ORAL JUDGMENT:

1. The present Petition is for Probate of the last Will dated 20.04.1986 and Testament of late Smt. Umabai Sadashiv Karandikar (the deceased) of Bombay, a widow, who died on 3rd September, 1988.

2. As a caveat was filed to the Petition, the same was converted into the present Suit.

3. This Court, after hearing both the parties, framed the following issues on 02.04.2009:

1. Whether the plaintiff proves that the Will dated 20.04.1986 of late Smt.Umabai Sadashiv Karandikar has been duly executed by her in accordance with law?

2. Whether defendants 4a to 4c prove that the testatrix was in her proper state of mind and mentally fit to understand the text of the Will?

3. Whether the defendant nos.4a to 4c prove that the Will executed by the deceased was under undue influence, force and/or by misrepresentation?

4. What order?

4. The petitioner led evidence of one Uday Madhusudan Mahajan, through Affidavit dated 02.12.2006 being attesting witness to the Will.

5. The defendants/caveators have examined one witness Smt.Meeta Shekhar Karandikar (defendant no.4a). She has filed Affidavit dated 28th July, 2008 accordingly on behalf of all defendants.

6. One Sadashiv Ramchandra Karandikar, who was father of the decease3d Shekhar Sadashiv Karandikar and husband of the deceased Umabai Sadashiv Karandikar (the mother of the deceased Shekhar Sadashiv Karandikar) expired on 21.11.1964 leaving behind wife, 4 sons and 4 daughters namely:

Sadashiv Ramchandra Karandikar

TABLE

7. After the death of Sadashiv R. Karandikar, the deceased Umabai by a registered released deed dated 16th July, 1966, got the entire share in the property in her name only.

8. Defendant no.4, (now Deceased) as at the time when released deed was executed was minor and hence, he instituted a Suit No.698/88 in the City Civil Court for a declaration that the said Release Deed dated 16.7.1966 was null and void, ineffective and inoperative. The said Suit was decreed on 6.10.2003 in his favour. An Appeal No.58 of 2004 against the same is still pending.

9. Smt.Umabai, who was party to the suit filed by her son Shekhar S. Karandikar died during the pendency of Suit on 3.09.1988. However, by her Last Will in question dated 20.04.1986, she bequeathed all her property to her daughter-in-law, the present petitioner/plaintiff i.e. Savita, wife of son-Dattatraya. She excluded all her four sons and four daughters. Therefore, the petition by the daughter-in-law, challenged by only three sons and two daughters including defendant no.4Shekhar.

ISSUE NO.1:

10. The burden lies upon the plaintiff to prove that the Will has been duly executed or not. Plaintiff’s witness-Uday Madhusudan Mahajan, who was working as an Assistant Advocate with M/s.Divekar & Co., Advocates and Solicitors, as an attesting witness to the Will, stated that on or about 20.04.1986, on instructions along with the draft Will attended the residential premises of the deceased Smt.Umabai, which was executed at about 10.30 a.m. And the same was brought back to the Office. On 20.04.1986 the deceased Umabai was present at the residence. She enquired about her document/Will as sent by Mr.Divekar. She requested to wait for her family Doctor for some time, who came after 15 minutes. After his arrival, he enquired in his presence from Umabai about her health and also checked up her blood pressure, which was found normal. In his presence, this attesting witness, had read out the Will and explained to her by translating the same in Marathi language. He had also enquired whether the contents of the Will were correct and whether it was prepared as per her instructions. As the deceased was in sound health, mind and as understood the contents of the Will, replied positively and said “yes”.

11. He further stated that the deceased requested her grand daughter Bharati D. Karandikar to bring the scale and draw straight line on the document/Will. The deceased signed the Will in his presence and also in the presence of Doct