Shah issued the medical certificate to the testatrix only after
the execution of the Will dated 29th December 2006. According to Mr.
Kini, this circumstance further casts doubt on the due execution of the
Will and the mental condition of the testatrix at the relevant time.
50) Mr. Kini referred to the evidence of Mr. Jonathan Solomon
Raymond (PW-3), learned Advocate for the deceased, and in particular
his answers in cross-examination to Question No. 10 (page 275),
Question Nos. 19, 20 and 25 (pages 276-277), Question No. 38 (page
279), Question Nos. 54, 59, 60 and 63 (pages 282-284), Question Nos.
78 to 80 (pages 287-288), Question No. 95 (page 290), Question No.
100 (page 291), Question Nos. 144 to 146 (page 302), Question No.
157 (page 305), and Question Nos. 164 and 165 (page 308) of the
Commissioner’s Report.
51) Referring to the aforesaid testimony, Mr. Kini submitted
that, although the witness claims to have been in practice for over four
decades in this Court and to have represented Madhaviben Sagar and
her husband since 1992, his evidence is marred by material
contradictions and suspicious circumstances which undermine his
credibility. It was contended that his account of the drafting of the
alleged Will, including when instructions were given and the sequence
of events leading to its preparation, is inconsistent and unreliable.
52) Mr. Kini further submitted that the witness has given
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contradictory versions regarding the instructions allegedly received
from Madhaviben Sagar in relation to the disposition of her estate. In
particular, his account of when and how she expressed an intention to
bequeath her entire estate to Mr. Mahesh Trivedi, while excluding all
relatives and charities, was described as inherently improbable and
inconsistent with other evidence on record. According to Mr. Kini,
these contradictions go to the root of the matter and cast serious doubt
on whether the events occurred in the manner alleged.
53) It was also submitted that the documentary evidence
demonstrates that Mr. Raymond cannot be regarded as an
independent witness. In this regard, reliance was placed on a letter
dated 28th October 2008 addressed on behalf of the Plaintiff to Deepak
Sagar and others, which indicates that Mr. Raymond was acting in the
interest of, and at the behest of, the Plaintiff. Further reliance was
placed on a notice dated 16th May 2012 issued by Mr. Raymond,
evidencing his continued role as counsel for the Plaintiff. It was
therefore contended that his testimony is not independent and is liable
to be viewed with caution.
54) Mr. Kini further submitted that the witness admitted that
he does not maintain any books of account or records of fees and that
he had not seen any earlier Will. He was also unable to satisfactorily
explain why the Will in question was signed only on the last page,
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whereas other documents, such as the Power of Attorney, were signed
on every page. According to Mr. Kini, these inconsistencies and
omissions further erode the credibility of the witness and cast serious
doubt on the genuineness of the Will.
55) Mr. Kini referred to the evidence of Mr. Mahesh Mithalal
Trivedi (PW-4), the Plaintiff and sole beneficiary, and in particular his
answers in cross-examination to Question Nos. 14 to 19 (page 374),
Question Nos. 31 and 39 (pages 376 and 378), Question No. 47 (page
381), Question Nos. 53 and 56 (page 384), Question Nos. 59 to 62
(page 385), Question Nos. 66, 67 and 71 (pages 387-388), Question
Nos. 84 and 86 (pages 390-391), Question No. 99 (page 393), Question
No. 105 (page 394), Question No. 118 (page 396), Question No. 132
(page 399), Question Nos. 165 to 177 (pages 406-407), and Question
No. 182 (page 410) of the Commissioner’s Report.
56) Referring to the aforesaid evidence, Mr. Kini submitted
that the testimony of the Plaintiff discloses several inconsistencies and
improbabilities. It was pointed out that, as per his Income Tax records
up to Assessment Year 2011-2012, his residential address continued
to be shown as 202, V.P. Road, whereas he claims to have been residing
with his family in the suit premises only since 2010. It was further
submitted that he admitted to not having paid professional tax or sales
tax.
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57) Mr. Kini further submitted that the witness admitted that
Madhaviben Sagar had a domestic helper, namely Dilip Yadav, and
also acknowledged the existence of her relatives, albeit stating that
relations were not close. It was also pointed out that he admitted that
his Advocate, Mr. J.S. Raymond, had issued notices to Bharat Sagar
and Deepak Sagar alleging defamation.
58) It was further contended that the witness claimed to have
paid a sum of Rs. 36,00,000/- in cash to Madhaviben Sagar in 2004,
which amount was not reflected in his Income Tax returns and
remained unexplained. It was also submitted that the electricity
connection in respect of the premises occupied by him stood in the
name of one B.D. Chopra, despite his claim of usage since 2004.
