1 ts38-99.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION Testamentary Suit No. 38 of 1999 in Testamentary Petition No. 721 of 1999 Harish Ramniklal Laliwala, adult, Inhabitant, named as Sole Executor residing at 25/26 Giri Chhaya, 5th Floor, Loyalka Estate, Band Stand, Chowpatty, Mumbai 400 006 . . Plaintiff v/s. 1. Aruna Vikram Sheth, Alisha Hallmark, 2274 Fennesaw, G.A. 30152 U.S.A. 2. Mr.Praful Ramniklal Laliwala, Allenwood Hotel, U.S.Highway, Louisville, S.A.30434 U.S.A. 3. Mr.Jitendra R. Laliwala, Allenwood Hotel, U.S.Highway, Louisville, S.A. 30434 U.S.A. ..Defendants 2 ts38-99.sxw Mr.Shailesh Shah with Ms.Jyoti Mistry i/b.S.K.Srivastav & Co. for the Plaintiff. None for the Defendants CORAM : R.Y.GANOO, J. DATED : 6th April, 2011 ORAL JUDGMENT. : 1. The plaintiff herein filed Probate Petition No.721 of 1988 so as to have probate in respect of Will dated 5.3.1985 said to have been executed by Smt. Sushila Ramniklal Laliwala. The said Sushila Ramniklal Laliwala shall hereinafter be referred to as “Testatrix” and the Will dated 5.3.1995 shall hereafter be referred to as the said Will. The testatrix expired on 26.8.1991 and this petition was filed for probate on 6.8.1998. In the petition, the petitioner mentioned names of 5 persons as next to kin and they are (i) Harish R Laliwala, (ii) P.R.Laliwala, (iii) Mrs. A.V.Seth, (iv) Mr. J.R.Laliwala and (v) Mr. P.R.Laliwala. The petition has been filed by the son of the testatrix Mr. Harish Laliwala in his capacity as Executor of said Will. A caveat came to be filed by Mrs. A.V.Seth, Mr. P.R.Laliwala, Mr. J.R.Laliwala. Out of these three persons Mrs.A.V.Sheth has filed affidavit in support of the said 3 ts38-99.sxw caveat. Two other persons have not filed affidavit in support of the caveat. 2. It has been the stand of Mrs. Seth, the Caveator that the said Will was forged and that the signature of the Testatrix was obtained first and thereafter the text of the Will was scribed. On the basis of the pleadings issues came to be framed on 1.2.2011. The said issues and my findings thereon are as under: ISSUES FINDINGS i) Whether the last Will & Testament In the affirmative of the deceased Mrs.Sushila Ramniklal Laliwala dated 5.3.1985 was validly executed? ii)Whether the said Will was forged or In the negative prepared on blank paper on which the signature of the deceased was taken? Iii) What relief, if any, is the As per operative part. plaintiff entitled to? 3. At the stage of recording of evidence the plaintiff has examined Attesting witness Mr. Harish S. Bhoja. No other witness has been examined on behalf of the plaintiff. The Death Certificate issued 4 ts38-99.sxw by the Mumbai Municipal Corporation as regards the date of death of the testatrix is at Exhibit P. The said Will has been marked as Exhibit P-1 in the course of recording of evidence. 4. At the stage of recording of evidence the defendants remained absent and no witness has been examined on behalf of the defendants. 5. On account of the aforesaid developments, it was necessary for this Court to appreciate the evidence of P.W.1 Mr. Harish Bhoja and decide the matter. 6. Learned Counsel Mr. Shah, appearing on behalf of the plaintiff in the first place pointed out that the requirement to prove the said Will as having been duly executed by the Testatrix are fulfilled in as much as P.W.1 Mr. Harish has stated in his evidence affidavit dated 17.2.2011 as to how the testatrix executed the said Will, and as to how the said Will came to be attested by two attesting witnesses namely Mr. Bhoja himself and Mr.V.C.Dalal. Learned 5 ts38-99.sxw Counsel Mr. Shah had submitted that the Court will have to accept the uncontroverted evidence of Bhoja, P.W.1 as sufficient evidence as regards Execution of the Will on the ground that the evidence of Mr.Bhoja P.W.1 meets with requirements of proving of a Will. 7. Learned Counsel appearing on behalf of the plaintiff had submitted that looking to the defence taken up by the defendants, it was necessary for the defendants and in particular Mrs. Seth to lead appropriate evidence so as to show to the Court that the said Will was forged, in as much as the signature of the testatrix was obtained first and behind her back the text of the Will was scribed. Learned Counsel Mr. Shah had drawn my attention to the evidence affidavit of Mr. Bhoja Shetty and in particular para no.2 where he has stated that the testatrix showed to P.W.1 Mr. Bhoja handwritten Will in Gujrati. Learned Counsel Mr. Shah had submitted that this evidence of Mr. Bhoja has gone unchallenged and it shows that the document in the nature of Will came to be scribed first and thereafter the testatrix had signed and thereafter 6 ts38-99.sxw the attesting witnesses viz. Mr.Dalal and Mr. Bhoja had tendered their respective signatures. Learned Counsel Mr.Shah therefore submitted that the plaintiff has been able to make out a case that the said Will has been executed by the testatrix and the requirements of Section 63 of the Indian Succession Act, 1925 have been duly fulfilled and therefore the said Will is required to be probated. 8. Learned Counsel appearing on behalf of the plaintiff pointed out that the defendants have failed to make out a case in their favour. He submitted that the stand put up by the plaintiff that the Testatrix has executed the said Will is required to be accepted and the said Will propounded by plaintiff is required to be probated by decreeing the said suit. 9. I have perused the entire record including the evidence of P.W.1. Mr.Harish Bhoja. The plaintiff has been able to prove through the Death Certificate Exhibit P that the testatrix died on 26.8.1991. The arguments advanced by learned Counsel Mr. Shah 7 ts38-99.sxw as regards proving of the Will Exhibit P-1 are required to be accepted. Evidence of P.W.1 Harish Bhoja is clear as regards the manner in which the said Will came to be executed and attested by him as well as Mr. Dalal. A reading of the entire record goes to show that the plaintiff has been able to make out a case that the said Will was executed by the testatrix by complying with provisions of Section 63 of the Indian Succession Act, 1925. Accordingly, issue no.1 is answered in the affirmative. 10. Since defendants have not been able to place before the Court the evidence, much less cogent evidence to show that the said Will was forged or written on the blank paper on which the signature of the deceased was already taken, the issue no.2 will have to be answered in the negative and is accordingly answered in the negative. 11.Taking into consideration the answers to issue no.1 in the affirmative, and answer to issue no.2 in the negative respectively the plaintiff is entitled to a decree in the suit and the order will 8 ts38-99.sxw have to be passed directing the office to process the Testamentary Petition and grant probate in respect of said Will accordance with the provisions of law. Hence issue no.3 is decided as per the operative part. 12.For the reasons mentioned aforesaid, I pass the following decree. DECREE i. Plaintiff’s suit is decreed, It is hereby held that the Will dated 5.3.1985 has been executed by Late Smt. Sushila Ramniklal Laliwala by complying with the provisions of Section 63 of the Indian Succession Act, 1925. ii) Office is directed to process the Testamentary Petition No. 721 of 1998 and grant probate to the plaintiff. iii) In the facts and circumstances of the case, there shall be no order as to costs. [R.Y.GANOO, J.]