R.D. Dhanuka, J.

1. By the testamentary petition bearing No. 604 of 2005 filed by Mr. Jivaji Framroze Tarachand and Khurshed Naval Wadia, they applied for probate of the alleged last Will and Testament dated 27th December, 2004 of Mr. Jimmy Keki Tarachand (hereinafter referred to as the said deceased). During the pendency of the testamentary petition, Mr. Jivaji Framroze Tarachand expired. The original caveator Mr. Minoo S. Mistry also expired. Legal heirs of the said original caveator were brought on record in place of the original caveator. In view of the caveat filed by the original caveator, the testamentary petition has been converted into testamentary suit (85 of 2005). Some of the relevant facts for the purpose of deciding this suit are as under :-

2. Mr. Jivaji F. Tarachand was paternal uncle of Mr. Jimmy Keki Tarachand. Mr. Dinshaw S. Mistry and Mr. Minoo S. Mistry were maternal uncle of the said deceased Mr. Jimmy Keki Tarachand. Mr. Khurshed N. Wadia was son of the predeceased paternal uncle of the deceased Mr. Jimmy Keki Tarachand. Ms. Parveen D. Prudhomme was daughter of the predeceased paternal uncle of the said Mr. Jimmy Keki Tarachand. The said Mr. Jimmy Keki Tarachand has alleged to have executed a Will at Mumbai on 27th December, 2004 and died on 15th March, 2005 at Mumbai. On 21st July, 2005 Mr. Jivaji F. Tarachand and Mr. Khurshed Naval Wadia claiming to be executors under the said Will filed the testamentary petition inter alia praying for probate of the alleged Will dated 27th December, 2004.

3. In the testamentary petition it is alleged that the said deceased was ordinarily residing at Boggulkunta, Hyderabad. Names of the legal heirs of the said deceased are disclosed in paragraph 9 of the said petition. Alongwith the testamentary petition, the original petitioners filed affidavit dated 21st July, 2005 of Mr. Homi Cavasji Pithawalla who was claiming to be one of the attesting witness to the alleged Will dated 27th December 2004 of the said deceased. Ms. Dolly S. Divecha who was also claiming to be one of the attesting witness filed affidavit dated 21st July 2005 alongwith the said petition.

4. Upon service of citation Mr. Minoo S. Mistry the maternal uncle of the said deceased filed a caveat and affidavit in support on 25th November 2005. In the said affidavit the caveator alleged that the alleged Will was forged as it did not bear the signature of the deceased on each and every page. It is submitted in the affidavit that the witnesses in the said Will had stated on oath that the date of making of the Will in the last paragraph was put by the original petitioner No. 1. The deceased should have initialled against the date of making of the said Will. However, no such initial of the deceased appear against the date of making of the said Will. It is also contended that at the start of the said Will the residential address of the deceased was that of Hyderabad whereas the witnesses in their oath revealed that the said Will was made and signed by everybody including the deceased at Mumbai. It is also alleged in the said affidavit that the said deceased was not keeping well since six months prior to his death and his mental as well as physical condition was far and satisfactory. It is alleged that the said deceased was forced to make the said alleged Will when he was not in a proper and mental state of mind to make a Will. The caveator alleged that the health of the said deceased kept on deteriorating and the said deceased had developed terminal cardio-respority arrest, morbid obesity and hyper tension and was required to be admitted in Raheja Hospital, Mumbai where he expired on 15th March, 2005. The family of the deceased refused post-mortem though recommended by the hospital.

5. In view of the demise of the original caveator, his legal heirs were brought on record in place of the original caveator.