According to Mr. Kini, the witness’s explanation that an application for
transfer of the electricity connection to his name had been forged is
wholly implausible.
59) Mr. Kini submitted that the witness admitted that Bharat
Sagar and Deepak Sagar are nephews of Dhirajlal Sagar, thereby
demonstrating that the statement made in the Petition that the
deceased had no heirs was false and misleading.
60) It was further submitted that the witness admitted that
factually incorrect statements had been made in respect of three
premises, including his own, in the Will dated 29th December 2006. He
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also admitted to having visited the residence of Madhaviben Sagar
after her death, prior to the premises being sealed by the police.
61) Mr. Kini further submitted that the witness stated that, as
per ICU records, Madhaviben Sagar regained consciousness late at
night on 17th May 2004. He also stated that the funeral pyre of
Madhaviben Sagar was lit by himself along with others whose
identities he did not know, which is inconsistent with his earlier
assertion in his affidavit in lieu of examination-in-chief that he alone
had performed the last rites. It was also pointed out that the witness
admitted that certain hospital payments in 2004 had been made by
Kishore Yadav, thereby contradicting his own version regarding the
admission of Madhaviben Sagar to Bhatia Hospital on 17th May 2004.
62) Mr. Kini further submitted that the suggestions put to the
witness indicate that the Plaintiff had instituted multiple litigations
against trustees, attesting witnesses, and even the Advocate, with a
view to dissuade them from supporting or propounding the Will dated
17th May 2004.
63) Lastly, Mr. Kini submitted that these circumstances, taken
individually and cumulatively, give rise to grave and compelling
suspicion regarding the genuineness of the Will dated 29th December
2006. It was contended that in the presence of such suspicious
circumstances, the burden on the propounder becomes onerous,
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requiring him to dispel all legitimate doubts by clear, cogent and
satisfactory evidence. According to Mr. Kini, the Plaintiff has failed to
discharge this burden.
64) Mr Kini also submitted that meetings were convened by
Advocate J.S. Raymond on 26th and 28th September 2007 to disclose
the Will, but requests for copies of the Will addressed to Mr. Raymond,
Mr. Gandhi and Mr. Trivedi were not complied with.
65) Mr. Kini submitted that the alleged bequest of the entire
estate of Madhaviben Sagar in favour of the Plaintiff is inherently
improbable and contrary to normal human conduct.
66) It was further submitted that the Will is surrounded by
suspicious circumstances. According to Mr. Kini, Madhaviben Sagar
would not have executed a Will in English, nor would she have signed
only the last page of the document, particularly when it was neither
stitched nor stapled in the usual manner.
67) Mr. Kini submitted that the Will contains demonstrably
incorrect statements regarding the properties of the deceased. In
particular, it was contended that the first floor of Sagar Samrat was
wrongly shown as being in her possession despite tenancy
arrangements with Hindustan Security Force and the receipt of a
substantial amount of Rs. 70 lakhs by cheque. Similarly,
notwithstanding agreements with Capt. Sharma and Diwan Jaffer
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Adamali, the Will incorrectly records that the properties continued to
be in her possession. These inconsistencies, it was submitted, strike at
the authenticity of the document.
68) It was further contended that Madhaviben Sagar could not
have visited the office of her Advocate, Mr. J.S. Raymond, on 29th
December 2006, as alleged, given her physical condition. Reliance was
placed on a letter dated 16th December 2007 (which ought to be read
as 16th December 2006 as the acknowledgment at the foot of the letter
bears the date 16th January 2007) of the addressed by Mr. Raymond to
the Commissioner of Police, which indicates that she was bedridden
shortly prior to the alleged execution.
69) Mr. Kini submitted that the choice of attesting witnesses is
itself suspicious. It was contended that Madhaviben Sagar would not
have called upon witnesses who were either strangers to her or
incapable of properly understanding the document. In particular,
reliance was placed on the evidence of PW-2, Mr. Paresh Brahmabhatt,
who admitted that he had met the deceased only once and had visited
her residence only on that occasion.
70) It was further submitted that while the Power of Attorney
executed by Madhaviben Sagar bears her signature on every page, the
Will is purportedly signed only on the last page, which is an unusual
and unexplained deviation.
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71) Mr. Kini also relied upon Income Tax records found at the
residence of the deceased, which reflect her date of birth as 28th July
1940. It was submitted that the age mentioned in the Will as 60 years
as on 29th December 2006 is therefore incorrect, further casting doubt
on the genuineness of the document.
