{"id":55889,"date":"2009-11-18T00:00:00","date_gmt":"2009-11-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/umakant-bapulal-contractor-anr-vs-nitin-bapulal-contractor-on-18-november-2009"},"modified":"2015-09-08T03:34:34","modified_gmt":"2015-09-07T22:04:34","slug":"umakant-bapulal-contractor-anr-vs-nitin-bapulal-contractor-on-18-november-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/umakant-bapulal-contractor-anr-vs-nitin-bapulal-contractor-on-18-november-2009","title":{"rendered":"Umakant Bapulal Contractor & Anr vs Nitin Bapulal Contractor on 18 November, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Umakant Bapulal Contractor & Anr vs Nitin Bapulal Contractor on 18 November, 2009<\/div>\n
Bench: S. J. Kathawalla<\/div>\n
         IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n          TESTAMENTARY AND INTESTATE JURISDICTION\n               TETAMENTARY SUIT NO.36 OF 2002\n                             IN\n\n\n\n\n                                                                       \n            TESTAMENTARY PETITION NO.602 OF 2001\n\n\n\n\n                                              \n    Bapulal Maganlal Contractor              ... Deceased\n\n    Umakant Bapulal Contractor & Anr. ... Plaintiffs\n\n\n\n\n                                             \n               Vs.\n\n    Nitin Bapulal Contractor                 ... Defendant\n\n\n\n\n                                     \n                            \n    Mr. Atit Shukla a\/w. Ms. Neena Kapadia i\/b Pandya\n    Gandhi & Co. for Plaintiffs\n    Mr. K. K. Kurup for Defendant\n                           \n         \n\n\n                     ORDER RESERVED ON 18TH JULY 2009\n                     ORDER PRONOUNCED ON 18TH NOVEMBER 2009\n      \n\n\n\n                               CORAM : S. J. KATHAWALLA, J.\n\n                               DATE   : 18TH NOVEMBER, 2009\n\n\n\n\n\n    JUDGMENT\n<\/pre>\n
               The Testamentary Petition No.602 of 2001<\/p>\n
    was filed on 11th April, 2001 by Umakant Bapulal<\/p>\n
    Contractor and Nalin Bapulal Contractor for grant<\/p>\n
                                                                    1<\/span><\/p>\n
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\n     of     probate    in     respect    of   the   Last         Will         and<\/p>\n
    Testament dated 11th February, 1997 of the deceased<\/p>\n
    Shri     Bapulal       Maganlal     Contractor        (hereinafter<\/p>\n
    referred to as ‘the said Will’), who expired on 20th<\/p>\n
    June, 2000.        The Executors named in the said Will<\/p>\n
    are the two sons of the deceased Umakant and Nalin<\/p>\n
    i.e. the Plaintiffs\/Petitioners herein.                     A copy of<\/p>\n
    the    said   Will     which   is   in   English       language            is<\/p>\n
    annexed as Exhibit-B to the Petition.\n<\/p>\n
                              ig                              Along with\n\n    the    Petition    the    Plaintiffs\/Petitioners             filed         an\n                            \n<\/pre>\n
    Affidavit dated 5th February, 2002 of Mr. Narendran<\/p>\n
    Madhavan Menon, one of the attesting witnesses to<\/p>\n
    the said Will.           Along with the said Petition the<\/p>\n
    Plaintiffs\/Petitioners also filed a Joint Consent<\/p>\n
    Affidavit dated 11th April, 2001 of Smt. Parvatiben<\/p>\n
    Bapulal Contractor (wife of the deceased) and Smt.\n<\/p>\n
    Jayshreeben P. Khambhati (married daughter of the<\/p>\n
    deceased) and also a Consent Affidavit dated 13th<\/p>\n
    August, 2001 of Smt. Sushila I. Contractor (married<\/p>\n
    daughter of the deceased).           By the said Affidavits,<\/p>\n
                                                                        2<\/span><\/p>\n
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\n     the    wife      of    the     deceased      ‘Parvatiben’               and       his<\/p>\n
    married daughters ‘Jayshree’ and ‘Sushila’ deposed<\/p>\n
    that    the      said       Will     was    the    last       Will        of      the<\/p>\n
    deceased.          The same was genuine and valid and the<\/p>\n
    deponents        had     no    objection          if    the      Probate            in<\/p>\n
    respect       of      the     said    Will        was    issued          to       the<\/p>\n
    Plaintiffs\/Petitioners,               and    they       consent         for       the<\/p>\n
    same.\n<\/p>\n
    2.          In     the      said\n                                  ig     Petition      No.      602\/2001,             the\n\n<\/pre>\n
    Defendant who is admittedly one of the son’s of the<\/p>\n
    deceased and brother of the Plaintiffs\/Petitioners<\/p>\n
    filed   a     Caveat        dated     3rd   May,       2002     wherein           the<\/p>\n
    Defendant contended that he is not aware of any<\/p>\n
    Will prepared by his father during his lifetime and<\/p>\n
    that he has received a citation issued by the High<\/p>\n
    Court inter alia informing that the Petition has<\/p>\n
    been    filed          by     his      two        brothers          i.e.          the<\/p>\n
    Plaintiffs\/Petitioners herein, for grant of Probate<\/p>\n
    in respect of the said Will allegedly left by the<\/p>\n
    deceased.        Since he has not been served with a copy<\/p>\n
                                                                                 3<\/span><\/p>\n
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\n     of   the   said    Will   and   the   Petition,       it      is      not<\/p>\n
    possible for him to give para-wise reply to the<\/p>\n
    alleged     Will    or    the   Petition.        He       therefore<\/p>\n
    reserved his right to file a detailed reply after<\/p>\n
    receiving    a     copy    of   the   alleged      Will.              The<\/p>\n
    Defendant    without      allegedly   not   having        seen        the<\/p>\n
    Will submitted :- “my father was paralysed since __<\/p>\n
    years and bedridden before his death and was not<\/p>\n
    able to sign anything.    ig    I say and submit that the<\/p>\n
    said Will was not executed by my father.”                       Again,<\/p>\n
    without having allegedly seen the said Will, and<\/p>\n
    the Defendant       having reserved his right to file a<\/p>\n
    detailed    Affidavit,      nonetheless       stated          in      his<\/p>\n
    Affidavit dated 3rd May 2002 that the Will allegedly<\/p>\n
    left by the deceased is false and fabricated. In<\/p>\n
    fact on 18th July, 2009 when the arguments in the<\/p>\n
    Suit commenced,      it was submitted        by the Learned<\/p>\n
    Advocate appearing for the Defendant before this<\/p>\n
    Court that the Defendant is not contending that the<\/p>\n
    deceased was suffering from paralysis as stated in<\/p>\n
                                                                     4<\/span><\/p>\n
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\n     the Affidavit in Support of the Caveat.                     This Court<\/p>\n
    has noted the fact that the Defendant is unable to<\/p>\n
    speak    and    understand    English.       His      Affidavit              of<\/p>\n
    Examination-in-Chief         dated   20th     April,            2009         is<\/p>\n
    interpreted and explained to him by the Office of<\/p>\n
    the Translator, High Court and the questions put to<\/p>\n
    him    during   his   examination     and    cross-examination<\/p>\n
    were either put to him directly in Gujarati or were<\/p>\n
    put to him in English and thereafter translated in<\/p>\n
    Gujarati.        Despite    this,    the     Affidavit             of      the<\/p>\n
    Defendant in support of the Caveat dated 3rd May,<\/p>\n
    2002 nowhere states that the same has been read out<\/p>\n
    and\/or    explained\/interpreted         to   the       Defendant             in<\/p>\n
    Gujarati. The contents of the Affidavit dated 3rd<\/p>\n
    May,     2002   are   not    confirmed\/reiterated                  by      the<\/p>\n
    Defendant in his Examination–in-Chief.                      In view of<\/p>\n
    the aforesaid Caveat filed by the Defendant, the<\/p>\n
    Petition was converted into a Suit.\n<\/p>\n
    3.         Though     the   Defendant      had     stated          in      the<\/p>\n
    Affidavit in support of the Caveat that he has not<\/p>\n
                                                                          5<\/span><\/p>\n
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\n     even     seen       the      said    Will     propounded             by       the<\/p>\n
    Plaintiffs\/Petitioners and that he will be filing a<\/p>\n
    detailed Affidavit after receiving a copy of the<\/p>\n
    said    Will,       no     such   Affidavit       was   filed         by      the<\/p>\n
    Defendant at any time thereafter.                       Even when the<\/p>\n
    matter was placed for framing of the Issues none<\/p>\n
    appeared for the Defendant and this Court proceeded<\/p>\n
    to frame the following Issue in the absence of the<\/p>\n
    Defendant:- “Whether the Plaintiffs prove that the<\/p>\n
    Will    dated       11th    February      1997     is     a    Will          duly<\/p>\n
    executed by the Testator in accordance with Law.”\n<\/p>\n
    4.            The   Plaintiffs\/Petitioners              have        examined<\/p>\n
    both the attesting witnesses to the said Will i.e.<\/p>\n
    Mr. Narendran Madhavan Menon (P.W.1) and Dr. Pravin<\/p>\n
    L.     Shah    (P.W.2).           The    Defendant        has       examined<\/p>\n
    himself       as    a      Witness      (D.W.1)     and       his       mother<\/p>\n
    Pravatiben B. Contractor as witness (D.W.2).<\/p>\n
\n\n\n\n\n\n                                      REASONS\n\n\n\n\n                                                                             6<\/span>\n\n\n\n\n                                                        ::: Downloaded on - 09\/06\/2013 15:19:09 :::<\/span>\n     5.       As           stated           hereinabove                    the\n\n<\/pre>\n
    Plaintiffs \/Petitioners have claimed that the said<\/p>\n
    Will is the Last Will left by the deceased.                           The<\/p>\n
    deceased had left the following persons surviving<\/p>\n
    as his only heirs and next of kin according to<\/p>\n
    Hindu Law by which he was governed at the time of<\/p>\n
    his death :-\n<\/p>\n
    1. Smt. Parvatiben Bapulal Contractor<\/p>\n
                        (Parvatiben)      –                Wife<\/p>\n
    2. Smt. Jayshreeben P. Khambhati
