{"id":76020,"date":"2008-07-22T00:00:00","date_gmt":"2008-07-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shiv-krupa-vs-gaurang-gunvantrai-gupta-on-22-july-2008"},"modified":"2015-08-24T20:43:47","modified_gmt":"2015-08-24T15:13:47","slug":"shiv-krupa-vs-gaurang-gunvantrai-gupta-on-22-july-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shiv-krupa-vs-gaurang-gunvantrai-gupta-on-22-july-2008","title":{"rendered":"“Shiv-Krupa” vs Gaurang Gunvantrai Gupta on 22 July, 2008"},"content":{"rendered":"
Bombay High Court<\/div>\n
“Shiv-Krupa” vs Gaurang Gunvantrai Gupta on 22 July, 2008<\/div>\n
Bench: V.C. Daga<\/div>\n
      IN   THE     HIGH   COURT OF JUDICATURE        AT     BOMBAY\n\n           TESTAMENTARY AND INTESTATE JURISDICTION.\n\n               TESTAMENTARY SUIT No. 48 of 1996.\n\n\n\n\n                                                              \n                                 IN\n\n\n\n\n                                      \n           TESTAMENTARY PETITION No. 601 of 1995.\n\n\n      Gunvantrai S. Gupta of Bombay,\n      Indian Inhabitant, residing at\n\n\n\n\n                                     \n      \"Shiv-Krupa\", 18\/20, St Mary\n      Road, Mazgaon, Bombay-400 010.\n                        ..Plaintiff.\n\n\n\n\n                               \n                      VERSUS.\n\n      1.   Gaurang Gunvantrai Gupta,\n               \n      Indian Inhabitant residing at\n      2nd Floor, \"Shiv-Krupa\" 18\/20\n      St Mary's Road, Mazgaon, Mumbai\n      400 010.\n              \n      2.    Miss      Snehlata   Chhotalal\n      Mody.\n\n      3.   Miss   Nurupama Chhotalal\n      Mody Both residing    at A\/32\n      \n\n\n      Eeshita Apartment, Navrangpura\n      Ahmedabad 380 009.\n   \n\n\n\n      4.   Miss Nita Hasmukhlal Mody\n\n      5.   Miss Rupa Hasmukhlal Mody\n      Both residing at 102\/4 Shreyas,\n\n\n\n\n\n      Sewree Wadala Scheme Road No.7,\n      Wadala, Mumbai- 400 031.\n                       ..Defendants.\n\n      CORAM:      V.C.DAGA,J.\n<\/pre>\n
      DATED:      22.07.2008.\n\n\n\n\n\n      Mr D.C.    Shah i\/b Indu D.             Shah       for      the\n      Petitioner-Plaintiff.\n\n      Mr S.      J.   Shobhavat, Advocate for Respondent\n      No.1.\n\n\n\n\n                                      ::: Downloaded on - 09\/06\/2013 13:37:03 :::<\/span>\n       Mr S.C.Mody, Advocate for Respondent Nos.                           2<\/span>\n      to 5.\n\n      JUDGMENT:-\n      ---------\n\n\n\n\n                                                                   \n      1.         In   this    Testamentary        Petition,            the\n\n\n\n\n                                           \n      Plaintiff-propounder          of    the Will is           praying\n\n      for     probate with the Will annexed thereto                     of\n\n\n\n\n                                          \n      the     properties owned by Late Narendra Shivlal\n\n<\/pre>\n
      Gupta together with the credits held by him in<\/p>\n
      business establishment.\n<\/p>\n
      FACTUAL MATRIX:\n<\/p>\n
      —————\n<\/p>\n
      2.      One      Narendra S\/o Shivlal Gupta died                  on<\/p>\n
      12.12.1993        in Kambala Hill Hospital in Mumbai<\/p>\n
      after      having undergone major surgery since he<\/p>\n
      was    a    cancer      patient.    He is said          to     have<\/p>\n
      executed        his alleged last Will and             testament<\/p>\n
      on    27.11.1993 at about 2.00 a.m.                (midnight)<\/p>\n
      before      being      admitted    to the      hospital          for<\/p>\n
      acute       abdominal      pain.      His      brother         Shri<\/p>\n
      Hemantrai        s\/o    Shivlal     Gupta        (hereinafter<\/p>\n
      called      the “Petitioner\/Plaintiff\/Propounder”)<\/p>\n
      has    filed Testamentary Petition on                 28.7.1995<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span>
\n                           ( 3 )<\/p>\n
      to    seek     probate     of the alleged            Will      dated<\/p>\n
      27.11.1993        alleged    to have been executed                  by<\/p>\n
      his brother Late Narendra Gupta.\n<\/p>\n
      3.       On being served with the citation, widow<\/p>\n
      of    the    deceased Narendra Gupta had                  filed       a<\/p>\n
      caveat      on    3.8.1998      alongwith        affidavit          in<\/p>\n
      support      thereof      denying       execution           of     the<\/p>\n
      alleged      Will by her husband and alleged fraud<\/p>\n
      on    the part of the propounder of the Will and<\/p>\n
      contended        that    her husband was not              mentally<\/p>\n
      fit    to
\n                ig execute      the     alleged        Will       at     the<\/p>\n
      relevant       time     and on the date mentioned                  and<\/p>\n
      that     the     alleged Will is not genuine,                  valid<\/p>\n
      and    legal.       In    view    of    the      contest,          the<\/p>\n
      Testamentary        Petition      became contentious                as<\/p>\n
      such     registered       as Testamentary            Suit.         The<\/p>\n
      affidavit        filed in support of the caveat                    was<\/p>\n
      treated as written statement.\n<\/p>\n
      PLAINT ALLEGATIONS:\n<\/p>\n
             ALLEGATIONS<\/p>\n
      ——————-\n<\/p>\n
      4.     The        petitioner-plaintiff,                 Guvantrai<\/p>\n
      Gupta,      has stated in the petition\/plaint that<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span>
\n                             ( 4 )<\/p>\n
      his    brother Late Narendra Shivlal Gupta                          died<\/p>\n
      in    Mumbai on 12.12.1993 (“the said                      deceased”\n<\/p>\n
      for    short).         At the time of his               death,        his<\/p>\n
      fixed       place      of    abode     was        Mumbai.             The<\/p>\n
      properties        left by him are situate within the<\/p>\n
      jurisdiction of Greater Mumbai in the State of<\/p>\n
      Maharashtra.           The    petitioner            has        further<\/p>\n
      stated      that the deceased left the writing                         as<\/p>\n
      his    last      Will and Testament and that                    he     is<\/p>\n
      appointed        as    executor      of        the      Will.         The<\/p>\n
      description        of      the   property           left       by     the<\/p>\n
      deceased
\n                ig  is      to    be found in         the      Schedule-I<\/p>\n
      marked      as    Exhibit B.       The expenses              incurred<\/p>\n
      are    shown      in    Exhibit       C.        The      beneficial<\/p>\n
      interest      held by the deceased is described in<\/p>\n
      Exhibit      D annexed to the plaint.                   The     assets<\/p>\n
      of the deceased are valued at Rs.62,83,452.46.\n<\/p>\n
      The    name      of    Mrs    Lalitadevi          N.       Gupta       is<\/p>\n
      disclosed        as next of kin and kith,                  according<\/p>\n
      to    Hindu      Law.      The prayer is made              to     grant<\/p>\n
      probate      with Will annexed thereto in                      respect<\/p>\n
      of    the    properties and credits to                   which        the<\/p>\n
      deceased was entitled during his life time.\n<\/p>\n
      DEFENCE PLEA:\n<\/p>\n
      ————-\n<\/p>\n
      5.      The Caveator (“the defendant” for short)<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span>
\n                           ( 5 )<\/p>\n
      Mrs    Lalitadevi (since deceased) had filed her<\/p>\n
      caveat       alongwith         affidavit            cum-written<\/p>\n
      statement      stating      therein that she             was      the<\/p>\n
      widow    of Late Shri Narendra Shivlal Gupta                       of<\/p>\n
      Mumbai      entitled to succeed to the estate left<\/p>\n
      behind by her husband Late Narendra Gupta.\n<\/p>\n
      6.      The defendant had also stated in defence<\/p>\n
      that    to the best of her knowledge and belief,<\/p>\n
      her    husband Late Narendra Gupta did not                      make<\/p>\n
      any    Will    or testament and that              her      husband<\/p>\n
      died<\/p>\n
              intestate;      that she came to know                 about<\/p>\n
      the    alleged      Will for the first time, when                    a<\/p>\n
      Subpoena      dated    1.3.1996    was served              on     her<\/p>\n
      through the Sheriff of Bombay.\n<\/p>\n
      7.      She had further stated, in defence, that<\/p>\n
      as    per    Rule    397 of the    Bombay           High      Court<\/p>\n
      Original Side Rules (O.S.Rules) the petitioner<\/p>\n
      was    bound    to give her advance             notice        about<\/p>\n
      filing      of the Probate Petition in this Court.\n<\/p>\n
      According       to     her,     the        petitioner             had<\/p>\n
      deliberately        kept her in dark about filing of<\/p>\n
      the    present Probate Petition and did not give<\/p>\n
      her    any    notice    of the    Petition           with       sole<\/p>\n
      intention to obtain Probate in a surreptitious<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span>
\n                           ( 6 )<\/p>\n
      manner.       Thus, breach of Rule 397 on the part<\/p>\n
      of the Petitioner is alleged.\n<\/p>\n
      8.      The    defendant        had    further         stated        in<\/p>\n
      defence that the Plaintiff did not comply with<\/p>\n
      Rule 374 of the Original Side Rules and failed<\/p>\n
      to    file    the alleged Original Will                  with       the<\/p>\n
      office    of      Prothonotary and Senior Master                     of<\/p>\n
      this    Court at the time of the presentation of<\/p>\n
      this    Suit\/Petition;          that he had deliberately<\/p>\n
      made     false      statement      in        para      3     of     the<\/p>\n
      suit\/petition with regard to the filing of the<\/p>\n
      alleged      Original      Will in the office                of     the<\/p>\n
      Prothonotary        and Senior Master of this                   Court<\/p>\n
      and    also    challenged        the     bonafides           of     the<\/p>\n
      petitioner.\n<\/p>\n
      9.      The defendant had further challenged the<\/p>\n
      order    allowing        the amendment sought                by     the<\/p>\n
      Petitioner        to   the     plaint\/petition             and      has<\/p>\n
      further      asserted,       in para 5, of her               counter<\/p>\n
      affidavit      that      she    had sent a          reply       dated<\/p>\n
      3.4.1996,      within eight days from the date                       of<\/p>\n
      receipt      of    the    Subpoena, addressed                to     the<\/p>\n
      Prothonotary        and Senior Master of this                   Court<\/p>\n
      and informed this Court that the Original Will<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span>
\n                           ( 7 )<\/p>\n
      alleged      to    have    been executed by              her      late<\/p>\n
      husband       on    27.11.1993       was        not        in       her<\/p>\n
      possession, power or control as alleged by the<\/p>\n
      Petitioner;        that she was neither aware of the<\/p>\n
      execution of the alleged Will dated 27-11-1993<\/p>\n
      nor    had    any      knowledge about it;               that       the<\/p>\n
      Petitioner         has    falsely        alleged         that       the<\/p>\n
      alleged      Will      was and is in         her      possession;<\/p>\n
\n\n      that    the     said     allegations          are      made       with\n\n\n\n\n                               \n      ulterior      motive of creating false evidence to\n\n      show    that the original Will was in                    existence\n\n      so    as\n                 \n                 to     avoid the responsibility                 for      the\n\n      production        of    the original Will             alleged        to\n                \n      have    been      executed      by her late           husband        on\n\n      27.11.1993.\n      \n\n\n      10.     The     defendant       did produce copy of                 the\n   \n\n\n\n      letter     addressed       to     the      Prothonotary             and\n\n<\/pre>\n
      Senior     Master of this Court on 3.4.1996.                        She<\/p>\n
      had    also     stated     that the        said       letter        was<\/p>\n
      received by the office of the Prothonotary and<\/p>\n
      Senior     Master of this Court and that she                        was<\/p>\n
      holding postal acknowledgement and certificate<\/p>\n
      evidencing         posting      of    the       letter          dated<\/p>\n
      3.4.1996 and undertook to produce the same.\n<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span><\/p>\n
                         ( 8 )<\/p>\n
      11.     The    defendant had also stated that                   the<\/p>\n
      petitioner deliberately did not give notice of<\/p>\n
      filing    of    the   probate      petition.           She      had<\/p>\n
      further    asserted that the Will propounded                     by<\/p>\n
      the    petitioner was non existent and that                     the<\/p>\n
      photo    copy of the Will was not a genuine                     but<\/p>\n
      fabricated       by   the     Petitioner.            That       the<\/p>\n
      petitioner      had   adopted       dubious        method        in<\/p>\n
      filing Testamentary Petition.\n<\/p>\n
      12.     The    defendant     had    further        reiterated<\/p>\n
      that<\/p>\n
              her husband had not made any Will at any<\/p>\n
      point    of time during his life time, and                    more<\/p>\n
      particularly,      on 27.11.1993 as alleged by the<\/p>\n
      petitioner.       That during the last three weeks<\/p>\n
      prior    to    the death of her husband              i.e.        on<\/p>\n
      27.11.1993, he was not keeping good health and<\/p>\n
      she    had at all times remained by the side                     of<\/p>\n
      her    Late    husband.      She had never           left       her<\/p>\n
      husband    alone at any time during his illness,<\/p>\n
      especially,      during the period from 22.11.1993<\/p>\n
      to    12.12.1993.      She has further stated                 that<\/p>\n
      her    husband    was suffering from cancer                 which<\/p>\n
      was    detected    when her husband had              undergone<\/p>\n
      major    surgery in the month of April, 1992 and<\/p>\n
      that     the     health     of      her       husband           was<\/p>\n
                                          ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span>
\n                           ( 9 )<\/p>\n
      deteriorating        day    by    day and      that       he     was<\/p>\n
      mentally      depressed      and physically           weak       and<\/p>\n
      handicapped.         As    such    he was not         a    normal<\/p>\n
      person.\n<\/p>\n
      13.     The    defendant      had further stated               that<\/p>\n
      the   petitioner had tried to obtain                  signature<\/p>\n
      of    her      husband        through        Dr.          Gangal,<\/p>\n
      brother-in-law         of    her     husband          (sister’s<\/p>\n
      husband),      who    had    specially       come       down      to<\/p>\n
      Bombay    from Hubli to see her husband.                     That,<\/p>\n
      at the instance of the petitioner, Dr.                     Gangal<\/p>\n
      had   given some papers to her husband for                       his<\/p>\n
      signature      in    her presence.         After        scanning<\/p>\n
      those    papers, her husband had returned                    those<\/p>\n
      papers    to    Dr.       Gangal without         putting         his<\/p>\n
      signature,      who    in turn returned them to                  the<\/p>\n
      Petitioner.         After    Dr    Gangal had         left       the<\/p>\n
