NIRANJAN UMESHCHANDRA JOSHI Vs. MRUDULA JYOTI RAO

JUDGEMENT

(1.) THE unsuccessful propounder of the Will and testament dated 15-11-1983 is in appeal before us. The learned testamentary Judge of this Court in respect of the subject Will held that the circumstances surrounding execution of the Will were so suspicious that it was impossible to believe that the Will was executed at the place and at the time and in the manner suggested by the plaintiff (appellant herein) and, accordingly, refused to grant the probate vide his judgment dated 28-11-1995. The said judgment is in challenge before us.

(2.) THE appellant before us (hereinafter referred to as 'the propounded)filed the testamentary petition No. 176/1986 in this Court for probate of the will and testament dated 15-11-1983 of the deceased namely Umeshchandra madhav Joshi (hereinafter to be referred to as 'the testator') Few facts are thus: The testator was admitted to the ICU of the Breach Candy hospital on 13-11-1983 in the evening. On 14-11-1983, he is said to have decided to execute the Will as well as the power of attorney. He tells the propounder to contact M/s. Ramesh Shroff and Co. , a law firm for this purpose. The propounder contacts Ramesh Shroff and Co. , Mr. K. M. Mahimkar, Solicitor working in the said law firm is assigned the work and the propounder takes him to the Breach Candy Hospital on 14-11-1987. The testator instructs Mr. Mahimkar to prepare the power of attorney in favour of the propounder and bring the said power of attorney for his signature the next day i. e. 15-11-1987. The testator also tells Mr. Mahimkar that his Will is also to be prepared on 15-11-1983. On 15-11-1983 also the propounder takes Mr. K. M. Mahimkar, solicitor to the Breach Candy Hospital during the non-visiting hours. On 15-11-1983, the testator executes the Will in the ICU of the hospital. The Will is said to be executed by the testator after the execution of the power of attorney. The testator is discharged from the hospital on 21-ll-1983 in the morning but leaves hospital only in the evening waiting for the propounder to come and take him home. He dies on 23-11-1983. He was about 76 years of age at the time of his death leaving behind his widow Tarabai, seven sons, namely, pravin, Dr. Niranjan, Sudarshan, Vishnu, Jagdish, Arvind and Sunil and three daughters namely Poornima, Mridula and Sujata. The propounder is the sole beneficiary under the Will. The two daughters, namely, Mrudula and sujata filed caveats and accordingly, the testamentary petition was converted into testamentary suit. We may notice here as well that all the sons of the testator and the two daughters Poornima and Mridula (one of the caveators)initially gave the consent.

(3.) THE caveators set up the case that the testator was not having testamentary capacity to execute the Will; that he was old and the Will was allegedly executed when he was being hospitalised; that the death took place within eight days of the execution of the Will and that the only beneficiary of the Will was the propounder which was unnatural as the testator had left behind her widow, other sons, daughters and grand children and that right from the time the testator was admitted in the hospital and until he was brought home and died, the testator who was under the care of the propounder and he took undue advantage of his being Doctor son. The caveators disputed the genuineness of the signature of the testator on the Will.