JUDGMENT :

1. The present Testamentary Suit seeks Probate in respect of a Writing dated 24th March 1997 (‘the said Will’), which the Plaintiff propounds as being the last Will and Testament of one Mansukhlal Kanji Shah (‘the deceased’).

The facts briefly stated are as follows: -

2. The deceased passed away on 2nd December 1998 leaving behind him, as his only legal heirs and next of kin in accordance with the Hindu Succession Act, 1956, the following persons: -

1. Jayaben Mansukhlal Shah (Wife)

2. Prakash Mansukhlal Shah (Son)

3. Lata Dhirajlal Gala (Married Daughter)

4. Sunita Anantrai Mehta (Married Daughter)

The Plaintiff is the son of the deceased and the executor named in the said Will. Jayaben Mansukhlal Shah is the wife of the deceased and Lata Dhirajlal Gala is one of the married daughters of the deceased both of whom have consented to the grant of probate. Sunita Anantrai Mehta, the Defendant to the present Suit is the other married daughter of the deceased who has opposed the grant of Probate by filing a Caveat. The main grounds of challenge raised in the Affidavit in Support of the Caveat inter alia are that the said Will is forged and fabricated and is an unnatural Will.

3. Based on the contentions raised in the Affidavit in support of the Caveat filed, the following issues were framed for determination: -

“i) Does the plaintiff prove that deceased Mansukhlal Kanji Shah has validly executed document purported to be Will dated 24.3.1997?

ii) Does the defendant prove that the document purported to be Will dated 24.3.1997 has been executed by the deceased Mansukhlal not by his free will and consent and under undue influence?

iii) What Order?”

At the outset, it is to be noted that the only evidence led in the matter was that of the Plaintiff. One of the attesting witnesses namely Gajanan Hanumant Patgaonkar had filed an Affidavit in lieu of Examination in Chief however he did not present himself that for cross examination. No evidence was led of the other attesting witness. It was thus that the Learned Advocate for the Plaintiff made a statement to this Court that no other witness was available, who could prove due execution and attestation of the said Will. It was thus that by an order dated 30th October 2018 (G. S. Patel, J.), was pleased to record as follows, viz.

“PC: -

1. Ms Krishnappa on behalf of the Plaintiff states that the only attesting witness whose evidence they propose to lead is not traceable. They are unable to lead the evidence of that attesting witness. Consequently, the attesting witness, PW1, Gajanan Hanumant Padgaonkar is not being tendered for cross-examination, and the inevitable consequences will follow. She also states on instructions that the Plaintiff has no other witness who can prove the due execution and attestation of the Will propounded, i.e. there is no other person who was present at the time. This is noted.

2. The Plaintiff will now be cross-examined. He is not entitled to file further Affidavit in lieu of examination-in-chief.

3. I note that on the Evidence Affidavit filed by the attesting witness, the Will being propounded was marked as a document in evidence. If that attesting witness is not made available for cross-examination then obviously it is open to the Defendant to contend that the Will is not proved in its solemn form because the witness has not been made available for having his testimony scrutinized by the only method known to our system of adversarial jurisprudence, i.e. cross-examination. It will, therefore, be open to the Defendant not only to contend that the Will is not proved but also to submit that an adverse inference be drawn against the Plaintiff and the attesting witness.

4. The cross-examination will now commence of the Plaintiff himself before Ms Azmin Irani, learned Commissioner previously appointed.

5. List the matter on 8th January 2019 for directions including as to the status report.”

It was in the aforesaid backdrop, that the Plaintiff was cross-examined and the Plainti