      Nursing     Home,     her husband had told her                 that<\/p>\n
      the paper which Dr.Gangal had given to him was<\/p>\n
      the   Will which was prepared by the petitioner<\/p>\n
      and   had     given    to Dr Gangal        to      obtain        his<\/p>\n
      signature.        She has further stated that after<\/p>\n
      the   papers were returned by Dr.Gangal to                       the<\/p>\n
      petitioner,         there    was     heated         discussion<\/p>\n
      between     the     petitioner and her Late               husband<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span>
\n                           ( 10 )<\/p>\n
      and    the petitioner had become very angry with<\/p>\n
      her    husband      and    started       shouting          at     her<\/p>\n
      husband for having refused to sign the papers.\n<\/p>\n
      On    hearing    the shouts of the petitioner,                     Dr<\/p>\n
      Antia,     who       was     attending          her        husband<\/p>\n
      immediately      came      to her husband’s            room       and<\/p>\n
      scolded       the    petitioner        for      shouting          and<\/p>\n
      misbehaving         with     the     patient,          who        had<\/p>\n
      undergone major surgery.\n<\/p>\n
      14.     The    defendant      had also stated              in     her<\/p>\n
      affidavit that her husband was temperamentally<\/p>\n
      very cool and quiet and that the petitioner is<\/p>\n
      temperamentally        very    hot and        aggressive           in<\/p>\n
      nature    and    always dominated in              domestic         as<\/p>\n
      well    as business matters inspite of the                      fact<\/p>\n
      that    her husband was the elder brother of the<\/p>\n
      petitioner.      She had further stated that while<\/p>\n
      her    husband was alive and active in business,<\/p>\n
      he    used to give her an amount of Rs.                    5,000\/-\n<\/p>\n
      every month for her personal expenses and that<\/p>\n
      after the death of her husband, the petitioner<\/p>\n
      continued      to    maintain the said practice                   for<\/p>\n
      sometime       without       asking         her        for        any<\/p>\n
      acknowledgment.              However,           subsequently,<\/p>\n
      acknowledgement        was asked for the purpose                   of<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span>
\n                           ( 11 )<\/p>\n
      maintaining        account     of    the       estate         of     her<\/p>\n
      husband and gave her a bunch of receipts which<\/p>\n
      were    simple receipts in respect of payment of<\/p>\n
      Rs.     5,000\/- which were already scribed.                          She<\/p>\n
      had    thus    stated      that she had            signed        those<\/p>\n
      acknowledgments          in   good faith and              later       on<\/p>\n
      found out that those vouchers were prepared to<\/p>\n
      establish      the    genuineness of the Will.                       She<\/p>\n
      has, thus, stated that her signatures had been<\/p>\n
      fraudulently obtained on these vouchers.\n<\/p>\n
      15.<\/p>\n
              The    defendant had also given a                     graphic<\/p>\n
      picture    about the health of her husband.                           On<\/p>\n
      27.11.1993      he had suffered severe pain in the<\/p>\n
      stomach       and    abdomen        which        had      increased<\/p>\n
      considerably by midnight.             The pain had become<\/p>\n
      absolutely      unbearable.         Due to severe pain in<\/p>\n
      the    stomach      and    abdomen,         her      husband         had<\/p>\n
      gradually       lost      consciousness.                  She        was<\/p>\n
      frightened      due to sudden deteriorated                     health<\/p>\n
      of    her husband, therefore, she had to request<\/p>\n
      the    petitioner, his wife and two sons at 2.00<\/p>\n
      a.m.      on       27.11.1993       to        make        necessary<\/p>\n
      arrangement        for    his medical          treatment.             Dr<\/p>\n
      Godbole,      who    was attending her husband,                      was<\/p>\n
      informed      of    the bad health.            He      advised        to<\/p>\n
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\n                           ( 12 )<\/p>\n
      take    her husband immediately to the hospital.\n<\/p>\n
      Thereafter,        her      husband was admitted in                the<\/p>\n
      hospital.         She    had, thus, alleged             that       the<\/p>\n
      allegations         made      in     the    petition           about<\/p>\n
      execution,        custody      and     possession           of     the<\/p>\n
      original Will purported to be the last Will of<\/p>\n
      her    husband      in      her possession         is     patently<\/p>\n
      false    to the knowledge of the Plaintiff.                        She<\/p>\n
      had    further asserted that the petitioner                        did<\/p>\n
      not    disclose        as    to how    the     original          Will<\/p>\n
      purported to be the last Will dated 27.11.1993<\/p>\n
      came    in
\n                ig  her      possession.         She     had      further<\/p>\n
      stated    that it was highly improbable for                        her<\/p>\n
      husband      to    execute Will purported to be                    the<\/p>\n
      last Will as pleaded in the Testamentary Suit.\n<\/p>\n
      Thus,    in    her      written       statement,          she      had<\/p>\n
      challenged         the      execution,       existence             and<\/p>\n
      validity      of    the Will and went on              to     allege<\/p>\n
      fraud    played by the petitioner.                 She had also<\/p>\n
      alleged      that the Will of which the Probate is<\/p>\n
      sought       is    a    Will       manufactured           by       the<\/p>\n
      Petitioner        showing      himself and his            sons      as<\/p>\n
      beneficiaries.           The    Will is not attested                by<\/p>\n
      any    independent          witnesses.      Rival       pleadings<\/p>\n
      have given rise to the following issues framed<\/p>\n
      by this Court.\n<\/p>\n
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                      ( 13 )<\/p>\n
      ISSUES:-\n<\/p>\n
      ——-\n<\/p>\n
           1.      Whether    he     Plaintiff\/Petitioner<\/p>\n
           proves    that    the deceased         Narendra         S.\n<\/p><\/blockquote>\n
           Gupta    had    validly    executed         the      Will<\/p>\n
           being Exhibit A to the Petition?\n<\/p><\/blockquote>\n
           2.     Whether the Defendant Nos.               2 to      5<\/span><\/p>\n
           prove    that    the    deceased       Narendra         S.\n<\/p><\/blockquote>\n
           Gupta    had    not executed the Will              being<\/p>\n
           Exhibit A to the Petition?\n<\/p><\/blockquote>\n
           3.    Whether the Plaintiff is entitled to<\/p>\n
           grant    of    Probate of the xerox copy                of<\/p>\n
           the    Will of deceased Narendra S.                Gupta<\/p>\n
           being    Exhibit A to the Petition in                  the<\/p>\n
           absence of the Original Will?\n<\/p><\/blockquote>\n
           4.     What order?\n<\/p><\/blockquote>\n
           5.    Whether the probate could be granted<\/p>\n
           on    the basis of xerox copy of the                 Will<\/p>\n
           without production of the original Will?<\/p><\/blockquote>\n
           6.     Whether the xerox copy of the                 Will<\/p>\n
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\n                   ( 14 )<\/p>\n
       produced     by the Plaintiff\/Petitioner is<\/p>\n
       a genuine copy of the Will propounded by<\/p>\n
       the Petitioner\/Plaintiff?\n<\/p>\n
       7.    Whether     the original of            the      Will<\/p>\n
       propounded     by the      Plaintiff\/Petitioner<\/p>\n
       was   in    the possession of the              original<\/p>\n
       Caveator\/defendant         and    widow          of     the<\/p>\n
       deceased     Narendra      Shivlal         Gupta         as<\/p>\n
       alleged,     keeping      in view reply to              the<\/p>\n
       subpoena     sent by the original              Caveator<\/p>\n
       and   affidavit      dated 6th        August,         1996<\/p>\n
       filed by her in support of the Caveat?\n<\/p>\n
       8.      Whether     the     production           of     the<\/p>\n
       Original Will could be dispensed with by<\/p>\n
       the Hon’ble Court keeping in view of the<\/p>\n
       order    dated    13.6.1996       passed         by     the<\/p>\n
       Hon’ble     Court on the application of the<\/p>\n
       Plaintiff\/Petitioner?\n<\/p>\n
       9.    Whether the Petition for Probate is<\/p>\n
       entertainable       by    the Hon’ble Court              on<\/p>\n
       the   basis    of    xerox copy of           the      Will<\/p>\n
       propounded by the Petitioner\/Plaintiff?\n<\/p>\n
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                          ( 15 )<\/p>\n<\/blockquote>\n
             10.    Whether the Plaintiff\/Petitioner is<\/p>\n
             entitled      for the Probate of the Will in<\/p>\n
             view    of the order passed by the Hon’ble<\/p>\n
             Court on 13.6.1996?\n<\/p><\/blockquote>\n
             11.     Whether the secondary evidence                    is<\/p>\n
             admissible      for the purpose of              granting<\/p>\n
             the probate of the Will?\n<\/p><\/blockquote>\n
             12.         Whether the Plaintiff\/Petitioner<\/p>\n
             has sufficiently explained and accounted<\/p>\n
             for    the non-production of the                original<\/p>\n
             Will?\n<\/p><\/blockquote>\n
             13.         Whether the Plaintiff\/Petitioner<\/p>\n
             is entitled for the grant of the probate<\/p>\n
             of    the    Will,    keeping        in     view         the<\/p>\n
             suspicious      circumstances          in which          the<\/p>\n
             Petition for probate was filed?\n<\/p><\/blockquote>\n
      16.    Parties were permitted to lead evidence.\n<\/p>\n
      The   plaintiff has examined witnesses                   namely;\n<\/p>\n
      Gunvantrai     Shivlal      Gupta      (P.W.1),          Gaurang<\/p>\n
      Gupta (P.W.2), Anand Gunvantrai Gupta (P.W.3),<\/p>\n
      Prabhakar Sambhaji Kamble (P.W.4), Dr.                    Sanjay<\/p>\n
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\n                            ( 16 )<\/p>\n
      Ganesh Godbole (P.W.5), whereas the defendants<\/p>\n
      did not examine anybody.\n<\/p>\n
      17.     Before considering the matter on its own<\/p>\n
      merits,       it    is necessary to sketch the                rival<\/p>\n
      submissions made before this Court.\n<\/p>\n
      RIVAL SUBMISSIONS:\n<\/p>\n
      —————–\n<\/p>\n
      18.     The    learned       counsel appearing for                the<\/p>\n
      Petitioner\/plaintiff               submits           that         the<\/p>\n
      plaintiff      has examined himself as P.W.1.                     The<\/p>\n
      plaintiff          has     also      examined          attesting<\/p>\n
      witnesses P.W.           Nos.   2 and 3, i.e.          his sons.\n<\/p>\n
      Both the attesting witnesses have affirmed the<\/p>\n
      execution      of     the    Will.     The      Bank       Officer<\/p>\n
      (P.W.4) was examined to prove signature of the<\/p>\n
      deceased      put     on the Will.       Dr Sanjay          Ganesh<\/p>\n
      Godbole,      (     P.W.     5 ), who had         treated         the<\/p>\n
      deceased      Late       Mr N.S.    Gupta for        number        of<\/p>\n
      ailments      had testified that the deceased                     was<\/p>\n
      healthy and in sound state of mind at the time<\/p>\n
      of    execution       of    the     subject       Will.           The<\/p>\n
      plaintiff,         thus,    submits that the           Will       has<\/p>\n
      been    duly       proved as validly executed by                  the<\/p>\n
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\n                           ( 17 )<\/p>\n
      deceased.      The plaintiff claims to have proved<\/p>\n
      photocopy      of the Will as the original was not<\/p>\n
      forthcoming.         The plaintiff submits that                  the<\/p>\n
      burden      cast on the (plaintiff) propounder                    of<\/p>\n
      the     Will    has      been     discharged          and        all<\/p>\n
      suspicious      circumstances are cleared.                 In his<\/p>\n
      submission      the subject of the Will was opened<\/p>\n
      one month after the death of the deceased i.e.<\/p>\n
      on 21.1.1994 in presence of all family members<\/p>\n
      of    the    plaintiff      as    well    as     one      of     the<\/p>\n
      relatives of the widow of the deceased one Dr.<\/p>\n
      Hasmukh
\n                ig Mody, i.e.      the brother of the widow.\n<\/p>\n
      According      to the plaintiff, the subject                   Will<\/p>\n
      was    read    over      and,    thereafter,        two      photo<\/p>\n
      copies thereof were prepared, out of which one<\/p>\n
      was    handed over to Dr.          Hasmukh Mody, brother<\/p>\n
      of    the    widow of the deceased and              the      other<\/p>\n
      copy    was    retained by the plaintiff and                   that<\/p>\n
      the original Will was handed over to the widow<\/p>\n
      of the deceased for safe custody.\n<\/p>\n
      19.     The    learned      counsel for the           plaintiff<\/p>\n
      urged    that      the    Will     was    written         by     the<\/p>\n
      deceased      in    his    own    handwriting.            It     was<\/p>\n
      signed by him in the presence of two witnesses<\/p>\n
      i.e.     sons      of    the plaintiff Mr          Gaurang        G.\n<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span><\/p>\n
                         ( 18 )<\/p>\n
      Gupta (P.W.2) and Anand G.           Gupta (P.W.3).              He<\/p>\n
      further      submits that the Will was written                   at<\/p>\n
      about 2.00 a.m.        on 27.11.1993 by the deceased<\/p>\n
      and,    therefore, it is quite obvious that,                     at<\/p>\n
      that    point,    independent witnesses could                   not<\/p>\n
      have    been    made    available        to     witness         the<\/p>\n
      execution      of the Will.      He submits that              both<\/p>\n
      the    witnesses      have     corroborated          the      said<\/p>\n
      version of the plaintiff.\n<\/p>\n
      20.     The      learned         counsel           for          the<\/p>\n
      plaintiff-propounder submits that to establish<\/p>\n
      handwriting      of    the deceased as well              as     his<\/p>\n
      signature      on the subject Will (Exh.               A),      the<\/p>\n
      plaintiff      has produced Exh.B to H, i.e.                    two<\/p>\n
      cheques bearing signatures of the deceased and<\/p>\n
      the    passports      of   the deceased         bearing         his<\/p>\n
      signature together with driving licence issued<\/p>\n
      by    the R.T.O.      and power of attorney executed<\/p>\n
      by     the     deceased.       In    order         to       prove<\/p>\n
      handwriting of the deceased, the plaintiff has<\/p>\n
      also examined one more witness, the Manager of<\/p>\n
      the    Central    Bank of India, (P.W.4), who                   had<\/p>\n
      issued      signature verification certificate and<\/p>\n
      produced two slips bearing specimen signatures<\/p>\n
      of    the    deceased.       He further       submits         that<\/p>\n
                                          ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span>
