NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7548 OF 2002

Dayanandi … Appellant  

Versus

Rukma D. Suvarna and others … Respondents

J U D G M E N T

G.S. Singhvi, J.

1. This  appeal  is  directed  against  the  judgment  of  the  learned Single  

Judge of the Karnataka High Court whereby he allowed the appeal filed by  

respondent No.1, reversed the judgment and decree passed by Ist Additional  

Civil  Judge,  Mangalore  (hereinafter  referred  to  as,  ‘the  trial  Court’)  and  

decreed the suit  filed by her for  partition and separate possession of  her  

share in the suit property.

2. The suit property was owned by Singa Gujaran, father of respondent  

No.1, appellant and respondent Nos. 2 to 6.  About 3 months and 10 days  

before  his  death,  Singa  Gujaran  executed  Will  dated  25.5.1987.   He  

bequeathed the property specified in item No.1 of the Schedule attached to  

the Will to one of his four daughters, namely, Kalyani (respondent No.3) and  

the property specified in item No.2 jointly to the other daughters, namely,  

Dayanandi  (appellant),  Rukma  (respondent  No.1)  and  Deena  (respondent  

No.2).

3. After one year of the demise of Singa Gujaran, respondent No.1 filed  

suit for partition and separate possession of her share in plaint Schedule ‘B’  

property.  She pleaded that her father had executed Will dated 25.5.1987 and  

bequeathed plaint Schedule `A’ property to respondent No.3 Kalyani and  

plaint Schedule `B’ property to other daughters but by taking advantage of  

the  acute  illness  of  the  father,  the  appellant  and  respondent  No.2  

manipulated  the  execution  of  another  Will  depriving her  of  share  in  the  

property.

4. In  the  written  statement  jointly  filed  by  them,  appellant  and  

respondent  No.2  did  not  deny  the  execution  of  Will  dated  25.5.1987 by  

Singa Gujaran but they questioned the genuineness and validity of the Will  

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relied upon by respondent No.1 and pleaded that after executing the Will,  

the deceased had made alterations and thereby disinherited respondent No.1.  

They  further  pleaded  that  Singa  Gujaran  executed  another  Will  dated  

25.8.1987, in which respondent No.1 was not given any share because she  

did  not  attend  funeral  of  the  mother  and  even  when  the  testator  visited  

Bombay in May, 1987, she did not come to meet him.  According to the  

appellant and respondent No.2, at the time of execution of the second Will  

Singa Gujaran was in a sound state of mind and he consciously denied any  

share in the property to respondent  No.1.   They claimed that  respondent  

No.1 has filed suit for partition and possession of her alleged share in the  

suit property by taking advantage of the testator’s subsequent illness and his  

inability to speak or move about.

5. On the pleadings of the parties, the trial Court framed the following  

issues:

“1. Whether  the  suit  is  bad  for  non-joinder  of  necessary  parties? (deleted)

2. Whether  the  plaintiff  proves  that  Late  Singa  Gujaran  executed a Will dated 25.8.1987 and whether it was the last  and effective Will of the Late Singa Gujaran?

3. Whether defendants No. 1 and 2 prove that their father  Late  Singa Gujaran executed  the  Will  dated  25.8.1987 and  whether it is the last and effective Will of Singa Gujaran?

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4. Whether  defendants  No.1  and  2  prove  the  Panchayat  alleged in  para  9  of  the  written statement  and whether  the  plaintiff accepted the jewellery? (deleted)

5. Whether the defendants 1 and 2 also prove that rents are  being collected by Amarnath and spending for maintenance of  property, payment of tax and to look after Ravindra who is  congenitally mentally retarded and is dumb?

6. Whether the plaintiff is entitled to claim a share in the  rental  income of buildings situated in  plaint  “B” scheduled  property?

7. Whether the plaintiff is entitled to partition and separate  possession of 1/3rd share in plaint `B’ scheduled properties as  claimed?

8. To what reliefs are the parties entitled.”

6. In support of her case, respondent No.1 examined herself and 5 other  

witnesses including PW-5 Dr.  J.  Subba Rao and produced 11 documents  

which were marked as Exhibits P.1 to P.11.  She also got produced original  

Will  dated  25.5.1987  (Exhibit  P.1)  from  the  appellant.   The  appellant  

examined herself as DW-1 and produced the second Will which was marked  

as Exhibit D.1.

