R.D. DHANUKA, J.

1. By this petition which is converted into a suit, the plaintiffs have prayed for a probate of the last will and testament dated 16th June, 1999 and a codicil dated 23rd July, 2001 of the deceased Sorabji Hormusji Commissariat (hereinafter referred to as the said deceased) who died at Mumbai on 15th August, 2009.

2. Some of the relevant facts for the purpose of deciding this suit are as under:

(a) It is the case of the plaintiffs that on 16th June, 1999, the said deceased executed the will and testament thereby appointing six executors/excutrixes and trustees of his will including the plaintiffs herein and three other executors/executrixes. Under the said will and testament, the said deceased has bequeathed properties to plaintiff no. 1 who is widow of the said deceased, to his daughter Mrs. Syloo K. Mehta and to his son, the caveator herein partly. It is the case of the plaintiffs that the said will was attested by Dr. Zarir F. Udwadia and Mr. Zarir M. Bhatena.

(b) It is the case of the plaintiffs that the said deceased executed a codicil on 23rd July, 2001 and made some of the changes in the will and testament dated 16th June, 1999. The said codicil was attested by Mr. Lalit Khanna and Dr. A.S. Chitnis. On 15th August, 2009 the said deceased expired leaving behind him plaintiff no. 1 who is widow of the said deceased, defendant caveator who was son of the said deceased and Mrs. Syloo Keki Mehta who was daughter of the said deceased. The father and mother of the deceased has predeceased the deceased. According to the plaintiffs no son or daughter of the deceased had predeceased him and there were no lineal descendants of any predeceased son or daughter.

(c) On 8th September, 2010 plaintiffs herein filed a Testamentary Petition for seeking probate of the will and codicil of the said deceased. Out of six executors of the will, three of the executors filed the testamentary petition whereas remaining three executors namely Mr. Khershed Maneck Powvala, Ms. Shireen Jamsetjee Jijeebhoy and Mrs. Deena J. Jijeebhoy renounced their status as executors of the said will and codicil and their right to apply for probate. The plaintiffs filed the affidavit of Dr. Zarir Farokh Udwadia dated 9th August, 2010 who was one of the attesting witness to the will dated 16th June, 1999 and affidavit of Mr. Lalit Khanna dated 11th August, 2010 who was one of the attesting witness to the codicil of the said deceased. All these affidavits were filed along with the petition. Plaintiffs also filed affidavits of other three executors who renounced their right to act as executors/executrix of the will and codicil of the said deceased.

(d) The daughter of the said deceased did not file any caveat and affidavit in support. The son of the said deceased filed caveat and affidavit in support upon which the testamentary petition was converted into a suit. In the affidavit in support of the caveat the defendant raised following issues/allegations:

(i) Petition is filed after one year of the death which creates a doubt about the authenticity of the alleged will and codicil.

(ii) Doctors have not certified that the deceased was sound and physically capable for the execution of the alleged will and codicil. The deceased was 88 years old at the time of executing will and was not physically and mentally sound at the time of execution of the will.

(iii) The authenticity of the signature of deceased on the alleged will and codicil is disputed or in the alternative the same may not be of the free will of the deceased and was under pressure of the plaintiffs for execution of such alleged will and codicil by taking undue advantage of old age and ill health of the deceased.

(iv) Signature of the attesting witnesses on the alleged will is disputed.

(v) The witnesses are the close friends of the petitioners and not even known to the deceased.

(vi) The alleged will and codicil are not genuine documents and are forged, fabricated documents.

(vii) The deceased was