\n                            ( 19 )<\/p>\n
      though     medical evidence is on record to prove<\/p>\n
      good      physical       health      and     sound         mental<\/p>\n
      condition       of    the deceased testator, as                such<\/p>\n
      the     Will    has    to be taken as        proved        beyond<\/p>\n
      doubt.      He, thus, submits that the                plaintiff<\/p>\n
      is entitled for grant of Probate.\n<\/p>\n
      21.      The    learned    counsel for the            plaintiff<\/p>\n
      placed     reliance      on the decision of the                Apex<\/p>\n
      Court     in the case of Mrs Hem Nalini Judha                     v.\n<\/p>\n
      Mrs     Isolyne       Sarojbashini A.I.R.           1962       S.C.\n<\/p>\n
      1471 in support of his submission.\n<\/p>\n
      22.     Per     contra,    at the out set,            Mr     Mody,<\/p>\n
      learned     counsel appearing for the               defendants<\/p>\n
      submits     that      the plaintiff has not             come      to<\/p>\n
      this    Court     with    clean     hands      to     seek       the<\/p>\n
      Probate     and tried to set up a false case,                     as<\/p>\n
      such,    the     suit    is liable      to     be     summarily<\/p>\n
      thrown    out.        Reliance is placed on             the      law<\/p>\n
      laid    down     by the Apex Court in the               case      of<\/p>\n
      S.P.      Chengal       Naidu vs.     Jagannath,           A.I.R.<\/a>\n<\/p>\n
      1994     S.C.    853.     He further submits that                the<\/p>\n
      fraudulent      conduct of the plaintiff is matter<\/p>\n
      of    record, reflected in the form of the order<\/p>\n
      dated    13.6.1996 passed by the learned                   Single<\/p>\n
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\n                           ( 20 )<\/p>\n
      Judge    (Shri      K.    G.   Shah,J as he then             was).\n<\/p>\n
      He    submits      that    this    is not      a    fit      case,<\/p>\n
      wherein this Court can grant Probate in favour<\/p>\n
      of the plaintiff, especially, when the probate<\/p>\n
      proceedings        are    in rem and binds          the      whole<\/p>\n
      world.       He    further submits that the               probate<\/p>\n
      proceedings of the purported Will filed by the<\/p>\n
      present      plaintiff is tainted with bad                 motive<\/p>\n
      which    is    quite apparent from the conduct                    of<\/p>\n
      the    plaintiff.        He submits that the            Original<\/p>\n
      Side    Rules lay down various requirements                      for<\/p>\n
      filing<\/p>\n
                petition for Probate.            He submits that<\/p>\n
      every    possible        attempt    was      made       by       the<\/p>\n
      plaintiff      to    throw dust in the eyes of                 this<\/p>\n
      Court    and      he tried to obtain Probate in                  his<\/p>\n
      favour    by      playing fraud on this            Court.         He<\/p>\n
      sought    to      urge    that the Will        suffers         from<\/p>\n
      various      mysterious circumstances and tried to<\/p>\n
      demonstrate        the    same    on the     basis        of     the<\/p>\n
      record of this Suit.\n<\/p>\n
      23.     Mr    Mody drew my attention to the                  cause<\/p>\n
      title    of    the petition wherein            words       “xerox<\/p>\n
      copy    of ” were inserted and to the                 statement<\/p>\n
      made in para 3 of the Probate Petition wherein<\/p>\n
      correction is made in title of the petition by<\/p>\n
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\n                           ( 21 )<\/p>\n
      adding    word “xerox copy of Will” after filing<\/p>\n
      of the petition.          Mr Mody further submits that<\/p>\n
      no    service      of the citation was made               on     the<\/p>\n
      widow of the deceased.            No notice was given to<\/p>\n
      the    widow    of the deceased for            handing         over<\/p>\n
      possession      of the alleged original Will prior<\/p>\n
      to    filing of the Petition which was necessary<\/p>\n
      if the possession of the alleged Original Will<\/p>\n
      was    with the widow of the deceased as alleged<\/p>\n
      in the petition dated 31.1.1996.\n<\/p>\n
      24.     Mr
\n                ig  Mody also tried to demonstrate                   that<\/p>\n
      the    office      of    this     Court    had      raised        an<\/p>\n
      objection      with      regard to the filing             of     the<\/p>\n
      photo    copy      of the Will instead           of     original<\/p>\n
      one.    When the plaintiff was asked to file the<\/p>\n
      original      Will he came out with a false                  story<\/p>\n
      that    the    original Will was in possession                    of<\/p>\n
      the    widow    of      the     deceased     testator            and<\/p>\n
      requested Court for issuing subpoena to her.\n<\/p>\n
      25.     Mr    Mody      also    tried to     highlight           the<\/p>\n
      circumstances under which the alleged Will was<\/p>\n
      sought    to    be prepared and         also       highlighted<\/p>\n
      attempts      on    the    part of    the      plaintiff          to<\/p>\n
      obtain    consent        order in collusion           with       his<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span>
\n                             ( 22 )<\/p>\n
      sons    which was, ultimately, set aside by                         the<\/p>\n
      Appellate Court.\n<\/p>\n
      26.     Mr Mody submits that an attempt was made<\/p>\n
      not    to    add      defendant Nos.         2 to      5     as     the<\/p>\n
      defendants        to the Testamentary Suit and every<\/p>\n
      possible      attempt was made to seek orders from<\/p>\n
      this    Court      behind      their back.            He     further<\/p>\n
      submits      that      the    documents         filed        by     the<\/p>\n
      plaintiff        are not admissible in evidence                     for<\/p>\n
      want    of foundation in the pleadings.                      Some of<\/p>\n
      the<\/p>\n
             documents        tendered     in evidence             by     the<\/p>\n
      plaintiff         were       never    disclosed            in       the<\/p>\n
      affidavit        of    documents.     He further             submits<\/p>\n
      that    large      number      of isolated          vouchers         in<\/p>\n
      respect      of payments alleged to have been made<\/p>\n
      to    the widow were produced without                    producing<\/p>\n
      books    of      accounts.      No person         was      examined<\/p>\n
      through      whom alleged payments were made.                        He<\/p>\n
      thus,    submits        that neither alleged               payments<\/p>\n
      were    established,          nor alleged vouchers                were<\/p>\n
      proved      in    accordance with the provisions                     of<\/p>\n
      the    Evidence        Act.    He further         submits         that<\/p>\n
      affidavit          of        evidence         by         way         of<\/p>\n
      examination-in-chief of one Kantilal Mehta was<\/p>\n
      sought      to be filed without producing him                       for<\/p>\n
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\n                           ( 23 )<\/p>\n
      verification        of   his    affidavit         or     for      his<\/p>\n
      cross-examination.             Now    he    is      dead.          He<\/p>\n
      submits      that the identity of the person,                     who<\/p>\n
      has    prepared      alleged vouchers was              also       not<\/p>\n
      disclosed.       The said person was not examined.\n<\/p>\n
      The    actual payments alleged to have been made<\/p>\n
      have    also not been proved.             He, thus, submits<\/p>\n
      that the said affidavit of Shri Kantilal Mehta<\/p>\n
      cannot be read in evidence.\n<\/p>\n
      27.     Mr    Mody further submits that                purported<\/p>\n
      Will<\/p>\n
               dated      27.11.1993        propounded           by     the<\/p>\n
      plaintiff      alleged     to have been certified                  as<\/p>\n
      true    copy    by the Notary Public on                21.2.1993<\/p>\n
      has    also    not produced.         He    further         submits<\/p>\n
      that    it    was    obligatory on the part                of     the<\/p>\n
      plaintiff      to examine Mr N.           N.    Dalvi, Notary<\/p>\n
      Public who alleged to have notarised true copy<\/p>\n
      of    the    alleged subject Will and should                    have<\/p>\n
      been made available for the cross-examination.\n<\/p>\n
      He    thus    submits that the notarized copy                     has<\/p>\n
      neither been produced nor proved.\n<\/p>\n
      28.     Mr    Mody further submits that                attesting<\/p>\n
      witnesses      who    have appeared were             interested<\/p>\n
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\n                            ( 24 )<\/p>\n
      witnesses      being sons and beneficiaries                      under<\/p>\n
      the    alleged       Will.     That no         leave        to     lead<\/p>\n
      secondary          evidence    was        obtained          by       the<\/p>\n
      plaintiff      from      this Court.          That this          Court<\/p>\n
      had    never       permitted       the plaintiff            to     lead<\/p>\n
      secondary      evidence.           In his submission,                the<\/p>\n
      Will    was    required       to be proved             by     primary<\/p>\n
      evidence unless permitted by the Court to lead<\/p>\n
      secondary evidence as per law laid down by the<\/p>\n
      Apex    Court       in the case of Wasudeo v.                    Vilas<\/p>\n
      2006 (2) Mh.LJ 605 (page 627).\n<\/p>\n
                               627)<\/p>\n
      29.     Mr    Mody submits that the plaintiff                        had<\/p>\n
      made    application in the initial stage of                          the<\/p>\n
      Suit    (before Justice K.G.Shah as he then was)<\/p>\n
      to    dispense      with     the     production             of       the<\/p>\n
      original      Will    but the said            application            was<\/p>\n
      rejected      by    an   order dated           13.6.1996.             No<\/p>\n
      permission      was granted by this Court to                       lead<\/p>\n
      secondary      evidence.       That the widow-defendant<\/p>\n
      had    categorically         stated that she had                 never<\/p>\n
      seen    any Will nor was she ever in                    possession<\/p>\n
      of    the alleged original Will.                 The possession<\/p>\n
      of    the    widow    so     far    as      subject         Will      is<\/p>\n
      concerned has also not been established.                           With<\/p>\n
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\n                            ( 25 )<\/p>\n
      the    aforesaid submissions, Mr Mody also tried<\/p>\n
      to highlight that there are various suspicious<\/p>\n
      circumstances         to disprove the case sought               to<\/p>\n
      be made out by the plaintiff.            He, in ultimate<\/p>\n
      submission,         prayed for dismissal of the              suit<\/p>\n
      with heavy costs.\n<\/p>\n
      LAW OF WILL.\n<\/p>\n
      ————\n<\/p>\n
      30.     Before      dealing with the various aspects<\/p>\n
      of<\/p>\n
            rival    submissions       surfaced        during        the<\/p>\n
      course    of arguments, it is necessary to trace<\/p>\n
      the law of Will expounded by the Supreme Court<\/p>\n
      in the matter of proof of the Will and duty of<\/p>\n
      the     Courts      in     considering     the        question<\/p>\n
      relating       to    the    execution      of     the        Will<\/p>\n
      surrounded by suspicious circumstances.\n<\/p>\n
      31.     The learned counsel for the parties have<\/p>\n
      cited number of decisions, reference to all of<\/p>\n
      them    is    not necessary except         following           few<\/p>\n
      leading cases of the Apex Court from which the<\/p>\n
      settled legal principles can be culled out.\n<\/p>\n
                                         ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span><\/p>\n
                              ( 26 )<\/p>\n
      32.        The    Apex    Court in the case         of     Shashi<\/p>\n
      Kumar       Banerjee      and others v.         Subodh         Kumar<\/p>\n
      Banerjee<\/a>         since    deceased   and after           him     his<\/p>\n
      legal       representatives and others reported                   in<\/p>\n
      A.I.R.        1964 S C      529 ruled that the mode of<\/p>\n
      proving a will does not ordinarily differ from<\/p>\n
      that    of proving any other document except                      as<\/p>\n
      to    the    special       requirement     of      attestation<\/p>\n
      prescribed        in     the case of a will by S.                63,<\/p>\n
      Succession        Act.     The onus of proving the Will<\/p>\n
      is    on    the propounder and in the              absence        of<\/p>\n
      suspicious
\n                  ig     circumstances        surrounding              the<\/p>\n
      execution        of the will, proof of           testamentary<\/p>\n
      capacity         and the signature of the testator as<\/p>\n
      required by law is sufficient to discharge the<\/p>\n
      onus.       Where,       however, there are         suspicious<\/p>\n
      circumstances,           the onus is on the         propounder<\/p>\n
      to    explain      them to the satisfaction               of     the<\/p>\n
      court      before      the court accepts the            Will      as<\/p>\n
      genuine.         Where     the Caveator      alleges         undue<\/p>\n
      influence,        fraud and coercion, the onus is on<\/p>\n
      him    to prove the same.         Even where there               are<\/p>\n
      no    such pleas but the circumstances give rise<\/p>\n
      to doubts, it is for the propounder to satisfy<\/p>\n
      the    conscience of the Court.            The      suspicious<\/p>\n
      circumstances          may be as to the genuineness of<\/p>\n
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\n                            ( 27 )<\/p>\n
      the     signature of the testator, the                  condition<\/p>\n
      of    the testator’s mind, the dispositions made<\/p>\n
      in    the     will being unnatural,            improbable           or<\/p>\n
      unfair      in the light of relevant circumstances<\/p>\n
      or    there     might be other indications                  in     the<\/p>\n
      Will     to show that the testator’s mind was not<\/p>\n
      free.         In    such    a   case      the      court       would<\/p>\n
      naturally expect that all legitimate suspicion<\/p>\n
      should        be    completely      removed          before        the<\/p>\n
      document       is accepted as the last Will of                     the<\/p>\n
      testator.          If    the propounder        himself         takes<\/p>\n
      part<\/p>\n
               in    the      execution   of      the      Will      which<\/p>\n
      confers       a substantial benefit on him, that is<\/p>\n
      also a circumstance to be taken in to account,<\/p>\n
      and     the propounder is required to remove                       the<\/p>\n
      doubts by clear and satisfactory evidence.                          If<\/p>\n
      the      propounder        succeeds     in     removing            the<\/p>\n
      suspicious circumstances the court would grant<\/p>\n
      probate,       even if the Will might be                unnatural<\/p>\n
      and     might      cut    off wholly or        in     part       near<\/p>\n
      relations.\n<\/p>\n
