Testamentary Suit No. 38 of 1994 In Testamentary Petition No. 756 of 1993. Case: 1. Dr. Manoj Shantilal Nanavati, Bombay, 2. Jayshree Rohitbhai Shroff, Bombay Vs Nandini M. Dasadia of Bombay Indian Inhabitant, Bombay. High Court of Bombay (India)
| Case Number | Testamentary Suit No. 38 of 1994 In Testamentary Petition No. 756 of 1993 |
| Counsel | Snehal Shah, B. G. Saraf, Mahendra C. Dasadia |
| Judges | Anoop V. Mohta, J. |
| Issue | Hindu Succession Act, 1956 - Sections 15(1)(a); Indian Succession Act, 1925 - Sections 15(1)(a); Indian Evidence Act, 1872 |
| Judgement Date | August 11, 2009 |
| Court | High Court of Bombay (India) |
Judgment:
Anoop V. Mohta, J.
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This is a Suit/Petition for Probate of the Last Will and Testament of late Champaben Nanavati (deceased), mother of the Plaintiffs/Petitioners and the Defendant.
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The Petition for Probate filed on 30th November, 1993 by the only son (Dr. Manoj) and Mrs. Jayashri, one of the daughter of the deceased. The caveat/ objection was filed by Mrs. Nandini M. Dasadia another daughter of the deceased on 18th July, 1994. Therefore, the Petition was converted into the suit in question.
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Following are the issues-
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Do the Plaintiffs prove that Will dated 18th March, 1983 is true and genuine and executed by the deceased in accordance with law? Yes.
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Does the Defendant prove that the alleged Will was executed by the said deceased under undue influence? No.
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What order? The Petition/Suit is allowed.
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The Plaintiffs wanted to led the evidence of Mrs. Anjaniben Raja who expired on 25th December, 2001, one of the attesting witness. Mrs. Charuben V. Porecha @ Charulata C. Sampat. (Chartered Accountant and Partner of M/s. J.K. Doshi & Co.) one of the attesting witness and subjected himself to the cross-examination, at the instance of Defendant though he withdrew his examination-in-chief as ordered on 21st February, 2009 by the Court. The Defendant did not lead any evidence.
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Issue No.1 & 2:- The issue so framed casts burden upon the Plaintiffs to prove that the Will dated 18th March, 1983 is true and genuine and executed by the deceased in accordance with law. So far as Issue No.2 is concerned, the burden is upon the Defendant to prove that the Will was executed by the deceased under undue influence.
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Admittedly, the Plaintiff has examined two witnesses including one attested witness to the Will. The Defendant though filed written Statement and objected the proceedings, did not lead any evidence. Having once raised the objection in such proceedings that resulted into the suit, but failed to appear in the witness box for cross-examination that in my view, goes against the Defendant, in view of the principle of adverse inference. The party who had raised objection to the Will, which was treated as the written statement in the suit, but failed to prove the same, that itself is a self destructive step. She failed to discharge the burden cast upon her by issue No.2.
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The Plaintiff and his witness made themselves available for the cross examination and their evidence as remained undisturbed, therefore, basic burden to...
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