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Judgment
S.J. Kathawalla, J.—Testamentary Petition No. 567 of 2001 was filed for probate of the Will of the deceased Sheila Jehangir Malbari alias Sheila Cyrus Talyerkhan (the said deceased) dated 23rd January, 1999 by (Exh.P-1) her executors named in the Will, namely, Col. A. R. Nageshkar and Dr. Stevely Francis Gonsalves on 4th January, 2001. The said Col. A. R. Nageshkar expired in the year 2005. The other executor/petitioner Dr. Stevely Gonsalves migrated to New Zealand and appointed Mr. J. C. Khanna as his constituted attorney to pursue the said petition No. 567 of 2001. The said petition was thereafter amended and the plaintiff/petitioner prayed for grant of Letters of Administration with Will annexed.
In the said petition No. 567 of 2001, one Ravindra M. Shah had filed a caveat dated 23rd day of July, 2002. In the said affidavit/caveat the said Ravindra M. Shah submitted that in the month of January, 2001, he had filed a Petition No. 22 of 2001 for probate of the Last Will and Testament of deceased Sheila Malbari dated 13th March, 1991 (Exh.D-8). Ravindra Shah in his affidavit in support of his caveat contended that in the alleged Will of the deceased dated 23rd January, 1999 though the deceased had revoked her earlier Wills and particularly her Wills dated 13th August, 1994 and 26th July, 1996 there was no statement that the deceased had revoked her Will dated 13th March, 1991 (Exh.D-8) on the basis of which petition No. 22 of 2001 is filed. He has further contended that there is also an alleged Will of the deceased dated 9th May, 1991 as per the papers served on him. The said Ravindra M. Shah in his affidavit in support of the caveat further contended that the alleged Wills dated 9th May, 1991 (Exh. C) and 23rd January, 1999 (Exh. P-1) were never executed by the deceased and the said two Wills are not genuine documents signed by the deceased. In view of the said caveat filed by Mr. Ravindra M.Shah petition No. 567 of 2001 was converted into Testamentary Suit No. 51 of 2002.
In Petition No. 22 of 2001 filed by the said Ravindra M. Shah, the petitioners in petition No. 567 of 2001 filed a caveat propounding the Will of the deceased Sheila Malbari dated 23rd January, 1999 (Exh.P-1) and therefore, petition No. 22 of 2001 filed by the said Ravindra M.Shah was converted into suit No. 9 of 2002.
Since the petitioners in suit No. 51 of 2002 were propounding the latter Will of the deceased i.e. Will dated 23rd January, 1999, (Exh. P-1)it was decided that suit No. 51 of 2002 shall be heard prior to suit No. 9 of 2002 filed by Ravindra M.Shah wherein he was propounding the earlier Will of the deceased dated 13th March, 1991. (Exh.D-8)
Some of the particulars pertaining to the Wills executed by the deceased Sheila J. Malbari are set out hereunder.
By an order of this Court dated 11th April 2008, following issues were framed for consideration which are answered as follows:
(1) Does the plaintiff prove that the deceased has executed her last Will dated 23rd January 1999? ...Yes.
(2) Does the plaintiff prove that the deceased had revoked her Will dated 13th March 1991 ? ...Yes.
(3) Does the defendant prove that the Will dated 23rd January 1999 was not signed by the deceased? ...No.
(4) Does the defendant prove that the Will dated 23rd January 1999 is not a genuine document ? ...No.
(5) Any other and further issues as the nature and circumstances of the case ? ...No.
(6) What order and relief ? ...As per final order.
The plaintiffs have examined 3 witnesses, i.e. (i) Mr. Denzil D''Mello, Advocate (P.W.1) (ii) Dr. Prakash Sitaram Wadhwa (Punjabi) (P.W.-2) and (iii) Mr. Nahoush P. Shah, Advocate and Solicitor and partner of Little & Company (P.W.-3). Mr. Ravindra M.Shah (D.W.1) has examined himself.
The Will of the deceased dated 23rd January 1999 is produced by PW-1. Both PW 1 and PW-2 have deposed that the deceased testatrix affixed her signature on the said Will in their presence and they have in the presence of each other and in the presence of the deceased attested the said Will. In fact, the same deposition is obtained from PW-1 and PW-2 by the defendant during their cross-examination. The original Will dated 23rd January 1991 is therefore taken on record and marked Exhibit-P-1. The Wills of the deceased dated 26th July 1996 and 9th May 1991 are already marked by this Court as Exhibit-B and C respectively. The Will dated 13th March 1991 propounded by the defendant is marked as Exhibit-D-8.