72) Mr. Kini submitted that the conduct of the Plaintiff is also
indicative of fabrication. It was contended that the Plaintiff initiated
multiple proceedings and complaints, including complaints filed in
2010 against Deepak Sagar and others, not for bona fide purposes but
to dissuade persons from supporting or propounding the earlier Will
dated 17th May 2004. It was submitted that, as a result, certain
trustees and an attesting witness declined to assist in the probate of
the earlier Will.
73) It was further submitted that the last page of the Will dated
29th December 2006 appears to be in a different font from the rest of
the document, which raises further suspicion as to its authenticity.
74) Mr. Kini also submitted that the Plaintiff’s case–that the
Will dated 17th May 2004 surfaced only after the disclosure of the Will
dated 29th December 2006–is inherently implausible and contrary to
the normal course of events.
75) Reliance was also placed on a letter dated 4th April 2007
addressed by Madhaviben Sagar to M/s Hindustan Security Force,
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authorising them to take charge of security of the building, which,
according to Mr. Kini, demonstrates her continuing relationship with
Capt. Sharma and is inconsistent with the narrative in the Will.
76) Lastly, Mr. Kini relied upon a letter dated 28th October
2008 issued by Mr. J.S. Raymond under instructions from the Plaintiff
to Deepak Sagar and others, to submit that Mr. Raymond was acting as
Advocate for the Plaintiff and, therefore, his evidence cannot be
regarded as independent.
77) On the basis of the aforesaid circumstances, considered
both individually and cumulatively, Mr. Kini submitted that the Will
dated 29th December 2006 is forged and fabricated, and that it has
been propounded by the Plaintiff with full knowledge of its falsity. It
was further contended that the Petition has been filed with unclean
hands, including by making false statements regarding the absence of
heirs.
78) Accordingly, Mr. Kini submitted that Testamentary Suit
No. 59 of 2008 deserves to be dismissed with exemplary costs.
79) In relation to the Will dated 17th May 2004, Mr. Kini
submitted that it is a handwritten document signed on all pages and
that the handwriting corresponds with documents recovered by the
Administrator. It bequeaths the estate to charitable purposes and
appoints trustees. He submitted that if a subsequent Will truly existed,
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there would have been no necessity to fabricate an earlier one of a
prior date. He accordingly submitted that the Will dated 29th
December 2006 ought to be rejected.
Reasons and conclusion:
80) I have heard the learned Counsel for the parties at length
and have carefully perused the pleadings, evidence, and the material
on record. The issues framed are required to be considered in light of
the settled principles governing proof of testamentary instruments.
81) The law relating to proof of Wills is well settled. In H.
Venkatachala Iyengar v. B.N. Thimmajamma15, the Supreme Court
authoritatively held that although the propounder must ordinarily
prove due execution and testamentary capacity in terms of Section 63
of the Indian Succession Act read with Section 68 of the Evidence Act,
where suspicious circumstances surround the execution of the Will,
the burden becomes proportionately heavier and such suspicion must
be removed by clear, cogent and satisfactory evidence. This principle
has been consistently reiterated in Jaswant Kaur v. Amrit Kaur16 and
Bharpur Singh v. Shamsher Singh 17, where it has been held that
circumstances such as unnatural exclusion of natural heirs, incorrect
or improbable recitals, active involvement of the principal beneficiary,
and dispositions which do not accord with the normal course of human
15
1958 SCC OnLine SC 31
16
(1977) 1 SCC 369
17
(2009) 3 SCC 68733
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82) The following circumstances give rise to grave suspicion,
although the signature on the Will stands proved.
Inherent Improbabilities and Suspicious Circumstances
83) If the Will dated 29th December 2006 were genuine, several
questions remain unanswered:
i) Why would a person propounding a genuine Will make a
false statement that the deceased had no heirs? Paragraph
8 of the Petition states that the deceased had no heirs from
Class 1 to Class 4 (Entry 1 to 8) and that the Petitioner was
unaware of any such family member. In stark contradiction
to the above solemn statement in Petition, in answer to
question 86 of his cross examination he states that Bharat
Sagar and Deepak Sagar are nephews of Dhirajlal Sagar the
testatrix’s husband.
ii) Why would he file criminal complaints and attempt to
coerce interested persons in filing affidavits contrary to
their interest? A complaint under section 156(3) and
under section 500 of the Indian Penal Code (IPC) were filed
against Mr. Bharat Sagar and others; these were dismissed
after a full-fledged trial. No appeal was filed therefrom and
consequently attained finality.
