2014 (6) TMI 1082 - HC - Indian Laws

Execution of will by deceased - deceased was of a sound and disposing mind at the time of making of the Will or not - free will on execution of will or not - deceased was in a position to give instructions to the Attorney for preparing the Will or not - exercise of undue influence or coercion on the deceased into making the Will or not. HELD THAT - A perusal of affidavits in support of caveat as well as the issues framed by this Court makes it clear that there is neither any such allegation made in affidavits in support of caveat nor any such issue is framed. The deposition of the witness against his wife who is applicant in this case are of personal nature made in the matrimonial proceedings and have nothing to do with the issue involved in the matter. Such part of the evidence is totally irrelevant to the issue herein and is beyond the pleadings filed by the caveators themselves and to that extent, this part of the evidence has to be ignored - The probate petition is not filed in respect of any alleged Will of her uncle Keki Cassad but in respect of the alleged Will Testament of Mrs Nergish who was wife of the said Mr Keki Cassad. The deponent has deposed in respect of a separate Will of the uncle of the applicant which has nothing to do with the subject matter of this proceedings. The witness himself has filed affidavit in this proceedings as far back as in the year 1998 admitting the Will Testament of the said deceased and had reserved his right to act as the executor in future - the objection raised by the plaintiff in respect of such portion of paragraph 6 as irrelevant evidence has merits. Neither such allegation is made in the affidavits in support of caveat nor any such issue is framed by this Court. Such part of the evidence thus cannot be considered in evidence and has to be ignored for the purpose of cross examination. The affidavits permitted to be filed under Order 18 Rule 4 in lieu of examination in chief has to contain only the deposition which is relevant facts in issue in the suit or relevant aspects which the witness has to prove before the Court and not beyond what is pleaded by the parties and also not which is irrelevant to the issues framed. If an opposite party raises any objection about any part of the deposition which is totally irrelevant, beyond the pleadings and/or the same is irrelevant ex facie, Court can direct the deponent to file fresh affidavit after deleting the irrelevant part of evidence or can ignore such irrelevant part of evidence on which no crossexamination could be warranted. The objections thus raised by the plaintiff in respect of part of the evidence highlighted in affidavit in support of chamber summons has merits and thus such part of affidavit deserves to be ignored while recording of evidence of witness Dr Navroze Kotwal with a clarification that plaintiff need not cross examine the said witness in respect of such part of deposition referred in the schedule to the chamber summons. Chamber summons is disposed of.

Summary

Issues Involved:
1. Whether the plaintiff proves that the deceased executed a Will dated 7th February 1997.
2. Whether the plaintiff proves that the deceased was of a sound and disposing mind at the time of making the Will.
3. Whether the plaintiff proves that the Will was executed by the deceased of her own free will.
4. Whether the plaintiff proves that the deceased was in a position to give instructions to the Attorney for preparing the Will.
5. Whether the defendant proves that there was any undue influence or coercion on the deceased into making the Will.
6. What order should be passed?

Issue 1: Whether the plaintiff proves that the deceased executed a Will dated 7th February 1997.

The plaintiff filed testamentary petition No. 504 of 1998, seeking probate of the alleged last Will and Testament of the deceased dated 7th February 1996. The plaintiff and Dr. Navroze S. Kotwal were named executors in the Will. The caveators disputed the execution of any Will by the deceased. The court allowed the defendants to summon Dr. Kotwal, who filed an affidavit in lieu of examination-in-chief, reiterating his earlier statements about the Will.

Issue 2: Whether the plaintiff proves that the deceased was of a sound and disposing mind at the time of making the Will.

The plaintiff and defendants examined three witnesses each. The defendants sought to introduce statements from Dr. Kotwal's affidavit in matrimonial proceedings, which the plaintiff objected to as irrelevant. The court considered whether these statements were pertinent to the deceased's mental state at the time of executing the Will.

Issue 3: Whether the plaintiff proves that the Will was executed by the deceased of her own free will.

The plaintiff argued that Dr. Kotwal's affidavit should be expunged as it contained irrelevant personal allegations from matrimonial proceedings. The court evaluated whether these allegations had any bearing on the voluntary nature of the Will's execution.

Issue 4: Whether the plaintiff proves that the deceased was in a position to give instructions to the Attorney for preparing the Will.

The court examined the relevance of Dr. Kotwal's statements about the plaintiff's personal conduct and relationships, determining that such evidence was irrelevant to whether the deceased was capable of instructing an attorney for Will preparation.

Issue 5: Whether the defendant proves that there was any undue influence or coercion on the deceased into making the Will.

The defendants attempted to use Dr. Kotwal's affidavit from matrimonial proceedings to suggest undue influence or coercion. The court found these statements irrelevant to the testamentary suit, as they were not part of the pleadings or issues framed.

Issue 6: What order should be passed?

The court concluded that portions of Dr. Kotwal's affidavit were irrelevant and beyond the scope of the pleadings. These portions were ordered to be ignored, and the plaintiff was not required to cross-examine the witness on these irrelevant points. The chamber summons was disposed of accordingly, with no order as to costs.

Detailed Analysis:

Issue 1: Execution of the Will
- The plaintiff filed for probate of the deceased's Will dated 7th February 1996. Dr. Kotwal, named as an executor, initially confirmed the Will's existence. The caveators disputed the execution, leading to a suit. The court allowed Dr. Kotwal's examination, but his affidavit contained personal allegations irrelevant to the Will's execution.

Issue 2: Sound and Disposing Mind
- The court scrutinized whether Dr. Kotwal's statements from matrimonial proceedings were relevant to the deceased's mental state. The plaintiff argued these statements were irrelevant, and the court agreed, noting they did not pertain to the deceased's mental capacity at the time of the Will's execution.

Issue 3: Free Will Execution
- The court evaluated the relevance of Dr. Kotwal's personal allegations against the plaintiff. It concluded that these allegations, stemming from matrimonial disputes, were irrelevant to whether the Will was executed voluntarily by the deceased.

Issue 4: Capability to Instruct Attorney
- The court determined that Dr. Kotwal's statements about the plaintiff's personal life and relationships were irrelevant to the issue of the deceased's capability to instruct an attorney for Will preparation. These statements were not part of the pleadings or issues framed.

Issue 5: Undue Influence or Coercion
- The defendants' attempt to use Dr. Kotwal's matrimonial affidavit to suggest undue influence was deemed irrelevant. The court found no connection between these personal disputes and the testamentary issues at hand.

Issue 6: Order
- The court ordered that irrelevant portions of Dr. Kotwal's affidavit be ignored. The plaintiff was not required to cross-examine on these points. The chamber summons was disposed of with no order as to costs, emphasizing the need to focus on relevant evidence within the pleadings and issues framed.