7. After analyzing the pleadings of the parties and the evidence produced  

by  them,  the  trial  Court  held  that  execution  of  Will  dated  25.5.1987  is  

proved but observed that by virtue of the alterations made in that Will, the  

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deceased  has  consciously  disinherited  respondent  No.1.   The  trial  Court  

noted  that  the  names  of  four  persons  were  mentioned  in  Exhibit  P.1  in  

respect of the second item of the Schedule but the name of respondent No.1  

Rukma was deleted and total number of the beneficiaries was also changed.  

The trial Court referred to the statement of respondent No.1 that her father  

had shown Exhibit P.1 without any correction as also the alleged admission  

made  by her  in  response  to  a  question put  in  the  cross-examination  and  

observed:

“16. PW-1 in the chief-examination, appearing on page No.3  states that her father had shown Ex.P.1 to her and when she  had seen there was no insertion or correction noted in Ex.P.1,  but she has not stated that the correction or deletion was made  by defendant  No.1.   In the cross examination,  appearing at  page 7, PW-1 specifically  admits that the documents writer  before completing the document will mention the corrections  made in the document.  She states that she did not notice the  corrections made in Ex.P.1.  She admits that her father Singa  Gujaran affixed LTM on Ex.P.1. Further admission of PW-1  appearing  in  the  form of  question  and  answer  on  the  face  depict  that  the  said  corrections  and  deletions  appearing  in  Ex.P.1 was made before the contents were read over to Singa  Gujaran.  In this regard, I am inspired to extract the testimony  of PW-1 appearing in the form of question and answer made  not in her cross examination, which reads thus:

Question: Is it not that the striking off and the correction at  the end of the document made at the time of preparation of the  document by the scribe?

Answer: Striking off and the correction were written at the  time when the document was read over to my father.

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(True and correct English Translation of Kannada Portion). Thus  the  answer  given  by  PW-1  appearing  in  the  cross- examination  itself  suffice  to  conclude  that  the  corrections  made in Ex.P.1 were within the knowledge of Singa Gujaran  and when the scribe read over the contents of Ex.P.1, those  corrections were found in Ex.P1.  In this regard the testimony  of PW-5 may be recollected,  who in the chief-examination  itself has deposed that the contents of Ex.p1 were read over  by the scribe to Singa Gujaran, who admitted the same and  affixed his LTM. This shows that, after the name of plaintiff  ‘Rukma’ was deleted and the corrections were made, so as to  bequeath to 3 persons instead of 4 persons, Singa Guajan by  understanding that the name of Rukma was deleted and the  ‘B’  schedule  property  was  to  be  bequeathed  only  to  defendants 1 to 3, affixed his LTM.  After giving answer as  extracted supra, PW-1 realised and further deposed that she  gave  such  answer  in  confusion,  but  there  was  no  such  confusion as a clear cut question was put to her and she gave a  very clean answer and the same has been recorded.”

The trial Court also discarded the testimony of PW-5 by making the  

following observations:

“The plaintiff  examined PW-5 to prove Ex.P.1 and also  to  convince  the  court  that  the  corrections  made  in  Ex.P.1  deleting the name of the plaintiff as after thought by defendant  No.1, whereas the said correction was not found when Singa  Gujaran affixed his LTM, but in this regard the plaintiff failed  to  convince  that  fact,  because  PW-5  not  supported  to  that  extent.  When Ex.P.1 was confronted to PW-5, he has deposed  that the contents of the same were read over to Singa Gujaran  by the scribe, who admitted the contents and then affixed his  LTM.  This witness states that he also read over the contents  of Ex.P.1 and states thus:

‘After having read this, what stated in Ex.P.1 now was in  fact written.

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Question:-1 Whether  in  Ex.P.1  on  the  first  page  the  word,  ‘nalvarige’  was struck off  and the word ‘moovarige’  was written in pen at that time?

Ans:- I do not know about it.

Question:-2 Whether  in  the  second  page  the  word,  ‘Rukma’ was struck off and on top of it ‘3’ as written in pen  and in the next line the word, ‘nalvaru’ was struck off and the  word, ‘moovaru’ was written in pen at that time?

Ans:- I do not know about it also.

(True and correct English translation of Kannada portion).