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iii) A complaint was also filed against Mr. Mukesh Shah, a
trustee under the previous Will, Dinesh Soni and Deepak
Sagar and others. In addition, a complaint was lodged
against the counsel and learned Senior Counsel before the
Bar Council, which was subsequently withdrawn.
84) These actions of the Petitioner create grave suspicion
especially because he claims to be the only beneficiary under the
alleged Will dated 29th December 2006.
85) Questions that give rise to suspicion regarding the contents
of the Will:
i) How could her own date of birth be wrongly stated?
ii) Why would a lady who was independently managing her
self-acquired properties make an incorrect statement that a
flat was in her possession, when in fact a tenancy
agreement had been executed for valuable consideration
received by cheque?
iii) Why would the Will contain an incorrect description of
properties as being in her possession?
iv) Why would the testatrix bequeath her entire estate to a
person who was merely assisting her in litigation against
tenants or who had assisted her during hospitalization?
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86) Assuming for the sake of argument that there exists only a
hand written document whereby the testatrix proposes to bequeath
her properties to some relatives and a substantial part to charitable
institutions, why would the testatrix abruptly change the same so
drastically so as to bequeath her entire estate to a single individual,
excluding charity altogether? While excluding relatives is
understandable or logical on the basis of her hospitalization, excluding
charities which she proposed to give in the name of her family in
totality certainly raises a suspicion. Because it is not the case of
Mahesh that her day to day requirements were being looked after by
him. Moreover, the testatrix was a monied lady and also independent.
A perusal of the Will of 2004 indicates that it bequeathed certain
property to:
i) Laljibhai Doshi a friend of her husband Dhirajlal Sagar;
ii) Her husband’s niece Indiraben Girishkumar Pat;
iii) Her husband’s brother Bhaskar Prabhudas Sagar and his
three children;
iv) Her brother Jethalal Damodardas Soni and her sister-in-
law Shardaben; and
v) Charity, in memory of late Labhuben Ratilal Suru, a sum of
of ₹ 6,00,000/- to be kept in fixed deposit and 50% of its
interest be used towards financial aid and 50% for
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educational funds at the hands of Madhaviben.
vi) Similarly charity in memory of late Jethalal Damodardas
Suru in the sum of ₹ 9,00,000/- to be kept in fixed deposit
and interest used in equal proportion for financial aid,
medical aid, educational expenses at the hands of
Madhaviben.
87) Even assuming that the Will dated 17th May 2004,
propounded by M. B. Shah, is forged and fabricated with a view to
defeat or undermine the Will of 2006 propounded by the Petitioner, it
would be inherently improbable for any person to fabricate a document
bearing an earlier date and then undertake the burden of disproving a
subsequently executed Will.
88) Be that as it may, the genuineness or otherwise of the said
Will dated 17th May 2004 is a matter which shall be determined
independently at the appropriate stage when it is taken up for
adjudication.
Credibility of Attesting Witnesses
89) The evidence of Mr. Ramswaroop Jethmalji Soni (PW-1)
also evinces contradictions. Amongst other contradictions the
remarkable one is where the witness has made false statements
regarding his knowledge about the entire estate being bequeathed to
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Mahesh Trivedi. The question nos 28, and 71 to 74 are reproduced for
ready reference.
“Q.28 Please tell the court as to whether you are aware as to who
is the only beneficiary of the will allegedly execute on
29.12. 2006 ?
Ans: I am not aware.
Q.71: Do I take it that even on today 30.8.2012 you are not
aware of the contents of will dated 29.12.2006?Ans: I am aware of contents of the Will which I was shown
through Mr. Paresh Brahambhatt who told that everything
will be going to Mahesh Trivedi.
Q.72:-Please tell the court when did you ask Paresh Brahamb-
hatt this question ?
Ans: When we went together to the residence of Madhaviben
Sagar.
Q’73: When did you go to the house of Late Madhaviben Sagar
house, Year, Month and date if you remember ?Ans: On 29.12.2006.
Q.74: Do I therefore take it that you have been aware always
that the Will dated 29.12.2006 gave away all properties to
Mahesh Trivedi?
Ans: Yes.”
90) PW-1 is admittedly closely associated with Mr. Mahesh
Trivedi. His evidence indicates that he initially suppressed material
facts and attempted to portray himself as an innocent bystander who
had merely witnessed the execution of the Will. Such conduct strikes at
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the very root of his credibility. It is well settled that a witness who is
found to have made false statements on oath cannot be regarded as a
reliable witness. In my view when a witness departs from truth he
cannot command the confidence of the Court. The testimony of PW-1,
therefore, deserves to be approached with considerable
circumspection.
91) PW-2 is also closely associated with Mr. Mahesh Trivedi.