      33.      In    the      case of Kalyan Singh            V.       Smt.\n<\/p>\n
      Chhoti      and Others, A.I.R.          1990 Supreme Court<\/p>\n
      396,    the Three Judges Bench of the Apex Court<\/p>\n
      ruled    that the Will is one of the most solemn<\/p>\n
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\n                         ( 28 )<\/p>\n
      documents      known to law.        The executant of the<\/p>\n
      Will cannot be called to deny the execution or<\/p>\n
      to    explain the circumstances in which it                      was<\/p>\n
      executed.       It    is, therefore, essential                 that<\/p>\n
      trustworthy      and unimpeachable evidence should<\/p>\n
      be    produced    before      the court        to     establish<\/p>\n
      genuineness      and authenticity of the Will.                    It<\/p>\n
      must    be    stated that the factum of               execution<\/p>\n
      and    validity of the Will cannot be determined<\/p>\n
      merely by considering the evidence produced by<\/p>\n
      the    propounder.       In    order       to      judge         the<\/p>\n
      credibility      of    witnesses and         disengage           the<\/p>\n
      truth from falsehood the court is not confined<\/p>\n
      only    to    their testimony and          demeanour.             It<\/p>\n
      would    be    open    to     the    court       to     consider<\/p>\n
      circumstances        brought out in the evidence                  or<\/p>\n
      which    appear from the nature and contents                      of<\/p>\n
      the    documents itself.        It would be also               open<\/p>\n
      to     the    Court    to     look    into         surrounding<\/p>\n
      circumstances          as       well         as         inherent<\/p>\n
      improbabilities        of the case to reach a proper<\/p>\n
      conclusion      on    the   nature      of     the      evidence<\/p>\n
      adduced by the party.\n<\/p>\n
      34.     The Apex Court in the case of Guro (Smt)<\/p>\n
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\n                           ( 29 )<\/p>\n
      vs.      Atma      Singh and Others (1992) 2              Supreme<\/p>\n
      Court     Cases     507 held that where            there       were<\/p>\n
      suspicious circumstances, the onus would be on<\/p>\n
      the     propounder       to    explain       them       to       the<\/p>\n
      satisfaction        of   the     court before         the      Will<\/p>\n
      could be accepted as genuine.              Such suspicious<\/p>\n
      circumstances        may    be    a shaky      signature,           a<\/p>\n
      feeble     mind and unfair and unjust disposal of<\/p>\n
      property      or    the propounder himself taking                   a<\/p>\n
      leading      part in the making of the Will                  under<\/p>\n
      which     he receives a substantial benefit.                     The<\/p>\n
      presence of suspicious circumstances makes the<\/p>\n
      initial      onus heavier and the propounder                   must<\/p>\n
      remove     all     legitimate suspicion            before        the<\/p>\n
      document      can be accepted as the last Will                    of<\/p>\n
      the testator.\n<\/p>\n
      35.     In    the case of Gurdial Kaur and                   others<\/p>\n
      vs.      Kartar     Kaur and others<\/a> (1998) 4                 S.C.C.\n<\/p>\n
      384,     the Apex Court held that the law is well<\/p>\n
      settled      that the conscience of the court must<\/p>\n
      be satisfied that the Will in question was not<\/p>\n
      only    executed      and     attested     in      the     manner<\/p>\n
      required under the Indian Succession Act, 1925<\/p>\n
      but it should also be found that the said Will<\/p>\n
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\n                           ( 30 )<\/p>\n
      was     the    product of the free volition of                   the<\/p>\n
      executant       who   had voluntarily          executed          the<\/p>\n
      same     after     knowing     and    understanding              the<\/p>\n
      contents of the Will.\n<\/p>\n
      36.      In    the case of M.H.       Venkataiya Iyengar<\/p>\n
      Vs.     B.    N.   Thimmajamma, A.I.R.           1959 S C 443<\/p>\n
      it has been held that where the propounder was<\/p>\n
      unable       to dispel the suspicious circumstances<\/p>\n
      which     surrounded execution of the question of<\/p>\n
      valid     execution and attestation of the                   Will,<\/p>\n
      no<\/p>\n
            Letter of administration in favour of                      the<\/p>\n
      propounder could be granted.\n<\/p>\n
      37.      Before considering the matter on its own<\/p>\n
      merits,       it   is necessary to sketch the                rival<\/p>\n
      submissions made before this Court.\n<\/p>\n
      CONSIDERATION         IN     THE     BACKDROP           OF       THE<\/p>\n
      ———————————————-\n<\/p>\n
      DEVELOPMENTS BEFORE THIS COURT.\n<\/p>\n
                               COURT<\/p>\n
      ——————————\n<\/p>\n
      38.
\n        .      Having    heard     parties to the           suit       and<\/p>\n
      having       seen the documents, various affidavits<\/p>\n
      and    the evidence on record, the present                     suit<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span>
\n                           ( 31 )<\/p>\n
      needs    to    be    decided      on the     basis        of     the<\/p>\n
      evidence      led    by     the    plaintiff-petitioner,<\/p>\n
      since    the    Caveators-defendants did not                   lead<\/p>\n
      any    evidence.      The plaintiff has to stand                  on<\/p>\n
      his own legs.\n<\/p>\n
      39.     The     factual      matrix,       already           drawn<\/p>\n
      hereinabove,        shows    that     the        Testamentary<\/p>\n
      Petition      No.     601 of 1995 was filed               by     the<\/p>\n
      Petitioner on 28.7.1995 for the probate of the<\/p>\n
      alleged will dated 27.11.1993 of late Narendra<\/p>\n
      s\/o<\/p>\n
             Shivlal      Gupta, husband of          the      deceased<\/p>\n
      (i.e.    the original defendant-Caveatrix).\n<\/p>\n
      40.     The    aforesaid petition was filed by the<\/p>\n
      Petitioner\/Plaintiff          one    and one        half       year<\/p>\n
      after the death of the husband of the deceased<\/p>\n
      defendant\/caveatrix.           Her    husband           died      in<\/p>\n
      Mumbai on 12.12.1993.          This delay has not been<\/p>\n
      explained.\n<\/p>\n
      41.     The    Probate      Petition was filed on                the<\/p>\n
      basis of a photocopy\/xerox copy of the probate<\/p>\n
      Will    propounded by the          Plaintiff\/Petitioner.\n<\/p>\n
      The    original      of    the Probate       Will       was      not<\/p>\n
      produced       at    the    time    of    filing        of       the<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span>
\n                          ( 32 )<\/p>\n
      Petition.        The    Probate       Petition         has      been<\/p>\n
      solemnly       affirmed      by the    Petitioner            before<\/p>\n
      appropriate       Officer of this Court.               In para 3<\/p>\n
      of    the     Probate Petition, this is              what,        the<\/p>\n
      Petitioner has stated:\n<\/p>\n
              “That the deceased left writing, which
\n              is last Will and Testament. The said
\n              writing hereinafter referred to as the
\n              “Will” is marked Exh.”A” and is handed
\n              in separately for being filed, and kept<\/p>\n
              in a safe place in the office of the
\n              Prothonotary and Senior Master. A copy
\n              of the said Will is hereto annexed and<\/p>\n
              also marked Exh.A”.<\/p><\/blockquote>\n
                                        (Emphasis supplied)<\/p>\n
      42.     The    aforesaid statement made in para                      3<\/span><\/p>\n
      of    the Petition, shows that the original Will<\/p>\n
      of    which Probate is being sought for was with<\/p>\n
      the    Petitioner at the time when the                   Petition<\/p>\n
      was    presented and that as per averments                      made<\/p>\n
      in    the   petition,     he    had      handed        over       the<\/p>\n
      original Will separately to the office of this<\/p>\n
      Court    for    being filed and kept in                the      safe<\/p>\n
      custody     of the Prothonotary and Senior Master<\/p>\n
      of this Court.         However, after presentation of<\/p>\n
      the     petition,       it     transpired            that         the<\/p>\n
      Petitioner had never handed over original Will<\/p>\n
      to    the Officer of this Court.              He only handed<\/p>\n
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\n                           ( 33 )<\/p>\n
      over a Photo copy\/xerox copy of the Will.                          The<\/p>\n
      Petitioner,        who claims to be the executor                    of<\/p>\n
      the    Will    of the deceased, in             his      affidavit<\/p>\n
      dated    28.8.1995,        has   for      the      first       time,<\/p>\n
      stated (when the office objection raised) that<\/p>\n
      he    was not in possession of the original Will<\/p>\n
      and    that he had been provided only with xerox<\/p>\n
      copy    of    the Will and that the original                     Will<\/p>\n
      was    in    the    custody and possession                of     Smt.\n<\/p>\n
      Lalitaben       Narendra      Gupta,         widow        of       the<\/p>\n
      deceased.\n<\/p>\n
      43.     In      the         above           backdrop,              the\n             \n      Petitioner\/Plaintiff          prayed        for issuance            of\n\n      Subpoena      to    the    widow of       the      deceased         to\n\n      produce      alleged original Will alleged to have\n      \n\n\n      been    executed by the deceased on                  27.11.1993.\n   \n\n\n\n      That    Subpoena      was issued and served                 on     the\n\n      widow    of    the deceased.        She did not             produce\n\n\n\n\n\n      the    original Will denying possession thereof.\n\n      A    precipe was, thus, moved by the                  Petitioner\n\n      requesting      this      Court to dispense             with       the\n\n\n\n\n\n<\/pre>\n
      production of the original Will.\n<\/p>\n
      44.     At this juncture, it is relevant to note<\/p>\n
      that    under      the provisions of Section 276                    of<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span>
\n                         ( 34 )<\/p>\n
      Indian    Succession Act, 1925 the original Will<\/p>\n
      on the basis of which the Petition for Probate<\/p>\n
      was    filed, is required to be annexed with the<\/p>\n
      Petition.      Rule 374 of the O.S.           Rules of this<\/p>\n
      Court,     specifically,       provides            that         the<\/p>\n
      original    Will is required to be deposited                     in<\/p>\n
      the    office    of    the Prothonotary           and     Senior<\/p>\n
      Master for safe custody and a copy of the Will<\/p>\n
      is    required to be annexed to the Petition.                      A<\/p>\n
      specific    averment is also required to be made<\/p>\n
      in    the petition itself, stating that the said<\/p>\n
      Rule has been complied with.\n<\/p>\n
      45.     Rule    374 of O.S.      Rules prescribes               for<\/p>\n
      filing    of the probate petition to confirm                     to<\/p>\n
      the     requirement      of   Section         276      of       the<\/p>\n
      Succession      Act (the Act).       Section 276 of the<\/p>\n
      Act    further provides that a copy of the                    Will<\/p>\n
      or, draft or statement of the contents thereof<\/p>\n
      shall    be annexed with the Petition.                 Copy      of<\/p>\n
      the    Will is admissible, subject to                 necessary<\/p>\n
      averments       made    in    the    petition            itself,<\/p>\n
      explaining facts and circumstances for the non<\/p>\n
      production      of    original      Will.         A    specific<\/p>\n
      averment    is    also required to be made in                   the<\/p>\n
      petition    for grant of probate on the basis of<\/p>\n
                                          ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span>
\n                          ( 35 )<\/p>\n
      the   copy    of    Will.     The     Court        has     to     be<\/p>\n
      satisfied     about      facts and circumstances                 for<\/p>\n
      non-production of the Will.\n<\/p>\n
      46.    It may further be noted that Section 237<\/p>\n
      of    Succession Act carves out the exception to<\/p>\n
      the   mandatory        provisions of Section              276     of<\/p>\n
      Succession        Act.      In     the     present           case,<\/p>\n
      provisions     of      Section 237 of the           Succession<\/p>\n
      Act    have       no     applicability.             As       such,<\/p>\n
      production of the original Will was absolutely<\/p>\n
      necessary
\n                ig  for      entertaining Petition for                 the<\/p>\n
      Probate     of the property of the husband of the<\/p>\n
      original      defendant          propounded             by       the<\/p>\n
      plaintiff\/petitioner.\n<\/p>\n
      47.    It    is    well    settled      that       if     certain<\/p>\n
      things    are required to be done in a                  specific<\/p>\n
      manner,     it cannot be done in any other manner<\/p>\n
      as laid down by the Apex Court in the cases of<\/p>\n
      Nazir Ahmed v.\n<\/p>\n
                  v          King Emperor, A.I\n                                           A I.R.\n                                               R.              1936 P\n\n\n\n\n\n      243, State of Uttar Pradesh v.               Singhara Singh\n\n      and   Ors, A.I.R.<\/a>        1964 S C 358 and in              Vanmala\n\n      S.    Aney    v.       National     Education           Society,\n\n      Khamgaon and Ors,<\/a> 1982 Mh.L.J.               403.\n\n\n\n\n                                           ::: Downloaded on - 09\/06\/2013 13:37:03 :::<\/span>\n                           ( 36 )\n\n\n\n\n      48.     The    Plaintiff claims to be the executor\n\n      of    the    property of the original               defendant's\n\n\n\n\n                                                                    \n<\/pre>\n
      husband and as such the plaintiff was supposed<\/p>\n
      to be in possession of the original Will under<\/p>\n
      which    Executorship is being claimed.                    In case<\/p>\n
      the    Petitioner      was not in possession of                   the<\/p>\n
      original      Will, the Petitioner was expected to<\/p>\n
      obtain      the    possession of the          original          Will<\/p>\n
      prior    to    the    filing of       the     Petition.            In<\/p>\n
      absence      thereof,      the    Petitioner         was      under<\/p>\n
      obligation
\n                ig      to produce prima facie;                evidence<\/p>\n
      of    the possession of the original Will with a<\/p>\n
      third party.        A specific averment was required<\/p>\n
      to    be made in the petition in that behalf                       to<\/p>\n
      seek    production        of   the    original         Will,       by<\/p>\n
      making      necessary application for issuance                     of<\/p>\n
      the    Subpoena      for    the      production          of       the<\/p>\n
      original Will.\n<\/p>\n
      49.     In     the    present        case,      as     indicated<\/p>\n
      hereinabove,        the    plaintiff has neither                made<\/p>\n
      any    averment      in    the     petition         about       non-\n<\/p>\n
      possession        of the original Will nor any proof<\/p>\n