Findings
Issue Nos. 1, 3 and 4: The plaintiff in order to prove that the deceased has executed her last Will dated 23rd January 1999 has examined both the attesting witnesses of the said Will i.e. Mr. Denzil D''Mello. Advocate (PW-1) and Dr.Prakash S. Wadhwa (Punjabi) (PW-2). The plaintiffs have filed 2 affidavits of examination-in-chief of PW-1, i.e. Dated 23rd April 2008 and 19th June 2008 respectively. In his first affidavit of examination-in-chief, PW-1 has deposed that he is making the said affidavit as attesting witness to the last Will and testament dated 23rd January 1999 of Smt. Sheila Jehangir Malbari (deceased). He has deposed that he is a practising Advocate since the last 20 years and was introduced to the deceased by Dr. Steveley Gonsalves who was the general physician of the deceased. He has also deposed that the deceased was a Social Worker, associated with Bai Sakarbai Petit Hospital for Animals. PW-1 has also deposed in his first affidavit that he had drawn up the earlier Will of the deceased dated 26th July 1996. He has deposed that the deceased had given him oral instructions to prepare her Will dated 23rd January 1999 at her residence, namely flat No. 21, Sagar Sangam Building, Bandra (West), Mumbai-400 050 and had requested him to prepare her Will. Accordingly, he had prepared the draft of the Will and sought the approval of the deceased in respect thereof. After the deceased approved and finalised the draft of the proposed Will, he got engrossed the finalised draft as the Will of the deceased. The deceased in the presence of PW-1 and PW-2 at her residence set and subscribed her name at the foot thereof in English language and character, declaring and publishing the same to be her last Will and Testament. Thereupon, PW-1 and PW-2 at the request of the deceased and in her presence and in the presence of each other signed at the foot of the said Will of the deceased as witnesses thereto. P.W.-1 has further deposed that at the time when the said deceased so prescribed her name and signature to the said Will dated 23rd January 1999, (Exh.P-1) she was in sound and disposing state of mind and memory and understanding and to the best of his belief made and published her name thereon, entirely of her own free wish, will and desire.
P.W.1 has in his further affidavit of examination-in-chief dated 19th June 2008 deposed that in paragraph 4 of his first affidavit dated 23rd April 2008, he has stated that he drew up the earlier Will dated 26th July 1996 (Exhibit-B) of the deceased, revoked by the last Will dated 23rd January 1999, but do not have a copy of the same. However, thereafter, the said Will dated 26th July 1996 of the deceased was found by the plaintiff who is the Secretary of the Bombay Society for Prevention of Cruelty to Animals from the record lying at Bai Sakarbai Petit hospital for Animals, a copy of which is forwarded to him. In his said further affidavit, PW-1 has deposed that he had drawn the said Will dated 26th July 1996 upon the oral instructions given to him by the deceased and upon the approval of the draft thereof by the deceased, the same was engrossed by him and executed on 26th July 1996 at the residence of the deceased at ''D'' Building in Diago Co-operative Housing Society Limited, Rizvi Complex, Bandra (West), Mumbai-400 050, where she signed the said Will in the presence of P.W.1 and P.W. 2. P.W.-1 has deposed that thereupon he and P.W.2 at the request of the deceased and in her presence and in the presence of each other, signed at the foot of the said Will of the deceased as witnesses thereto.
P.W.1 has further deposed that at the time of the execution of the Will dated 26th July 1996, the deceased was in sound and disposing state of mind and memory and understanding and to the best of his belief made and published her name thereon entirely of her own free wish, will and desire. P.W.1 has further deposed that he was well acquainted with the deceased and knew about her attachment to the animals and also of her intention to donate her estate to the Bai Sakarbai Petit Hospital for the welfare of the animals, because of which she appointed as executors of her various Wills, persons associated with the said Bai Sakarbai Petit Hospital for Animals and also made them beneficiaries thereunder.