\n                           (Jayshreeben)\n<\/p>\n
                                                   –       Married
\n                                                           Daughter<\/p>\n
    3. Mr. Nitin Bapulal Contractor       –                Son
\n                              (Defendant)<\/p>\n
    4. Mr.Umakant Bapulal Contractor      –                Son<\/p>\n
                         (Plaintiff No.1)<\/p>\n
    5. Mr. Nalin Bapulal Contractor       –                Son
\n                         (Plaintiff No.2)<\/p>\n
    6. Smt. Sushila I. Contractor                   –     Marriedd
\n                         (Sushilaben)                    Daughter<\/p>\n
    6.       Shri      Narendran   Menon    (P.W.1)      has      in his<\/p>\n
    Affidavit     of       Examination-in-Chief           dated           29th<\/p>\n
    January, 2009 stated that between the years 1994<\/p>\n
                                                                     7<\/span><\/p>\n
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\n     and 2002 he was staying in 401, “Harmony”, 4th Floor<\/p>\n
    Kandivali (West), Mumbai.                 In the same building,<\/p>\n
    the    deceased           Bapulal   Maganlal      Contractor                was<\/p>\n
    residing in Flat No.304 on the 3rd Floor.                            On 11th<\/p>\n
    February, 1997 P.W.1 was present at the residence<\/p>\n
    of    the   deceased        alongwith     one   Dr.     Praveen            Shah<\/p>\n
    (P.W.2)a         Medical       Practitioner        who         has          his<\/p>\n
    dispensary at Shop No.2, Damodarwadi, Ashok Nagar,<\/p>\n
    Kandivili (East), Mumbai.    ig          At that time and in both<\/p>\n
    their presence, the deceased duly executed his Last<\/p>\n
    Will and Testament dated 11th February, 1997.                               The<\/p>\n
    said Dr. Shah (P.W.2) and P.W.1 at the request of<\/p>\n
    the deceased and in the presence of the deceased<\/p>\n
    and     each        other     subscribed        their         respective<\/p>\n
    signatures to the Last Will and Testament of the<\/p>\n
    deceased       as    witnesses      to    the   signature           of      the<\/p>\n
    deceased.\n<\/p>\n
    7.          In      his    Examination-in-Chief          before            this<\/p>\n
    Court on 26th February, 2009 P.W.1 confirmed the<\/p>\n
    contents of his Affidavits dated 5th February, 2002<\/p>\n
                                                                           8<\/span><\/p>\n
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\n     and 29th January, 2009. P.W.1 was shown the original<\/p>\n
    Will dated 11th February, 1997 when he deposed that<\/p>\n
    he has signed the document as a witness and was<\/p>\n
    aware that he was witnessing the Will.\n<\/p>\n
    He has deposed that the deceased put his signature<\/p>\n
    on   the   said     Will   in   his   presence      and       in      the<\/p>\n
    presence of Dr. P. L. Shah (P.W.2) who has also<\/p>\n
    witnessed     the    Will.        The   original         Will         was<\/p>\n
    thereafter taken on record and marked as Exhibit<\/p>\n
    P-1.\n<\/p>\n
    8.     P.W.1 in his cross-examination admitted that he<\/p>\n
    knew the deceased since about 11 years prior to his<\/p>\n
    death.     During all the 11 years he was staying in<\/p>\n
    401, “Harmony”, on the 4th Floor, at Kandivali (E),<\/p>\n
    Mumbai.     The deceased was staying in Flat No.304 in<\/p>\n
    the same building, i.e. “Harmony” and Mr. Nalin B.\n<\/p>\n
    Contractor     (Plaintiff No.2) was also residing in<\/p>\n
    Flat No.101 of the same building. P.W.1 also stated<\/p>\n
    in his cross-examination          that he knows both the<\/p>\n
    Plaintiffs,    but he does not know the Defendant.\n<\/p>\n
                                                                     9<\/span><\/p>\n
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     Before attesting the said Will of the deceased as a<\/p>\n
    Witness he had gone through the Will.                  At the time<\/p>\n
    of execution of the Will, the deceased, Dr. Pravin<\/p>\n
    Shah     (P.W.2)     and    P.W.1    were   the    only         persons<\/p>\n
    present. At the time of executing\/signing of the<\/p>\n
    said Will the deceased was in good health. P.W.1<\/p>\n
    has stated in his cross-examination that prior to<\/p>\n
    his    visit    to    the    house    of    the    deceased             for<\/p>\n
    witnessing his Will, he had visited the house of<\/p>\n
    the deceased on one or two occasions. However, he<\/p>\n
    does not recollect when he visited the house of the<\/p>\n
    deceased earlier.          He has admitted that he has also<\/p>\n
    witnessed the previous Will of the deceased which<\/p>\n
    was executed sometime in the year 1995.                          He has<\/p>\n
    stated that the deceased had signed the Last Page<\/p>\n
    of the said Will of 1997 in his presence and had<\/p>\n
    also put his initials on the other pages of the<\/p>\n
    said     Will   in    his     presence.       In       his        cross-\n<\/p>\n
    examination the Learned Advocate for the Defendant<\/p>\n
    showed     P.W.1 the signature of the deceased on both<\/p>\n
                                                                       10<\/span><\/p>\n
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\n     the Wills i.e. the Will of 1997 and the Will of<\/p>\n
    1995 and suggested to P.W.1 that the second Will of<\/p>\n
    1997 was not signed by the deceased, to which P.W.1<\/p>\n
    answered “It is not true to say that the second<\/p>\n
    Will of 1997 was not signed by the deceased.”\n<\/p>\n
    9.         P.W.1 has in his cross-examination, inter<\/p>\n
    alia denied the following suggestions put to him in<\/p>\n
    his cross-examination by stating (1) that “it is<\/p>\n
    incorrect to say that I was close to the son of<\/p>\n
    Bapulal Contractor and not Bapulal Contractor.” (2)<\/p>\n
    that “it is incorrect to say that he was mentally<\/p>\n
    unwell prior to 5 years of his death.” (3) that “it<\/p>\n
    is incorrect to say that I have signed the Will at<\/p>\n
    the instance of the son of Bapulal Contractor or<\/p>\n
    that I have never seen Bapulal Contractor putting<\/p>\n
    his signature on the Will.”            (4) that “it is not<\/p>\n
    correct that I have come to court to give false<\/p>\n
    evidence    at   the   instance   of   the   son       of     Bapulal<\/p>\n
    Contractor.”\n<\/p>\n
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     10.       P.W.2 Dr. P. L. Shah filed his Affidavit<\/p>\n
    of    examination-in-chief         dated     12th       March,             2009<\/p>\n
    wherein    he    has     deposed   that     he      is      a      Medical<\/p>\n
    Practitioner since the year 1983\/84. The deceased<\/p>\n
    was residing at 304 ‘Harmony’ which is very close<\/p>\n
    to his dispensary. The deceased was his patient for<\/p>\n
    a long time. The deceased was keeping good health<\/p>\n
    and use to consult him only for minor ailments.\n<\/p>\n
                              ig                                                 He\n\n    personally      knew    the   deceased      for      six        to     seven\n                            \n    years.       The       remaining   facts      as        regards             the\n\n<\/pre>\n
    attestation of the said Will in the Affidavit of<\/p>\n
    examination-in-chief of Dr. P. L. Shah (P.W.2) are<\/p>\n
    similar    to   those     set   out   in    the       Affidavit              of<\/p>\n
    examination-in-chief of P.W.1. In his examination-\n<\/p>\n
    in-chief conducted on 12th March, 2009 before this<\/p>\n
    Court,    Dr.   Shah     confirmed    the     contents               of    his<\/p>\n
    Affidavit of Examination-in-Chief dated 12-3-2009<\/p>\n
    and upon being         shown the original            Will (Exhibit<\/p>\n
    P-1) admitted that he had signed the document as a<\/p>\n
                                                                          12<\/span><\/p>\n
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\n     witness and at the time of signing                     the same was<\/p>\n
    aware    that     he    was     witnessing    the      Will        of       the<\/p>\n
    deceased. P.W.2 has deposed before this Court that<\/p>\n
    the signature on the right hand side on Page 5, of<\/p>\n
    Exh. P-1, above the signature of the Witness is<\/p>\n
    that of the deceased which was put by the deceased<\/p>\n
    in    the     presence     of     P.W.2   and     underneath               his<\/p>\n
    signature the deceased in his own hand wrote the<\/p>\n
    date 11\/2\/97 in the presence of P.W.2. After the<\/p>\n
    deceased        put      his      signature      on         the            said<\/p>\n
    document\/will in the presence of P.W.1 and P.W.2<\/p>\n
    both P.W.1 and P.W.2 witnessed\/signed the Will in<\/p>\n
    the presence of the deceased and in the presence of<\/p>\n
    each other.           Below the signature of P.W.2, P.W.2<\/p>\n
    has handwritten the date 11\/2\/97.                   Apart from the<\/p>\n
    signature of the deceased on Page 5, the deceased<\/p>\n
    had     put     his    initials      on   each       page         of        the<\/p>\n
    document\/will in the presence of P.W.2.\n<\/p>\n
    11.           In his cross-examination, P.W.2 has stated<\/p>\n
    that he knew the deceased about three to four years<\/p>\n
                                                                          13<\/span><\/p>\n
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\n     prior to witnessing the said Will.                    The deceased<\/p>\n
    himself     had    called      P.W.2    at   his     residence              to<\/p>\n
    witness his Will.        The deceased had called up P.W.2<\/p>\n
    in   the    morning     of     11\/2\/1997.          However,           P.W.2<\/p>\n
    informed the deceased that he would be visiting the<\/p>\n
    residence of the deceased in the evening, which he<\/p>\n
    did at around 7\/7.30 p.m.              When P.W.2 went to the<\/p>\n
    residence of the deceased, the deceased was alone.\n<\/p>\n
    Thereafter     Mr.     Menon\n                             ig     (P.W.1)      also     came        to      the\n\n    residence of the deceased.                P.W.2 in his cross-\n                           \n    examination       has further        stated that he knew the\n\n<\/pre>\n
