1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Suit No.35 of 2004 IN Petition No.346 of 2005 Along with Chamber Summons No.1513 of 2004 Mrs.Kamlaben Bhagwanji Ambani .. .. Deceased Dr.Sukumar Chandulal Ambani & anr. .. Plaintiffs V/s. Shailesh N. Damani & ors. .. .. Defendants Mr.R.R. Tiwari for Plaintiffs. Mr.T.G. Vora i/by Mr.D.R. Mishra for Defendants. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 8th August, 2008 P.C. : 1.This Suit is filed by the grandson and the granddaughter-in- law of the deceased/Testatrix Kamlaben Bhagwanji Ambani. The citation has been served upon the Defendants as the other heirs and legal representatives of the said Kamlaben Bhagwanji Ambani. The Defendants are also the grandchildren of the said Kamlaben. Whereas Plaintiff No.1 is the son of the son of the Testatrix, the Defendants are the children of the daughter of the Testatrix. The parties are cousins. The Defendants have caveatable interest. They 2 have filed a Caveat and accordingly, defended the Testamentary Suit. 2.The Testatrix expired in July 1987 leaving behind a Will dated 27.6.1985 without mentioning any executor therein. The Petitioners have applied for Letters of Administration with the Will annexed. It is the Defendants' case that the deceased has not executed the Will dated 27.6.1985, for which the Letter of Administration is applied for and that she was not in a position to execute the same. Based upon the contentions between the parties, the following issues have been framed by Justice Daga which are answered as follows:- ISSUES (1)Do the Plaintiffs prove that the deceased KAMLABEN B. AMBANI has executed the last Will and Testament dated 27th June 1985 and the Plaintiffs are entitled for Letters of Administration with the Will annexed ? - Yes. (2)Do the Plaintiffs further prove that the Defendants have no legal and valid defence/objection for the grant of Letters of Administration? - Yes. 3 (3)Do the Defendants prove that the Petition (Suit) for Letters of Administration is not maintainable? - No. (4)What order and decree ? - As per final order. I answer the above issues as follows:- 3.To prove the Will, the Plaintiffs have led evidence of four witnesses. Plaintiff Nos.1 and 2 have themselves deposed. The two attesting witnesses in the Will have also deposed. These parties have been cross-examined. There is no evidence led by the Defendants. From the evidence of the aforesaid four witnesses, it would have to be seen whether the Will dated 27.6.1985 is proved to have been executed by the Testatrix on 27.6.1985 and the Letters of Administration in respect thereof can be granted. Issue Nos.1 and 2 : 4.The Plaintiffs have to prove the Will of the deceased Kamlaben dated 27.6.1985. The evidence of P.W.1 shows that he lived with her since her birth. She did not know to write but she could sign. There were 5 persons present at the time of the execution of the Will; being the Testatrix, the two Petitioners and the two attesting witnesses. The 4 Testatrix requested the attesting witnesses to remain present. She read over the Will to every one. He does not know who prepared the Will. 5.P.W.2 has deposed that the Testatrix could write as well as sign. She called her brother, one of the attesting witnesses to her residence. There were the aforesaid five persons present when the Will was executed. She also does not know who prepared the Will. The Testatrix read over the Will to every one. 6.The case put to P.W.1 is that the Defendants were regular visitors in his house. (That was where the Testatrix lived). The case that has been put to P.W.2 is that the Defendants were not allowed to meet the Testatrix and that she was not keeping well when the Will was signed by her. (This case has not been put to P.W.1). Both the aforesaid cases have been denied. 7.P.W.3 is the brother of P.W.2 and one of the attesting witnesses. He has described the execution of the Will. His deposition shows that the Testatrix put three signatures on the Will; one on the front page and two overleaf in Gujarati language. He identified the signatures of the Testatrix as 5 well as the other witnesses. He deposed that Arun Kadam was the other witness. He also signed as the attesting witness. He deposed that his sister told him to sign the Will and so he signed it. He also deposed that his sister requested him to come to her residence and attest the Will. He also did not know who prepared the Will. He deposed that the Stamp Paper was purchased in the name of Plaintiff No.1. (That fact can be seen from the Will itself). He deposed that he did not know who had written the Will. The Will was ready when he reached the residence. The Testatrix told him that she had her Will and that he would have to sign it as one of the attesting witnesses. He has also deposed about the five persons present thereat. He has deposed that the mental condition of the Testatrix was sound. He has identified the signature of the Testatrix but not the handwriting on the Will. He has deposed that the Testatrix did not tell him why she was excluding the Defendants from the benefit of the Will. 8.P.W.4 is the other attesting witness. He knew the Testatrix for the last 30/35 years. He is also the friend of P.W.3, who is the other attesting witness. He has deposed about the relationship of the parties. He is not a family member. He is an independent witness. He has deposed that P.W.1 and 6 P.W.2 telephoned him a day before and requested him to come to their residence where the Will was read. He read over the Will to the Testatrix, since it was in Gujarati language. The Testatrix signed on the Will and thereafter the other attesting witness signed the Will after which he signed the Will as the second witness. He has thereafter deposed that he did not remember exactly who read the Will but to the best of his knowledge it was read over by Plaintiff No.1. He has further deposed that the Testatrix asked him to put his signature on the Will. From his memory, he deposed that the Will was not on Stamp Paper. 9.(This part of the evidence is immaterial as the document speaks for itself). 