The foundational doctrine of approbation and reprobation was applied, barring the Defendant from receiving a bequest and challenging the document under which the bequest was made.

JUDGMENT

G.S. Patel, J. - A. OVERVIEW

1. The Plaintiff seeks probate of a registered Will dated 4th January 2007 of his father, Madhusudan Dahyabhai Shah ("Madhusudan"), who died on 1st May 2007. The Plaintiff is the sole executor and trustee appointed under the said Will

2. The Plaintiff is Madhusudans elder son. His petition is opposed by his younger brother, Nikhil, the 1st Defendant, and their sister Hemangini, the 2nd Defendant. The Defendants filed their respective Caveats on 9th December 2009. Affidavit in Support of the Caveat of the 1st Defendant, File No. 2, pp. 6774; Affidavit in Support of the Caveat of the 2nd Defendant, File No. 2, pp. 75105. They claimed that the Will was forged, fabricated and executed under undue influence. Another surviving sister, Harsha, entered no opposition to the Petition.

3. After they filed their Caveats, the Defendants consistently remained absent, though repeatedly served notices by the Plaintiffs. Various orders of this Court have noted the Defendants absence despite notice. Since the Defendants filed Caveats, the Testamentary Petition was renumbered as a suit. It had to be tried as such. The Plaintiff was compelled to lead evidence, even though the Defendants were absent throughout. Ultimately, the evidence was closed. The Defendants have never cross-examined the Plaintiffs witnesses, never led evidence and never appeared to present any arguments.

4. For the reasons that follow, I have decreed the Suit, allowed the Petition and directed probate to issue.

B. FACTUAL BACKGROUND

5. Madhusudan and his wife Vijayaben had five children: Daksha Shah; Harsha Shah; Hemangini, the 2nd Defendant; Nikhil, the 1st Defendant; and Keyur, the Plaintiff. All three daughters were married. Daksha died before Madhusudan, who was, therefore, survived by his widow and four surviving children. Harsha did not oppose the Petition. Vijayaben died on 4th February 2011. She, too, did not oppose the Petition in her lifetime.

6. Madhusudan and Vijayaben both made their respective Wills on 4th January 2007. Both Wills have the same two attesting witnesses: Dr Mahesh J Kapadia, the family physician, and their neighbour, Sanjiv Jhaveri.

7. After Vijayaben died, the Plaintiff sought probate. This was uncontested and probate was granted on 21st November 2018. Exhibit "P3/7", File No. 3, pp. 149154.

8. Before this Petition was filed in 2009, on 4th April 2008, the 1st Defendant applied to the Talati to have an agricultural property in Alibaug, of which he was the legatee under Madhusudans Will, transferred to him. He relied on Clause 5 of Madhusudans Will. The 1st Defendant sought the consent of the other heirs. They gave it. No one objected.

9. On 5th June 2009, the Plaintiff filed this Petition for probate. The two Defendants entered Caveats on 9th December 2009. The Petition was renumbered as a Testamentary Suit.

C. THE TWO CAVEATS

10. In the Affidavit in Support of his Caveat, the 1st Defendant denied the genuineness of Madhusudans Will. 1st Defendants Affidavit in Support of the Caveat, paragraphs 310, File No. 2, pp. 6869. He said that before the Will was made, there was a meeting. The 2nd Defendant and the other sister, Harsha, were not present. According to the 2nd Defendant, Madhusudan orally told the Plaintiff to pay Rs 2 crores each to the 2nd Defendant and Harsha. The Will contains no such provision. Therefore, the 1st Defendant said, the Will did not reflect Madhusudans true intentions. The 1st Defendant also alleged that Madhusudan suffered from Parkinsons, diabetes and heart conditions. He spent the last six months of his life in a wheelchair. He could not speak clearly. Therefore, according to the 1st Defendant, Madhusudan was not of sufficiently sound mind, memory and understanding when he made the alleged Will. Further, the Plaintiff, his wife and children lived with Madhusudan and Vijayaben, and therefore e