    deceased since he was visiting his dispensary as<\/p>\n
    his patient.         P.W.2 has stated that he maintains<\/p>\n
    the medical records of his patients for a maximum<\/p>\n
    period of six to eight years and he does not know<\/p>\n
    whether he still has the medical records of the<\/p>\n
    deceased.      P.W.2 has stated that when he visited<\/p>\n
    the deceased on 11th February, 1997 the physical and<\/p>\n
    mental     condition    of     the   deceased       was    absolutely<\/p>\n
    normal. P.W.2 has further stated that apart from<\/p>\n
                                                                         14<\/span><\/p>\n
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\n     the deceased       Bapulal     being his patient,                 his son<\/p>\n
    Nalin   Contractor       was    also   his       patient          and        had<\/p>\n
    consulted him on some occasions and on very rare<\/p>\n
    occasions    the     wife      of    the    deceased           had          also<\/p>\n
    consulted him as a patient.                 He has also stated<\/p>\n
    that it would be correct to say that on most of the<\/p>\n
    occasions when the deceased visited P.W.2 at his<\/p>\n
    dispensary   his     wife      had   accompanied         him.            In     a<\/p>\n
    question    put to P.W.2 whether
\n                           ig                       the deceased                only<\/p>\n
    knew Gujarati or other languages also, P.W.2 stated<\/p>\n
    that in his presence the deceased only spoke in<\/p>\n
    Gujarati.    P.W.2 has stated that the Will was not<\/p>\n
    explained    to    the    deceased         in    Gujarati           in       the<\/p>\n
    presence of P.W.2 and he is not aware as to who had<\/p>\n
    prepared the said Will.              He had only signed the<\/p>\n
    document    as a witness         without        going through                the<\/p>\n
    Will.   P.W.2 has categorically stated in his cross<\/p>\n
    examination that Nalin Contractor the son of the<\/p>\n
    deceased is not a friend but a patient of P.W.2.\n<\/p>\n
    P.W.2 has inter alia denied the suggestion put to<\/p>\n
                                                                           15<\/span><\/p>\n
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\n     him in his cross-examination by stating that “it is<\/p>\n
    incorrect to say that the deceased Bapulal had not<\/p>\n
    signed the 1995 Will or the 1997 Will or that I am<\/p>\n
    giving false evidence at the instance of his sons.”\n<\/p>\n
    12.        After the evidence of P.W.1 and P.W.2 was<\/p>\n
    concluded, a joint Affidavit dated 26th March, 2009<\/p>\n
    of Examination-in-Chief was filed by the Defendant<\/p>\n
    and Smt. Parvati          Babulal   Contractor       wife of the<\/p>\n
    deceased. When it was pointed out to the Learned<\/p>\n
    Advocate    for    the    Defendant    that    Parvatiben               had<\/p>\n
    already filed a Consent Affidavit as far back as on<\/p>\n
    11th April, 2001 admitting that the said Will is<\/p>\n
    genuine    and    valid    and   she   has    no    objection             to<\/p>\n
    Probate being granted to the Plaintiffs\/Petitioners<\/p>\n
    in respect of the said Will,            the Learned Advocate<\/p>\n
    for the Defendant informed this Court that he will<\/p>\n
    not rely on the said Joint Affidavit of evidence of<\/p>\n
    Parvatiben and the Defendant           dated 26th March, 2009<\/p>\n
    but will file a separate Affidavit of evidence of<\/p>\n
    the Defendant and shall take appropriate steps to<\/p>\n
                                                                       16<\/span><\/p>\n
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\n     have the Consent Affidavit of          Parvatiben dated 11th<\/p>\n
    April, 2001 set aside.\n<\/p>\n
    13.        Thereafter an Affidavit of Examination-in-\n<\/p>\n
    Chief of the Defendant dated 20th April, 2009 was<\/p>\n
    filed before this Court.             In the said Affidavit<\/p>\n
    the Defendant, who had alleged in his Affidavit in<\/p>\n
    Support of the Caveat dated 3rd May, 2002 that his<\/p>\n
    father was paralysed and bedridden before his death<\/p>\n
    and was not able to sign anything, now, after a<\/p>\n
    span of 7 years changed his story to allege that<\/p>\n
    his father was not in a position to sign at all for<\/p>\n
    the last 5 years prior to his death since his hands<\/p>\n
    were “shivering” and he had a “failed memory”.                           The<\/p>\n
    Defendant has further deposed that the properties<\/p>\n
    mentioned    in    the   said   Will    are      not       the          self<\/p>\n
    acquired     or    the   exclusive     properties              of        the<\/p>\n
    deceased and therefore the said Will is itself bad<\/p>\n
    in law and cannot be probated at all. It is alleged<\/p>\n
    that the said Will is clearly a manipulation by the<\/p>\n
    Plaintiffs    to   the   detriment     of   others.               It      is<\/p>\n
                                                                       17<\/span><\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 15:19:10 :::<\/span>
\n     deposed by the Defendant that in the Will of 1995<\/p>\n
    and 1997 it is stated that it was explained in<\/p>\n
    Gujarati     language      to    the   maker        of    the        Will.\n<\/p>\n
    However, no evidence is on record to show that the<\/p>\n
    Will was explained to the maker by anybody.                               The<\/p>\n
    Deponent has deposed that as regards the Consent<\/p>\n
    Affidavit    of     Parvatiben      dated     3rd    April,          2001,<\/p>\n
    Parvatiben        would     be     taking     out        appropriate<\/p>\n
    proceedings to defend herself.\n<\/p>\n
                               ig                The Defendant has\n\n    alleged     that    the    attesting      witnesses         are          good\n                             \n<\/pre>\n
    friends of the Plaintiffs who wanted to grab the<\/p>\n
    entire premises.\n<\/p>\n
    14.        The Defendant in his cross-examination has<\/p>\n
    admitted    that    upto    1993    the     deceased,        his         wife<\/p>\n
    Parvatiben, the Plaintiffs and the Defendant were<\/p>\n
    residing at Ganga Niwas at Khar which was a joint<\/p>\n
    family property.          After 1993 the deceased shifted<\/p>\n
    to    Kandivali    along    with    Parvatiben       and       brother,<\/p>\n
    Nalin    Contractor       (Plaintiff      No.2).     However,             the<\/p>\n
    Defendant continued to reside at ‘Ganga Niwas’ at<\/p>\n
                                                                        18<\/span><\/p>\n
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\n     Khar. Though according to the Defendant, initially<\/p>\n
    there was no demarcation amongst the family members<\/p>\n
    and the entire property (Ganga Niwas) was treated<\/p>\n
    as one property, he has admitted that he has a<\/p>\n
    separate ration card of his immediate family and<\/p>\n
    has produced the same.            He also admitted that a<\/p>\n
    separate room was given to him in ‘Ganga Niwas’,<\/p>\n
    since his wife was a pure vegetarian and his father<\/p>\n
    and other members use to eat non-vegetarian food<\/p>\n
    like eggs.         He has admitted that in the year 1993<\/p>\n
    itself he filed a suit against his father being<\/p>\n
    Suit    No.1328\/1993       and   his    father     filed         a        suit<\/p>\n
    against him being No.8010\/1993 in the City Civil<\/p>\n
    Court Bombay.        He has also admitted that his father<\/p>\n
    had    filed   a    suit   against     him   before      this        Court<\/p>\n
    being Suit No.4190\/1994. He has further admitted<\/p>\n
    that M\/s. Parvati Builders had filed a Suit against<\/p>\n
    him being Suit No.4510\/1995 before this Court. He<\/p>\n
    has also admitted that there were complaints filed<\/p>\n
    with the police by his father as well as himself<\/p>\n
                                                                         19<\/span><\/p>\n
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\n     against one another.              The Defendant has stated that<\/p>\n
    he   use     to    meet    his    father     on     certain         occasions<\/p>\n
    after 1993.           He has stated that his mother and<\/p>\n
    sisters had informed him that their family doctor<\/p>\n
    was Dr. Nair.             He has admitted that he had never<\/p>\n
    accompanied his father to any doctor.                            When asked<\/p>\n
    in     his      cross-examination            on     what        basis            the<\/p>\n
    Defendant was alleging that the attesting witnesses<\/p>\n
    viz.     P.W.1      and     P.W.2
\n                                 ig        are   the     friends            of       the<\/p>\n
    Plaintiffs, he has stated that when he visited his<\/p>\n
    father       and    mother       he    had   seen    them        “loitering<\/p>\n
    together”.           The     Defendant,       though         specifically<\/p>\n
    asked      to     produce    an       original      signature           of      his<\/p>\n
    father could not do so.                  Instead he produced the<\/p>\n
    Membership         Card     of   Khar    Gymkhana        (Exhibit               P-5)<\/p>\n
    which again does not bear the original signature of<\/p>\n
    the deceased.             The Defendant has stated that both<\/p>\n
    the Wills of the deceased were read out to him in<\/p>\n
    the presence of his mother and three brothers by<\/p>\n
    one Mr. Ashwin Pandya approximately two years after<\/p>\n
                                                                               20<\/span><\/p>\n
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\n     the demise of the deceased.               He has admitted that<\/p>\n
    Mr. Ashwin Pandya had also taken signatures after<\/p>\n
    verifying the facts that the Will was read out to<\/p>\n
    him and his brothers.\n<\/p>\n
    15.          Thereafter    a Notice      of Motion          being         No.<\/p>\n
    72\/2009 was taken out on behalf of Parvatiben by<\/p>\n
    the Advocate for the Defendant seeking withdrawal<\/p>\n
    of the Joint Affidavit dated 11th April 2001 filed<\/p>\n
    by    Parvatiben     jointly
\n                               ig    with    her    married         daughter<\/p>\n
    Jayshreeben         in support of the Probate Petition,<\/p>\n
