JUDGMENT :

1. This Suit is filed by Plaintiff seeking probate of the last Will and Testament dated 15.01.2004 of deceased Savita Hiralal Bhindora alias Savita Hiralal who expired on 15.01.2004 in Mumbai. Plaintiff is the maternal cousin of deceased. He is one of the Executors named in the Will, the other two being Deepak Laxmidas Tanna and Suresh Laxmidas Tanna. Deceased expired as an unmarried woman on the date of execution of the Will at night as stated in the Petition. Parents of deceased predeceased her. Testamentary Petition seeking grant of Probate was filed on 12.03.2004 by Plaintiff as Executor and beneficiary, reserving the rights of the two other Executors to apply for probate later.

2. Testatrix executed Will dated 15.01.2004 which is in Gujarati. Testatrix expired on the same date i.e. 15.01.2004 at 10.30 p.m. in the night. Execution of Will is witnessed by V. G. Trivedi, Advocate, Bombay High Court and Dr. Mahendra C. Shah, Medical Practitioner (Doctor). Both attesting witnesses filed their Affidavits confirming execution of Will dated 15.01.2004 in their presence.

3. On service of citation, deceased original Defendant/Caveatrix Smt. Kusumben Amrutlal Kakkad, married sister of Testatrix filed Caveat duly supported by Affidavit-in-support dated 11.08.2004 through her Constituted Power of Attorney i.e. her son Harish Amrutlal Kakkad [present Defendant No.1(a)]. Defendants have pleaded that Smt. Kusumben was the only legal heir of deceased being her real sister and therefore disputed genuineness of the Will as the deceased Testatrix had informed her that she would bequeath 50% of her estate to her and the balance 50% to charity.

4. Testamentary Petition No.254 of 2004 was converted to Testamentary Suit No.34 of 2004.

5. The original Defendant expired on 02.06.2008 and her legal heirs i.e. the present Defendants were impleaded. It is Defendants’ case that signature of deceased on the Will is not her genuine signature and they do not admit the same as genuine and real. That apart, defence is raised on the ground that valuation of the subject property of deceased is undervalued. It is alleged that various other movable properties belonging to deceased have not been disclosed by Plaintiff. Finally, it is submitted that original Defendant being real sister of deceased is the only true legal heir to the estate of deceased.

6. By order dated 18.08.2017, this Court framed the following issues for adjudication:-

Sr.No. Issues Findings

1. Whether Plaintiff proves that deceased, Savita Hiralal Bhindora executed the Last Will and Testament dated 15th January 2004? Yes.

2. Whether Defendants prove that deceased was not physically and mentally fit to execute the Will on 15th January 2004? No.

3. Whether Defendants prove that Will dated 15th January 2004 is a forged and fabricated document? No.

4. Whether Plaintiff is entitled for probate of the last Will and Testament dated 15th January 2004? Yes

5. What order and Decree? As per final order

7. I have heard Mr. Jamsheed Master, learned Advocate appearing for the Plaintiff and Mr. Piyush Shah, learned Advocate appearing for the Defendants and with their able assistance perused the pleadings and record of the case.

8. Plaintiff led evidence of Dr. Mahendra C. Shah (PW-1), one of the attesting witness and Plaintiff himself (PW-2) in support of execution of the Will. Dr. Mahendra C. Shah (PW-1) filed his Affidavit-in-lieu of examination-in-chief dated 29.09.2007 and was cross-examined by Defendants before the Court Commissioner on 15.10.2018. Thereafter, Plaintiff (PW-2) filed his Affidavit-in-lieu of examination-in-chief dated 07.12.2018 and was cross-examined by the Defendants on 12.04.2019, 25.04.2019 and 03.05.2019.

9. Defendants led evidence in rebuttal of Harish Amrutlal Kakkad i.e. Defendant No.1(a) as DW-1. He filed his Affidavit-in-lieu of examination-in-chief dated 19.06.2019 and was cross-examined by Plaintiff on 08.07.2019 and 10.07.2019.

10. After witness action was completed and before f