Thus, the testimony of PW-5 goes against the assertion of the  plaintiff, because PW-5, who is a doctor and who was treating  Singa Gujaran has clearly deposed that whatever the contents  appear now in Ex.P.1, were very much present when Singa  Gujaran executed it, thereby he has ruled out the possibility of  any corrections or  alterations made after  execution of it  by  Singa Gujaran.  He has not deposed that the corrections noted  in Ex.P.1, were not present at the time of execution by Singa  Gujaran, but to the questions put to him as extracted above, he  has  shown  ignorance,  but  his  first  part  referred  supra,  unequivocally  depict  that  the  contents  of  Ex.P.1  which are  now existing, including the corrections and alterations, were  available at the time of execution by Singa Gujaran.”

The trial Court finally held that respondent No.1 was not entitled to  

any share in the suit property and accordingly dismissed the suit.   

8. In the appeal filed by respondent No.1, the High Court framed the  

following points:

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“1)  Whether the alternation/deletion of the plaintiff’s name  in the first Will Ext.P.1 was done prior to its execution  by the executant or not?

2) Whether the finding of the court below that the second  Will Ext.D-1 is proved, is justified or not?”

9. The  High  Court  first  considered  the  issue  whether  

corrections/alterations  made  in  Exhibit  P.1  existed  when  the  testator  

appended his thumb impression, referred to the evidence produced by the  

parties,  noticed Section 71 of the Indian Succession Act, 1925 (for short,  

‘the Act’) and observed:

“A bare perusal  of  the original  of  Ext.P.1 discloses  the first  alteration is found at page No.1 in the last second and third line,  where  the  name  of  Rukkamma  has  been  struck  off  and  subsequently  in  place  ‘to  four  persons’  is  struck off  and the  word ‘to three persons’ is inserted in page No.2 and in third line  the word Rukkamma is deleted and in the fourth line ‘to four  persons’ is struck off and ‘to three persons’ has been inserted.  As  required  under  Section  71  of  the  Indian  Succession  Act,  1925 no signature of the testator is made in the margin or at  some other part of the Will or near to such alteration or at the  foot  or  end  or  opposite  to  a  memorandum referring  to  such  alteration.  Therefore, when such alteration has not been made  in the manner indicated under Section 71 such alterations will  not have any effect.  Secondly, as to the question whether said  alterations  were  made  prior  to  the  execution  of  the  Will  or  subsequent to the execution of the Will there is absolutely no  evidence adduced by either of the parties.  However, an attempt  is made on the part of the respondents counsel to point out the  evidence  of  PW-1  wherein  she  has  stated  that  the  said  corrections are made at the time when it was read over to her  father whereby meaning that after alterations were made it was  

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read over to the executant and he affixed his LTM in token of  such alterations also.  It is this admission which has been taken  note of by the court below to hold that the said alterations were  there  before  execution  and  therefore,  the  Will  has  to  be  executed with the said alterations.  It is nobody’s case that PW- 1 was present at the time of the execution of Ext.P.1  In fact,  realising  the  mistake  committed  by  her  an  attempt  is  made  subsequently to explain it.  But it is clear that her admission has  no legal basis  as she was not present  at the time Ex.P1 was  executed.  If the evidence is excluded from record, there is no  other  evidence  placed  on  record  by  the  defendant  to  demonstrate  that  the  said  alteration  was  made  prior  to  the  execution of the Will.  In fact, the doctor, attesting witness PW- 5  is  unable  to  answer  a  pointed  question  whether  such  alterations were there when the Will was executed and when he  attested the Will.  In the aforesaid circumstances, no importance  could be given to the so called admission of the plaintiff to hold  that  the  said  alterations  were  there  before  executing  the  Will……….”

(emphasis supplied)

10. The High Court then considered the question whether Singa Gujaran  

had voluntarily executed the second Will (Ext. D1), analysed the evidence  

produced by the parties  including statements  of the doctors examined by  

respondent No.1 and answered the same in negative.  The High Court also  

dealt with the reasons put forward by the appellant and respondent No.2 to  

justify the alleged decision of Singa Gujaran to disinherit respondent No.1  

and observed:

“On the face of it the said reason given for disinheriting the  plaintiff do not appear to be genuine. The mother of the  plaintiff  died in  the year  1985.  If  his  father  was  upset  