    and    for    allowing     her   to   file     her    Affidavit             of<\/p>\n
    Evidence in the above Suit and to contest the same.\n<\/p>\n
    It is pertinent to note that Jaysrheeben did not<\/p>\n
    seek withdrawal of the said Joint Affidavit.                                In<\/p>\n
    the Affidavit in Support dated 27th April, 2009 of<\/p>\n
    the Notice of Motion it is inter alia alleged that<\/p>\n
    the    signature     in    the   said    Will    is     not       of      the<\/p>\n
    deceased      and   that    it   is     unbelievable          that        the<\/p>\n
    deceased would Will away the properties to only two<\/p>\n
                                                                         21<\/span><\/p>\n
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\n     of his sons. The said Notice of Motion was disposed<\/p>\n
    of by the following order dated 18th June, 2009:-\n<\/p>\n
    “2.      After     hearing       the    parties      at      length,           the<\/p>\n
    parties have agreed that the notice of motion be<\/p>\n
    disposed of by the following order :-\n<\/p>\n
          (i).         The    affidavit       dated      11th     April          2001<\/p>\n
    filed by Mrs. Parvati B. Contractor be treated as<\/p>\n
    withdrawn.\n<\/p>\n
          (ii).        Mrs.    Parvati\n                               ig            B.     Contractor            is       not\n\n    desirous      of    contesting         the    Will     by     filing           any\n                             \n<\/pre>\n
    caveat and shall only be giving evidence in the<\/p>\n
    suit as a witness by the defendant Shri Nitin B.\n<\/p>\n
    Contractor.        It is made clear that Mrs. Parvati B.\n<\/p>\n
    Contractor         is     not    a      party     to        the       present<\/p>\n
    proceedings.\n<\/p>\n
          (iii).       The allegations made in the Notice of<\/p>\n
    Motion       against       the         plaintiff\/petitioner                    are<\/p>\n
    withdrawn.\n<\/p>\n
    3.    The    evidence      of    Mrs.     Parvati       B.      Contractor<\/p>\n
          tendered      by    Mr.    Kurup,      learned        Advocate           for<\/p>\n
                                                                              22<\/span><\/p>\n
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\n            the defendant – Shri Nitin B. Contractor is<\/p>\n
           taken    on   record.      The       cross-examination                of<\/p>\n
           Mrs. Parvati B. Contractor is kept tomorrow at<\/p>\n
           10 a.m. since she is an elderly lady of 80<\/p>\n
           years of age and has to leave for Ahmedabad by<\/p>\n
           12.00 noon.\n<\/p>\n
    3.         In view thereof, Notice of Motion stands<\/p>\n
               disposed of.”\n<\/p>\n
    16.        In    the    Affidavit\n                                 ig        of    Examination-in-Chief\n\n<\/pre>\n
    of Parvatiben (D.W.2) dated 19th June 2009, despite<\/p>\n
    having    agreed       to   withdraw    the     allegations                made<\/p>\n
    against the Plaintiffs\/Petitioners as recorded in<\/p>\n
    the    Order    passed      in   the    Notice    of       Motion           No.<\/p>\n
    72\/2009, Parvatiben once again repeated some of the<\/p>\n
    same     allegations.       Parvatiben        alleged         that          the<\/p>\n
    Plaintiffs\/Petitioners immediately after the demise<\/p>\n
    of their father drove her and the Defendant out of<\/p>\n
    Mumbai.    She has alleged that the Plaintiffs became<\/p>\n
    very greedy and wanted to grab all the properties.\n<\/p>\n
    Therefore, they befriended some of the local people<\/p>\n
                                                                          23<\/span><\/p>\n
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\n     and came to this court with false documents. She<\/p>\n
    alleged    that      the     signature      of       the         deceased<\/p>\n
    appearing on the said Will is forged.                            What is<\/p>\n
    found in the said Will is the manipulation by the<\/p>\n
    Plaintiffs\/Petitioners         and   it    does      not       bear        the<\/p>\n
    signature of the deceased.            She has alleged that<\/p>\n
    her husband knew only Gujarati and he could not<\/p>\n
    have signed a Will which is made in English without<\/p>\n
    interpreting the same in Gujarati.\n<\/p>\n
                               ig                           There is no\n\n    date on the said Will.         The beneficiaries could not\n                             \n<\/pre>\n
    have sold the properties since the court had not<\/p>\n
    granted    probate    on    the   said    Will.        She       and       the<\/p>\n
    Defendant are at the mercy of her daughters who<\/p>\n
    also supports the claim in the matter.\n<\/p>\n
    17.        In her cross-examination Parvatiben (D.W.\n<\/p>\n
    2) in a question put by the Court to her as to why<\/p>\n
    she did not contest the said Will since 2002, first<\/p>\n
    stated that she had not stated anything against the<\/p>\n
    said   Will    earlier     because   her    sons         had       already<\/p>\n
    disposed      off   the    properties.     She      was        therefore<\/p>\n
                                                                          24<\/span><\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:19:10 :::<\/span>
\n     asked by the Court that in that event why was she<\/p>\n
    now alleging, after several years, that the said<\/p>\n
    Will was not genuine, to which D.W.2 answered that<\/p>\n
    she     is      now    making      statements        against              the<\/p>\n
    genuineness of the said Will because she is now<\/p>\n
    told that she will not get the share in Ganga Niwas<\/p>\n
    property.        As regards her knowledge pertaining to<\/p>\n
    the said Will and its contents, she first stated<\/p>\n
    that    she     came   toig know   about   the      Will        and       its<\/p>\n
    contents only six months after the demise of the<\/p>\n
    deceased.       She later changed her answer and stated<\/p>\n
    that she came to know about the contents of the<\/p>\n
    said     Will    approximately      one    year        back.              She<\/p>\n
    thereafter once again changed her answer to allege<\/p>\n
    that about two years back Advocate Mr. Wasawada who<\/p>\n
    was the Advocate of the deceased handed over a copy<\/p>\n
    of the said Will to her.           Thereafter once again she<\/p>\n
    changed her answer to say that the said Will was<\/p>\n
    read out and explained to her by Mr. Ashwin Pandya<\/p>\n
    on     31-12-2000      (wrongly    typed   in      the       Notes          of<\/p>\n
                                                                         25<\/span><\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:19:10 :::<\/span>
\n     Evidence as 31-2-2000) at 11.30 a.m.                           D.W.2 was<\/p>\n
    confronted      with     a    letter     dated    30th May         2005        in<\/p>\n
    Gujarati language (Exh.P-6) signed by her in which<\/p>\n
    she     has    accepted           that   she     has    received              Rs.\n<\/p>\n
    2,50,000\/- being her 1\/3rd share in the Kandivali<\/p>\n
    flat.    In the said letter she has also acknowledged<\/p>\n
    that she is going to Ahmedabad taking with her,<\/p>\n
    fixed deposit receipts for a sum of Rs.1,35,000\/-\n<\/p>\n
    standing in her name.     ig        She has further acknowledged<\/p>\n
    receiving      a   sum       of    Rs.40,000\/-     being         the         sale<\/p>\n
    proceeds      of   silver         utensils     which   was           to       her<\/p>\n
    share.        She further acknowledged having received<\/p>\n
    gold ornaments described therein apportioned as her<\/p>\n
    share     and Rs.11,000\/- approximately lying in her<\/p>\n
    Bank Account.       D.W.2 admitted that the signature on<\/p>\n
    the said letter was hers and the entire contents<\/p>\n
    were true and correct. The said letter is marked<\/p>\n
    Exhibit P-6.\n<\/p>\n
                                                                            26<\/span><\/p>\n
                                                       ::: Downloaded on – 09\/06\/2013 15:19:10 :::<\/span><\/p>\n
     18.          The   Learned      Advocate        appearing            for        the<\/p>\n
    Plaintiffs\/Petitioners             has    submitted          before            this<\/p>\n
    Court that the following are the admitted facts :-\n<\/p>\n
          (i).         After the demise of the deceased the<\/p>\n
                       said Will was read out and explained<\/p>\n
                       by     Mr.      Ashwin       Pandya            to           Smt.<\/p><\/blockquote>\n
\n\n                       Parvatiben,         the    Plaintiffs            and         the\n\n                       Defendant.        Parvatiben i.e. D.W.2 has\n\n\n\n\n                                             \n                       further ig   admitted      that     the       said          Will\n\n                       was read out on 31-12-2000 at 11.30\n                             \n                       a.m.     i.e.       approximately             within            6<\/span>\n\n                       months       from      the       demise           of        the\n            \n\n\n                       deceased;\n         \n\n\n\n          (ii).        On 11th April 2001 Parvatiben and her\n\n                       daughter        Jayshree         filed          a       Joint\n\n\n\n\n\n                       Affidavit       before     this     Court         wherein,\n\n                       Parvatiben and Jayshree have                          stated\n\n                       that   the      said      Will    dated         11-2-1997\n\n\n\n\n\n<\/pre>\n
                       referred to in the above Suit\/Petition<\/p>\n
                       and      marked        ‘Exhibit-B’               to          the<\/p>\n
                                                                              27<\/span><\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 15:19:10 :::<\/span>
\n       Suit\/Petition is the last Will of the<\/p>\n
      deceased      and     they      believe         that         the<\/p>\n
      said     Will    is      genuine         and        validly<\/p>\n
      executed.       The Plaintiffs\/Petitioners<\/p>\n
      have filed the above Suit\/Petition for<\/p>\n
