1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION SUIT NO. 18 OF 2006 IN PETITION NO. 154 OF 2006 Mr. Somachand Amarchand @ Sobachand Amarchand Pandia. ... Deceased. Smt. Suknibai Mishrimal Jain. Sobachand Amarchand Pandia. ... Plaintiff. V/s. Smt. Kamlabai Bhawarlal Chauhan (Through C.A. Kiran B. Chauhan). ... Defendant. Mr. Rajesh Shah a/w. A.R. Bapat for the Plaintiff. None for the Defendant. CORAM : S.C. DHARMADHIKARI,J. DATED : 16th SEPTEMBER 2009. ORAL JUDGMENT :- The Suit was placed for Arguments today. It was pointed out to me on the last occasion that after the issues were framed, the affidavit of evidence and documents came to be filed and matter was placed before the Commissioner for recording of evidence. However, when the Suit was placed for recording evidence on 24th June 2009, the learned Counsel appearing for the Defendant applied for discharge and the Court discharged him accordingly. Prior thereto, the Court 2 took on record the affidavit of evidence of the Plaintiff. This affidavit was filed in lieu of examination in chief. The affidavit was taken on record in the presence of the Defendant’s Advocate. The documents were also taken on record after the Defendant’s Advocate pointed out that he has not received any instructions. Once he refused to cross-examine the Plaintiff in so far as the case set out by the Plaintiff, then, the Court proceeded to close the evidence. Thus, two affidavits in examination in chief, one of the Plaintiff and another of the attesting witness were taken on record. The Deponents confirmed each of the statements made in the said affidavit before the Court. They stated that the contents of the documens are true and correct. They proved the documents. The Defendant refused to cross-examine them. Although, they were present and ready and willing to face the cross- examination, the Defendant did not avail of the said opportunity. 2. In these circumstances, the Court placed the matter for oral arguments. 3. The matter was placed for arguments on the last occasion and today after arguing the matter for some time Mr. Shah, learned Counsel appearing for the Plaintiff sought leave to tender written arguments. On 9th September 2009, the written arguments together with copy of the citation/ruling relied upon by the Plaintiff came to be filed and was taken on record. 3 4. With the assistance of Mr. Shah, I have perused the pleadings and the issues so also the oral evidence. The Petition is filed for issuance of Letters of Administration with the last Will and Testament annexed to the property and credits of Mr. Somachand Amarchand @ Sabachand Amarchand Pandia (Deceased). The deceased left a Will which is signed by him in Hindi. The Plaintiff has stated that the deceased died on 17th September 1967 leaving his las Will and Testament dated 1st December 1965. The Plaintiff – Petitioner is the married daughter of the deceased. She is the sole legatee under the Will. This Petition has been filed on 10th February 2006. 5. Mr. Shah submits that citations were issued to all the legal heirs and representatives of the deceased in accordance with the provisions in the Hindu Succession Act, 1956. The citations were served on all heirs and legal representatives and save and except the present Defendant, nobody filed any caveat. 6. The Defendant is also the married daughter of the deceased and sister of the Plaintiff. The caveat has been filed by one Kiran B. Chauhan in his capacity as a Constituted Attorney. In the affidavit it is alleged that the will in question is forged, fabricated, bad in law and/or unnatural. On the basis of this, the Court framed the issues. Issue No.3 states that it is for the Defendant to prove that the alleged Will is 4 forged, fabricated, bad in law or unnatural. However, she has not led any evidence. The Issue No.3, therefore, will have to be answered in the negative. 7. As far as Issue Nos. 1 and 2 are concerned, the Plaintiff has examined herself. Her affidavit of evidence is dated 2nd February 2009. She has lead evidence of one Sukanraj L. Jain, who is one of the attesting witnesses of the Will. The said Sukanraj Jain filed his affidavit of evidence on 2nd June 2009. This is the very person who had filed the affidavit as a attesting witness along with the Petitioner on 10th February 2006. 8. It is not necessary to refer to the settled principles based upon which it can be held that the Will is duly proved. The Plaintiff has pointed out in detail on affidavit as to how the Will was executed in Mumbai by the deceased. She has pointed out that the deceased was educated and literate. He was well acquainted with Hindi language. In fact, the Defendant does not dispute that the deceased could read and write in English. The Plaintiff has, in her affidavit stated that the deceased used to sign in Hindi as well. 9. My attention is invited by Mr. Shah to the written arguments and to paragraph 13 of the affidavit in examination in chief. That paragraph contains an explanation with regard to the deceased bequeathing the property situated at Mumbai to the Plaintiff. It is pointed out that the Plaintiff’s father in 5 law was one of the partners in the Firm more particularly set out in para 13 of the affidavit. The property at Mumbai which is subject matter of the Will belonged to the partnership Firm. The deceased purchased the property at an Auction sale in the year 1940. After tracing the entire litigation leading to the auction sale, the deceased, it is stated bequeathed the property to the Plaintiff as he wanted to ensure that the property continues to remain in the family of the Plaintiff’s husband. Husband of the Plaintiff was appointed as a attorney by the deceased to manage his property. In these circumstances, there is nothing unnatural in the deceased bequeathing this property to the Plaintiff. Therefore, any suspicion with regard to the will and its execution, which also is the issue raised, must be answered against the Defendant. More so, when the Plaintiff has produced a Certified Copy of the conveyance dated 13th July 1940 under which the deceased purchased the said property. 10. In the affidavit in evidence it is pointed out by the Plaintiff that in Suit No.4442 of 2002 filed in the City Civil Court at Bombay by the Plaintiff against one Victor Fernandes & Ors. for Injunction, the Defendant/Caveator filed an affidavit affirmed on 31st December 2002 in which she duly accepted and confirmed the will of the deceased. A certified copy of the affidavit has been produced by the Defendant and I can safely rely upon the contents of the same. More so, in the absence of any cross-examination of the witness. The attesting witness has also filed an affidavit and the Plaintiff’s version 6 proves due execution of the will. 11. It is, in these circumstances, that I hold that Issue Nos.1 and 2 are proved by the Plaintiff and therefore, will have to be answered in the affirmative. 12. As a result of the un-controverted and unchallenged testimony and version of the Plaintiff and the supporting documents that I hold that the Plaintiff is entitled to succeed and deserves a decree being passed in the Suit in her favour. 13. Accordingly, the Suit is decreed. It is directed that the Letters of Administration be issued in favour of the Plaintiff. Drawing up of formal order is expedited and the Office to take necessary steps to issue the same within a period of three months from today. (S.C. DHARMADHIKARI,J.)