      of    any attempt made to seek possession of the<\/p>\n
      original      Will    was tendered.         No steps,           well<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span>
\n                            ( 37 )<\/p>\n
      within       time, were taken to seek Subpoena                      for<\/p>\n
      production       of the alleged original Will.                       On<\/p>\n
      the     contrary, he made a specific averment                        in<\/p>\n
      para     3 of the Petition to the effect that the<\/p>\n
      original       Will      of the deceased was handed                  in<\/p>\n
      separately          to     in   the        office          of       the<\/p>\n
      Prothonotary         in    accordance with Rule 374                  of<\/p>\n
      the     O.S.Rules.         This statement,            ultimately,<\/p>\n
      turned       out to be a false statement, which the<\/p>\n
      Petitioner\/Plaintiff            has also admitted in his<\/p>\n
      evidence, in para 19, which reads as under:\n<\/p>\n
              “It is correct that originally when the
\n              petition was filed, I made a false
\n              statement that the original Will is
\n              handed over to the Prothonotary.”\n<\/p><\/blockquote>\n
                                        (Emphasis supplied)<\/p>\n<\/blockquote>\n
      50.     It     is    relevant to note that the                  false<\/p>\n
      averment       made by the Plaintiff\/Petitioner                      in<\/p>\n
      the    petition was detected by the Testamentary<\/p>\n
      Department of this Court when the petition was<\/p>\n
      scrutinized.          The precipe was required to                    be<\/p>\n
      filed    by     the Advocate for the Plaintiff                      for<\/p>\n
      issuance       of    a    Subpoena       to     the      defendant<\/p>\n
      alongwith       affidavit       dated        28.8.1995.             But<\/p>\n
      Subpoena       was not issued till            1.3.1996,though<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span>
\n                         ( 38 )<\/p>\n
      it    was subsequently issued and served on                     the<\/p>\n
      widow of the deceased.\n<\/p><\/blockquote>\n
      51.     The     Caveatrix,    in       her      reply-        cum-\n<\/p>\n
      affidavit      filed    on record, made           a    positive<\/p>\n
      statement that her husband had died intestate,<\/p>\n
      as    such    question of production of the                 Will,<\/p>\n
      much    less original Will did not and could not<\/p>\n
      arise.       The reply to the Subpoena was sent by<\/p>\n
      her    by Registered post A.D.           It was delivered<\/p>\n
      in<\/p>\n
            the office of the Prothonotary and                  Senior<\/p>\n
      Master on 8.4.1996 as per the photocopy of the<\/p>\n
      postal    acknowledgement        available on            record.\n<\/p>\n
      The    defendant’s reply to the Subpoena is                     not<\/p>\n
      to    be found on the record of the proceedings.\n<\/p>\n
      The attention of the then Judge of this Court,<\/p>\n
      (    Shri K.    G.    Shah, as he then was) was also<\/p>\n
      drawn    to the non-availability of the reply to<\/p>\n
      the    Subpoena      at the time of hearing              of     the<\/p>\n
      Petition      on 28.1.1996.      The learned Judge had<\/p>\n
      issued       directions     to       the        Testamentary<\/p>\n
      Department       on     21.8.1996        to       trace         out<\/p>\n
      defendant’s reply to the subpoena.\n<\/p>\n
      52.     The    photocopy of the reply given by the<\/p>\n
                                          ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span>
\n                           ( 39 )<\/p>\n
      widow      of the deceased alongwith photocopy                      of<\/p>\n
      the    acknowledgement          both      are      produced         on<\/p>\n
      record.       It    is,    no     doubt,       true       that      no<\/p>\n
      evidence in this behalf, as required under the<\/p>\n
      provisions of the Evidence Act, was led by the<\/p>\n
      Caveatrix,      since      during the pendency of                  the<\/p>\n
      Suit    she    left      for     heavenly        abode.            Her<\/p>\n
      statement,      that      she    had      replied         to       the<\/p>\n
      Subpoena was ordered to be investigated by the<\/p>\n
      learned      Judge of this Court.            Till today,            no<\/p>\n
      report      from    the Testamentary Department                    has<\/p>\n
      been received or placed on record.\n<\/p>\n
      53.     At this juncture, it is relevant to note<\/p>\n
      that       looking       at    the      affairs           of       the<\/p>\n
      Testamentary        Department, as noticed from time<\/p>\n
      to    time by this Court, the statement made                        by<\/p>\n
      the    deceased on oath cannot be ignored.                       This<\/p>\n
      is    no    doubt    a    disturbing        feature         of     the<\/p>\n
      working       of    the       Testamentary           Department.\n<\/p>\n
      However,      it    is clear that         the      Testamentary<\/p>\n
      Department      has failed to carry out directions<\/p>\n
      of this Court.\n<\/p>\n
      54.     Be    that    as it may, the           question          will<\/p>\n
      have    to    be    considered on the basis                 of     the<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span>
\n                           ( 40 )<\/p>\n
      admissible          evidence         and       circumstances<\/p>\n
      available      on    record    as to whether,             at     any<\/p>\n
      point    of time, the alleged original Will                      was<\/p>\n
      in    existence and if so, was it in                possession<\/p>\n
      of    the widow of the deceased.             This issue           is<\/p>\n
      being addressed hereinafter at the appropriate<\/p>\n
      stage of this judgment.\n<\/p>\n
      55.     It   may further be pointed out that                     the<\/p>\n
      defendant’s      reply    to    the subpoena            was      not<\/p>\n
      before<\/p>\n
                this Court when the petition was heard<\/p>\n
      by    Shri   K.G.      Shah,J (as he         then       was)      on<\/p>\n
      13.6.1996.\n<\/p>\n
      56.     At this juncture, it will be relevant to<\/p>\n
      point    out    that    the     Judge      of      this      Court<\/p>\n
      (K.G.Shah,J      (as    he then was) had            heard        the<\/p>\n
      matter    in    detail    and    after       having        heard,<\/p>\n
      delivered      the    order    dated      13.6.1996          which<\/p>\n
      speaks    volume      about    the      conduct         of       the<\/p>\n
      plaintiff      in    the present case.           The      learned<\/p>\n
      Judge    recorded      a specific finding about                  the<\/p>\n
      methodology adopted by the Plaintiff in filing<\/p>\n
      of    this   Petition, wherein the learned                   Judge<\/p>\n
      has observed as under:\n<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span><\/p>\n
               ( 41 )<\/p>\n
       “In the present case, as I read para 3
\n       of the petition, the petitioner has<\/p>\n
       stated that the original Will (Exh.A) is
\n       handed in separately for being filed and
\n       kept in safe place in the office of the<\/p>\n
       Prothonotary and Senior Master.     This
\n       would mean that the original Will was in
\n       his hand at the time when the petition
\n       was presented. Undisputedly, he had not
\n       handed over the original Will in the<\/p>\n
       office of this Court at the time when
\n       petition was presented and, therefore,
\n       the office raised the objection.    Now,
\n       the Petitioner wants to contend that the
\n       original Will is not with him. It was<\/p>\n
       not with him at any point of time. But
\n       it was in possession of the widow of the
\n       deceased.   Now, these facts are not at<\/p>\n
       all to be found in the petition. He has
\n       prayed for a subpoena being issued to
\n       the widow of the deceased calling upon
\n       her to produce the original Will which<\/p>\n
       he alleges is in possession of the widow
\n       of the deceased.     Not only that the
\n       petitioner has in para 3 of the petition
\n       clearly   purported to    say that    he
\n       produces the original     Will implying
\n       thereby that the original Will was in<\/p>\n
       his hand at the      time petition was
\n       presented but nowhere in the petition<\/p>\n
       has he stated that original Will was
\n       with the widow of the deceased.”\n<\/p>\n
       “The matter was taken up yesterday and I<\/p>\n
       heard Mr D.C. Shah, the learned counsel
\n       for the Petitioner at length. At that
\n       time,   it appeared    that there were
\n       several things which raised suspicion
\n       about the petitioner’s case that the
\n       Original Will is in the possession of<\/p>\n
       the widow of the deceased. In para 3 of
\n       the petition, the Petitioner has made
\n       statements which would clearly go to
\n       show that at the time the petition was
\n       presented the original Will was with
\n       him.   In the petition, nowhere has it
\n       been stated that the Will was with the<\/p>\n
                            ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span>
\n                         ( 42 )<\/p>\n
            widow of the deceased. In the affidavit
\n            of Gaurang Gupta filed along with the
\n            petition, there is not a whisper to say
\n            that the original Will is with the widow
\n            of the deceased.”\n<\/p>\n
                                     (Emphasis supplied)<\/p>\n
      57.   In    the    aforesaid    order       Justice         K.G.\n<\/p>\n
      Shah (as he then was) made it absolutely clear<\/p>\n
      and   recorded a categorical finding reading as<\/p>\n
      under:\n<\/p>\n
               “It is claimed that the Petitioner has
\n               never served the widow with a notice
\n               calling upon her to hand him over the<\/p>\n
               original Will or to produce the same in
\n               Court.   Under these circumstances, I
\n               think the ends of justice demand that
\n               the widow of the deceased should be
\n               supplied with all the affidavits filed
\n               by the Petitioner on the record of the<\/p>\n
               case including the affidavit of the
\n               attesting witnesses, precipe and all<\/p>\n
               other papers on record and she should be
\n               called upon to have say in the matter of
\n               the Petitioner’s request for dispensing
\n               with the production of the original
\n               Will.   I, therefore, direct that the<\/p>\n
               office of this Court shall serve the
\n               widow of the deceased with all the
\n               papers on record of the case so far
\n               produced including all the affidavits,
\n               the precipis and other papers on record
\n               of the case and ask by a notice to<\/p>\n
               appear before this Court on 10th July,
\n               1996 to show cause why the Court should
\n               not   pass an    order dispensing with
\n               production   of the    original   Will.”\n<\/p><\/blockquote>\n
                                     (Emphasis supplied)<\/p>\n
                                        ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span>
\n                           ( 43 )<\/p>\n<\/blockquote>\n
      58.     In    the above order, it was specifically<\/p>\n
      made    clear that issuance of notice by                      itself<\/p>\n
      will    not    be    a    ground     in       favour         of     the<\/p>\n
      Petitioner      to dispense with production of the<\/p>\n
      original Will.\n<\/p><\/blockquote>\n
      59.     With the above caveat, show cause notice<\/p>\n
      was    issued.       The widow of the             deceased          was<\/p>\n
      called    upon      to file a reply, which                 she      had<\/p>\n
      filed,<\/p>\n
                denying        the alleged execution                and\/or<\/p>\n
      the existence of the Will and strongly opposed<\/p>\n
      the    prayer for dispensing with the                    necessity<\/p>\n
      of filing of the original Will.<\/p>\n
\n      \n\n\n      60.     The    Notice      of Motion No.            503 of        1997\n   \n\n\n\n      was      taken        out          by         the          original\n\n      defendant-Caveatrix           Ms         Lalitaben            (since\n\n\n\n\n\n      deceased)       for      dismissal       of       the        Probate\n\n      Petition.       The      original    defendant             died      at\n\n<\/pre>\n
      Ahmedabad on 25.3.1998, during pendency of the<\/p>\n
      said    notice of Motion No.             503 of 1997.               The<\/p>\n
      original      defendant      had    made        a     Will      dated<\/p>\n
      27.10.1997.\n<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span><\/p>\n
                           ( 44 )<\/p>\n
      61.     In     the      above        Will,     the        original<\/p>\n
      defendant         has   appointed       Ms     Snehlata,            Ms<\/p>\n
      Nurupama,      both     daughters of Chhotalal                 Mody,<\/p>\n
      and    Ms    Nita and Ms Rupa, both              daughters          of<\/p>\n
      Hasmukhlal Mody, as Executrix of the Will.\n<\/p>\n
      62.     The    Advocate        for     the     defendant           had<\/p>\n
      informed      the Advocate for the Plaintiff about<\/p>\n
      the    death of original defendant Ms                   Lalitaben<\/p>\n
      Gupta by a letter dated 6.4.1998.                    The copy of<\/p>\n
      the    Will    dated      27.10.1997 executed               by     the<\/p>\n
      original
\n                ig   defendant        was     forwarded           to     the<\/p>\n
      Advocate of the Plaintiff.              A specific request<\/p>\n
      was     made       to     bring        the       four        ladies<\/p>\n
      beneficiaries        under      the    Will on        record        as<\/p>\n
      legal       representatives           of       the        original<\/p>\n
      defendant in accordance with the provisions of<\/p>\n
      Order    XXII      Rule    4    of    the    Code       of     Civil<\/p>\n
      Procedure.         However,      the    Advocate          for      the<\/p>\n
      Plaintiff      failed to take action for                  bringing<\/p>\n
      them    on    record.      This inaction           also      speaks<\/p>\n
      volumes about the foul and malafide intentions<\/p>\n
      of the plaintiff.\n<\/p>\n
      63.     Instead of bringing above four ladies on<\/p>\n
      record       as    legal       representatives            of       the<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span>
\n                           ( 45 )<\/p>\n
      original      defendant, the plaintiff took out                      a<\/p>\n
      Chamber      Summons    No.     626      of     1998       in     the<\/p>\n
      present      Suit    and    brought      his      son      Gaurang<\/p>\n
      Gunvantrai      Gupta, the present defendant                    no.1<\/p>\n
      on    record,    as    legal representative                of     the<\/p>\n
      original      defendant, on the basis of purported<\/p>\n
      Will of the deceased widow alleged to be dated<\/p>\n
      2.4.1994.       The said Chamber Summons No.                      626<\/span><\/p>\n
      of    1998, taken out by the Plaintiff, was made<\/p>\n
      absolute by consent of the father and son i.e.<\/p>\n
      Plaintiff      and    Gaurang    Gupta,           son      of     the<\/p>\n
      Plaintiff,
\n                ig     in    view    of      the      order         dated<\/p>\n