His proximity to the sole beneficiary, coupled with his admitted
knowledge at the time of execution that the entire estate was being
bequeathed to the beneficiary, gives rise to serious suspicion. In H.
Venkatachala Iyengar (supra), the Supreme Court held that where
suspicious circumstances surround the execution of a Will, the burden
lies heavily on the propounder to dispel such suspicion. The
relationship of attesting witnesses with the beneficiary is itself a
relevant suspicious circumstance requiring strict scrutiny.
92) A cumulative analysis of the depositions of both attesting
witnesses reveals that each had a close association with the sole
beneficiary, yet there is no plausible explanation as to why they were
chosen to attest the Will when the testatrix was barely acquainted with
them. This unexplained selection of attesting witnesses reinforces the
suspicion surrounding the execution of the Will. Further, the
inconsistencies in their evidence regarding whether the Will was
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stapled or secured with a U-pin constitute material contradictions,
which cast doubt on the authenticity of the document. The law is well
settled that where such suspicious circumstances exist, they must be
satisfactorily explained before probate can be granted, as reiterated in
Jaswant Kaur (supra) and S.R. Srinivasa v. S. Padmavathamma
(supra).
93) It is well settled that a party who approaches the Court
with unclean hands is not entitled to relief. The false statement made
in the Petition itself casts doubt on the Petitioner’s bona fides. In Vijay
Syal v. State of Punjab18 the supreme Court held as under:
“24. In order to sustain and maintain the sanctity and solemnity
of the proceedings in law courts it is necessary that parties should
not make false or knowingly, inaccurate statements or
misrepresentation and/or should not conceal material facts with a
design to gain some advantage or benefit at the hands of the court,
when a court is considered as a place where truth and justice are
the solemn pursuits. If any party attempts to pollute such a place by
adopting recourse to make misrepresentation and is concealing
material facts it does so at its risk and cost. Such party must be
ready to take the consequences that follow on account of its own
making. At times lenient or liberal or generous treatment by courts
in dealing with such matters is either mistaken or lightly taken
instead of learning a proper lesson. Hence there is a compelling
need to take a serious view in such matters to ensure expected
purity and grace in the administration of justice.”
This decision was followed by the Supreme Court in its judgement in
18
[(2003) 9 SCC 401]
19
(2008) 12 SCC 481)
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Conduct of the Petitioner
94) In the present case the Petitioner has suppressed material
facts in order to obtain a Letters of Administration. In his pursuit
thereof, he chose to threaten and initiate criminal proceedings against
trustees, attesting witnesses and even the Advocate supporting the
earlier Will dated 17th May 2004, further reinforces this conclusion
that it was a blatant attempt to eliminate opposition. The dismissal of
those proceedings reinforces the inference that they were devoid of
substance.
95) The submissions of the Court appointed administrator also
weigh heavily against the Petitioner. Mr. Raymond, Advocate for the
testatrix, who was aware of the Will of 29th December 2006, could not
have lawfully prosecuted proceedings on behalf of the Petitioner on the
basis of a Power of Attorney executed by the testatrix prior to her
death. It is trite that a Power of Attorney stands terminated upon
death of the executant. Upon the demise of the testatrix, therefore, no
authority survived in favour of the Petitioner under the said
instrument.
96) Even assuming the Petitioner was the sole beneficiary
under the Will of 2006, he could not have claimed to be the owner of
the property in absence of Probate or Letters of Administration.
Section 213 of the India Succession Act, 1925 expressly mandates that
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no right as executor or legatee can be established in a Court of law
unless Probate or Letters of Administration have been obtained. Until
such grant, the legatee acquires no enforceable right in respect of the
estate in a Court of law. Despite this clear statutory bar, in paragraph 8
of CRA No. 882 of 2012, the Petitioner described himself as the owner
of the property, despite the fact that his application for Letters of
Administration was still pending adjudication.
97) Such a conduct, in my view, amounts to a serious
misrepresentation before the Court. The proceedings were continued in
the name of the Petitioner without any subsisting authority in law. The
conduct of both the Petitioner and the Advocate Mr. Jonathan Solomon
Raymond, in persisting with such representation, cannot be
countenanced and further reinforces the doubts surrounding the bona
fides of the Petitioner.