10.The evidence of these four witnesses needs to be collated. All the four witnesses have mentioned about the persons present. They have also mentioned about the venue of the Will which is the residence of the Testatrix as well as the two Plaintiffs. It must be borne in mind that Plaintiff No.1 was the grandson of the Testatrix. He lived with her throughout his life. She is naturally attached to Plaintiff No.1. Plaintiff No.2 also lived in the same house as the granddaughter-in- law of the Testatrix. That was their matrimonial home. She 7 must have lived there since her marriage. The son of the Testatrix had pre-deceased her. The Testatrix continued to live with his widow and after her death with the Plaintiffs. She is expected to have the tremendous love and affection specially for Plaintiff No.1. The Will is, therefore, most natural. 11.None of the witnesses have stated who had written the Will. This lack of knowledge goes to show that their case is not embellished. It further shows that the Testatrix had got prepared the Will. 12.Plaintiff Nos.1 and 2 have deposed about the extent of literacy of the Testatrix, their grandmother and grandmother-in-law. They both have deposed that she could sign. She has indeed signed the Will as deposed by all the witnesses. The fact remains that the Will has not been written in her handwriting. Plaintiff No.1 has deposed that she did not know to write. Plaintiff No.2 has deposed that she could write in Gujarati. That does not matter since the Will is not written by her. They both have stated about the signature which is actually shown to have been put by the Testatrix. 8 13.The two attesting witnesses have deposed about the actual execution of the Will. They are ad idem on this aspect. They have deposed how the Testatrix signed first, followed by P.W.3 and then by P.W.4. The execution of the Will is the most material aspect. It is a natural Will, not got prepared by any of the witnesses but only seen by the witnesses and shown to be duly executed as required in law, showing proof of the Will. 14.The other material aspect is the reading over of the Will. Since the Will was pre-prepared and was ready when two attesting witnesses came for execution how they came to know about the Will would be required to be seen. Neither the beneficiaries nor the attesting witnesses require to know the contents of the Will. Nevertheless, the evidence with regard to the reading over of the witness must be considered. P.W.1 has deposed that his grandmother read over the Will. P.W.2 has deposed similarly. P.W.3 has deposed that the Testatrix told him that that was her Will and he would have to sign it. P.W.4 has deposed that he read over the Will to the Testatrix. He has thereafter deposed that he did not remember who read it over but Plaintiff No.1 must have read it over. There is, therefore, a slight variance with regard to the reading over of the Will but not with regard to the 9 execution of the Will. Whoever may have read over the Will, both the attesting witnesses have deposed that the Testatrix signed the Will after which the two attesting witnesses signed the Will. That is the material part of the evidence which proves the Will. 15.There is some anomaly with regard to who called the attesting witnesses. P.W.1 has deposed that the Testatrix requested them to remain present. P.W.2 has deposed that the Testatrix called her brother to attest the Will. Her brother P.W.3 has deposed that his sister P.W.2 requested him to come to the residence. The other attesting witness P.W.4 has deposed that both the Plaintiffs had telephoned him the day before and requested him to come to the residence. Hence, the evidence of the two Plaintiffs is contrary to the evidence of the attesting witness with regard to calling the attesting witnesses. It may be mentioned that it does not matter who called the attesting witnesses. What has to be seen is whether the Will has been duly executed as per the wishes of the Testatrix. If the five persons are present as deposed by all of them at one time and the Will is read over by one of them to the other (either by the Testatrix to every one or by one of them to the Testatrix) but if the Testatrix thereafter put her signature on a natural Will as is 10 expected of a person in her situation, the execution of the Will is proved. The other anomalies are not fatal to the execution. 16. The challenge to the Will is by the cousins. They are the children of the married daughter of the Testatrix. They, therefore, do not reside with the Testatrix. The Testatrix has not bequeathed any properties upon them. In this context, the case of the Defendants put to the Plaintiffs becomes material. The case put to P.W.1 is that the Defendants were regular visitors to the house of the Plaintiffs (where the Testatrix lived). The case put to Plaintiff No.2 is that they were not allowed to meet the Testatrix. If they were regular visitors, it is not shown how they were not allowed to meet. If that is the case of the Defendants, it could have been shown/proved by the Defendants leading evidence in that behalf. Mere cases, contradicting one another, put to two Plaintiffs cannot take the Defendants’ case any further. 17.The Defendants have vaguely sought to contend that the Testatrix was not in a sound state of health. That aspect is required to be proved by the Defendants. Only a case is put to Plaintiff No.2 in that behalf. Even a 11 case relating to the health of the Testatrix is not put to Plaintiff No.1 and hence, it is clear that the Testatrix was in a sound state of mind and health when she executed the Will. 18. She executed the Will bequeathing her properties to her only grandson and granddaughter-in- law who lived with her. There is nothing to show or suggest that the Will has not been duly executed. Hence, the Plaintiffs have duly proved the Will and are entitled to Letters of Administration with the Will annexed. The Plaintiffs have also proved that the Defendants have no valid defence. Consequently, Issue Nos.1 and 2 are answered in the affirmative. Issue No.3 19. The Defendants have not shown how the Petition for grant of Letters of Administration with the Will annexed is not maintainable. Hence Issue No.3 is answered in the negative. Issue No.4 20.Letters of Administration with the Will annexed shall be granted in respect of the 12 Will of the deceased Kamlaben Bhagwanji Ambani who expired on 26th July 1987, leaving behind her last Will and Testament dated 27.6.1985. Order accordingly. Chamber Summons No.1513 of 2004 does not survive and is disposed of accordingly. [SMT.ROSHAN DALVI, J.]