Exhibiting Wills relies on witness testimony as dictated by Sections 63 and 68 of the Indian Evidence Act; Section 90's applicability is denied for Wills requiring attestation.

JUDGMENT :

MAULIK J.SHELAT, J.

1. Rule returnable forthwith. Learned advocate Mr. Ankur Oza waives service of notice of rule on behalf of contesting respondents. The presence of other respondents are not required. With the consent of the learned advocates appearing for the respective parties, present application is taken up for final hearing.

2. Heard learned senior counsel Mr. Dhaval Dave with learned advocate Mr. Jigar Patel for the petitioners and learned advocate Mr. Ankur Oza for the contesting respondents.

3. The present application is filed under Article 227 of the Constitution of India seeking following relief :-

“A) This Hon'ble Court may be pleased to issue a writ of, or in the nature of, certiorari or any other appropriate writ, order or direction quashing and setting aside the order dated 10-10-2017 passed by Court of 4th Additional Senior Civil Judge, Bhavnagar below an application Exh.126 filed on behalf respondent nos.1/1 to 1/5 in the proceedings of Regular Civil Suit No.1151 of 2008 and be further pleased to reject the aforesaid application-Exhibit 126 filed on behalf of respondent nos.1/1 to 1/5 in the proceedings of Regular Civil Suit No.1151 of 2008;

B) Pending admission, disposal and final hearing of the above numbered writ petition, this Hon'ble Court may be pleased to stay order dated 10-10-2017 passed by Court of 4th Additional Senior Civil Judge, Bhavnagar below an application Exh.126 filed on behalf of respondent nos.1/1 to 1/5 in the proceedings of Regular Civil Suit No.1151 of 2008.

C) Ad interim relief in terms of afore-said clause may kindly be granted;

D) Such other(s) and further relief(s) which this Hon'ble Court may deem fit to be granted in the interest of justice.”

4. The relevant facts which are necessitated to resolve the controversy involved in the present petition as under :-

4.1 The petitioners herein are original defendants of Regular Civil Suit No. 1151 of 2008 filed by the predecessor of the respondents namely Jayendrabhai Hargovinddas Shah, which is pending before the Senior Civil Judge, Bhavnagar.

4.2 The original plaintiff has filed probate application No. 52 of 1994 seeking probate of Will executed by Kasturben on 28.07.1959, who happens to be mother of plaintiff as well as defendants. As there was an objection raised by defendants - the other legal heirs of late Kasturben, the aforesaid probate application converted into the aforesaid Regular Civil Suit.

4.3 The respondent Nos. 1/2 to 1/5 herein are legal heirs of the respondent - plaintiff also have independently instituted Special Civil Suit No. 45 of 1994 before the Civil Judge, (Senior Division), Bhavnagar against the petitioners seeking permanent injunction thereby restraining the petitioners from dealing with the suit property.

4.4 The predecessor of petitioner No.1 namely Mr. Pravinbhai Hargovinddas Shah also instituted Special Civil Suit No. 96 of 1996 before the Civil Judge, (Senior Division), Bhavnagar against the respondents seeking partition of suit properties.

4.5 All these aforesaid three suits are consolidated and evidence was ordered to be recorded in the proceedings of probate application No. 52 of 1994 which is now converted into Regular Civil Suit No. 1151 of 2008. The issues were framed on 31.07.2001 by the trial Court.

4.6 The contesting respondent 1/1 herein - Samirbhai Jayendrabhai Shah has submitted affidavit of examination- in-chief (Exh. 124) in lieu of oral evidence wherein he has referred Will dated 04.01.1949 and 28.07.1959 executed by the late Hargovinddas Dhanjibhai Shah and Kasturben Hargovinddas Shah respectively.

4.7 The re