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because she did not attend the funeral in 1985, in 1987  when he was making the will he would not have given a  share  in  the  B-schedule  property  to  the  plaintiff  under  Ex.P.1 and that cannot be made a ground to disinherit the  plaintiff in the second will when under the first will a specific  share has been given to the plaintiff. In between the first will  and second will hardly the gap is three months. The case  advanced by the defendant is after making the first will his  father went to Bombay  to  the second defendant's house  and the  plaintiff did not visit him. Absolutely no  material is  placed before court to substantiate the said case. The said  case is highly impossible because the material on record  disclose  that  on  11lh of  August  1987 his  father was  admitted to Tara Clinic which fact was totally denied by the  defendant in her reply notice. It is to demonstrate the said  fact the plaintiff has examined three doctors as witnesses.  Their evidence has remained unchallenged and ultimately  the defendant also admits that the father was admitted to  Tara Nursing Home. The evidence on record disclose that  on 11th of August 1987 when the father was admitted in the  hospital after examination when it was found that he was  suffering  from  stomach  cancer  probably  as  it  was  at  advanced stage the doctor advised the parties to take him  back to the house as no useful purpose would be served by  keeping him in the clinic. Therefore, after examination he  was brought  back to the house and no treatment  was  given. The evidence of his grandson PW-6 who is son of  third defendant gives an indication of his state of health. At  the time of attesting the testator was in the nursing home.  He states that on 11th of August 1987 he was admitted to  the nursing home and on 13th he was discharged. The  doctors  informed  them  that  the  deceased  is  at  the  advanced  stage  of  cancer  and  they  cannot  give  any  treatment. Therefore, three persons lifted him to the car and  brought him back to the house. When he was brought to  the house from the hospital he was in unconscious state  and he was not taking any food.  Dr. Subbarao was visiting  the house.  After he was taken to Tara Clinic he was not in  a position to walk. In fact, the said witness and his mother  was staying next doors to the house where Singa Gujaran  

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was staying. In the cross-examination of DW-1 she admits  that her relationship with her mother was cordial. Under  these circumstances, the materials on record disclose that  at the time Ext. D-1 was alleged to have been executed by  the executant he was suffering from stomach cancer and  his health was not in good state.  It is 14 days after his  admission to the nursing home the said will has come into  existence.  Fourteen days thereafter he has died. It cannot  be said that under these circumstances he was in a sound  state of disposing state of mind to execute Ext.D-1.”

11. We have heard learned counsel for the parties and perused the record.  

We shall first consider the question whether the hand written endorsement  

made at the end of the typed Will (Exhibit P.1) was made at the instance of  

the testator  before he affixed his  left  thumb mark and whether  the High  

Court  committed  an  error  by  reversing  the  finding  recorded  by  the  trial  

Court on this issue.  

12. Sections 63 and 71 of the Act which have bearing on the decision of  

the first question read as under:

“63.  Execution  of  unprivileged  Wills.–  Every  testator,  not  being a soldier employed in an expedition or engaged in actual  warfare, or an airman so employed or engaged, or a mariner at  sea, shall execute his Will according to the following rules:-

(a) The testator shall sign or shall affix his mark to the Will,  or it shall be signed by some other person in his presence  and by his direction.

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(b) The signature or mark of the testator, or the signature of  the person signing for him, shall be so placed that it shall  appear that it was intended thereby to give effect to the  writing as a Will.

(c) The Will shall be attested by two or more witnesses, each  of whom has seen the testator sign or affix his mark to  the Will or has seen some other person sign the Will, in  the presence and by the direction of the testator, or has  received from the testator a personal acknowledgement  of his signature or mark, or of the signature of such other  person; and each of the witnesses shall sign the Will in  the presence of the testator, but it shall not be necessary  that more than one witness be present at the same time,  and no particular form of attestation shall be necessary.

71.   Effect  of  obliteration,  interlineation  or  alteration  in  unprivileged  Will.  – No obliteration,  interlineation  or  other  alteration  made  in  any  unprivileged  Will  after  the  execution  thereof  shall  have  any  effect,  except  so  far  as  the  words  or  meaning of  the Will  have been thereby rendered illegible  or  undiscernible, unless such alteration has been executed in like  manner  as  hereinbefore  is  required  for  the  execution  of  the  Will:

Provided that the Will, as so altered, shall be deemed to be duly  executed if the signature of the testator and the subscription of  the witnesses is made in the margin or on some other part of the  Will opposite or near to such alteration, or at the foot or end of  or opposite to a memorandum referring to such alteration, and  written at the end or some other part of the Will.”  