Evidence of Advocate and Contemporaneous Record
98) Mr. Raymond admitted in his testimony, in answer to
Question Nos. 88, 89 and 149 that the letter dated 16th December
2006 (erroneously typed as 16 December 2007) addressed to the
Commissioner of Police was written by him under the instructions of
the testatrix, Madhaviben Sagar. A plain reading of the said letter,
written barely 13 days prior to the alleged execution of the Will dated
29th December 2006, reveals that the testatrix was bedridden and was
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constrained to seek police intervention to prevent interference with
with her possession of one of her properties. This contemporaneous
document materially contradicts the version of the attesting witnesses,
Mr. Ramswaroop Soni and Mr. Paresh Brahmabhatt, who deposed that
on 29th December 2006, the testatrix had herself opened the door and
received them at her residence. It also renders wholly doubtful
Advocate Mr. Raymonds, version that the testatrix was physically
capable of visiting his office twice on the same day i.e. on 29 th
December 2006, once in the morning to collect the draft Will and
thereafter in the evening to return with the executed document.
Significantly, there is nothing on record to displace or contradict the
contents of the said letter, nor is there any evidence of any material
improvement in the physical condition of the testatrix during the short
intervening period between 16th December 2006 and 29th December
2006. The said contemporaneous document, emanating from the
testatrix herself through her Advocate, therefore constitutes cogent
evidence of her physical incapacity at the relevant time and casts a
serious and legitimate doubt on the propounded circumstances
surrounding the alleged execution of the Will.
99) The question numbers 87 and 149 and responses thereto
are reproduced hereunder of ready reference.
Q:88: I put it to you that a letter dated 16.12.2007 addressed by
you to the police commissioner stating that Madhaviben
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Sagar was bedridden and handicapped was found in the in-
spections taken bycthe Administration appointed by the
High Court.
[Witness is shown a Xerox copy of said documents]
Can you identified by the same?
Ans: It looks like my letter.
Q:89: Are the contents of this letter, according to you, true and
correct or they false and incorrect?
Ans: I may not be in a position to answer this question unless I
see the original of this letter.
Q: 149: In answer to question No.89 you have stated that unless
you see the original letter dated 16.12.2007, you will not
be able to tell whether the contents of this later are true
and correct or false and incorrect, please see the letter and
inform us.
SHOWN LETTER DATED 16.12.2007 RECEIVED FROM
THE RECORDS OF LD. ADMINISTRATION.. XEROX COPY
OF THE SAID LETTER IS COMPARED WITH THE ORIGI-
NAL AND ORIGWAL RETURNS TO LD. ADMINISTRATOR.
ZEROX COPY HAS ALREADY BEEN MARKED.
Ans: The contents of this letter are as per the instructions of
Madhavi Sagar, at ale relevant time.
100) The reliance placed on the decisions in Iswarbhai C. Patel
alias Bachubhai Patel (supra), Man Kaur (supra), and Iqbal Basith &
Ors. (supra) is misplaced. All three judgments concern procedural and
evidentiary principles arising in ordinary civil suits. The decision in
Iswarbhai C. Patel deals with joinder of parties and causes of action,
and the maintainability of an appeal against a party against whom the
suit had been dismissed, notwithstanding that a decree had been
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passed against another defendant. Similarly, Man Kaur deals with
evidentiary principles relating to the competence of parties to depose
in suits for specific performance, and the manner in which
transactions may be proved in civil proceedings. The common thread
running through these decisions is that they govern procedural and
evidentiary rules applicable to civil proceedings generally. The present
case, however, arises out of probate proceedings concerning the proof
of a Will, where the Court is required to examine the genuineness of the
testamentary instrument and determine whether the propounder has
satisfactorily dispelled the suspicious circumstances surrounding it.
The principles laid down in the aforesaid judgments, therefore, have no
application to the controversy before this Court.
101) The reliance placed on the judgments in Madhukar D.
Shende (supra), Meenakshi Ammal (supra), Daulatram (supra),
Pentakota Satyanarayana (supra), Savithri (supra), and Mahesh
Kumar (supra) is equally misplaced. These judgments reiterate the
settled principles governing proof of a Will, namely, that the
propounder must establish due execution in accordance with Section
63 of the Indian Succession Act and Section 68 of the Evidence Act,
and must also satisfactorily explain any suspicious circumstances so
as to satisfy the conscience of the Court as to the genuineness of the
testamentary document. In the present case, however, the record
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discloses several circumstances giving rise to grave and legitimate
suspicion, including incorrect statements in the Petition regarding the
non-existence of heirs, as well as inconsistencies surrounding the
contents of, and circumstances attending, the alleged Will. The
Petitioner has failed to remove or satisfactorily explain these
suspicious circumstances. Consequently, the principles laid down in
the aforesaid judgments do not assist the Plaintiff; on the contrary,
they operate against him.
