Important Point—(1) The court is not entitled to grant the relief not asked for without an amendment of the plaint and when no prayer is ever made to amend the plaint so as to incorporate in it an alternative case.
(2) When the execution of will is surrounded by suspicious circumstances, the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the will of the testator.

A. INTRODUCTORY

1. This contested probate petition is unlike most in one critical, central aspect: neither of the two attesting witnesses to the Will is willing to depose or make an affidavit that accords with the 1st Plaintiff’s version of the due execution of the Will. Specifically, both attesting witnesses deny the presence of the testator at the time they signed the Will; the first, a solicitor of this Court, Mr. Ramesh Makhija, admits only to a telephonic communication with the testator. So does the second attesting witness, one Dr. Vinod Shetty. Neither attesting witness filed an Affidavit in lieu of Examination-in-Chief. Their examinations-in-chief were taken in Court. The Plaintiffs were permitted specifically to put questions to Mr. Makhija in the nature of cross-examination. Similar leave was sought for Dr. Shetty, but I find no record of any specific permission. Both attesting witnesses were then cross-examined by the Defendants.

2. The case turns on a single determinant: whether the attesting witnesses’ evidence, taken as a whole, should be believed. If it is, and neither saw the testator sign the testamentary document but, at best, received only a telephonic confirmation, and neither signed as attesting witnesses within his eyesight, can such a Will be said to have been ‘proved in its solemn form’?

3. On the question of due execution and attestation, a most unusual submission came from the Plaintiffs: they said the 1st Plaintiff’s ‘version’ of execution and attestation should be preferred to that of the two attesting witnesses. In other words, the Plaintiffs accepted that these versions did not accord. They said the attesting witnesses’ evidence — their own witnesses — should not be believed. This seems to me to have been an attempt to bring the case within Section 71 of the Evidence Act: where an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. Neither Mr. Makhija nor Dr. Shetty denied execution and attestation at all. They only denied the presence of the testator. He was not present before them when he signed it, and he was not present when each of them, separately, attested it. The question is therefore not of an attesting witness’s denial of execution, but whether, first, with this evidence from the attesting witnesses, the 1st Plaintiff’s contrary evidence should receive any weightage, and, second, whether the evidence on record meets the requirements of Section 63(c) of the Indian Succession Act.

4. Taking an overall view of the evidence, I cannot with any conviction claim to be satisfied that the due execution and attestation of the Will has been established, or that the Will has been properly proved in its solemn form. Having heard Mr. Thacker for the Plaintiffs, and Mr. Behramkamdin and Mr. Bharucha for the Defendants, I have held for the Defendants, dismissing the suit (and, therefore, the Petition).

5. Three issues were framed. The first was about due execution. The second was about the testator’s dispositive capacity. Again, for the reasons that follow, I am not persuaded that the Will reflects the necessary testamentary capacity. The Defendants point to a number of circumstances that make it improbable that the testator knew or fully understood the dispositions he is supposed to have made, and there is, too, evidence of his rapidly failing health at about the time of the Will.

6. Finally, there is the question of whether the Defendants, having received benefit under the Will, are estopped from assailing it or are put to an election. I have considered here the legal position and the facts as they emerge from the evidence. I have found there is no such restriction or impediment in the Defendants’ way.

7. On all three issues, therefore, I have held for the Defendants and against the Plaintiffs.

B. FACTUAL BACKGROUND

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