      grant of Probate of the said Will and<\/p>\n
      that Parvatiben and Jayshree have no<\/p>\n
      objection whatsoever if the Probate of<\/p>\n
      the    said
\n              ig      Will       is     granted          to        the<\/p>\n
      Plaintiffs\/Petitioners.                The        contents<\/p>\n
      of     the    said       Affidavit          have            been<\/p>\n
      translated           and         interpreted                  to<\/p>\n
      Parvatiben          by      the       Asst.             Chief<\/p>\n
      Translator      and        Interpreter           of         this<\/p>\n
      Court.        The     other      daughter           of       the<\/p>\n
      deceased         and            Parvatiben                  i.e.<\/p>\n
      Sushilaben       also        gave       her         Consent<\/p>\n
      Affidavit                        to                          the<\/p>\n
      Plaintiffs \/Petitioners, the contents<\/p>\n
      of which are identical to the Joint<\/p>\n
                                                             28<\/span><\/p>\n
                                        ::: Downloaded on – 09\/06\/2013 15:19:10 :::<\/span>
\n              Affidavit of Parvatiben and Jayshree;\n<\/p><\/blockquote>\n
    (iii).   The Defendant         had filed a Suit in the<\/p>\n
             year 1993 against the deceased and the<\/p>\n
             deceased had filed suits against the<\/p>\n
             Defendant before this Court and in the<\/p>\n
             City Civil Court in Mumbai;<\/p>\n
\n\n    (iv).    The    deceased      and    the     Defendant               have\n\n             filed         complaints            and             counter\n\n\n\n\n                                  \n<\/pre>\n
             complaints against each other with the<\/p>\n
             police authorities;<\/p>\n
\n                    \n    (v).     Both    the    1995     and       the      1997         Wills\n\n             contain       the     following           clauses             as\n      \n\n\n             paragraph Nos. 4 and 5 -\n   \n\n\n\n             \"4. My son Nitin is not at all in\n\n             good terms with me and he has, for\n\n\n\n\n\n             last    more        than    8      years,            caused\n\n             harassment to me.             My son Nitin has\n\n             filed     false       and       frivolous              suits\n\n\n\n\n\n<\/pre>\n
             against me, claiming right, title and<\/p>\n
             interest in the said property at Khar.\n<\/p>\n
                                                                    29<\/span><\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 15:19:10 :::<\/span><\/p>\n
             I do not desire to devise and bequeath<\/p>\n
            any     of   my    movable       or       immoveable<\/p>\n
            properties to my said son Nitin.\n<\/p>\n
            5. My two daughters namely Jayshree and<\/p>\n
            Sushila are married and I have already<\/p>\n
            provided them with whatever moieties I<\/p>\n
            could    and hence I do not desire to<\/p>\n
            devise and bequeath any of my movable<\/p>\n
            or      immoveable
\n                     ig             properties              to         my<\/p>\n
            daughters       the     said      Jayshree               and<\/p>\n
            Sushila.”;\n<\/p>\n
    (vi).    In the year 2005 Parvatiben took her<\/p>\n
             1\/3rd share in respect of Flat No.304<\/p>\n
             in building ‘Harmony’ and her share in<\/p>\n
             silver utensils and gold ornaments and<\/p>\n
             also    took     her   fixed       deposits             and<\/p>\n
             amounts lying in her bank accounts and<\/p>\n
             went to Ahmedabad to reside with her<\/p>\n
             daughter of her own free will;\n<\/p>\n
                                                                30<\/span><\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 15:19:10 :::<\/span><\/p>\n
     19.       The   Learned     Advocate      appearing          for        the<\/p>\n
    Plaintiffs\/Petitioners has submitted that both the<\/p>\n
    attesting    witnesses      i.e.    P.W.1    and      P.W.2            have<\/p>\n
    deposed that the deceased had signed\/executed the<\/p>\n
    said Will in their presence and had initialed each<\/p>\n
    page in their presence and they too had put their<\/p>\n
    signatures on the said Will in the presence of the<\/p>\n
    deceased and in the presence of each other.                            Both<\/p>\n
    the witnesses have also deposed that the deceased<\/p>\n
    was physically as well as mentally stable on the<\/p>\n
    day    of the   execution    of the       said   Will.            It is<\/p>\n
    submitted that the Defendant has even in the cross-\n<\/p>\n
    examination of P.W.1 and P.W.2, not been successful<\/p>\n
    in establishing that the deceased had not executed<\/p>\n
    the said Will in the presence of P.W.1 and P.W.2 or<\/p>\n
    that   the   said   Will   has     been   manipulated          by       the<\/p>\n
    Plaintiffs\/Petitioners.          As regards the contention<\/p>\n
    of the Defendant namely that though it is written<\/p>\n
    in the Will that the same has been signed by the<\/p>\n
    deceased as his last Will after the same has been<\/p>\n
                                                                      31<\/span><\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 15:19:10 :::<\/span>
\n     read   over    and    explained         to    him      and       had          been<\/p>\n
    admittedly perfectly understood and approved by the<\/p>\n
    deceased,     no evidence      has been produced                    to show<\/p>\n
    that the same was read out and explained to him, it<\/p>\n
    is countered by the Plaintiffs\/Petitioners that the<\/p>\n
    Defendant who has challenged the said Will and who<\/p>\n
    is the eldest son of his father, the deceased, has<\/p>\n
    nowhere stated that his father did not understand<\/p>\n
    English.      In     fact
\n                            ig  the       Defendant       in      his       cross-\n<\/p>\n
    examination dated 23rd April, 2009 at Page 4 (last<\/p>\n
    paragraph)     has    stated      –      “I    do      not       know         the<\/p>\n
    education qualification of my father, though I can<\/p>\n
    say that he was an educated man.                     I am not aware<\/p>\n
    whether he has studied in Gujarati or in English<\/p>\n
    medium.”        It     is    further          submitted             by        the<\/p>\n
    Plaintiffs\/Petitioners            that        the        evidence               of<\/p>\n
    Parvatiben cannot be relied upon because the said<\/p>\n
    Parvatiben who has not challenged the said Will and<\/p>\n
    has withdrawn the allegations made in the Notice of<\/p>\n
    Motion No. 72 of 2009 cannot he heard to say that<\/p>\n
                                                                             32<\/span><\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 15:19:10 :::<\/span>
\n     the    said     Will    is     not    genuine           or       that         the<\/p>\n
    Plaintiffs\/Petitioners               have       fabricated                      or<\/p>\n
    manipulated the same out of greed.                   It is submitted<\/p>\n
    that   on     close    scrutiny          of    the         evidence             of<\/p>\n
    Parvatiben (D.W.2) it would show that the entire<\/p>\n
    evidence      is dishonest,      tutored       and given at the<\/p>\n
    instance of the Defendant (D.W.1) only to oblige<\/p>\n
    him.      It is further submitted on behalf of the<\/p>\n
    Plaintiffs\/Petitioners that the allegation on the<\/p>\n
    part of the Defendant that the P.W.1 and P.W.2 have<\/p>\n
    given evidence only because they are the friends of<\/p>\n
    the Plaintiffs\/Petitioners is false and incorrect.\n<\/p>\n
    The Defendant has failed to produce any evidence in<\/p>\n
    support     of the said contention             except an answer<\/p>\n
    which is both false and foolish that he has so<\/p>\n
    alleged     because     he     had     seen     them           “loitering<\/p>\n
    together”      when     he     visited        the       deceased              and<\/p>\n
    Parvatiben      at     their    Kandivali           residence.                The<\/p>\n
    Plaintiffs\/Petitioners have further submitted that<\/p>\n
    the Defendant has questioned the capacity\/ability<\/p>\n
                                                                             33<\/span><\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 15:19:10 :::<\/span>
\n     of the testator to dispose off the property by way<\/p>\n
    of     a    Will,       on       an    incorrect     ground        that          the<\/p>\n
    properties which are sought to be disposed off by<\/p>\n
    way of the said Will are inherited properties and<\/p>\n
    hence      are        not    self      acquired    properties           of      the<\/p>\n
    deceased.             Relying on the decision of the Mysore<\/p>\n
    High Court in the case of D. S. Sriramaiah Shetty<\/p>\n
    vs. D. Kanthamma Reported in AIR 1971 Mysore 148,<\/p>\n
    it         is         submitted   ig      on       behalf          of            the<\/p>\n
    Plaintiffs\/Petitioners that if one challenges the<\/p>\n
    capacity\/ability of the testator to dispose off the<\/p>\n
    property, his Caveat cannot be entertained and the<\/p>\n
    same       deserves         to    be    rejected    in    limine.                The<\/p>\n
    Plaintiffs\/Petitioners                  therefore        submitted              that<\/p>\n
    they have well and truly proved their case and the<\/p>\n
    Defendant has failed to prove otherwise.\n<\/p>\n
    20.             The    Learned         Advocate    appearing          for        the<\/p>\n
    Defendant has submitted that under the 1995 Will<\/p>\n
    the deceased had created certain life interest in<\/p>\n
    favour      of his wife Parvatiben                  which rights have<\/p>\n
                                                                               34<\/span><\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 15:19:10 :::<\/span>
\n     been taken away under the 1997 Will.                    The 1997 Will<\/p>\n
    is         therefore             manipulated              by               the<\/p>\n
    Plaintiffs \/Petitioners.           The date of the execution<\/p>\n
    of the Will is blank and the date put under the<\/p>\n
