Digitally MEERA MEERA MAHESH MAHESH JADHAV JADHAV Date:

2025.07.30

20:25:34 IN THE HIGH COURT OF JUDICATURE AT BOMBAY +0530 TESTAMENTARY AND INTESTATE JURISDICTION TESTAMENTARY SUIT NO. 91 OF 2009 IN TESTAMENTARY PETITION NO. 1028 OF 2008 Suresh Sunderdas Harpalani & Anr. ….Plaintiffs V/s Dayal Sundersad Harpalani and Ors. ….Defendants ---------

Mr. Vishal Kanade a/w Rajesh Singh, Monil Punjabi, Ranjan Mishra, Rahul Singh & Pallavi Singh i/by Rajesh Singh and Associates for the Plaintiffs.

Mr. V. N. Tendulkar for the Defendants.

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CORAM: ARIF S. DOCTOR, J.

RESERVED ON : 9th May, 2025 PRONOUNCED ON: 29th July, 2025 JUDGEMENT:

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)1 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 deceased has set and subscribe his signature, which is his name at foot of the last page of the said testamentary paper in the English language and character, which is referred to in the aforesaid Testamentary Petition and marked Exhibit ‘A’ and declare and publish the same as his last Will and Testament. I say that the said deceased has also put his initials on each page of the said Will. I say that at the time the said deceased subscribed his name and

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63(c). The will shall be attested by two or more witnesses, each of whom has seen the t