The central legal point established in the judgment is the application of Section 63 of the Indian Succession Act, 1925 to establish the due execution of a Will, considering evidence of witnesses, medical certificate, and registration of the Will.

JUDGMENT

Arif S. Doctor, J. - The present Testamentary Suit has been filed for Letters of Administration alongwith a copy of the Will of one Pishorilal Sethi alias Pishorilal Baxi Sreechand Sethi ('the deceased'). The deceased passed away on 16th February 2009 leaving behind a writing dated 27th November 2003 ('the said Will') which the Plaintiff is propounding as being the last Will and Testament of the deceased. It is based on this Will that the Plaintiff has sought Letters of Administration.

2. The Plaintiff is the wife of the deceased who had initially filed Testamentary Petition No.1360 of 2016 ('the said Testamentary Petition') for the grant of Letters of Administration in respect of the said Will. The Plaintiff and the deceased had five sons. The Defendants are four sons of the deceased all of whom who have filed caveats opposing the grant of Letters of Administration to the Plaintiff. The grant of Letters of Administration based on the said Will is essentially opposed on the following grounds viz., (a) that the Defendants did not believe that the signature appearing on the said Will was the genuine signature of the deceased, (b) that the Plaintiff was acting at the behest of another son of the deceased, namely, Arun Sethi, (c) that the said Will was not a natural Will as the deceased would not disinherit the Defendants from any legacy and (d) that the deceased would not have bequeathed his entire estate to the Plaintiff. These are broadly identical grounds of the challenge taken in all the caveats filed.

3. Based on the case pleaded in the caveats, Testamentary Petition was converted to Testamentary Suit No.11 of 2017, in which the following Issues were framed for determination:-

"1] Whether the plaintiff proves that the writing dated 27.11.2003 was duly and validly executed in and attested in accordance with law as the last Will and Testament of the deceased Pishorilal Sethi alias Pishorilal Baxi Sreechand Sethi?

2] Whether the defendant proves that the alleged Will is fabricated?

3] Whether the defendants prove that signature on the document purported to be will dated 27.11.2003 is not that of Late Shri Pishorilal Sethi?

4] What order?'

The Parties in support of their rival cases, led the following evidence, viz.

Plaintiffs Evidence:

i. Evidence of the Plaintiff.

ii. Evidence of one Rajeev Trivedi under Rule 384 of the Bombay High Court (Original Side) Rules, 1980.

iii. Evidence of Dr. Pankaj Kantilal Shah.

Defendants Evidence:

i. Evidence of Defendant No.1.

ii. Evidence of Defendant No.2.

The Defendants, however, after completion of the evidence did not appear when the matter was taken up for final hearing. No arguments were therefore for advanced on behalf of the Defendants at the final hearing.

4. Mr. Gehani, Learned Counsel appearing on behalf of the Plaintiff made the following submissions and dealt with the Issues framed as follows.

5. Insofar as the first issue was concerned, Mr. Gehani invited my attention to the Affidavit of Evidence of the Plaintiff. He pointed out therefrom that the Plaintiff had in detail deposed to the making of the said Will. Learned Counsel fairly pointed out that though the Plaintiff had filed a detailed Affidavit of Evidence, the cross examination of the Plaintiff remained incomplete on account of the Plaintiffs advanced age and indifferent health. Learned Counsel submitted that the Plaintiff had thus been relieved from cross-examination by an order dated 03rd September 2018.

6. Mr. Gehani then submitted that the said Will had been attested by two witnesses, namely one Mr. Mustaquim Rahamtulla Usmani (M. A. Usmani) and one Mr. Rajendra Upadhyay. He submitted that since both the attesting witnesses were untraceable, the Plaintiff had filed the Affidavit of Evidence in lieu of Examination in Chief under Rule 384 of the Bombay High Court (Original Side) Rules, 1980 of one Mr. Rajeev Trivedi, who was present at the time of execution of the said Will. Learned Counsel invited my attention to the Affidavit of