IMPORTANT POINTS
(i) Testamentary or dispositive capacity of the testator must be proved to the satisfaction of the Court.
(ii) Being obliged to the testator does not make an attesting witness an interested witness.
(iii) An advocate present at the time of execution of Will and attesting it cannot be a suspicious circumstance.
(iv) When expert opinion is not complete, Court may require corroboration.
(v) A testator excluding his children and bequeathing his entire estate to his wife, is not unnatural or suspicious.

G.S. Patel, J.—The Plaintiff seeks Letters of Administration with Will Annexed to a Will dated 21st November 1992 that he says was the last Will of his father, Popatlal Bhogilal Shah (“Popatlal”), who died in Mumbai on 2nd January 1993. Popatlal had a daughter and three sons with Lilavatibai Popatlal Shah (“Lilavati”). They are: Vinodini Mody (“Vinodini”), the Plaintiff, the Defendant and Sushil Shah (“Sushil”).

2. The Defendant filed a Caveat dated 14th February 2005 and an Affidavit in Support dated 21st February 2005. The Petition was then renumbered as Testamentary Suit No. 20 of 2005.

3. Before I go further, I should note that this is the second of two testamentary contests between the same parties. Shirish Shah, the present Plaintiff earlier filed Testamentary Petition No. 754 of 2004, for Probate to Will he said had been made by the parties’ mother, Lilavati. The present Defendant, Arun Shah, opposed the Petition. He entered a Caveat and that Petition was renumbered as Testamentary Suit No. 18 of 2005. The Will propounded divided Lilavati’s estate, including her inheritance from her husband, Popatlal, between Vinodini, the present Plaintiff, Sushil and Asim (the Plaintiff’s son). Arun, the present Defendant, was excluded. I decided that Suit, and held for the Defendant. For several reasons, I held that the Will was not proved. I pronounced judgment in that Suit on 28th March 2016. That judgment is under appeal. This is of some importance to this case, for Mr. Narula for the Defendant would have it that the present Will, too, was ‘conjured up’, as he puts it, at about the same time as Lilavati’s Will; and that the Plaintiff’s intention was only one: to grab the entirety of the parties’ parents’ estates. I will address that argument shortly.

4. First, to the Will’s physical aspect. This Will is typed in English, also a matter of some moment to one of Mr. Narula’s submissions. It has four pages. Popatlal has initialled pages 1, 2 and 3. His signature is on page 4. The attesting witnesses to this Will are one Suresh Mody (“Mody”), Popatlal’s son-in-law; and one Dr. Arun Shah, (“Dr. Shah”), a practicing physician. Mody died on 26th March 2010. Dr. Shah is said to have worked in an honorary capacity at the Bharatiya Arogya Nidhi Hospital at Juhu. This hospital is run by a Trust that Popatlal established or headed, and of which the Plaintiff is now the Chairman.

5. I turn now to the contents of the Will. In this, Popatlal set out his properties and assets in some detail. He made an absolute bequest of all of these assets in favour of his wife, Lilavati. This included his share in their HUF; the plot of land in Friends Cooperative Housing Society at Juhu Scheme; and his tenancy rights in 14, Al-Sabah Court, 73 Marine Drive, Mumbai 400020, where he lived till his death. The exception was his PPF Account, which he donated to Shah Public Charities, a trust that he settled. He provided that should Lilavati predecease him, his properties and assets would be equally divided between all four children. Popatlal appointed no executor under this Will.

6. In the Affidavit in Support of the Caveat, the Defendant alleges that this Will is a forgery by the Plaintiff and his family members. He says they did this with an ulterior motive and for personal gain, and that the circumstances surrounding the execution of the Will are suspicious and unnatural. He takes these grounds: First, the Testator, though a polyglot, was intensely proud of his Gujarati heritage and culture. He was a published Gujarati poet. He had made prior wills in 1979 and 1985 and both were in Gujarati; the final will is, inexplicably, in English. Second, the family met after Popatlal’s death. The Plaintiff showed the entire family a document in Gujarati, one the Defendant then believed was Popatlal’s last Will. However, the Plaintiff never furnished the Defendant with a copy of this Will, despite promising to do so. Third, the attesting witnesses to the Will are ‘interes