    signature of the deceased is also not put by the<\/p>\n
    deceased.      It    is    submitted      that     no    evidence            is<\/p>\n
    produced on behalf of the Plaintiffs \/Petitioners<\/p>\n
    that the said Will was explained to the deceased.\n<\/p>\n
    It    is   submitted      that\n                               ig     the    Plaintiffs\/Petitioners\n\n<\/pre>\n
    have failed to prove the execution of the said Will<\/p>\n
    and   therefore     the    Plaintiffs\/Petitioners                are       not<\/p>\n
    entitled to obtain a Probate of the said Will.\n<\/p>\n
    21.        I have considered the pleadings, as well<\/p>\n
    as the evidence on record and the rival contentions<\/p>\n
    advanced by the Learned Advocates appearing for the<\/p>\n
    parties. I will first deal with the role played by<\/p>\n
    Parvatiben (D.W.2) or rather the role she was made<\/p>\n
    to    play    by     the     Defendant        in        the        present<\/p>\n
    proceedings.         The    said       Parvatiben       as      set        out<\/p>\n
    hereinabove,       initially      in    her   Consent          Affidavit<\/p>\n
                                                                          35<\/span><\/p>\n
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\n     dated     11th      April      2001    filed       jointly        with          her<\/p>\n
    daughter Jayshree before this Court deposed that<\/p>\n
    the said Will is a genuine Will and is validly<\/p>\n
    executed by the deceased. As can be seen from the<\/p>\n
    said     Consent         Affidavit      itself,          the      same          was<\/p>\n
    translated\/interpreted to Parvatiben by the Asst.\n<\/p>\n
    Chief Translator and Interpreter of this Court. The<\/p>\n
    said Parvatiben never disputed the said Will in the<\/p>\n
    next 8 eight years but instead took her share in<\/p>\n
    respect      of    one    of    the    flats    as    well       as      silver<\/p>\n
    utensils, gold ornaments, etc. and voluntarily left<\/p>\n
    for     Ahmedabad         to     reside       with       her       daughter,<\/p>\n
    Sushilaben, as can be seen from the document at<\/p>\n
    Exhibit      P-6      the       contents      of     which        the          said<\/p>\n
    Parvatiben        has admitted         before this Court to be<\/p>\n
    true and correct.               It is only when the Defendant<\/p>\n
    had     to    file        his     Affidavit         in     the         present<\/p>\n
    Suit\/Petition         that       he   filed     a    Joint         Affidavit<\/p>\n
    before       this     Court       wherein      he        and      the          said<\/p>\n
    Parvatiben        questioned          the   genuineness             and         the<\/p>\n
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\n     validity of the said Will.               When it was pointed out<\/p>\n
    to the Learned Advocate for the Defendant that the<\/p>\n
    said    Parvatiben      has     already        filed         a      Consent<\/p>\n
    Affidavit dated 11th April 2001 before this Court,<\/p>\n
    accepting the genuineness and validity of the said<\/p>\n
    Will    and   declaring       that       she   has     no        objection<\/p>\n
    whatsoever if the probate in respect of the said<\/p>\n
    Will is granted to the Plaintiffs\/Petitioners, the<\/p>\n
    Learned Advocate for the Defendant stated that he<\/p>\n
    will not rely on the joint Affidavit and he will<\/p>\n
    file a separate Affidavit of examination-in-chief<\/p>\n
    of    the   Defendant   and     will      also    take        steps         for<\/p>\n
    setting aside\/withdrawal of Parvatiben’s Affidavit<\/p>\n
    dated 11th April, 2001. Thereafter, the Advocate for<\/p>\n
    the    Defendant   took    out       a   Notice      of     Motion          for<\/p>\n
    allowing      Parvatiben       to        withdraw       her         Consent<\/p>\n
    Affidavit dated 11th April 2001 inter alia on the<\/p>\n
    grounds that the same was obtained by force\/fraud<\/p>\n
    by the Plaintiffs \/ Petitioners.                     After the said<\/p>\n
    Notice of Motion was argued at some length before<\/p>\n
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\n     this    Court,    the   said     parties    agreed            that         the<\/p>\n
    Affidavit dated 11th April 2001 filed by Parvatiben<\/p>\n
    be treated as withdrawn.             Parvatiben agreed that<\/p>\n
    she is not desirous of contesting the said Will by<\/p>\n
    filing any Caveat and shall only be giving evidence<\/p>\n
    in the present Suit as the Defendant’s witness.                              It<\/p>\n
    was made clear that Parvatiben is not a party to<\/p>\n
    the present proceedings. The allegations made in<\/p>\n
    the    Notice    of   Motion
\n                             ig     by   Parvatiben          against           the<\/p>\n
    Plaintiffs\/Petitioners            were      also            withdrawn.\n<\/p>\n
    Parvatiben       thereafter      filed     her       Affidavit               of<\/p>\n
    Examination-in-Chief before this Court inter alia<\/p>\n
    repeating the allegations which she had withdrawn<\/p>\n
    on the earlier day and thereafter appeared as D.W.2<\/p>\n
    for cross-examination before this Court.                      As can be<\/p>\n
    seen from the cross-examination of Parvatiben, the<\/p>\n
    said Parvatiben was since inception making false<\/p>\n
    statements on oath.            Though Parvatiben has stated<\/p>\n
    in her cross-examination that she has not signed<\/p>\n
    the Affidavit of the Examination-in-Chief at the<\/p>\n
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\n     instance of the Defendant but has signed the same<\/p>\n
    of her own free will, the same is inter alia belied<\/p>\n
    by the following questions and answers put to her<\/p>\n
    during her cross-examination :-\n<\/p>\n
    “Per Court – Why did you not contest the Will since<\/p>\n
    2002?\n<\/p>\n
       i. I had not said anything against the Will of<\/p>\n
            the   deceased   earlier   because    my      sons        had<\/p>\n
            already disposed of the properties.\n<\/p>\n
    (Per Court) In that event, why did you make an<\/p>\n
    affidavit today i.e. after several years, making<\/p>\n
    statement therein against the genuineness of the<\/p>\n
    Will of the said deceased?\n<\/p>\n
    A. Because I am now told that I will not get the<\/p>\n
       share in my Ganga Niwas property.\n<\/p>\n
    Q. When did you first come to know about the Will<\/p>\n
    and its contents?\n<\/p>\n
    A. I came to know about the Will and its contents<\/p>\n
    approximately six months after the demise of my<\/p>\n
    deceased husband.\n<\/p>\n
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     Q. If you were aware about the contents of the<\/p>\n
    Will, you were also aware that Ganga Niwas property<\/p>\n
    is not bequeathed to you?\n<\/p>\n
    A. I say that I was not aware of the contents of<\/p>\n
    the Will, I came to know of the contents of the<\/p>\n
    Will approximately one year back.\n<\/p>\n
    2.        I   now   say   that   about   2   years         back        the<\/p>\n
    Advocate Mr. Wasawada, who was the Advocate of my<\/p>\n
    deceased husband, handed over a copy of the Will to<\/p>\n
    me.\n<\/p>\n
    [Attention    of    the   witness   is   now     drawn         to      the<\/p>\n
    writing on the folder in which the Will of the<\/p>\n
    deceased is kept and after recording that the Wills<\/p>\n
    were read out to parties, signatures are obtained<\/p>\n
    including the signature of the witness. (The entire<\/p>\n
    contents of the writing is read out and explained<\/p>\n
    to the witness in Gujarathi by the Translator)].\n<\/p>\n
    Q. Is this your signature?\n<\/p>\n
    A. Yes.\n<\/p>\n
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     3.      I    now     say    that   the    Will   was       read        out       and<\/p>\n
    explained by Mr. Ashwin Pandya to me on 31.2.2000<\/p>\n
    at 11.30 a.m.<\/p>\n
    Q.     Do you still maintain you were not aware that<\/p>\n
    the Ganga Niwas property was not going to come to<\/p>\n
    you, until recently?\n<\/p>\n
    A. I cannot answer this.”\n<\/p>\n
    From the aforesaid evidence it can be seen that the<\/p>\n
    said Parvatiben first tried to explain that she had<\/p>\n
    not contested the said Will since the year 2002<\/p>\n
    because       the      Plaintiffs\/Petitioners                 had        already<\/p>\n
    disposed off the properties.                     Parvatiben on being<\/p>\n
    asked        why after several years she now decided to<\/p>\n
    allege        that     the     said       Will    is       not         genuine,<\/p>\n
    answered that she is now told that she will not get<\/p>\n
    the share in the Ganga Niwas property.                                On being<\/p>\n
    asked when she came to first know about the said<\/p>\n
    Will and its contents she admitted that she came to<\/p>\n
    know        about     the     said       Will    and       its         contents<\/p>\n
    approximately six months after the demise of the<\/p>\n
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\n     deceased i.e. she came to know about the said Will<\/p>\n
    and its contents sometime in December 2000. It was<\/p>\n
    therefore put to Parvatiben that if she was aware<\/p>\n
    of the contents of the said Will, she was also<\/p>\n
    aware    that   the    Ganga     Niwas     property           was        not<\/p>\n
    bequeathed to her.       Thereupon the said Parvatiben<\/p>\n
    immediately changed her earlier stand and answered<\/p>\n
    that she came to know about the contents of the<\/p>\n
    said Will approximately a year ago.\n<\/p>\n
                           ig                         She thereafter<\/p>\n
    again changed her answer and stated that about two<\/p>\n
    years    back   the    Advocate     of     the      deceased             Mr.<\/p>\n
    Wasawada had handed over a copy of the said Will to<\/p>\n
    her.    When the attention of Parvatiben was drawn to<\/p>\n
    the writing on the folder in which the said Will of<\/p>\n
    the deceased is kept where after recording that the<\/p>\n
    Wills were read out to the parties and signatures<\/p>\n
    were     obtained      including         the      signature                of<\/p>\n
    Parvatiben,     she   admitted    that     the     same        was       her<\/p>\n
