The court emphasized the duty to approach the matter as a Court of Conscience and ensure that the wishes of the deceased are not defeated by technicalities, as established in the case of Vishnu Ramkrishna vs. Nathu Vithal.

JUDGMENT :

B.P. COLABAWALLA, J.

1. The Present matter is moved for directions.

2. In this matter, earlier a caveat was filed by one Mrs. Juthica Lalit Jhangiani who is the niece of the deceased. By an order dated 14th October, 2020, this Court set aside the caveat and further directed the office of the Prothonotary and Senior Master to process the grant for probate of the last Will and Testament of the deceased Malti Parmanand Chatpar, if it was otherwise found in order.

3. Pursuant to said order the above Testamentary Petition was listed before the Testamentary Registrar on 21st December, 2020 when the Registrar raised the objection that the said last Will and Testament dated 11.11.2008, has only been signed by the deceased and not by the attesting witnesses. Further, the Registrar also observed that the attesting witnesses to the Will were present at the time of registration of the Will of the deceased and which was on the same date of its execution, i.e. 11th November, 2008. According to the Testamentary Department, considering that both the attesting witnesses had not signed on the Will, the same was not valid as per Section 63(c) of the Indian Succession Act, 1925 (for short the “Act”) and hence asked the petitioner to comply with the above objection. It is, in these circumstances, that the present matter has been moved before the Court.

4. Mr. Kapadia, the learned advocate appearing on behalf of the petitioner submitted that the objection taken by the Testamentary Department is a highly technical one and cannot defeat the Will executed by the deceased. He brought to my attention that the last Will and Testament of the deceased was executed on 11.11.2008 and on the same day it was registered with the Joint Sub-Registrar, Mumbai City Division-1. He submitted that both the witnesses, namely, Mahendra Tulsidas Jattani and Mrs. Bhavna Mahendra Jattani have filed their affidavits dated 4th January, 2021 wherein they have clearly stated that on 11th November, 2008 they were present together with the deceased at Old Customs House Building, Shahid Bhagat Singh Road, Horniman Circle, Fort, Mumbai 400 023 when both of them did then and there see the deceased set and subscribe her name at the foot of the testamentary paper in English language and character and which is marked as Exh “B” to the petition. It is thereafter stated in the affidavit that on the same day, i.e. 11th November, 2008, both the deponents did at the request of the said deceased and in her presence and in the presence of each other set and subscribe their respective names, signatures and thumb impression on the registration page bearing their photographs as witnesses. However, these two attesting witnesses, namely, Mahendra Jattani and Mrs. Bhavani Jattani inadvertently did not sign as witnesses at the foot of the testamentary paper being the Last Will and Testament of the deceased though their names were printed therein. Mr. Kapadia submitted that the deponents have clearly stated on oath that the names, the signatures and the thumb impression of the deceased subscribed at the foot of the testamentary paper are of the party executing the same and is in the proper handwriting of the deceased. They have further stated on oath that they have subscribed their names, signatures and thumb impression on the registration page bearing their photographs and which is annexed to the last Will and Testament of the deceased. It is also stated that the deceased’s last Will is executed and registered on 11th November, 2008 and the deponents were present with the deceased throughout and the witnesses witnessed the registration of the last Will of the deceased. He submitted that both these affidavits, therefore, clearly establish that Mr. Mahendra Jattani and Mrs. Bhavani Jattani were the attesting witnesses and merely because their signatures do not appear on the Will but on the registration page, would not, in any way, invalidate Will of the deceased. In support of his argument, Mr.