The court affirmed the validity of the Will dated 12th December 1996, emphasizing the burden of proof on the Defendants to substantiate claims of forgery, which they failed to do.

JUDGMENT:-

1. The present Testamentary Suit is filed for probate of what the Plaintiffs propound as being the Last Will and Testament of one Yashwantilika Narottamdas Dalal (“the Deceased”) who passed away on 16th April 2002. The Suit is opposed by the Defendants who have filed their respective caveats setting out the grounds/reasons as to why the probate of the will propounded by the Plaintiffs ought not to be granted.

2. Before adverting to the rival contentions, it is useful for context to set out the following, viz.

i. The Deceased is stated to have owned an immovable property situated at Mahatma Gandhi Road, Ghatkopar, Mumbai (“the said property”) which comprises 4 floors. The Deceased had, on 1st January 1996 incorporated a Company called Yashwantilika Hospital Pvt. Ltd. (“the Company) inter alia for the purpose of setting up and running a hospital on the said property.

ii. As already noted above, the Deceased passed away on 16th April 2002 leaving behind the document dated 12th December 1996 as her last will and testament (“the said Will”), which was in the Gujarati language. A translated copy of the said Will inter alia sets out that (a) the Deceased had named six executors (b) the desire/wish of the Deceased was to construct a hospital on the said property (c) that in the event construction of the hospital was not completed during the lifetime of the Deceased, then the Company was required to complete construction of the hospital and said property was to be transferred to the company which was to run the hospital. The said Will also provided that the Company would make a provision that premises admeasuring 225 sq. ft. to 300 sq ft. would be provided to the caretaker of the Deceased, one Dinesh Rathod and his family. Clause 5 of the Will also provided for the appointment of additional executors in the manner more particularly set out in the said clause.

iii. After the demise of the Deceased, as per Clause 5 of the said Will, Plaintiff No.3 was appointed as additional executor. Thereafter, since the Original Plaintiff Nos. 2 to 5 passed away Plaintiff Nos. 2 and 3 i.e. one Mr. Himanshu Mehta and Mr. Tejas Shroff were appointed by Plaintiff No.1 as executors vide Order dated 1st July 2022 in Interim Application No. 1657 of 2022.

iv. The father of the Deceased i.e. one Narrotamdas had two brothers namely Kalyandas and Maganlal. The captioned Testamentary Petition was opposed by Defendant Nos. 1 and 2 who were two of the six executors named in said Will as also by Defendant No. 3 who is the Granddaughter of Maganlal and Defendant Nos. 4 and 5 who were the Grandsons of Kalyandas, each of whom had filed their respective caveats. A summation of the opposition to the grant of probate in respect of the said Will as taken in the caveats is essentially on the ground that the Will is forged and fabricated and that the Deceased had left a prior will dated 13th May 1995 (“the prior will”). Defendant Nos. 1 and 2 thereafter filed Testamentary Petition No. 132 of 2006 seeking grant of probate in their favour in respect of the prior will. Testamentary Petition No. 132 of 2006 was opposed by the Plaintiffs and was thus that the said Testamentary Petition was converted to Testamentary Suit No. 65 of 2006.

3. The Plaintiffs on 3rd May 2006 filed Notice of Motion No. 46 of 2006 which was disposed by consent vide an Order dated 7th December 2006. By the said Order Parties inter alia agreed that till the captioned Testamentary Suit was pending (i) the fixed deposits