The inability to demonstrate valid execution of a Will amidst suspicious circumstances negates its validity; co-ownership rights among heirs supersede unilateral claims of ownership.

JUDGMENT :

ARIF S. DOCTOR J.

1. Both the captioned Suits are on board for final hearing.

2. Suit No. 2286 of 2008 (“Partition Suit”) has been filed seeking partition of the estate of one Shri Tikamdas Dembla (“Tikamdas”), and Testamentary Suit No. 82 of 2008 (“Testamentary Suit”) has been filed for the probate of the last Will and Testament of one Smt. Rajkumari Tikamdas Dembla. Given the commonality of facts and parties, common evidence was led in both Suits, and it is thus that both Suits, by consent of Learned Counsel, are taken up together for final hearing and are being disposed of by this common order.

3. For convenience, reference to the Parties in both the captioned Suits shall be as they are arrayed and referred to in the Partition Suit. Before proceeding further, it is useful for context to set out a few facts:

i. One Tikamdas Dembla (“Tikamdas”), who was the father of the Plaintiffs and the Defendant, passed away on 12 March 1994, leaving behind the Plaintiffs, the Defendant, and his wife, namely Smt. Rajkumari Tikamdas Dembla, (“Rajkumari”) as his only legal heirs and next of kin. During his lifetime, Tikamdas purchased a flat, being Flat No. 11 (“the original Flat”), admeasuring approximately 530 square feet in the Mahran Co-operative Housing Society Ltd. (“the said Society”). It is the Plaintiff’s case that the original Flat was purchased by Tikamdas with his own funds.

ii. After the demise of Tikamdas, the said Society, on 6th June 1995, added the name of Rajkumari, to the said Share Certificate of the original Flat (“the said Share Certificate”). Thereafter, on the 16th of March 1996, the Defendant was added as an Associate Member on the said Share Certificate.

iii. In 2004, the said Society underwent redevelopment, and the original Flat was thus surrendered to the Developer. On completion of the redevelopment, Flat No. 502, (“the redeveloped Flat”) situated on the 5th floor of the said Society was allotted to Rajkumari, and the Defendant. At that time, Plaintiff Nos. 2 to 5 were married and staying in their respective matrimonial homes. Plaintiff No. 1 was residing in the United States of America, and the Defendant was residing in the original Flat with his mother, Smt. Rajkumari Tikamdas Dembla. It is the case of the Defendant that on 30th October 2004, Rajkumari Tikamdas, executed and registered a Gift Deed (“Gift Deed”) by which she gifted the original Flat to the Defendant.

iv. On 15th March 2008, Rajkumari was admitted to Criti Care Hospital for treatment for severe burns.

v. It is the case of the Plaintiffs that on 19th March 2008, Rajkumari made her last Will and Testament (“the said Will”) while she was in the hospital in the presence of the Notary Public, Plaintiff Nos. 1, 3 and 4 and the hospital staff, i.e., a doctor and a nurse. By the said Will, Rajkumari bequeathed the said redeveloped Flat and a sum of Rupees 16,00,000 (Sixteen Lakhs) to her children, the Plaintiffs and the Defendants, in equal shares and her jewellery to all her daughters, i.e., Plaintiff Nos. 2 to 5.

vi Rajkumari passed away on 22nd March 2008.

vii The Defendant then filed a Suit in the Bombay City Civil Court, being Short Cause Suit No. 721 of 2008 (“the City Court Suit”), inter alia seeking a declaration and injunction against the Plaintiffs, asserting that they have no right to take possession of the redeveloped Flat. The City Court, by an Order dated 6th June 2008, restrained the Plaintiffs from entering the redeveloped Flat.

viii On 16th June 2008, one Mr. Manoharlal Lalchand Nagpal, claiming to be the Executor (“the Executor”) of the said Will, filed the captioned Testamentary Petition seeking Probate of the said Will. The Executor is the husband of Plaintiff No. 4, i.e., Mrs. Rani Manohar Nagpal. While all the Plaintiffs in the Partition Suit filed their respective Affidavits, consenting to the grant of Probate of the said Will. The Defendant opposed the