13. An analysis of Section 63 shows that the testator must sign or affix his  

mark on the Will or the same shall be signed by some other person as per his  

direction and in his presence.  The signature or mark of the testator or the  

signature of the person signing for him shall be placed in a manner which  

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may convey the intention of the testator to give effect to the writing as a  

Will, which is also required to be attested by two or more persons, each of  

whom must have seen the testator sign or affix his mark on the Will or some  

other person sign the Will  in the presence  or  as  per  the direction of  the  

testator.  If the witness has received a personal acknowledgment from the  

testator of his signature or mark or the signature of other person signing on  

his  behalf,  then  it  is  not  necessary  that  both  the  witnesses  shall  

simultaneously  remain  present.   The  section  also  lays  down  that  no  

particular form of attestation is necessary.

14. The plain language of Section 71 makes it clear that any alteration  

made in an unprivileged Will after its execution has no effect unless such  

alteration  has  been  executed  in  the  same  manner  in  which  the  Will  is  

executed.  The proviso to this section carves out an exception and lays down  

that such alterations shall be deemed to be duly executed if the signature of  

the testator and the subscription of the witnesses is made in the margin or on  

some other part of the Will opposite or near to such alterations or at the foot  

or end or opposite to a memorandum referring to such alterations and written  

at the end or some part of the Will.    

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15. A careful  scrutiny of the pleadings of the parties and the evidence  

produced by them shows that Will Exhibit P.1 was scribed by Narsappayya  

and was witnessed by PW-5 Dr. J. Subba Rao and B.V. Amin.  Respondent  

No.1 was not present at the time Exhibit P.1 was scribed and executed by  

Singa Gujaran by putting his left thumb mark.  In his testimony, PW-5 stated  

that  the  contents  of  Exhibit  P.1  were  read  over  to  Singa  Gujaran  by  

Narsappayya and he understood the same.  PW-5 expressed ignorance about  

the  corrections/alterations  made  in  the  Will  i.e.  scoring  out  of  the  word  

‘four’ and writing of word ‘three’ as also scoring out the name of respondent  

No.1 Rukma.  He then stated that Singa Gujaran was suffering from stomach  

cancer and when he sent the patient to Dr. Prabhakar in July/mid-August, he  

was finding it difficult to eat.  Later, Dr. Prabhakar referred the patient to Dr.  

Ballal who confirmed that he was suffering from stomach cancer.   

16. We  have  gone  through  Exhibit  P.1,  which  was  got  produced  by  

respondent No.1 from the appellant.  Four corrections have been made on  

pages 1 and 2 of this document. The figures written in letters (four) were  

substituted with numbers (3) and the name of respondent No.1 was scored  

out (page 2).  At the end of the Will, the testator appended his left thumb  

mark.  On the right side of thumb mark a line has been written with the ink  

pen/ball pen suggesting that the corrections/alterations were made prior to  

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putting of left thumb mark by the testator.  However, the space between the  

last line of the typed Will (in Kannada) and what was written with the ink  

pen/ball pen leaves no manner of doubt that the writing on the right side of  

the  thumb  mark  was  made  after  execution  of  the  Will.   If  the  

corrections/alterations had been made before the testator had appended his  

left thumb mark, there was no reason why the line showing deletion of the  

name of respondent No.1 and corrections in the figures were not reflected in  

the typed Will and why the line was inserted in the little space left between  

the concluding portion of the Will and the space where the left thumb mark  

was put by the testator.  Therefore, we approve the view taken by the High  

Court that the corrections/alterations made in Exhibit P1 cannot be said to  

have been duly attested by the testator as per the requirement of Section 71  

of the Act and respondent No.1 is entitled to share in the property specified  

in Schedule `B’ appended to the plaint.   

17. The next question which merits consideration is whether Exhibit D.1  

was duly executed by Singa Gujaran and, therefore, the first Will will be  

deemed to have become redundant.  Admittedly, Ext. D1 was propounded  

by the appellant and respondent No.2 and was contested by respondent No.1,  

who specifically pleaded that by taking advantage of the ill  health of the  

father,  the  appellant  and  respondent  No.2  conspired  and  manipulated  

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execution  of  the  second  Will  purporting  to  disinherit  her.   According to  