      15.7.1998      passed      by this Court          (Smt.         K.K.\n<\/p>\n
      Bam,J,    as    she then was).         That is         how,       the<\/p>\n
      plaintiff’s      son Gaurang was brought on record<\/p>\n
      as     legal    representative         of     the        original<\/p>\n
      defendant in this Testamentary Suit.\n<\/p>\n
      64.     It    is also interesting to note that the<\/p>\n
      Plaintiff had taken out Chamber Summons No.941<\/p>\n
      of    1997 for the liberty to amend the Petition<\/p>\n
      after    service of Notice of Motion No.                    503 of<\/p>\n
      1997    taken    out by the original Plaintiff                     as<\/p>\n
      mentioned      hereinabove.         The said         Notice        of<\/p>\n
      Motion No.      503 of 1997 was placed for hearing<\/p>\n
      before this Court (Smt K.K.              Bam,J as she then<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span>
\n                           ( 46 )<\/p>\n
      was).     The Notice of Motion No.                503 of        1997<\/p>\n
      and    Chamber      Summons No.      941 of         1997,       both<\/p>\n
      were    heard and disposed of by a common                     order<\/p>\n
      dated    29.7.1998       on the basis of            Minutes        of<\/p>\n
      order    signed      by the plaintiff, his               son      and<\/p>\n
      countersigned        by their respective             Advocates,<\/p>\n
      obviously, in collusion with each other.\n<\/p>\n
      65.     Ms Snehlata, Ms Nurupama, Ms Nita and Ms<\/p>\n
      Rupa     challenged         the     above       order         dated<\/p>\n
      15.7.1998      passed in Chamber Summons No.                      626<\/span><\/p>\n
      of<\/p>\n
            1998    and    the     common      order       passed        on<\/p>\n
      29.7.1998 in Notice of Motion No.                   503 of 1997<\/p>\n
      and Chamber Summons No.            941 of 1997 in Appeal<\/p>\n
      No.    951 of 1998.        The said Appeal came up for<\/p>\n
      admission      before      the bench presided over                 by<\/p>\n
      Hon’ble      Justice     S.N.      Variava (as           he     then<\/p>\n
      was).     The     said     appeal was disposed              of     by<\/p>\n
      Minutes      of   order, wherein the plaintiff                    and<\/p>\n
      his    son    had    agreed to bring the             said       four<\/p>\n
      ladies i.e.       Ms Snehlata, Ms Nurupama, Ms Nita<\/p>\n
      and     Ms     Rupa    on     record       as       the       legal<\/p>\n
      representatives        of    the    original         defendant.\n<\/p>\n
      The    Notice     of   Motion No.        503 of        1997       and<\/p>\n
      Chamber Summons No.          941 of 1997 were directed<\/p>\n
      to be heard and decided on merits.\n<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span><\/p>\n
                           ( 47 )<\/p>\n
      66.     The    Testamentary        Suit    and      Notice        of<\/p>\n
      Motion    No.       503 of 1997 were amended as                  per<\/p>\n
      the    Minutes of order passed in Appeal Nos.951<\/p>\n
      and    1017    of 1998 and the above             four      ladies<\/p>\n
      were     brought      on    record    of     the      suit        as<\/p>\n
      defendant Nos.        2 to 5.\n<\/p>\n
      67.     At    this    juncture,      one     more       relevant<\/p>\n
      aspect    needs      a reference i.e.            the      Chamber<\/p>\n
      Summons       No.     941    of     1997,      whereby           the<\/p>\n
      plaintiff
\n                ig   prayed for grant of leave to                  amend<\/p>\n
      the plaint-petition as per Schedule annexed to<\/p>\n
      the    Chamber      Summons,      whereby he        wanted        to<\/p>\n
      insert    some      words in para 3 of           the      plaint,<\/p>\n
      reading      as “Xerox copy of which ” in the said<\/p>\n
      Petition      after the words Exh.”A” and also                    to<\/p>\n
      incorporate       words “xerox copy” after sentence<\/p>\n
      reading      as   “the original Will is in                custody<\/p>\n
      and    possession      of the original defendant                  of<\/p>\n
      the deceased Lalita N.            Gupta”.\n<\/p>\n
      68.     In support of the above Chamber Summons,<\/p>\n
      an      Affidavit          was        filed           by         the<\/p>\n
      Petitioner-Plaintiff on 23.7.1997.\n<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span><\/p>\n
                           ( 48 )<\/p>\n
      69.     The    learned    Judge of this Court                (Smt.\n<\/p>\n
      K.K.    Bam,J as she then was) by an order dated<\/p>\n
      31.7.1998      allowed    the above Chamber               Summons<\/p>\n
      observing      that the added Defendant Nos.                   2 to<\/p>\n
      5   shall     be    at liberty    to      file      additional<\/p>\n
      written     statement.       Parties were directed                to<\/p>\n
      exchange       affidavits       of        discovery              and<\/p>\n
      inspection of documents within two weeks.\n<\/p>\n
      70.     That     after disposal of Appeal Nos.                   951<\/span><\/p>\n
      and    1017    of    1998 filed by        the      Appellants,<\/p>\n
      Notice<\/p>\n
                of Motion No.        503 of 1997, taken                out<\/p>\n
      by the original defendant, came up for hearing<\/p>\n
      and    final disposal before Justice K.K.Bam (as<\/p>\n
      she then was) on 29.1.1999, who was pleased to<\/p>\n
      dismiss     the said Notice of Motion No.                  503 of<\/p>\n
      1997.     She allowed the suit to proceed on the<\/p>\n
      basis    of    the photocopy of the            Will       holding<\/p>\n
      that    the    issue will have to be tried                 as     to<\/p>\n
      whether     or     not the    Petitioner\/Plaintiff                is<\/p>\n
      entitled      to    obtain Probate on the             basis       of<\/p>\n
      photo\/xerox copy of the Will and held that the<\/p>\n
      suit    will have to be decided on the basis                      of<\/p>\n
      the evidence led.\n<\/p>\n
      71.     After      service, the aforesaid             Defendant<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span>
\n                              ( 49 )<\/p>\n
      Nos.         2    to    5      also   filed     their        written<\/p>\n
      statement         opposing       the grant of probate               and<\/p>\n
      considering            rival contentions of the parties,<\/p>\n
      issues       were      framed as reflected in              para      15<\/p>\n
      supra.        They      are being considered             in     paras<\/p>\n
      appearing hereinafter.\n<\/p>\n
      CONSIDERATION:\n<\/p>\n
      ————-\n<\/p>\n
      ISSUE Nos.         1 to 12:-\n<\/p>\n
      ——————–\n<\/p>\n
      ——————\n<\/p>\n
      72.     Issue       Nos.       1 to 12 being          interlinked<\/p>\n
      they are being considered together in the back<\/p>\n
      drop    of       the events, which took place                 before<\/p>\n
      this Court as also evidence on record.\n<\/p>\n
      73.     As        already      stated      hereinabove,              in<\/p>\n
      extenso, the probate petition was filed by the<\/p>\n
      Plaintiff,         one and half years after the death<\/p>\n
      of     the       deceased       Narendra      Gupta,         without<\/p>\n
      producing         the original Will.          He made a false<\/p>\n
      statement         in    para    3 of the      plaint         already<\/p>\n
      extracted in para 49 supra.                Till the scrutiny<\/p>\n
      of the petition by the Testamentary Department<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 13:37:03 :::<\/span>
\n                         ( 50 )<\/p>\n
      original     Will    was   not     produced.           A    false<\/p>\n
      statement      was    made    in     the      Petition           as<\/p>\n
      indicated     hereinabove.         By    an     order       dated<\/p>\n
      13.6.1996     Prothonotary       and      Senior           Master<\/p>\n
      directed     the plaintiff to file original                   Will<\/p>\n
      before      the   petition       could      be       proceeded<\/p>\n
      further.      The    subsequent developments                which<\/p>\n
      took   place before this Court were extensively<\/p>\n
      sketched hereinabove.\n<\/p>\n
      74.    Now,    the    question      which needs            to    be<\/p>\n
      addressed
\n                ig  is:     whether the existence of                  the<\/p>\n
      original Will is proved by the Plaintiff?\n<\/p>\n
      75.    In    order    to address this question                  one<\/p>\n
      has    to    read    the     Probate      Petition,             the<\/p>\n
      affidavits     filed from time to time on                  record<\/p>\n
      by the plaintiff in support of various Motions<\/p>\n
      and\/or   Chamber      Summons,       coupled         with       the<\/p>\n
      evidence of the Plaintiff brought on record.\n<\/p>\n
      76.    It    is   also necessary to bear               in     mind<\/p>\n
      that   the beneficiaries under the Will are the<\/p>\n
      Plaintiff     and    his two sons.          The      attesting<\/p>\n
      witnesses of the alleged Will are also sons of<\/p>\n
      the Plaintiff.       Under these circumstances, the<\/p>\n
                                          ::: Downloaded on – 09\/06\/2013 13:37:04 :::<\/span>
\n                          ( 51 )<\/p>\n
      appreciation       of    evidence    has to be           with      a<\/p>\n
      pinch of salt.\n<\/p>\n
      77.     The   first      question which needs             to     be<\/p>\n
      addressed is:       Why the Plaintiff should make a<\/p>\n
      false    statement in the Probate Petition?                     Can<\/p>\n
      it    be said that at the time of filing of                     the<\/p>\n
      Probate Petition, he was not aware of the fact<\/p>\n
      that    the alleged original Will was not in his<\/p>\n
      possession       and    was   with the      widow        of     the<\/p>\n
      deceased?        The    answer has to be that he                was<\/p>\n
      well<\/p>\n
              aware     of this fact since he            claims        to<\/p>\n
      have    issued     advance     letter       to     the      widow<\/p>\n
      requesting       for original Will (see para 10                  of<\/p>\n
      his evidence).\n<\/p>\n
      78.     The   Probate      Petition      must      have       been<\/p>\n
      drafted     by    the Advocate on the basis of                  the<\/p>\n
      instructions       given.      If   one     turns        to     the<\/p>\n
      original      Probate Petition, one would find the<\/p>\n
      insertion     of the words “xerox copy” appearing<\/p>\n
      in    the   petition, just above the name of                    the<\/p>\n
      Petitioner in the cause title.              Originally, it<\/p>\n
      was typed as under:-\n<\/p>\n
                                          ::: Downloaded on – 09\/06\/2013 13:37:04 :::<\/span><\/p>\n
                           ( 52 )<\/p>\n
              “In the matter of Petition of Probate of
\n              the Will of Narendra Shivlal Gupta, who
\n              expired   on   12.12.1993    at   Bombay
\n              …deceased.”\n<\/p><\/blockquote>\n
      79.     The addition made reads as under:\n<\/p>\n
              “In the matter of Petition of Probate of
\n              the xerox copy of Will of Narendra<\/p>\n
              Shivlal Gupta, who expired on 12.12.1993
\n              at Bombay …deceased.”\n<\/p><\/blockquote>\n
                                (Emphasis supplied)\n<\/p><\/blockquote>\n
      80.     The word “xerox copy” appearing in the<\/p>\n
      same    ink    in which the Plaintiff has                   signed,<\/p>\n
      this    does    not bear the counter-signature                      of<\/p>\n
      the Oath Officer.          It is, thus, clear that the<\/p>\n
      words    “xerox copy” in the opening part of the<\/p>\n
      cause    title      of    the     Petition         were        added<\/p>\n
      subsequent to the affirmation of the petition.\n<\/p><\/blockquote>\n
      81.     With    this, let me turn to the                  evidence<\/p>\n
      of    the   plaintiff.          In     the     evidence,           the<\/p>\n
      plaintiff      has    stated      in    para       3    that       the<\/p>\n
      original      Will was executed by his brother                      on<\/p>\n
      27.11.1993      and      was    kept with his           wife       Mrs<\/p>\n
      Lalitaben.       He has further stated that he saw<\/p>\n
      the    original      Will      for    the    first        time      on<\/p>\n
      12.1.1994      at    4.00      p.m.    when      the      envelope<\/p>\n
      containing       subject        Will      was      opened        i.e.<\/p>\n
      exactly     a month after the death of his                     elder<\/p>\n
      brother.      He has further stated that he opened<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 13:37:04 :::<\/span>
\n                           ( 53 )<\/p>\n
      the    envelope      and took out the Original                   Will<\/p>\n
      and    read    over contents thereof to every                      one<\/p>\n
      who    were    present in the room.              After       having<\/p>\n
      read    the subject Will, he asked his elder son<\/p>\n
      Gaurang Gupta to get the alleged original Will<\/p>\n
      laminated and to get two xerox copies thereof.\n<\/p>\n
      Accordingly,        his    son got the         original          Will<\/p>\n
      laminated      and    two xerox copies thereof.                     He<\/p>\n
      has     further       stated       that,       the        original<\/p>\n
      laminated      copy of the alleged Will was                    again<\/p>\n
      given    to his sister-in-law, Mrs Lalita.                         Out<\/p>\n
      of<\/p>\n
            the two xerox copies of the Will, one                        was<\/p>\n
      kept    by    him    and the other was given                 to     Dr<\/p>\n
      Mody,     (brother        of     Mrs    Lalitaben).                The<\/p>\n
      original      alleged      Will is in Gujarati.                  From<\/p>\n
      this    evidence, the plaintiff wants to suggest<\/p>\n
      that the Will was opened for the first time on<\/p>\n
      12.1.1994.       In the wake of this evidence,                      it<\/p>\n
      could    not    have      been    said      in     the      Probate<\/p>\n
      Petition      that    the alleged original                Will      is<\/p>\n
      being     produced        and    handed        over       to       the<\/p>\n
      Prothonotary        and    Senior Master.            This      vital<\/p>\n
      aspect    of    possession        of the       Will       with      Ms<\/p>\n
      Lalita    could not have escaped the mind of the<\/p>\n
      plaintiff.       Hence, the story sought to be put<\/p>\n
      up by the plaintiff that the Will was given in<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 13:37:04 :::<\/span>
\n                           ( 54 )<\/p>\n
      the    custody      of the widow is contrary to                     the<\/p>\n
      material      evidence on record.             The case sought<\/p>\n
      to    be    made    out does      not      inspire         judicial<\/p>\n
      confidence.\n<\/p>\n
      82.     In    para     3   of     the      evidence          of     the<\/p>\n
      plaintiff,        he   has stated that on              27.11.1993<\/p>\n
      itself      the    original     Will was given               in     the<\/p>\n
      custody      of Mrs Lalita and for the first                      time<\/p>\n
      he    saw    it on 12.1.1994 and got it                  laminated<\/p>\n
      and    the    alleged Will was again given in                       the<\/p>\n
      custody of Mrs Lalita.            In the same para (page<\/p>\n
