The Propounder of a will must prove due execution and sound mind of the testator, especially in the presence of suspicious circumstances; failure to do so results in dismissal.

JUDGMENT :

ARIF S. DOCTOR, J.

1. The captioned Testamentary Petition was filed seeking probate of a Will dated 6th February 2008 (“the said Will”) stated to be the last Will and Testament of one Sunderdas Mulchand Harpalani (“the Testator”).

2. The Testator passed away on 6th February, 2008, leaving behind two daughters, namely Nanki Varandani and Laxmi Rawtani, and four sons, namely Dayal Sunderdas Harpalani, i.e., Defendant No. 1; Mohan Sunderdas Harpalani, i.e., Defendant No. 2; Gul Sunderdas Harpalani, i.e., Defendant No. 3 and Suresh Sunderdas Harpalani, i.e., Plaintiff No. 1. The said Will named Suresh Harpalani and his wife, i.e Lajwanti S. Harpalani, as the executors, and Suresh Harpalani is the major beneficiary of the estate of the Testator.

3. The Plaintiffs initially filed the captioned Testamentary Petition seeking probate of the said Will, which was consented to by both the daughters of the Testator. The Testamentary Petition was, however, opposed by the Defendants, each of whom filed their respective Caveats and Affidavits in Support thereof.

4. In view of the Caveats that were filed, the Testamentary Petition was converted into the captioned Suit in which this Court had, vide an Order dated 14th October 2016, framed the following Issues for determination viz.

“1. Whether the Plaintiffs prove that the writing dated 18th November, 2000 was duly and validly executed and attested in accordance with law as the last Will and testament of the deceased, Sunderdas Mulchand Harpalani?

2. Whether the Plaintiff prove that at the time of the said alleged Will, the deceased was of sound mind and disposing state of mind, memory and understanding ?

3. Whether the Defendants prove that the alleged Will is bogus and fabricated?

4. What reliefs and what orders? ”

5. The following evidence was led by the Parties:

i. The Plaintiffs led the evidence of Plaintiff No. 2, i.e Lajwanti Suresh Harpalani (PW1); both the attesting witnesses, namely Praveen Basantilalji Bapna (PW2) and Kripal Chandiram Kewalramani (PW3) and Hiral Mehta (PW4), stated to be a handwriting expert.

ii. The Defendants led the evidence of Defendant No. 2, i.e Mohan Sunderdas Harpalani (DW1).

Submissions on behalf of the Plaintiff

6. Mr. Kanade, Learned Counsel appearing on behalf of the Plaintiffs, at the outset invited my attention to Section 63 (c)[The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary]of the Indian SUCCESSION ACT , 1925 (“the SUCCESSION ACT ”) to submit that a valid will was required to be attested by two attesting witnesses. He then pointed out that the said Will had, in accordance with Section 63 (c) of the SUCCESSION ACT , been duly attested by two attesting witnesses, namely Praveen Basantilalji Bapna (PW2) and Kripal Chandiram Kewalramani (PW3).

7. Mr. Kanade then, from the Affidavit of Evidence (“AOE”) of PW2, pointed out that PW2 had deposed as follows:

“6. I say that thereafter the said decease