Hoshang Pesi Hodiwala vs. Bonny Behramshah Bhathena & Ors; AIR 2015 (NOC) 473 (Bom.)
The plaintiff was the grandson of the deceased, one B.M. Bhathena who executed a will dated 27th November, 1985 and who expired on 25th May, 1989. The deceased left behind one son and two daughters as his only heirs. They would be entitled to an equal 1/3rd share in the estate of the deceased on intestacy. The plaintiff had sought to probate the will. The plaintiff was the son of one of the daughters. The son of the deceased challenged the will of the deceased sought to be probated by the plaintiff. He was survived by the defendants.
The defendant had contended that the signatures of the deceased on pages 1 and 2 were forged. He had shown some inaccuracies in the will. He claimed that the will was not genuine and was forged.
The will of the deceased was typewritten. It ran into three pages. It was prepared in the lawyers office. It was signed by one lawyer and the managing clerk of the lawyer who prepared it. It was deposited with the sub registrar of assurances. The plaintiff evidence shows that the will had been duly executed. The attesting witness has deposed about the specific attestation of the will in the presence of the deceased.
The defendants had shown several suspicious circumstances and certain errors in the typewriting of the will. The name of the deceased was not correctly shown on page one of the will as also in the execution clause. There was an error in the name of the father of the deceased which forms a part of full name of the deceased. In line two the full name of the deceased only shows two blanks in his father’s name. The remainder of the name was correctly shown.
The Hon’ble Court observed that the name of the deceased B.M. Bathena in execution clause shows only M. Bathena. These mistakes may creep into any document. A party reading the will may or may not notice such error. The will is not on a computer printout, it is typewritten. The draft was made earlier by the steno of the advocate. The final will was typed by attesting witness who was his managing clerk. There can be a mistake in the final draft even if there was no mistake in the first draft. If the deceased had read the first draft and approved it, he may not meticulously go through the final draft before its execution. He may execute the will upon cursorily going through the will which he had seen earlier. Hence the errors of such kind which are shown are neither germane nor can raise any suspicion.
It was seen that the will was most natural. The deceased has bequeathed a single immoveable property. He had three children. He has bequeathed it to all in equal shares. Even on intestacy they would be entitled to the same share of course, as on the date of the execution of the will the defendant would have been entitled to 50% share in the estate of the deceased and his two sisters would have been together entitled to 50% share of his estate. That was prior to the amendment to Chapter III of the Indian Succession Act, (ISA) 1991. Be that as it may, upon intestacy half the property would devolve upon the son of the deceased, his residence with family therein notwithstanding. Consequently making of the will for giving equal shares does not matter. It would show the impartial intention of the deceased.
The Court had considered each of the circumstances contended to be suspicious. The conscience of the Court has to be satisfied that the will sought to be propounded is the will of the deceased. This would depend upon the facts of each case. Various facts shown by the defendants to create suspicions are mere stray contentions none of which is such as to raise suspicion of the Court. The deposit of a will in the office of the sub registrar after its preparation upon a draft by an advocate and its execution before another advocate in the same office and another witness bequeathing the estate of the testator in equal shares to his heirs would show the due execution of the will. Consequently it is seen that the will of the deceased B.M. Bhathena dated 27th November, 1985 has been duly and validly executed.
The defendant had produced, before the handwriting expert photocopies of two money order receipts of 1982, 3 years prior to the execution of the will showing the signatures of the deceased. He has also produced one cheque signed by the deceased on 21st July, 1997, 14 years prior to the execution of the will. He had also produced a driving license of the deceased dated 28th February, 1956, about 30 years prior to the execution of the will showing his signature. The signatures at such distance in time are likely to be slightly different.
The handwriting expert’s evidence would be required to be considered. (See Ajay Kumar Parmar vs. State of Rajasthan, AIR 2013 SC 633) However, it was held that the opinion of the handwriting expert is as fallible/ liable to error as that of any other witness and hence the Court can compare the signatures as required u/s. 73 of the Indian Evidence Act. Consequently in a case such as this the Court would see the opinion of the expert and apply its own observation by comparing the signatures or handwritings for providing a decisive weight or influence to its decision. There was absolutely nothing to show that any of the signatures is forged.