Dr. Prakash Sitaram Wadhwa (Punjabi) (P.W.2) has filed his affidavit of examination-in-chief dated 25th June 2008, wherein he has deposed that he is making the said affidavit as one of the attesting witnesses to the last Will and Testament dated 23rd January 1999 (Exh.P-1). The evidence of P.W.2 is identical to that of P.W. 1 as regards the Will of the deceased dated 23rd January 1999 and her earlier Will dated 26th July 1996, which was revoked by her last Will dated 23rd January 1999. In addition, P.W.2 has deposed that he is a medical practitioner by profession. Prior to 15th April 2007, he was known as Dr. Prakash S. Punjabi and subsequently as Dr. Prakash Sitaram Wadhwa (Punjabi) as notified in the Maharashtra Official Gazette (Part-II) dated 15th March 2007. P.W.2 has deposed that he is known to Dr. Steveley Gonsalves since over the last 25 years. He was introduced to the deceased by Dr. Gonsalves, who was her general physician and he was attending to the deceased in absence of Dr. Steveley Gonsalves. He is aware that the deceased was a social worker associated with Bai Sakarbai Petit Hospital for Animals and cared for animals. P.W.2 has deposed that when the deceased subscribed her name and signature to the said Wills dated 23rd January 1999 and 23rd July 1996, she was in sound and disposing state of mind and memory and understanding and to the best of his knowledge made and published her name thereon entirely of her own free wish, will and desire. He has deposed that he was in contact with the deceased in his professional capacity as a medical practitioner in the absence of Dr. Steveley Gonsalves and whenever he examined her, he found her to be of sound mental health with disposing state of mind. He has deposed that he has put the endorsement on both the Wills (Exhibit P-1 and Exhibit C) that he has examined the deceased and has found that she understands the contents of the said Wills.
The defendant Mr. Ravindra M. Shah, (DW-1) has propounded the Will of the deceased dated 13th March 1991 (Exh.D-8) and has filed a Caveat opposing the Will dated 23rd January 1999 � DW-1 has filed his affidavit of evidence dated 4th June 2008. As regards the Will dated 23rd January 1999 (Exh.P-1) , he has deposed that it is not at all a genuine Will and the same is forged and fabricated and the signature on the Will does not tally/match to the signature on the Will dated 13th March 1991(Exh.D-8). He has deposed that in the year 1999, the deceased must be of 80 years of age and due to old age and ill-health, she was not at all in mentally sound condition. Hence, she was not in a mental stage to take any decision and therefore, could not have made the Will. DW-1 has deposed that according to the said Will dated 23rd January 1999, the deceased bequeathed to Col. A.R. Nageshkar and Dr. Steveley Gonsalves, Rs. 5,00,000/- and Rs. 10,00,000/- respectively without any basis whatsoever which leads to suspicion. The defendant has not filed any further affidavit of evidence dealing with the further evidence filed by PW-1 as regards the Will dated 26th July 1996.
In the cross-examination of the attesting witnesses, PW-1 and PW-2 carried out on behalf of the defendant, the defendant has not been able to make a single dent on the credibility/truthfulness of the evidence given by PW-1 and PW-2. In fact, the reading of the cross-examination of PW-1 and PW-2, the attesting witnesses of the Will of the deceased dated 23rd January 1999 (Exh.P-1) further fortifies the case of the plaintiff that the Will dated 23rd January 1999 was executed by the deceased in their presence in accordance with the law and she had understood the contents of both her Wills dated 26th July 1996 and 23rd January 1999. From the examination as well as the cross- examination, both the attesting witnesses i.e. PW-1 and PW-2 have come out as absolutely honest witnesses. In the cross- examination of PW-1 and PW-2 carried out by the learned Advocate for the defendant except for suggesting to the witnesses that the contents of their affidavits is false, even the case of the defendant in his examination-in-chief is not put to them.
