KJ 1 IN THE HIGH COURT OF JUDICUATURE AT MUMBAI TESTAMENTARY & INTESTATE JURISDICTION NOTICE OF MOTION NO.63 OF 2010 IN TESTAMENTARY SUIT NO.28 OF 2004 IN TESTAMENTARY PETITION NO.115 OF 2009 Vrajeshkumar P. Sampat & Anr. ..Plaintiffs Vs. Damayanti D. Sampat & Ors. ..Defendants ---- Mr. Girish Desai i/by P. S.Shah for the plaintiffs. Ms. Vaishali Chandhani for the defendant nos.1 to 4. ---- CORAM : R.S.MOHITE, J DATE : 13/8/2010 P. C.: 1 The matter is moved for speaking to the minutes of my order dated 23.7.2010 passed in Notice of Motion No.63 of 2010. As mentioned in my said order the Court was dealing with Commissioner’s report dated 9.4.2010 which recorded that the evidence of Mr.Pranlal Vora who was an attesting witness to the disputed Will was closed. It appears that the said witness had filed an affidavit in lieu of examination-in-chief in which he had stated KJ 2 that the Will was signed by the testator and by himself. The original Will in question was however lying in the custody of the Court and was not produced on the said date. Without showing the original Will to the witness, cross-examination commenced. The Will could not be shown to the witness as the Court officer has not brought the same before the Commissioner on the day of evidence. As the witness stated that he was very tired and unable to go on further, the Commissioner recorded that the cross- examination to be closed. In such circumstances, since the original Will was not before the Commissioner on the last date, it appears that the same has not been put to the witness though the witness has stated in his evidence in lieu of examination-in-chief that the Will was signed by the testator and he had signed as an attesting witness. Since the cross-examination has already commenced, I am not inclined to vary my order dated 23.7.2010. It is however made clear that the Commissioner will be at liberty to direct the original Will to be produced and to ask questions pertaining to its execution under Section 165 of the Evidence Act which permits the Court to put questions at any stage of the proceedings. Such a KJ 3 direction is necessary to do complete justice between the parties because no prejudice would be caused to the defendants who will be at liberty to continue with the cross-examination. The Commissioner is directed to complete this process of producing the documents and asking questions pertaining to proof of the same before allowing further cross-examination. With this clarification, precipe is disposed off. (R.S.MOHITE,J.)