    signature.      She thereafter also admitted that the<\/p>\n
    said Will was read out and explained by Mr. Ashwin<\/p>\n
                                                                        42<\/span><\/p>\n
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\n     Pandya to her on 31.2.2000 at 11.30 a.m. (the date<\/p>\n
    31.2.2000       is an obvious        mistake   and same should<\/p>\n
    have     been    typed      as     31.12.2000).            After            this<\/p>\n
    admission of Parvatiben, she was asked whether she<\/p>\n
    still maintained that she was not aware that the<\/p>\n
    Ganga    Niwas     property       was not bequeathed              to her,<\/p>\n
    until recently, she responded by saying “I cannot<\/p>\n
    answer      this”.          The     aforestated         evidence              of<\/p>\n
    Parvatiben shows that she was conscious of the fact<\/p>\n
    she had no answer whatsoever to the question as to<\/p>\n
    why she did not contest the genuineness\/validity of<\/p>\n
    the said Will till date. Parvatiben therefore as<\/p>\n
    can    be   seen     from    the    above   discussion              of       her<\/p>\n
    evidence,       gave false and incorrect answers knowing<\/p>\n
    them to be so, until she had no alternative left<\/p>\n
    but to admit that she was in fact aware of the said<\/p>\n
    Will as well as its contents since 31.12.2000.\n<\/p>\n
    22.         Parvatiben has alleged in her Examination-\n<\/p>\n
    in-Chief that she and the Defendant were thrown out<\/p>\n
    of     Mumbai    immediately        after   the      death          of       the<\/p>\n
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\n     deceased by the Plaintiffs\/Petitioners.                     Parvatiben<\/p>\n
    suppressed the fact that after the demise of the<\/p>\n
    deceased she stayed with the Plaintiffs\/Petitioners<\/p>\n
    for five years       and thereafter,        after taking her<\/p>\n
    share from the Plaintiffs\/Petitioners voluntarily<\/p>\n
    left   for   Ahmedabad     to    reside    with         her      daughter<\/p>\n
    Sushila.     Attention     of    Parvatiben        in      her       cross-\n<\/p>\n
    examination was therefore drawn to a letter dated<\/p>\n
    30th May 2005 (Exhibit P-6) wherein she has stated<\/p>\n
    that she of her own free will and volition is going<\/p>\n
    to reside with her daughter Sushila at Ahmedabad.\n<\/p>\n
    It is further recorded in Exh. P-6 that she has<\/p>\n
    received –     (i) Rs.2,50,000\/- towards her share in<\/p>\n
    the Kandivali flat;        (ii) fixed deposits for a sum<\/p>\n
    of Rs.1,35,000\/-         standing in her name; (iii) Rs.\n<\/p>\n
    40,000\/-     being   the   sale      proceeds      of      the       silver<\/p>\n
    utensils     apportioned        as   her   share;                (iv)gold<\/p>\n
    ornaments     consisting        of   one   big      necklace,              two<\/p>\n
    ‘patlas’, (big bangles, a bracelet) weighing about<\/p>\n
    146 grams and small necklace weighing 40 gms, which<\/p>\n
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\n     was her share; and (v) the amount lying in her bank<\/p>\n
    account      at      Borivali      branch       which       approximately<\/p>\n
    amounted to Rs.11,000\/-.               In the said letter it is<\/p>\n
    also recorded that Plaintiff No.1 shall send a sum<\/p>\n
    of     Rs.1,000\/-          every    month       for      two        years          to<\/p>\n
    Parvatiben towards the monies which she had used<\/p>\n
    for Probate and medicine of the deceased.                                   It is<\/p>\n
    further recorded that her sons shall not have any<\/p>\n
    right whatsoever over what she is taking away and<\/p>\n
    if her daughter Sushila allows her to stay with her<\/p>\n
    till     her      lifetime,        only      Sushila           shall             have<\/p>\n
    a right to the same. It is further recorded that<\/p>\n
    Plaintiff         No.2     shall    pay      Rs.35,000\/-              to         her.\n<\/p>\n
    Parvatiben has further agreed in the said letter<\/p>\n
    that    during       her    lifetime      her    mother’s            jewellery<\/p>\n
    shall    remain       with    Plaintiff         No.1     and      thereafter<\/p>\n
    upon her death the same shall be distributed to her<\/p>\n
    daughters in equal share.                 It is further provided<\/p>\n
    that    if     she    is    required      to,    she       can       sell        the<\/p>\n
    ornaments.            It     is    further       provided           that         the<\/p>\n
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\n     jewellery worn by her will remain with her during<\/p>\n
    her lifetime and she will be entitled to give the<\/p>\n
    same to anyone she desires.               The said document is<\/p>\n
    inter alia signed by the Plaintiffs\/Petitioners and<\/p>\n
    her daughters.         The said Parvatiben has admitted<\/p>\n
    before this Court the execution as well as contents<\/p>\n
    of   the    said   letter.      The      said    letter           and       its<\/p>\n
    contents     completely       destroys          the     evidence              of<\/p>\n
    Parvatiben    as     stated
\n                            ig    in   her     examination-in-chief<\/p>\n
    that after the demise of the deceased she and the<\/p>\n
    Defendant     were     driven      out     of     Mumbai           by       the<\/p>\n
    Plaintiffs\/Petitioners.                In view thereof,                  I am<\/p>\n
    satisfied     that     the      said      Parvatiben            who         has<\/p>\n
    admittedly not contested the said Will and has been<\/p>\n
    produced by the Defendant only as a witness has<\/p>\n
    sought to give false and incorrect evidence knowing<\/p>\n
    the same to be so which destroys her credibility as<\/p>\n
    a reliable witness and leaves the Court with no<\/p>\n
    option but to reject the same in its entirety.\n<\/p>\n
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     23.     The     Plaintiffs\/Petitioners        as        set         out<\/p>\n
    hereinabove have led evidence of both the attesting<\/p>\n
    witnesses to the said Will viz. P.W.1 and P.W.2.\n<\/p>\n
    P.W.1 at the time of attestation of the said Will<\/p>\n
    was the neighbour of the deceased.                P.W.2 is a<\/p>\n
    qualified    doctor   having   his   dispensary        in      close<\/p>\n
    proximity to the residence of the deceased. Both<\/p>\n
    P.W.1 and P.W.2 have deposed that they had attested<\/p>\n
    the Will of the deceased in the year 1995 as well<\/p>\n
    as the said Will dated 11th February, 1997.                        Both<\/p>\n
    P.W.1 and P.W.2 have deposed that the said Will was<\/p>\n
    signed by the deceased in their presence and they<\/p>\n
    too had signed the said Will in the presence of the<\/p>\n
    deceased, as well as in the presence of each other.\n<\/p>\n
    Both P.W.1 and P.W.2 have also deposed that the<\/p>\n
    physical as well as the mental condition of the<\/p>\n
    deceased at the time of the execution of the Will<\/p>\n
    was sound.    P.W.2 has categorically stated that the<\/p>\n
    deceased used to visit his dispensary with minor<\/p>\n
    problems like cold, fever, etc. and the Defendant<\/p>\n
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\n     beyond     alleging         that        he     was     informed             by       his<\/p>\n
    mother\/sister that his father was treated by one<\/p>\n
    Dr.    Naik     has    not     been          able     to      discredit               the<\/p>\n
    evidence       of   P.W.2     on    this        issue.           In      fact         the<\/p>\n
    Defendant has not even suggested to P.W.2 that the<\/p>\n
    deceased was not a patient of P.W.2. Though the<\/p>\n
    Defendant      has alleged          that P.W.1 and P.W.2 have<\/p>\n
    given evidence in favour of the said Will because<\/p>\n
    they are the friends of the Plaintiffs\/Petitioners,<\/p>\n
    the       Defendant           has             not          attempted                   to<\/p>\n
    explain\/demonstrate            the            extent        of        friendship<\/p>\n
    between              P.W.1,                  P.W.2               and                  the<\/p>\n
    Plaintiffs \/Petitioners, but in a specific question<\/p>\n
    put to the Defendant has stated that according to<\/p>\n
    him    they    are    friends           because       he     has       seen          them<\/p>\n
    loitering       together       when          he      use     to       visit          the<\/p>\n
    deceased and his wife at their Kandivali residence.\n<\/p>\n
    Admittedly, P.W.2 is a practicing doctor.                                       It is<\/p>\n
    also     not    the    case        of     the       Defendant           that          the<\/p>\n
    Plaintiffs\/Petitioners              as       well     as     P.W.1         are        not<\/p>\n
                                                                                    48<\/span><\/p>\n
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\n     pursuing    any    business\/service.            It    is      therefore<\/p>\n
    unbelievable that when the Defendant was visiting<\/p>\n
    his   parents      at   Kandivali       he     use     to      see        the<\/p>\n
    Plaintiffs\/Petitioners            and        P.W.1       and          P.W.2<\/p>\n
    “loitering” as alleged.           Both P.W.1 and P.W.2 have<\/p>\n
    denied the suggestion put to them in their cross-\n<\/p>\n
    examination on behalf of the Defendant that they<\/p>\n
    are giving evidence in the matter because they are<\/p>\n
    the friends of the Plaintiffs\/Petitioners.\n<\/p>\n
                             ig                                           P.W.1<\/p>\n
    has stated in his cross-examination that he knows<\/p>\n
    the Plaintiffs\/Petitioners and not the Defendant.\n<\/p>\n
    P.W.2 has stated that he knows Plaintiff\/Petitioner<\/p>\n
    No.2 who has visited him as a patient.\n<\/p>\n
    24.        As regards the allegation of the Defendant<\/p>\n
    that despite being typed in the Will that the same<\/p>\n
    has been read over and explained to the deceased no<\/p>\n
    evidence    is    produced   to    show      that    the      same        was<\/p>\n
    actually read over and explained to the deceased, I<\/p>\n
    am of the opinion that the said contention would<\/p>\n