The learned Advocate appearing for the plaintiff after taking this Court through the facts of the case, the examination and cross-examination of the witnesses has submitted that the plaintiff has established/proved beyond doubt that the Will dated 23rd January 1999 is the last Will executed by the deceased on 23rd January 1999. There is no cross-examination of whatsoever nature pertaining to the signature of the deceased being forged or the document not being genuine which goes to show that the defendant has made allegations of forgery and the document not being genuine, only for the sake of making some irresponsible allegations as regards the Will dated 23rd January 1999 (Exh.P-1). Even as regards the health of the deceased, it has clearly come out in the cross-examination of PW-2 that he had examined the deceased before the execution of the Will, for which he has charged her professional fees and that he found that she understood the contents of the Will dated 23rd January 1999. In fact, in the cross-examination of the respondent, the respondent admitted that he had not obtained any report of any handwriting expert and also admitted that he has no medical evidence to substantiate that the deceased was mentally unsound. In fact, in a categorical question put to the respondent during his cross-examination as to on what basis, he has alleged that the deceased was not at all in mentally sound condition and therefore, not in a mental state to take any decision, he has answered "With my past experience of working with Ms. Malbari, I knew that she always required guidance to take any decision especially in legal and financial matters." Such an answer only goes to show that the allegations made by the defendant of the deceased not being in mentally sound condition or not in a mental state to take any decision is totally reckless and without any basis whatsoever.
Even during the arguments, the learned Advocate for the respondent informed the Court that he has nothing to argue, except relying on 2 decisions of the Hon''ble Supreme Court of India. The first decision of the Hon''ble Supreme Court is in the matter of Pushpavathi and Others Vs. Chandraraja Kadamba and Others, . The learned Advocate for the defendant has relied on paragraph 5 and paragraph 6(part) of the said decision, which are re-produced hereunder:
The position in law is no longer in doubt. It is for the propounder of the Will to prove it, and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is insufficient, to discharge the onus which is placed upon the propounder of the Will. Where there are suspicious circumstances, the propounder of the Will has to explain them away to the satisfaction of the Court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator''s mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator''s mind was not free. If the propounder succeeds in removing the suspicious circumstances the Court would have to give effect to the Will even if the Will might be unnatural in the sense it has cut off wholly or in part near relations.
Where the signature of the testator is challenged as a forged signature and the Will does not come from the custody of a public authority or a family Solicitor the fact that the dispositions made in the Will were unnatural, improbable or unfair, would undoubtedly create some doubt about the Will, especially, when the document is unregistered and comes from the custody of a person who is the major beneficiary under the Will....
The second decision of the Hon''ble Supreme Court relied upon by the learned Advocate for the respondent is in the matter of Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and Others, , more particularly paragraph 9 and 10, which are reproduced hereunder:
In cases where the execution of a Will is shrouded in suspicion, its proof ceases to be a simple lis between the the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the Court''s conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the court that the Will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the marking of the Will.
There is a long line of decisions bearing on the nature and standard of evidence required to prove a Will. Those decisions have been reviewed in an elaborate judgment of this Court in H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, the Court speaking through Gajendragadkar, J. laid down in that case the following propositions:
Stated generally, a Will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of Wills, one cannot insist on proof with mathematical certainty.
Since Section 63 of the Succession Act requires a Will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
Unlike other documents, the Will speaks from the death of the testator and therefore, the maker of the Will is never available for deposing as to the circumstances in which the Will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the Will.
Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will. That suspicion cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the Will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the Will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
It is in connection with Wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasis that in determining the question as to whether an instrument produced before the Court is the last Will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious circumstances the Court has to be satisfied fully that the Will has been validly executed by the testator.
If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
In my view, in the present case, it cannot be said that the execution of the Will is shrouded in suspicion. In the present case, not a single question is put to the attesting witnesses i.e. PW-1 and PW-2 on behalf of the defendant as regards the Will being allegedly forged or not being genuine. The defendant has in his cross-examination categorically admitted that to substantiate his allegations of forgery and the document not being genuine, he has not bothered to even obtain a report from handwriting expert. It is established through the attesting witnesses that the deceased has signed the Will Exhibit-P-1, of her own free will and volition and after understanding its contents. As stated in the foregoing paragraph of the judgment, the defendant has admitted that he has alleged that the mental condition/health of the deceased was not sound only because according to him, the deceased always required guidance to take any decision especially in legal and financial matters. The answer itself belies the defendant�s allegations of the deceased having unsound mental condition/health. There is no doubt that the mental condition/health of the deceased was sound at the time of execution of the Will. The attesting witnesses have come out as honest and truthful witnesses who have genuinely attested the Will of the deceased dated 23rd January 1999 and the respondent has failed to at all shake the truthfulness or their credibility in their cross- examination. In my view, they have more than satisfactory discharged the burden of proving the execution of the Will dated 23rd January 1999 by the deceased as required by law.
