Important Point - The amendment sought does not constitutionally or fundamentally change the nature of the proceedings.

1. This petition has been filed propounding a writing dated 29.6.2011 as the last will and testimony of one Sidney Albert Anthony Pinto who died on 25.10.2011. 16 out of the 27 legal heirs listed in the petition, have filed caveat. After the caveat was filed and registered, the petition was converted into a suit under Rule 403 of the Bombay High Court (O.S) Rules. Issues were framed on 2nd March 2015. The plaintiffs filed affidavits in lieu of examination in chief of 8 persons.

2. The first witness who was cross-examined was the attesting witness Noshir Jehangir Sethna. Mr. Sethna is a partner of the law firm Wadia Ghandy & Co. During cross-examination, Mr. Sethna was confronted with the copy of the Will which was annexed to the petition and the original Will which was lodged with the Prothonotary & Senior Master. It would be useful to reproduce question nos.35 to 40, question nos.54 & 55 and the answers thereto of the evidence recorded on 2.7.2015.

“Q.35 : (Shown page 5 of Exh.P2 Green and also page 13 of Exh.B to the petition)

Would you agree that the form of the initials and their location on page 5 of Exh.P2 materially differ from those at page 13 of Exh.B to the petition (internal page 5) ?

Ans. : I do agree that they are different and that there is a discrepancy.

Q. 36 : Would you agree that the initials that appear on internal pages 1 to 16 materially differ from the corresponding pages of Exh.B to the petition ?

Ans. : I agree that they do differ. I am unable to explain the discrepancy.

Q.37 : Would you also agree that there is a discrepancy in the handwritten date “29th” and the word “June” between Exh.P2 and Exh.B to the petition ?

Ans. : Yes, I agree that there is discrepancy.

Witness volunteers : It is my practice to execute Wills in duplicate. One of these is on ledger paper, which is termed as the `original'. The other is on plain white paper. The idea is to have a stand-by document in the event that the `original' is lost or misplaced. It appears that Exh.B to the petition is a copy of that white paper duplicate. This is why there are discrepancies.

Q.38 : I put it to you that the three signatures on internal page 16 of Exh.P2 and the corresponding page of Exh.B to the petition are also different. Would you agree ?

Ans. : Yes, they do appear to be different.

P.C.:-

For clarity, I must note that Exh.P2 is an original will on ledger paper. Ex.B to the petition is a true copy of a will, and is said to be a true copy of Ex.P2. What has been put to the witness and accepted by him is that there are material differences in the signatures, initials and handwriting between the document annexed to the petition and the document marked in evidence. At this stage, I must note that I have given the petitioners the option of withdrawing the petition. I have made it clear that this option may not be available to them hereafter, in view of today's cross-examination, and particularly if the cross-examination of this particular witness is completed today, as I fully intend to have done. Mr. Behramkamdin, learned Counsel for the plaintiffs, says that he has no instructions that enable him to withdraw the petition. Given the answers elicited in cross-examination, especially the preceding few, I am not prepared to adjourn the cross-examination and intend to complete it today.

Q.39 : Would you also agree that there are discrepancies in the handwritten portion at page 16 of Exh.P2 and the corresponding page Exh.B to the petition, namely, your name, the word “Solicitor”, the name “Sandeep Narayan Pavaskar”, and the words “Accountant Wadia Ghandy & Co.” ?

Ans. : Yes.

Q.40 : (Shown the docket of Exh.P2 as also the docket between pages 24 and 25 of the petition.) Would you agree that these two dockets also differ from each other at the top i.e., the date as also the handwritten marking at the foot ?

Ans. : That is correct.

Witness volunteers : This is because they belong to two separate documents.

Q.54 : (Shown Evidence Affidavit.) Mr. Sethna, wher