respondent No.1, at the time of execution of the second Will, Singa Gujaran  

was seriously ill and was not in a sound state of mind so as to understand the  

implications and consequences of his actions.  In support of this assertion,  

respondent  No.1 examined Dr.  B.R.  Kamath  (PW-2),  Dr.  Prabhakar  Rao  

(PW-3) and Dr. C.R. Ballal (PW-4) apart from PW-5 Dr. J. Subba Rao.  All  

of them categorically stated that Singa Gujaran was suffering from acute  

stomach cancer and he was not in a position to eat.  The statement of PW-6  

is also significant on the issue of health of the executant.  This witness gave  

out that the executant was taken to the car by three persons and they brought  

him back to the house in an unconscious state of mind and he was not taking  

any food.  PW-6 also gave out that the executant was not in a position to  

walk.  The appellant and respondent No.2 relied upon the testimony of PW-

5, who had been examined by respondent No.1 to prove the execution of the  

Will Exhibit P.1.  In his cross examination PW-5 disclosed that as per his  

knowledge, Singa Gujaran had made two Wills and he was a witness to the  

second  Will  as  well  which,  according  to  him,  was  also  scribed  by  

Narsappayya.  According to PW-5, the testator had affixed left thumb mark  

on Exhibit D.1 and he had signed the Will as a witness in the clinic. What is  

significant  to  be noted  is  that  PW-5 did not  say  that  Singa Gujaran had  

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affixed left thumb mark in his presence and that he had put his signatures as  

witness  in  the presence  of  the testator.   As to  the  state  of  health  of  the  

executant,  PW-5  categorically  stated  that  he  was  suffering  from  acute  

stomach cancer and was not in a position to eat or walk.  It has come in the  

evidence of the parties that the executant was admitted in Tara Clinic on  

11.8.1987 and when the doctor attending him found that cancer was at an  

advanced stage, they advised the parties to take him home.  It has also come  

on  record  that  just  14  days  after  the  execution  of  the  second  Will,  the  

executant died.  Therefore, it is not possible to find any fault with the finding  

recorded by the High Court that the execution of Exhibit D.1 was highly  

suspicious.

18. It is also apposite to observe that if Singa Gujaran had consciously  

decided to disinherit respondent No.1 in the first Will by appending his left  

thumb  mark  after  corrections/alterations  were  made  and  the  name  of  

respondent No.1 was deleted, there was no reason for him to execute the  

second Will.  In her evidence, the appellant and respondent No.2 could not  

offer any tangible explanation as to why it became necessary for her father  

to execute the second Will after he had already disinherited respondent No.1.  

This also supports the conclusion that execution of Exhibit D.1 was not a  

voluntary act of the testator.  

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19. We may now advert to the two reasons put forth by the appellant and  

respondent  No.2,  which  did  not  find  favour  with  the  High  Court,  to  

substantiate  their  plea  that  the  testator  had  consciously  disinherited  

respondent No.1. The first reason was that respondent No.1 did not attend  

the funeral of her mother and on that count the father was upset.  On the face  

of it, this reason does not sound plausible.  It is an admitted position that the  

mother of the parties died in 1985.  If the father was upset with respondent  

No.1 on the ground that the latter had not come to attend the funeral of the  

mother, then he would not have given any share to her in item No.2 of the  

Schedule appended to Ext. P1.  However, the fact of the matter is that the  

testator did give share to respondent No.1 along with two other daughters.  It  

is a different thing that some manipulative alterations were made in Ext. P1  

giving an impression that before putting his left thumb mark, the testator had  

consciously  disinherited  respondent  No.1.   The  second  reason  was  that  

respondent No.1 did not come to attend him during his visit to Bombay in  

May, 1987.   In this context, it is important to bear in mind that the appellant  

and respondent No.2 did not adduce any evidence to prove that the testator  

had visited Bombay between 25.5.1987 i.e. the date on which the first Will  

was executed and 11.8.1987 when he was admitted in the nursing home.  

That apart, it was highly improbable that the testator, who was terminally ill,  

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would have gone to Bombay for the purpose of treatment.  Therefore, the so  

called  failure  of  respondent  No.1 to  meet  the  testator  during his  visit  to  

Bombay cannot be relied upon as a ground for accepting the version of the  

appellant and respondent No.1 that he was upset with respondent No.1 and  

decided to disinherit her by executing Ext. D1.

20. In the result, the appeal is dismissed.  The parties are left to bear their  

own costs.  

…..…..…….………………….…J.        [G.S. Singhvi]

…..…..……..…..………………..J.                          [Asok Kumar Ganguly]

New Delhi October 31, 2011.

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