Important Point: The burden to prove fraud, undue influence or coercion is on the caveator that alleges such fraud, undue influence or coercion. In order to set aside a will there must be clear evidence that the undue influence was in fact exercised or that the illness of the testator so affected his mental faculties as to make them unequal to the task of disposing of this property.

STRUCTURE

A. Introduction.............................................................................6

B. Facts ....................................................................................... 7

C. The Will in dispute .................................................................11

D. The Caveats in opposition to probate......................................13

E. Issues......................................................................................16

F. Evidence on record .................................................................17

G. Re: Issue No. 3: Probate of a document not annexed to the petition.......................... 20

H. Re: Issues Nos. 1 & 2: Due execution and testamentary capacity.............................. 23

I. Re: Issue No. 4: Whether the Defendants prove the Will is unnatural.......................... 38

J. Re: Issue No.5: Whether the Defendants prove undue influence and fraud................. 45

K. Re: Issue No. 6: Whether the Defendants prove the Will is forged.......................... ...49

L. Conclusions & Order ............................................................. ………………………..59

A. INTRODUCTION

1. The Plaintiffs seek probate to the last Will and Testament dated 12th March 1989 of their mother Kasturbai Haridas Kotadia (“Kasturbai”; “Testatrix”; “Deceased”). The surviving Plaintiffs, Vinodrai and Prafullchandra, are Kasturbai’s sons and the surviving executors named in her Will. The other named executor, Ranjitkumar, died during the pendency of these proceedings. The Petition was opposed by Kasturbai’s other sons Gopaldas, Laxmidas and the heirs of her pre-deceased son Narandas. On their entering caveats, the petition was numbered as a suit. Gopaldas and Laxmidas died pending the suit. Their legal heirs have carried on their defence.

2. I have heard Mr. Shah for the Plaintiff and Mr. Khandeparkar and Mr Kulkarni for the Defendants at length. The Will is impeached on several distinct grounds, including that it was procured by undue influence, Kasturbai’s lack of dis-positive capacity and that the signature on the Will is not hers. With the assistance of appearing counsel, I have considered the pleadings and the evidence, oral and documentary. I have not found a tenable basis for the opposition. I have decreed the suit. My reasons follow.

B. FACTS

3. Kasturbai died in Mumbai on 17th August 1993, about four and a half years after the Will in question. She was 89 years old when she died. Her husband died some 18 years earlier. She owned an immovable property at Vile Parle, in suburban Mumbai. This is a parcel of land with a building named “Shri Krishna Niwas” on it. The property is near Vile Parle Station, on a road that runs west. The building has a ground and two upper floors. It is of undoubted value, and seems to be the principal cause of this dispute.

4. Kasturbai and Haridas had eight children, six sons and two daughters. Haridas died in 1975, before Kasturbai. One of their daughters, Pushpaben, died before Kasturbai too. The other daughter, Kunjbala, filed an Affidavit consenting to the grant. Narandas, one of the sons, also died before Kasturbai. The opposition came at first from the other two sons Gopaldas (Defendant No.1) and Laxmidas (Defendant No.2), one of Pushpaben’s daughters (Kiran; Defendant No.3), three of Narandas’s widow and children (Champaben, Defendant No.4; Shailesh, Defendant No.5; and Harish, Defendant No.8), and the two sons of Narandas’s son Ramesh (Mehul, Defendant No.6; and Jignesh, Defendant No.7), Ramesh also having died before Kasturbai. There were thus eight defendants in all, arrayed thus:

Defendant No	Name	Relationship to Kasturbai
Defendant No.1	Gopaldas(since deceased)	Son
Defendant No.2	Laxmidas (since deceased)	Son
Defendant No.3	Kiran	Grand-daughter- daughter of a predeceased daughter (Pushpaben)
Defendant No