    have had some merit if the Defendant had positively<\/p>\n
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\n     established     before     this      Court       that    the       deceased<\/p>\n
    failed to read and understand English.                      Instead the<\/p>\n
    Defendant has in his cross-examination stated “I do<\/p>\n
    not know the educational qualification of my father<\/p>\n
    though I can say he was an educated man.                          I am not<\/p>\n
    aware whether he has studied in Gujarati or English<\/p>\n
    medium.”      Therefore,      it    is     not    the    case        of      the<\/p>\n
    Defendant who is the eldest son of his father that<\/p>\n
    his father did not know and\/or understand English.\n<\/p>\n
    25.         As regards the allegation of the Defendant<\/p>\n
    that    the     Will    has        been     manipulated             by       the<\/p>\n
    Plaintiffs\/Petitioners             and     the     date       below          the<\/p>\n
    signature of the deceased is not in the handwriting<\/p>\n
    of    the   deceased,    this      Court     has    noted        that        the<\/p>\n
    Defendant in his Affidavit in Support of the Caveat<\/p>\n
    dated 3rd May 2002 which unlike his Affidavit of<\/p>\n
    Examination-in-Chief dated 20th April, 2009 is not<\/p>\n
    interpreted and explained to him in Gujarati and<\/p>\n
    the    contents    of    which       are     not    reiterated               and<\/p>\n
    confirmed by him in his evidence, has alleged that<\/p>\n
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\n     “my   father        was     paralysed        since     __       years          and<\/p>\n
    bedridden before his death and was not able to sign<\/p>\n
    anything.”          In    the      said    Affidavit         it      is        also<\/p>\n
    alleged by the Defendant that though he has not<\/p>\n
    seen the said Will, the said Will is false and<\/p>\n
    fabricated.          Interestingly            the      Affidavit                 of<\/p>\n
    Examination-in-Chief              of   the    Defendant         dated          20th<\/p>\n
    April, 2009 does not mention that the deceased was<\/p>\n
    paralyzed      or     was  ig    bedridden        before      his        death.\n<\/p>\n
    Instead it is alleged that for the last five years<\/p>\n
    prior to his death, the deceased was unable to sign<\/p>\n
    because his hands were “shivering” and he had a<\/p>\n
    “failed   memory”.          It    would      be   pertinent          to        once<\/p>\n
    again state that on 18th July, 2009 when arguments<\/p>\n
    in the Suit commenced the Learned Advocate for the<\/p>\n
    Defendant     submitted           before      the    Court        that          the<\/p>\n
    Defendant is not contending that the deceased was<\/p>\n
    suffering from paralysis as stated in his Affidavit<\/p>\n
    in Support of the Caveat. Even the words “false” or<\/p>\n
    “fabricated”         used in the Affidavit in Support of<\/p>\n
                                                                              51<\/span><\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 15:19:10 :::<\/span>
\n     the    Caveat    are       not    found      in    the    Affidavit              of<\/p>\n
    Examination-in-chief of the Defendant                            but it is<\/p>\n
    alleged that there is “manipulation” on the part of<\/p>\n
    the      Plaintiffs\/Petitioners.                    P.W.            2          has<\/p>\n
    categorically        stated       in   his    examination-in-chief<\/p>\n
    that “the signature of Bapulal Contractor was put<\/p>\n
    by him in my presence and underneath he handwrote<\/p>\n
    the dated 11\/2\/97 in my presence.”                         On behalf of<\/p>\n
    the Defendant it was not even suggested to P.W.2 in<\/p>\n
    his cross-examination that the said date under the<\/p>\n
    signature       of   the     deceased        is    not        put       by     the<\/p>\n
    deceased in the presence of P.W.2.                         Nothing much<\/p>\n
    turns on the issue that the date in the said Will<\/p>\n
    is left blank, since underneath the signatures of<\/p>\n
    the deceased as well as P.W.1 and P.W.2 the date<\/p>\n
    11\/2\/97 is set out.               The docket of the said Will<\/p>\n
    also    bears    the       said    date.          Again,       though          the<\/p>\n
    Defendant   in       his    cross-examination            was        asked        to<\/p>\n
    produce any original signature of the deceased the<\/p>\n
    Defendant   expressed            his   inability         to    do       so     and<\/p>\n
                                                                              52<\/span><\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 15:19:10 :::<\/span>
\n     produced     the membership   card of the deceased                      of<\/p>\n
    Khar Gymkhana which admittedly does not bear the<\/p>\n
    original signature of the deceased.               In any event<\/p>\n
    a bare visual inspection of the said signature on<\/p>\n
    the   said   card   shows   that   the   signature            of       the<\/p>\n
    deceased thereon is identical to the signature on<\/p>\n
    the said Will. I am therefore convinced that the<\/p>\n
    Plaintiffs\/Petitioners      have   proved     that        the         said<\/p>\n
    Will dated 11th February, 1997 is duly executed by<\/p>\n
    the Testator in accordance with law.                 In addition<\/p>\n
    to the aforesaid facts my view is also fortified by<\/p>\n
    the fact that except for the Defendant neither the<\/p>\n
    wife of the deceased or her married daughters have<\/p>\n
    challenged the said Will, instead they have given<\/p>\n
    Affidavits in support of the above Suit\/Petition by<\/p>\n
    accepting the genuineness and validity of the said<\/p>\n
    Will. Even though Parvatiben withdrew the Affidavit<\/p>\n
    executed by her on 11th April, 2001 only on 18th<\/p>\n
    June, 2009 she informed the Court that she is not<\/p>\n
    desirous of contesting the said Will by filing any<\/p>\n
                                                                     53<\/span><\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 15:19:10 :::<\/span>
\n     Caveat and shall only be giving evidence in the<\/p>\n
    Suit as a witness of the Defendant.                     The evidence<\/p>\n
    subsequently given by her is already dealt with by<\/p>\n
    me    at    length     hereinabove.        Again     the       Defendant<\/p>\n
    admittedly was not on good terms with his father<\/p>\n
    and there were a number of suits and counter suits<\/p>\n
    filed between them as also              police complaints filed<\/p>\n
    by    the    Defendant     and    the   deceased       against             each<\/p>\n
    other.      The   deceasedig     has    categorically             made         a<\/p>\n
    mention about his disputes with the Defendant in<\/p>\n
    his 1995 Will as well as the said Will and has<\/p>\n
    expressed       his     desire    not     to   bequeath           any        of<\/p>\n
    moveable or immoveable properties to the Defendant.\n<\/p>\n
    The Defendant in his affidavit in support of the<\/p>\n
    caveat dated 3rd May 2002 has not contended that the<\/p>\n
    Defendant      has by the said Will bequeathed                         joint<\/p>\n
    family      properties      and     not    his     self          acquired<\/p>\n
    properties.       No additional affidavit in support of<\/p>\n
    the    caveat     is    filed     thereafter       despite           having<\/p>\n
    reserved the right to file a detailed affidavit.\n<\/p>\n
                                                                          54<\/span><\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:19:10 :::<\/span><\/p>\n
     In         any    event      the   question        as    to      whether            the<\/p>\n
    testator              had    a     right     to         bequeath            certain<\/p>\n
    property\/properties, involves a question of title<\/p>\n
    to the property\/properties so bequeathed and this<\/p>\n
    Court            in   its    testamentary          jurisdiction               cannot<\/p>\n
    decide the same.\n<\/p>\n
    26.               Under the circumstances I answer the issue<\/p>\n
    framed hereinabove in the affirmative.                             The suit is<\/p>\n
    allowed\/decreed in terms of Prayer Clause (a) of<\/p>\n
    the Plaint\/Petition which reads thus :\n<\/p>\n
         (a)              that   Probate       may     be    granted           to       the<\/p>\n
                          Petitioners in respect of the last will<\/p>\n
                          and testament dated 11th February 1997 of<\/p>\n
                          the    deceased       Shri        Bapulal          Maganlal<\/p>\n
                          Contractor having effect throughout the<\/p>\n
                          State of Maharashtra.”\n<\/p><\/blockquote>\n
    The        Defendant         is directed to pay the cost of this<\/p>\n
                                                                                   55<\/span><\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 15:19:10 :::<\/span>
\n     suit to the Plaintiffs\/Petitioners as incurred by<\/p>\n
    the Plaintiffs\/Petitioners.\n<\/p>\n
                             Order accordingly.\n<\/p>\n
                                  (S. J. KATHAWALLA, J.)<\/p>\n
                                                              56<\/span><\/p>\n
                                         ::: Downloaded on – 09\/06\/2013 15:19:10 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Umakant Bapulal Contractor & Anr vs Nitin Bapulal Contractor on 18 November, 2009 Bench: S. J. Kathawalla IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION TETAMENTARY SUIT NO.36 OF 2002 IN TESTAMENTARY PETITION NO.602 OF 2001 Bapulal Maganlal Contractor … Deceased Umakant Bapulal Contractor & Anr. … Plaintiffs […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-55889","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nUmakant Bapulal Contractor & Anr vs Nitin Bapulal Contractor on 18 November, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/umakant-bapulal-contractor-anr-vs-nitin-bapulal-contractor-on-18-november-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Umakant Bapulal Contractor & Anr vs Nitin Bapulal Contractor on 18 November, 2009 - 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