      4) the plaintiff has stated the xerox copy was<\/p>\n
      taken by him from the original which was lying<\/p>\n
      with    him.      If, at all, original Will was with<\/p>\n
      Mrs    Lalita,      then    how     the       plaintiff             got<\/p>\n
      photocopy from the original?                 How and when, he<\/p>\n
      came    in possession of the original Will is                          a<\/p>\n
      big    question.        This piece of evidence                  again<\/p>\n
      shows      that Mrs Lalita was never in possession<\/p>\n
      of    the    original      Will.    The       shifting          stand<\/p>\n
      taken      by the plaintiff is one of the                    pointer<\/p>\n
      to demonstrate falsity of his case.\n<\/p>\n
      83.     Let me further proceed with the evidence<\/p>\n
      of    the Plaintiff, wherein he has stated                        that<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 13:37:04 :::<\/span>
\n                           ( 55 )<\/p>\n
      he    was    not    in the room where the               Will       was<\/p>\n
      prepared by his brother on 27.11.1993.                       He was<\/p>\n
      in    the adjacent room, which is his bed                      room.\n<\/p>\n
      He    was busy on telephone contacting doctor as<\/p>\n
      his    brother was seriously ill.                It was        about<\/p>\n
      2:15    to    3:15      a.m.    when the said           Will       was<\/p>\n
      executed.       He has further stated that he                      was<\/p>\n
      not    awake    at 3:15 a.m.          but was woken up              by<\/p>\n
      his    brother Narendra by knocking his bed room<\/p>\n
      at    2.00 a.m.      and therefore he woke up.                   That<\/p>\n
      his brother told him that he wanted to prepare<\/p>\n
      his<\/p>\n
             Will.       He    asked him to get a             piece       of<\/p>\n
      paper    and a fountain pen.            The plaintiff gave<\/p>\n
      him    a letter pad of Saraswati Mill Store                        Co.\n<\/p>\n
      and a pen for writing his Will.\n<\/p>\n
      84.     After      giving fountain pen and paper, he<\/p>\n
      was    busy    contacting        Dr     Gupta        and       Dalvi<\/p>\n
      Hospital,      so    as to take his brother                 to     the<\/p>\n
      Hospital      and    that is how he says he was                    not<\/p>\n
      present      when    the    Will was        executed.            This<\/p>\n
      evidence,      thus,      makes it clear that               he     was<\/p>\n
      completely      unaware        about the Will which                was<\/p>\n
      executed      in his favour.          The Will was written<\/p>\n
      by    deceased      attested      by    his      two      sons      as<\/p>\n
      attesting witnesses.            The plaintiff, has thus,<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 13:37:04 :::<\/span>
\n                         ( 56 )<\/p>\n
      completely      shown absence of his knowledge and<\/p>\n
      his    presence      in the room at the time of                   the<\/p>\n
      execution of the Will.\n<\/p>\n
      85.     Now,    let me examine the correctness and<\/p>\n
      the    truthfulness of this piece of evidence in<\/p>\n
      the    light    of    the    evidence of          his      son     Mr<\/p>\n
      Gaurang    Gupta.       At    this       juncture,          it     is<\/p>\n
      relevant    to    note that in the Will                a    figure<\/p>\n
      “2000”    has    been      altered     to     “5000”.           This<\/p>\n
      alteration      is    visible to the naked eye.                    In<\/p>\n
      the<\/p>\n
              cross-examination        of        defendant            No.1<\/p>\n
      Gaurang,    a    specific question was put to                     him<\/p>\n
      concerning      the    said corrections made in                   the<\/p>\n
      Will.     In reply, he has stated that “there is<\/p>\n
      correction      in the figure of “Rs.               2000″, that<\/p>\n
      was    made by my father Narendra Gupta.                    It     is<\/p>\n
      not    correct    to    say    that      this       figure        was<\/p>\n
      changed    from      Rs.     2000 to Rs.          5000      at     my<\/p>\n
      instance.” Mr Narendra Gupta is not the father<\/p>\n
      of    the said witness.        Obviously, father means<\/p>\n
      the    plaintiff.       Thus, the statement made                   by<\/p>\n
      the plaintiff about his absence at the time of<\/p>\n
      execution      of the Will is nothing but a                   false<\/p>\n
      attempt    to show that he did not take part                       in<\/p>\n
      the    getting the Will of his brother                   executed<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 13:37:04 :::<\/span>
\n                       ( 57 )<\/p>\n
      in his favour and in favour of his sons.\n<\/p>\n
      86.    The   plaintiff    in his    affidavit          dated<\/p>\n
      23.7.1997    filed in support of Chamber Summons<\/p>\n
      No.   941 of 1997 has stated as under.\n<\/p>\n
            “I further say and submit that it would
\n            also be interesting to note that a theft
\n            had taken place in our office situated
\n            at 56 C.P. Tank road, Bombay 400 004
\n            and a complaint in respect thereof is<\/p>\n
            already lodged with V.P. Road Police
\n            Station.    I say that after knowledge of
\n            theft and complaint being lodged the<\/p>\n
            police personnel were       making search
\n            trying to find out and assess the amount
\n            involved and for that purpose they were
\n            checking and inspecting each and every<\/p>\n
            part of the office including the drawers
\n            of the table which was being used by the
\n            deceased N.S.      Gupta during his life
\n            time.    I say that to my great shock and
\n            surprise    during     such    course    of
\n            investigation the copy of such writing<\/p>\n
            was found in the drawer of the deceased
\n            which    is    notarised     and    bearing<\/p>\n
            endorsement    “Original      seen”.     I,
\n            therefore, say and       submit that had
\n            thereby no such documents in existence,
\n            firstly the same could not have been
\n            executed and secondly notarised with an<\/p>\n
            en endorsement “original seen”. I crave
\n            leave to refer to and rely upon the said
\n            xerox notarised copy of the Will\/writing
\n            found from the drawer of the deceased
\n            lying in the office premises situate at
\n            56 C.P. Tank Road, Bombay 400 004 when<\/p>\n
            produced.”\n<\/p><\/blockquote>\n
                                  (Emphasis supplied).<\/p>\n
                                             supplied)<\/p>\n
      87.    The    notarised      copy        referred           to<\/p>\n
                                     ::: Downloaded on – 09\/06\/2013 13:37:04 :::<\/span>
\n                           ( 58 )<\/p>\n
      hereinabove;        in the affidavit affirmed by the<\/p>\n
      plaintiff,        has not been placed on record.                   So<\/p>\n
      far    as    the existence of the notarised                   xerox<\/p>\n
      copy    of the Will is concerned, one has to put<\/p>\n
      a question:        How this notarised xerox copy has<\/p>\n
      come into existence?          The evidence tendered by<\/p>\n
      the     plaintiff-petitioner               was         that        on<\/p>\n
      27.11.1993,        alleged    Will     was      executed          and<\/p>\n
      signed      by    the   deceased      and     given        in     the<\/p>\n
      custody of his wife Mrs Lalita.                 It was opened<\/p>\n
      for    the first time one month after the                     death<\/p>\n
      of the deceased i.e.          on 12.1.1994.            Two photo<\/p>\n
      copies      thereof     were prepared.          The      original<\/p>\n
      Will was laminated and delivered in possession<\/p>\n
      of    Mrs Lalita.       Out of two photo copies,                  one<\/p>\n
      was    retained by the plaintiff and another was<\/p>\n
      given    in the custody of Dr Mody.                 If this        be<\/p>\n
      so, then a question arises as to how the third<\/p>\n
      copy,    said      to   be   a    notarised         xerox       copy<\/p>\n
      carrying      endorsement        of   the     notary        public<\/p>\n
      “seen original” has come in existence?                      How it<\/p>\n
      could be traced out in the office?                   Why it was<\/p>\n
      not    produced      on   record?        Why      it     was      not<\/p>\n
      proved?      Had there been a third notarised copy<\/p>\n
      of    the    Will carrying        endorsement          “original<\/p>\n
      seen”,      the    same would have been produced                   by<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 13:37:04 :::<\/span>
\n                           ( 59 )<\/p>\n
      the    plaintiff-petitioner            on record          being       a<\/p>\n
      best    evidence.      He did not produce it                 though<\/p>\n
      in    his    affidavit      dated      23.7.1997,           he     had<\/p>\n
      undertaken      to    produce      it.         (See       para      86<\/p>\n
      supra).\n<\/p>\n
      88.     When    the    petition        for     amendment           was<\/p>\n
      taken    out, affidavit was filed to say that                         a<\/p>\n
      search      of the office premises was required to<\/p>\n
      be    done because of the police report of which<\/p>\n
      there is no evidence.          The police complaint is<\/p>\n
      not     on
\n                ig  record.       The     date       on     which        the<\/p>\n
      complaint      was lodged, has not been disclosed.\n<\/p>\n
      When    the search of the premises was taken                        by<\/p>\n
      the police, has not been disclosed.                     Panchnama<\/p>\n
      alleged to have been prepared by the Police is<\/p>\n
      not    on record.      Under these circumstances,                     I<\/p>\n
      have     no     hesitation        to        say       that         the<\/p>\n
      non-production        of the alleged notarised                   copy<\/p>\n
      of     the    Will    (if    it    was       in       existence)<\/p>\n
      constituted        failure    on    the        part       of       the<\/p>\n
      plaintiff      to    produce the best            evidence          and<\/p>\n
      presumption        has,   therefore,         to      be      raised<\/p>\n
      against      him    that if such evidence               had      been<\/p>\n
      produced, the same would have gone against the<\/p>\n
      case    propounded by him.          The matter does                not<\/p>\n
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\n                            ( 60 )<\/p>\n
      end     there.       The failure of the plaintiff                    to<\/p>\n
      bring     the Notary Public into the witness                       box<\/p>\n
      and     the fact that he made no attempt to                      have<\/p>\n
      his     Notary book produced (the entry in which,<\/p>\n
      perhaps,      would     have    clinched the               issue     in<\/p>\n
      dispute)      must     similarly       be       construed          and<\/p>\n
      presumption         drawn    that   this         evidence        also<\/p>\n
      would     have gone against the plaintiff.                         (See<\/p>\n
      Gopal     Krishnaji Ketkar v.           Mohamed Haji Latif<\/p>\n
      and      others<\/a>,       A.I.R.1968           S    C     1413        and<\/p>\n
      Khushalbhai         Mahijbhai    Patel          v.    A     firm     of<\/p>\n
      Mohamadhussain         Rahimbux,       A.I.R.          1981      S   <\/p>\n
      977.).\n<\/p>\n
      977.)<\/p>\n
      89.     In    the above premises, I hold that                      the<\/p>\n
      existence      or    the     execution of            the    alleged<\/p>\n
      original Will itself has not been proved.                          The<\/p>\n
      shifting      stand    taken by the plaintiff,                   from<\/p>\n
      time    to    time, is sufficient to                 explain       the<\/p>\n
      falsity      of the case sought to be made out                       by<\/p>\n
      the    plaintiff.       I go a step ahead                 and    hold<\/p>\n
      that    the plaintiff appears to have prepared a<\/p>\n
      false    document purported to be a last Will of<\/p>\n
      the    deceased Late Narendra Gupta in collusion<\/p>\n
      with    his    sons    and     on the       basis         of    false<\/p>\n
      document      claimed       probate.      The plaintiff              is<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 13:37:04 :::<\/span>
\n                          ( 61 )<\/p>\n
      not    entitled to get probate, at any rate,                   on<\/p>\n
      the    basis     of the xerox copy of         the      alleged<\/p>\n
      Will.       The Petitioner-plaintiff has failed to<\/p>\n
      sufficiently          explain    and        account           for<\/p>\n
      non-production         of the original Will.           In     the<\/p>\n
      facts    and     circumstances    of      the      case,       no<\/p>\n
      secondary       evidence can be entertained on                the<\/p>\n
      basis    of     the xerox copy of the alleged               Will<\/p>\n
      for    the     purpose    of granting     probate.            The<\/p>\n
      plaintiff       has not only failed to sufficiently<\/p>\n
      explain       and account for non-production of the<\/p>\n
      alleged
\n                ig  original Will but the shifting stand,<\/p>\n
      non-production         of the alleged notarised             copy<\/p>\n
      of    the     alleged original Will and          the      false<\/p>\n
      stories       sought to be aired has given rise                to<\/p>\n
      number      of suspicious circumstances, which the<\/p>\n
      plaintiff       has failed to explain as           discussed<\/p>\n
      hereinafter.\n<\/p>\n
      ISSUE No.13:-\n<\/p>\n
      ———–\n<\/p>\n
      90.     The    Apex    Court in the case         of     Shashi<\/p>\n
      Kumar    Banerjee       and others v.       Subodh        Kumar<\/p>\n
      Banerjee<\/a> since deceased cited supra and Kalyan<\/p>\n
      Singh    v.     Smt.\n<\/p>\n
                      Smt       Chhoti and    others,\n                                              others          A.I.R.\n\n\n\n\n                                        ::: Downloaded on - 09\/06\/2013 13:37:04 :::<\/span>\n                         ( 62 )\n\n\n\n      1990    (cited       supra) Supreme Court               396       ruled\n\n      that    the    Will    is      one of      the      most      solemn\n\n      documents      known to law.          The executant of the\n\n\n\n\n                                                                       \n      Will    cannot    be called to deny               execution          or\n\n\n\n\n                                              \n      explain    the    circumstances            in which          it     was\n\n      executed.       It    is, therefore, essential                    that\n\n      trustworthy      and unimpeachable evidence should\n\n\n\n\n                                             \n      be    produced    before        the Court         to     establish\n\n      genuineness and authenticity of the Will.                           The\n\n\n\n\n                               \n<\/pre>\n
      Apex Court also ruled that factum of execution<\/p>\n
      and    validity of the Will cannot be determined<\/p>\n
      purely by considering the evidence produced by<\/p>\n
      the     propounder.         In    order         to     test         the<\/p>\n
      credibility of the witnesses and disengage the<\/p>\n