102) The reliance placed on the judgment of this Court in
Rustom Minoo Seth (supra) is equally misconceived. In that decision,
this Court reiterated the very same principles laid down in Madhukar
D. Shende, Meenakshi Ammal, Daulatram, Pentakota Satyanarayana,
Savithri, and Mahesh Kumar (supra), and emphasized that the
propounder must dispel all suspicious circumstances surrounding the
Will before probate can be granted. Applying that very principle to the
facts of the present case, the Petitioner has clearly failed to discharge
the burden cast upon him, since the suspicious circumstances
surrounding the alleged Will remain unexplained.
103) The reliance placed on Saroj Kumar Chatterjee (supra),
Derek A.C. Lobo (supra), Shonali Kedar Dighe (supra), and Leela
(supra) is likewise of no assistance to the Plaintiff. These judgments
also reiterate the settled legal position that the propounder of a Will
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must prove its due execution and satisfactorily explain any suspicious
circumstances surrounding the document. In the present case, the
suspicious circumstances arising from the pleadings and conduct of
the Petitioner remain wholly unexplained. The principles laid down in
the aforesaid judgments, therefore, do not advance the Plaintiff’s case.
104) It is a settled position of law that where suspicious
circumstances surrounding the execution of a Will remain
unexplained, the Court would be justified in refusing probate or Letters
of Administration. In the present case, when the evidence is assessed
in the backdrop of these well-established principles, it is evident that
several material and suspicious circumstances arise, none of which
have been satisfactorily dispelled by the Petitioner. The contentions
advanced by Mr. Kini, as recorded hereinabove, are not only plausible
but find substantial support in the evidence on record and clearly give
rise to grave suspicion regarding the genuineness of the alleged Will. In
such circumstances, where the propounder has failed to remove the
legitimate doubts surrounding the execution of the Will, the Court
would be justified in declining to grant probate or Letters of
Administration. Consequently, the Petition/Suit deserves to be
dismissed.
105) In light of the decision in RBANMS Educational
Institution v. B. Gunashekar20, and having regard to the fact that a
20
(2025) SCC OnLine 793
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cash transaction exceeding Rs. 2,00,000/- has surfaced during the
course of the present proceedings, this Court cannot remain a silent
spectator. Such a transaction, prima facie, attracts scrutiny under the
provisions of the Income Tax Act, 1961.
106) Accordingly, the Registry is directed to forward a copy of
this judgement along with the relevant material on record to the
jurisdictional Income Tax Authority for appropriate action in
accordance with law. It shall be open to the said authority to conduct
such inquiry, investigation, or proceedings as may be warranted.
107) Further, I find that Mr. Mahesh Mithalal Trivedi has made
statements on oath in the Petition to the effect that the deceased had
no heirs or legal representatives, which, on the material presently on
record, are demonstrably false and appear to have been made with a
view to mislead the Court and secure an order on an erroneous
premise. Such statements, having a direct bearing on the jurisdictional
foundation of the present proceedings, prima facie indicate an attempt
to mislead the Court. Conduct of this nature cannot be countenanced.
In the circumstances, this is a fit case for the Court to consider
initiating proceedings in accordance with law under Section 379 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 for appropriate inquiry
into the making of false statements on oath.
108) In view of the above, the following order is passed.
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Order
i) Testamentary Petition No.1030 of 2007/Testamentary Suit
No.59 of 2008 is dismissed.
ii) The Registry shall inform all Courts including the Small
Causes Court about the dismissal of the Petition/Suit and
forthwith delete the name of the Petitioner in his capacity
as executor/beneficiary of the deceased Mrs. Madhaviben
Dhirajlal Sagar from the proceeding/(s).
iii) The Prothonotary and Senior Master through his
representative shall lodge an appropriate Complaint before
the jurisdictional Magistrate in respect of the offences
punishable under Indian Penal Code, 1860 including under
Sections 196, 199, 200, 463 and 471 of the Indian Penal
Code, 1860, alleged to have been committed by the
Petitioner Mr. Mahesh Mithalal Trivedi. Such Complaint
shall be filed in accordance with Section 379(1)(b) and (c)
read with Section 379 (3) (a) of the Bharatiya Nyaya
Suraksha Sanhita.
iv) The Prothonotary and Senior Master to report compliance
and status of the Complaint every three months to this
Court.
v) The Registry as well as the Court appointed Administrator
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Mr. Trivedi to intimate the Income Tax Authority and
investigate the transaction between the Petitioner- Mr.
