Mahesh Mithalal Trivedi vs Dinesh Jethalal Soni - Testamentary Suit

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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

                             ::: Uploaded on - 27/03/2026           ::: Downloaded on - 28/03/2026 01:28:50 :::
                                                         TS-59-2008.doc

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

                                                            TS-59-2008.doc

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

                                                                    TS-59-2008.doc

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

                                                           TS-59-2008.doc

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.

TS-59-2008.doc

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

TS-59-2008.doc

deceased), sister of Late Dhirajlal Prabhudas Sagar, filed a Caveat

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),

                                                         TS-59-2008.doc

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

                                                         TS-59-2008.doc

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

                                                          TS-59-2008.doc

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

1. Correspondence thereafter ensued with the nephews, who

                                                       TS-59-2008.doc
   

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

                                                         TS-59-2008.doc

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

                                                          TS-59-2008.doc

      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.

TS-59-2008.doc

        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](https://indiankanoon.org/doc/1175175/) and [63](https://indiankanoon.org/doc/1673132/) 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

                                                            TS-59-2008.doc

                 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

                                                               TS-59-2008.doc

           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](https://indiankanoon.org/doc/736842/) vi. [Savithri & Ors. Vs. Karthyayani Amma & Ors.6](https://indiankanoon.org/doc/1626809/) vii. [Man Kaur Vs. Hartar Singh Sangha7](https://indiankanoon.org/doc/1897611/) viii. [Mahesh Kumar (Dead) by LRs Vs. Vinod Kumar &
           Ors.8](https://indiankanoon.org/doc/93264341/) ix.      Rustom Minoo Seth Vs. Freddy Dinshaw Birdy9

           x. [Iqbal Basith & Ors Vs. N.Subbalakshmi & Ors.10](https://indiankanoon.org/doc/120122381/) xi.      Saroj Kumar Chatterjee11

           xii. [Derek AC Lobo Vs. Ulric MA Lobo12](https://indiankanoon.org/doc/118992714/) xiii. Shonali Kedar Dighe Vs. Ashita Tham13

           xiv. [Leela and Ors. Vs. Muruganantham and Ors.14](https://indiankanoon.org/doc/106424186/)

33) Per contra, Mr. Kini, learned Advocate for the Defendants,

 1999 3 Supreme Court Cases 457

 (2002) 2 SCC 85

 (2005) 1 SCC 280

 (2005) 1 SCC 40

 (2005) 8 SCC 67

 (2007) 11 SCC 621

 (2010) 10 SCC 512

 (2012) 4 SCC 387

 TS No.225 of 2015 dated 21.12.2026 BHC

 (2021) 2 SCC 718

 2021 AIR CC 3097

 2023 SCC Online SC 1893

 AIR 2024 (NOC) 242 BOM

 (2025) 4 SCC 289

                                                          TS-59-2008.doc

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

                                                            TS-59-2008.doc

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

TS-59-2008.doc

sheets;

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

                                                          TS-59-2008.doc

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

                                                            TS-59-2008.doc

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

                                                                    TS-59-2008.doc

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

                                                          TS-59-2008.doc

(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.

                                                           TS-59-2008.doc

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

                                                                  TS-59-2008.doc

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,

                                                          TS-59-2008.doc

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.

TS-59-2008.doc

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

                                                          TS-59-2008.doc

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

1. It was contended that in the presence of such suspicious

circumstances, the burden on the propounder becomes onerous,

                                                                    TS-59-2008.doc

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

                                                         TS-59-2008.doc

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.

TS-59-2008.doc

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

1. 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,

                                                         TS-59-2008.doc

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,

                                                           TS-59-2008.doc

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](https://indiankanoon.org/doc/22929/), 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

1958 SCC OnLine SC 31

(1977) 1 SCC 369

(2009) 3 SCC 687

TS-59-2008.doc

conduct constitute suspicious circumstances requiring strict scrutiny.

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)](https://indiankanoon.org/doc/1262664/) and

            under [section 500](https://indiankanoon.org/doc/1408202/) of the Indian Penal Code ([IPC](https://indiankanoon.org/doc/1569253/)) 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.

TS-59-2008.doc

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?
TS-59-2008.doc

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

                                                            TS-59-2008.doc

         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

                                                        TS-59-2008.doc

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

                                                                 TS-59-2008.doc

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](https://indiankanoon.org/doc/22929/) (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

                                                           TS-59-2008.doc

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](https://indiankanoon.org/doc/435765/) 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 K.D. Sharma v. SAIL19.

[(2003) 9 SCC 401]

 (2008) 12 SCC 481)

                                                         TS-59-2008.doc

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

                                                                   TS-59-2008.doc

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

                                                          TS-59-2008.doc

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

1. 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

                                                         TS-59-2008.doc

    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.](https://indiankanoon.org/doc/120122381/) (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

                                                             TS-59-2008.doc

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](https://indiankanoon.org/doc/93264341/) (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](https://indiankanoon.org/doc/1673132/) 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

                                                          TS-59-2008.doc

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

                                                                           TS-59-2008.doc

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](https://indiankanoon.org/doc/40394614/), and having regard to the fact that a

 (2025) SCC OnLine 793

                                                           TS-59-2008.doc

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.

TS-59-2008.doc

                                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](https://indiankanoon.org/doc/1569253/), 1860 including under [Sections 196](https://indiankanoon.org/doc/814524/), [199](https://indiankanoon.org/doc/739296/), [200](https://indiankanoon.org/doc/943588/), [463](https://indiankanoon.org/doc/1328629/) and [471](https://indiankanoon.org/doc/1466184/) 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)](https://indiankanoon.org/doc/1484842/) and (c)

      read with [Section 379 (3) (a)](https://indiankanoon.org/doc/243018/) 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

                                                     TS-59-2008.doc

   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.

TS-59-2008.doc

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.

TS-59-2008.doc

   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]

TS-59-2008.doc

1. Iqbal Basith & Ors. vs N. Subbalakshmi & Ors. [(2021) 2 SCC 718]

2. Saroj Kumar Chatterjee [2021 AIR CC 3097]

3. Derek A.C. Lobo vs Ulric M.A. Lobo [2023 SCC OnLine SC 1893]

4. Shonali Kedar Dighe vs Ashita Tham [AIR 2024 (NOC) 242 (Bom)]

5. Leela & Ors. vs Muruganantham & Ors. [(2025) 4 SCC 289]

6. H. Venkatachala Iyengar vs B.N. Thimmajamma [1958 SCC OnLine SC 31]

7. Jaswant Kaur vs Amrit Kaur [(1977) 1 SCC 369]

8. Bharpur Singh vs Shamsher Singh [(2009) 3 SCC 687]

9. Vijay Syal vs State of Punjab [(2003) 9 SCC 401]

10. K.D. Sharma vs Steel Authority of India Ltd. [(2008) 12 SCC 481]

11. RBANMS Educational Institution vs B. Gunashekar [2025 SCC OnLine SC 793]