      truth    from    falsehood,        the        Court        is       not<\/p>\n
      expected to confine only to that testimony and<\/p>\n
      demeanour.       It    is      open   for       the      Court       to<\/p>\n
      consider      the circumstances brought out in the<\/p>\n
      evidence      or which appear from the nature                       and<\/p>\n
      contents      of the document itself.                 It is       also<\/p>\n
      open    for    the Court to look into                 surrounding<\/p>\n
      circumstances        of    the case to reach a                proper<\/p>\n
      conclusion      on    the      nature      of     the      evidence<\/p>\n
      adduced    by    the      party.         Where        there         are<\/p>\n
      suspicious circumstances, the onus would be on<\/p>\n
      the     propounder        to    explain         them       to       the<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 13:37:04 :::<\/span>
\n                          ( 63 )<\/p>\n
      satisfaction       of   the    Court before             the      Will<\/p>\n
      could be accepted as genuine.                Such suspicious<\/p>\n
      circumstances        may    depend          upon      facts        and<\/p>\n
      circumstances       of each case.           Even where there<\/p>\n
      are    no pleadings relating to influence, fraud<\/p>\n
      or coercion but the circumstances give rise to<\/p>\n
      the    doubts, then it is open for the Court                        to<\/p>\n
      go in the circumstances and genuineness of the<\/p>\n
      Will    and the condition of the Testator’s mind<\/p>\n
      having    disposition made in the Will, if prima<\/p>\n
      facie    found that the disposition made in                        the<\/p>\n
      Will<\/p>\n
              are    unnatural, improbable or unfair                      in<\/p>\n
      the    light of the relevant circumstances.                        The<\/p>\n
      onus    is    on   the propounder of             the      Will      to<\/p>\n
      explain them to the satisfaction of the Court.\n<\/p>\n
      91.     Considering      the     above parameters                laid<\/p>\n
      down    by the Apex Court, assuming for the sake<\/p>\n
      of argument but not admitting that the alleged<\/p>\n
      Will    was    executed     by the        deceased,          it     is<\/p>\n
      required      to   be proved by the            propounder           by<\/p>\n
      reliable      evidence     and    he        has      to     explain<\/p>\n
      suspicious circumstances as stated.\n<\/p>\n
      92.     If,    at the time of presentation of                      the<\/p>\n
      petition,      the original Will was not with him,<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 13:37:04 :::<\/span>
\n                           ( 64 )<\/p>\n
      he was required to state in the petition as to<\/p>\n
      where     the    original        Will        was.        No       such<\/p>\n
      statement      is    to    be found in the             plaint        or<\/p>\n
      petition.       The matter does not rest here.                       Mr<\/p>\n
      Gaurang      Gupta    is    son     of       the      Petitioner.\n<\/p>\n
      According      to the plaintiff, his two sons                       are<\/p>\n
      attesting      witnesses        to the alleged             Will      in<\/p>\n
      question.       The affidavit of Mr Gaurang                     Gupta<\/p>\n
      has been filed alongwith the Petition.                        In the<\/p>\n
      evidence      brought      by    the plaintiff,              he     has<\/p>\n
      stated    that      the    deceased was a             patient        of<\/p>\n
      terminal
\n                ig  cancer      suffering since             1992.         The<\/p>\n
      night     falling          between           26.11.1993             and<\/p>\n
      27.11.1993      the    deceased        testator          developed<\/p>\n
      severe    stomach      pain, he became              serious,         he<\/p>\n
      asked    for    medical treatment and at the                      same<\/p>\n
      time    he    asked    for      some     papers        on     which,<\/p>\n
      according      to    the    plaintiff,          he     wrote        his<\/p>\n
      subject      Will    in    presence of          his      wife       Mrs<\/p>\n
      Lalita and two sons of the plaintiff.                        In none<\/p>\n
      of   the affidavits the presence of Lalita                          has<\/p>\n
      been    disclosed by the sons of the                   plaintiff,<\/p>\n
      namely;      attesting witnesses to the Will.                       The<\/p>\n
      deceased was admitted in Kambala Hill Hospital<\/p>\n
      at around 3.00 a.m.          on 27.11.1993.              He was in<\/p>\n
      the Hospital for about three days.                     Mrs Lalita<\/p>\n
                                              ::: Downloaded on – 09\/06\/2013 13:37:04 :::<\/span>
\n                           ( 65 )<\/p>\n
      Gupta     has    said    in     her      affidavit            dated<\/p>\n
      26.11.1993      that    she was    present           throughout<\/p>\n
      with her husband.        She has denied her presence<\/p>\n
      at    the time of execution of the alleged                      Will<\/p>\n
      by her husband.        No such Will was executed was<\/p>\n
      her    assertion.      P.W.2 Gaurang has admitted in<\/p>\n
      his    cross-examination that at about 2:30 a.m.<\/p>\n
      on    27.11.1993 the deceased Narendra Gupta was<\/p>\n
      admitted in Hospital on the advise of Dr Sunil<\/p>\n
      Godbole.       If    this be so, one can             very       well<\/p>\n
      imagine      the physical and mental condition                     of<\/p>\n
      the<\/p>\n
             petitioner at the relevant time.                    One can<\/p>\n
      reasonably      reach    to the conclusion               that      at<\/p>\n
      such    juncture no person can be in a                   position<\/p>\n
      to    take proper decision, much less to execute<\/p>\n
      the    Will.     The deceased was           suffering           from<\/p>\n
      cancer    right from the year 1992.                 Ample       time<\/p>\n
      was available with him to execute the Will, if<\/p>\n
      he wanted to do so.          Why one would execute the<\/p>\n
      Will    in    the mid night, that too, when he                     is<\/p>\n
      severely      suffering      from cancer          and      stomach<\/p>\n
      ache    warranting      his urgent admission in                   the<\/p>\n
      hospital.       The affidavit of Gaurang also does<\/p>\n
      not    disclose that the deceased wrote down the<\/p>\n
      Will    in his hand in his presence.                 There        are<\/p>\n
      no    independent      witnesses       and there           was     no<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 13:37:04 :::<\/span>
\n                             ( 66 )<\/p>\n
      reason      for the deceased to exclude wife                       from<\/p>\n
      inheriting        the property.          The vouchers on the<\/p>\n
      basis      of    which the payments alleged to                     have<\/p>\n
      been    made      have      not     been      corroborated            by<\/p>\n
      producing         account        books    to       show        actual<\/p>\n
      payments.         All these vouchers appears to have<\/p>\n
      been    written at one stroke.                No account books<\/p>\n
      are    produced,          especially,         when      they       were<\/p>\n
      maintained           by     the        plaintiff          being         a<\/p>\n
      businessman.          (See Hiralal & Ors vs.                Badkulal<\/p>\n
      and Ors A.I.R.<\/a>            1953 S C 225).\n<\/p>\n
                                         225)<\/p>\n
      93.     The       above           surrounding           suspicious<\/p>\n
      circumstances             lead    me    to     come         to       the<\/p>\n
      conclusion        that      the alleged Will            was      never<\/p>\n
      executed        by the deceased.          The same has             been<\/p>\n
      prepared        by    the    Plaintiff         to      claim         the<\/p>\n
      property        of    the deceased and to deprive                    the<\/p>\n
      widow      of    the      deceased       of    her      legitimate<\/p>\n
      rights.         In    order to establish existence                    of<\/p>\n
      original        Will, different stories were                   sought<\/p>\n
      to    be    brought        on record but none             could       be<\/p>\n
      substantiated by cogent evidence.\n<\/p>\n
      94.     Apart         from       the     above,         one        more<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 13:37:04 :::<\/span>
\n                             ( 67 )<\/p>\n
      circumstance          that   needs   to    be      taken       into<\/p>\n
      account      is that, inspite of the intimation by<\/p>\n
      the    Advocate        appearing for Mrs Lalita               Gupta<\/p>\n
      that    she      has executed Will dated            27.10.1997<\/p>\n
      and    bequeathed her property in favour of                      Mrs<\/p>\n
      Snehlata      Chhotalal        Mody, Mrs     Nurupama,           Mrs<\/p>\n
      Nita    Hasmukhlal Mody and Mrs Rupa                Hasmukhlal<\/p>\n
      Mody and necessity of bringing them on record,<\/p>\n
      no    attempt was made by the plaintiff to                     join<\/p>\n
      them    as party-defendants to the Suit.                   On the<\/p>\n
      contrary,        in collusion with his son defendant<\/p>\n
      no.1, the consent decree was obtained claiming<\/p>\n
      probate      which      was, ultimately, set aside                 by<\/p>\n
      the    Appellate Court.          Thereafter, by           consent<\/p>\n
      of    parties,        defendant    Nos.      2     to     5    were<\/p>\n
      brought      on record.        This trick played by              the<\/p>\n
      Plaintiff        is    also indicative of          the     scheme<\/p>\n
      prepared by the Plaintiff to grab the share of<\/p>\n
      the widow in the property of the deceased.\n<\/p>\n
      95.     So far as Gaurang Gupta, who has come on<\/p>\n
      record      as    legal heir of Mrs Lalita              Gupta       –\n<\/p>\n
      widow    of Narendra Gupta is concerned, he                      has<\/p>\n
      not    proved the Will dated 2.4.1994 as per the<\/p>\n
      Evidence      Act alleged to have been executed by<\/p>\n
      her    in    his favour.        He came on record             as    a<\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 13:37:04 :::<\/span>
\n                             ( 68 )<\/p>\n
      legal heir of Mrs Lalita Gupta on the basis of<\/p>\n
      this      Will.       He was brought on record               during<\/p>\n
      the pendency of the suit in collusion with his<\/p>\n
      father,        the    Plaintiff, based on one               of     the<\/p>\n
      documents        styled      as”    Will”    of      Mrs     Lalita<\/p>\n
      Gupta,      of    which legality,         authenticity             and<\/p>\n
      genuineness          has not been established.               At any<\/p>\n
      rate, the said document has not been proved in<\/p>\n
      accordance with the provisions of the Evidence<\/p>\n
      Act       so     as    to    claim     to      be       a      legal<\/p>\n
      representative          of    the    deceased        Mrs     Lalita<\/p>\n
      Gupta.\n<\/p>\n
                  He, therefore, could not be recognised<\/p>\n
      as    a    party-defendant to the suit.                 His      name<\/p>\n
      from      the    array of parties to the              plaint        as<\/p>\n
      defendant No.1 is liable to be struck off.\n<\/p>\n
      96.       As against above, the defendant Nos.                        2<\/span><\/p>\n
      to    5    are    brought on record          by      consent        of<\/p>\n
      parties.        It was, therefore, not necessary for<\/p>\n
      them      to establish their right as legal                    heirs<\/p>\n
      or    legal      representatives based on               the      Will<\/p>\n
      dated      27.10      1997.     But    it    was      very       much<\/p>\n
      necessary        for defendant No.1 to establish and<\/p>\n
      prove that he is a legal representative of Mrs<\/p>\n
      Lalita Gupta-Caveatrix based on the Will dated<\/p>\n
      2.4.1994        since he came on record in collusion<\/p>\n
                                             ::: Downloaded on – 09\/06\/2013 13:37:04 :::<\/span>
\n                           ( 69 )<\/p>\n
      with    his      father.     A collusive        order       cannot<\/p>\n
      create      any    right in favour of           anybody         much<\/p>\n
      less in favour of defendant No.1.                   Under these<\/p>\n
      circumstances,          by   no stretch of          imagination<\/p>\n
      defendant No.1 could be regarded as legal heir<\/p>\n
      of    Mrs    Lalita Gupta for the purpose                  of     the<\/p>\n
      present      suit.       His name     accordingly           stands<\/p>\n
      deleted from the array of parties.\n<\/p>\n
      97.     In    the above totality of athe facts and<\/p>\n
      circumstances        of the case, the plaintiff                   has<\/p>\n
      miserably not only failed to prove the alleged<\/p>\n
      original Will, existence and execution thereof<\/p>\n
      by    the deceased Late Narendra Gupta, but also<\/p>\n
      failed      to    remove      suspicious        circumstances<\/p>\n
      sketched hereinabove and approached this Court<\/p>\n
      with unclean hands, tried to play fraud on the<\/p>\n
      Court    and      has    left    no   stone       unturned         to<\/p>\n
      exploite the process of law.               The suit is thus<\/p>\n
      liable to be dismissed with exemplary costs.\n<\/p>\n
      98.     Mere      dismissal      of   the suit         will       not<\/p>\n
      serve    the      ends of justice.         The property            of<\/p>\n
      the    deceased      i.e.     keys of the         bank      locker<\/p>\n
      shall    be      held    by the Prothonotary             and      Sr.<\/p>\n
      Master       as    ordered      in    the       order         dated<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 13:37:04 :::<\/span>
\n                        ( 70 )<\/p>\n
      11.2.1999,    so    long as proper legal heirs                 of<\/p>\n
      the   deceased     do not come forward with               their<\/p>\n
      established    legal    rights.      Till such          rights<\/p>\n
      are   established, defendant Nos.             2 to 5 shall<\/p>\n
      bear the rental charges of the bank locker.\n<\/p>\n
      99.     In the result, this suit is dismissed in<\/p>\n
      terms   of this order with costs quantified                    in<\/p>\n
      the   sum   of Rs.    50,000\/- to be paid              by     the<\/p>\n
      plaintiff to the defendant Nos.             2 to 5.\n<\/p>\n
               ig                   (V. C. DAGA,J.)\n             \n      \n   \n\n\n\n\n\n\n                                        ::: Downloaded on - 09\/06\/2013 13:37:04 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court “Shiv-Krupa” vs Gaurang Gunvantrai Gupta on 22 July, 2008 Bench: V.C. Daga IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION. TESTAMENTARY SUIT No. 48 of 1996. IN TESTAMENTARY PETITION No. 601 of 1995. Gunvantrai S. Gupta of Bombay, Indian Inhabitant, residing at “Shiv-Krupa”, 18\/20, St Mary Road, Mazgaon, […]<\/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-76020","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\n"Shiv-Krupa" vs Gaurang Gunvantrai Gupta on 22 July, 2008 - 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\/shiv-krupa-vs-gaurang-gunvantrai-gupta-on-22-july-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\""Shiv-Krupa" vs Gaurang Gunvantrai Gupta on 22 July, 2008 - 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