Mahesh Trivedi and the deceased Smt. Madhaviben
Dhirajlal Sagar of payment of ₹ 36,00,000/- lakhs claimed
to be paid to purchase of the Tenancy rights in the building
Sagar Samrat Queens Road, Opposite Charni Road, Station,
Mumbai 400004. If the Petitioner is found guilty, to take
appropriate action against all concerned in accordance with
law preferably within a period of six months from the date
of uploading of this Order on the website of the Bombay
High Court. The Income Tax Authority is directed to file a
compliance cum status report on or before 30 th September
2026 to this Hon’ble Court.
vi) Mr. Trivedi, the Court-appointed Administrator, shall
continue to function as the Administrator until the final
disposal of Testamentary Suit No. 94 of 2011.
vii) The Court-appointed Administrator, Mr. Trivedi, is granted
liberty to apply to this Court for such further directions,
order(s) or clarifications as may be necessary.
viii) The learned Administrator is permitted to file a report in
respect of any pending issues, if any, pertaining to the
Plaintiff in Testamentary Suit No. 59 of 2008.
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ix) In view of the dismissal of the Suit, the Court Receiver shall
take vacant and peaceful possession of the testatrix’s
property from the Petitioner within a period of four weeks
from today.
x) The Petitioner shall continue to pay rent as an agent of the
Court Receiver until vacant and peaceful possession is
handed over to the Receiver.
xi) In the event the Petitioner fails or refuses to hand over
possession, the Court Receiver shall be entitled to take
forcible possession with the assistance of the local police.
xii) The local police authorities are directed to extend all
necessary assistance to the Court Receiver in taking
possession of the said property from the Petitioner.
xiii) The Petitioner is restrained from creating any third-party
rights, title or interest in the properties of the testatrix, or
in any manner alienating, selling, assigning or otherwise
dealing with the said properties until possession is handed
over to the Court Receiver.
xiv) The Court Receiver shall file a report on or before the next
date of hearing
xv) List Testamentary Suit 94 of 2011 for hearing on 6 th April
2026.
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xvi) In view of the dismissal of the Testamentary Suit No.59 of
2008, all connected Interim Applications, Caveat
Applications and any other Applications are disposed off.
xvii) All concerned to act on an authenticated copy of this Order.
(KAMAL KHATA, J.)
109) At this stage, Mr. T.A. Vora, learned Advocate for the
Petitioner/Plaintiff, seeks a stay of the present order for a period of
eight weeks to enable the Petitioner to challenge the same. In view of
the reasons recorded hereinabove, the request for stay is rejected.
(KAMAL KHATA, J.)
List of Authorities cited:
1. Iswarbhai C. Patel alias Bachubhai Patel vs Harihar Behera & Anr. [(1999) 3 SCC 457]
2. Madhukar D. Shende vs Tarubai Shende [(2002) 2 SCC 85]
3. Meenakshi Ammal (Dead) through LRs & Ors. vs Chandrasekaran & Anr. [(2005) 1
SCC 280]
4. Daulatram & Ors. vs Sodha & Ors. [(2005) 1 SCC 40]
5. Pentakota Satyanarayana & Ors. vs Pentakota Seetharatnam & Ors. [(2005) 8 SCC 67]
6. Savithri & Ors. vs Karthyayani Amma & Ors. [(2007) 11 SCC 621]
7. Man Kaur vs Hartar Singh Sangha [(2010) 10 SCC 512]
8. Mahesh Kumar (Dead) by LRs vs Vinod Kumar & Ors. [(2012) 4 SCC 387]
9. Rustom Minoo Seth vs Freddy Dinshaw Birdy [TS No. 225 of 2015, Bombay High Court,
decided on 21.12.2026]52
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10. Iqbal Basith & Ors. vs N. Subbalakshmi & Ors. [(2021) 2 SCC 718]
11. Saroj Kumar Chatterjee [2021 AIR CC 3097]
12. Derek A.C. Lobo vs Ulric M.A. Lobo [2023 SCC OnLine SC 1893]
13. Shonali Kedar Dighe vs Ashita Tham [AIR 2024 (NOC) 242 (Bom)]
14. Leela & Ors. vs Muruganantham & Ors. [(2025) 4 SCC 289]
15. H. Venkatachala Iyengar vs B.N. Thimmajamma [1958 SCC OnLine SC 31]
16. Jaswant Kaur vs Amrit Kaur [(1977) 1 SCC 369]
17. Bharpur Singh vs Shamsher Singh [(2009) 3 SCC 687]
18. Vijay Syal vs State of Punjab [(2003) 9 SCC 401]
19. K.D. Sharma vs Steel Authority of India Ltd. [(2008) 12 SCC 481]
20. RBANMS Educational Institution vs B. Gunashekar [2025 SCC OnLine SC 793]
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