I also do not find anything unnatural, improbable or unfair qua the dispositions made by the deceased in her Will dated 23rd January 1999. Admittedly, she was the sole surviving member of her family and all her relatives have pre-deceased her. As stated by the deceased, she had the good fortune of having some very good friends who have been of tremendous help to her over the years. In times of need she has turned to these friends who have never failed her. Her executors and trustees, Col. A.R. Nageshkar and Dr. Steveley Gonsalves have proved to be her very good friends by their kind words and deeds and out of deep and sole gratitude, she has made bequest of Rs. 5,00,000/- and Rs. 10,00,000/- in favour of Col. A.R. Nageshkar and Dr. Steveley Gonsalves, respectively. As stated by her, she was associated with Bai Sakarbai Petit Hospital for Animals for many years on account of her love for animals. Therefore, under her Will the said hospital for animals is made a major beneficiary, which hospital as directed by her is required to use the monies/estate bequeathed by her for the cause of animals that she had campaigned during her lifetime. She has also bequeathed her entire residuary estate (movable and immovable) to her executors and trustees with clear directions that the same be used exclusively for the furtherance of the welfare of animals. This Court has noted that Col. Nageshkar was the Secretary of the Society for the Prevention of Cruelty to Animals and Dr. Steveley Gonsalves was the personal physician of the deceased for more than 25 years. This Court has also noted that Col. A.R. Nageshkar expired in the year 2004 and none of his heirs have come forward to claim the bequest of Rs. 5,00,000/- provided for him by the deceased under her said Will. Dr. Steveley Gonsalves has left India for good and has settled in Australia and after great efforts, the present Secretary for the Prevention of Cruelty to Animals Col. J.C. Khanna could obtain the address of Dr. Steveley Gonsalves and thereafter, obtain a power of attorney from him to carry out the necessary amendments in Testamentary Suit No. 51/2002 in Testamentary Petition No. 567/2001 and pursue the said Suit/petition. Therefore, in my view, not an iota of doubt can be raised against the impeccable conduct on the part of the propounders of the Will. Even from the earlier Wills of the deceased except the Will propounded by the defendant, it is seen/noted that the deceased always had the desire of giving certain legacies to the persons/individuals most dear to her and involved in the cause of welfare of the animals and have always desired to make the Bai Sakarbai Petit Hospital for Animals a major beneficiary under her Will. In fact, in her Will dated 26th July 1996, she had amongst others bequeathed an amount of Rs. 10,00,000/- to Col. A.R. Nageshkar, which she has reduced to Rs. 5,00,000/- in her last Will dated 23rd January 1999. She has withdrawn the legacies given by her in her Will dated 26th July 1996 to Dr. M.B. Mantri and Mr. M.R. Zambre of Bai Sakarbai Petit Hospital for Animals of Rs. 10,00,000/- each and she has retained the legacy of Rs. 10,00,000/- in favour of Dr. Steveley Gonsalves given in her Will dated 26th July 1996. The will has come from the proper custody i.e. the custody of the executors/trustees of the Will and though the said executors/trustees are beneficiaries under the Will to the extent set out above, by no means, it can be said that the Will has come from the custody of persons who are major beneficiaries under the Will. As set out above, the major beneficiary under the Will, rather the sole beneficiary (except to the extent of Rs. 15,00,000/-) is the said Bai Sakarbai Petit Hospital for Animals.
In view of the above, the decisions of the Hon''ble Supreme Court cited on behalf of the defendants shall be of no assistance to the defendant. In view thereof, I hold that the plaintiff has clearly established/proved that the deceased has executed her last Will dated 23rd January 1999 (Exhibit-P-1) and that the defendant has failed to prove that Exhibit-P-1 was not signed by the deceased and/or is not a genuine document. In view thereof, I answer issue No. 1 in the affirmative and issue Nos. 3 and 4 in the negative.
Issue No. 2: Since the plaintiff has already proved that the deceased has executed her last Will dated 23rd January 1999 and the defendant has failed to prove that the Will dated 23rd January 1999 was not signed by the deceased and is not a genuine document (issue Nos. 1, 3 and 4), it automatically follows that all the earlier Wills prior to the last Will of the deceased dated 23rd January 1999 stands revoked. However, since the said issue No. 2 has been framed specifically putting the burden on the plaintiff to prove that the deceased had revoked her Will dated 13th March 1991, the plaintiff has put in all the efforts to prove the same. The Will dated 13th March 1991 is propounded by the defendant and is the subject matter of Testamentary Suit No. 9/2002 in Testamentary Petition No. 22/2001. Under that Will, the deceased had directed her executors to pay to Atul Products Limited out of her estate a sum of Rs. 15,00,000/- together with the interest on the said sum from 1st March 1991 till the date of payment at such rate as may be agreed between the executors and Atul Products Limited and a sum of Rs. 15,00,000/- to the defendant Mr. R.M. Shah and his associates. The Will is completely silent as to what should be done to the remainder of the estate of the deceased. There is no residuary Clause in the said Will. DW-1 has in his cross-examination admitted that an amount of "Rs.15,00,000/-" is filled in by him in the Will in his own handwriting though he has also stated in the cross-examination that the deceased has put her initials at the blank filled in by him in his handwriting. DW-1 has further admitted in his cross-examination that Will dated 13th March 1991 was got prepared by him, the witnesses were known to him and that he had taken the deceased from her residence to sign the said Will.
The plaintiff in order to prove that the said Will dated 13th March 1991 (Exhibit-D-8) was revoked, produced the evidence of Shri Nahoush P. Shah, Advocate and Solicitor and Partner of Little & Co., Advocates and Solicitors (PW-3), who has filed his affidavit of evidence dated 2nd April 2008. PW- 3 has deposed that on 9th May 1991, the deceased was present in the office of M/s. Little & Co., Advocates and Solicitors and that he was present together with Ms. Maltiben Zaveri and that they then and there saw the deceased state and subscribe her name at the foot of the said Will in English language (Exhibit-C). PW-3 has further deposed that in the said Will dated 9th May 1991, it is stated that the deceased had revoked all her former Wills, particularly, the Will made in March 1991 (Exhibit-D-8), as stated in paragraph 1 and 3 thereof. It is further deposed that it was clearly stated in paragraph 2 thereof that the Will made in March 1991 was made and registered at the instance and on guidance of DW-1 and that as the proposed sale of her flat at Sealand had been managed and attended by him and at that period of time, she was being guided by DW-1 on all her financial matters. PW-3 has further deposed that in paragraph 6 of the Will, it is stated by the deceased that the amounts mentioned in the Will made in March 1991 were not correct and had been filled in by the defendant to serve his personal purpose and the exact amount payable to him according to her is not more than Rs. 3,00,000/- plus interest payable thereon as may be decided by the executors. PW-3 has further deposed that it appears from the proceedings that the said Will dated 9th May 1991 was also revoked, as also were other two Wills dated 13th August 1994 and 26th July 1996 and therefore, it appears that four Wills dated 13th March 1991(Exh.D08) , 9th May 1991(Exh.-C) , 13th August 1994 and 26th July 1996 (Exh.B) were made by the deceased and revoked prior to making the last Will and Testament dated 23rd January 1999 (Exh.P-1) in respect of which Suit No. 51/2002 in Petition No. 567/2001 is filed. In the cross-examination of PW- 3, the defendant has not even attempted to dispute/challenge the evidence of PW-3. The learned Advocate for plaintiff has pointed out the above and submitted that it is established beyond any doubt that the Will of the deceased dated 13th March 1991 (Exhibit-D-8) is revoked by her subsequent Will dated 26th July 1996 (Exhibit-B). The learned Advocate for the defendant has not disputed this position and has not made any submissions as regards issue No. 2. In my view, the plaintiff has clearly established/ proved that the Will propounded by the defendant dated 13th March 1991 (Exhibit-D-8) has been revoked by the deceased by her subsequent Will dated 26th July 1996 (Exhibit-B). In view thereof, I answer issue No. 2 in the affirmative.
Issue No. 5: In view of the above, no other further issues arise in the nature and circumstances of the case and I answer issue No. 5 in the negative.
Issue No. 6: As regards, issue No. 6, i.e. the order and relief, the caveat filed in Testamentary Petition No. 567 of 2001 is dismissed. In Suit No. 51 of 2002 in Petition No. 567 of 2001, the Letters of Administration be granted to the plaintiff/petitioner with Will (Exh. P-1) annexed of the said deceased having effect throughout the State of Maharashtra. Testamentary Suit No. 9/2002 in Testamentary Petition No. 22/2001 stands dismissed. Order accordingly.