Testamentary Petition No.312 of 2000

25th August, 2009

Petitioner Counsel: Mrs. GEETA MULEKAR

JUDGMENT

JUDGMENT :- The Testamentary Petition No.312/2000 was taken out for Probate of the Last Will and Testament dated 23.02.1997 of Minoo Burjorjee Mukadam by plaintiff no.1, who is nephew and plaintiff nos.2 and 3 are the Executors.

2. As objection was raised/filed by the defendant, the Petition was converted into the Suit and proceeded accordingly.

3. The defendant never appeared after conversion. She did not lead evidence. She did not even appeared before the Commissioner inspite of due notices.

4. The issues were framed as under:

1. Whether the plaintiff proves that the deceased Minoo Burjorjee Mukadum @ Minoo B. Mukadum @ M. B. Mukadum had executed his last Will and Testament dated 23.02.1997 in favour of the plaintiffs ?

2. Whether the Defendant proves that the deceased Minoo Burjorjee Mukadum @ Minoo B. Mukadum @ M. B. Mukadum had executed his last Will and Testament dated 01.03.1994 ?

3. Whether the plaintiff is entitled to the Probate on the basis of the Will and Testament dated 23.02.1997 executed by deceased Minoo Burjorjee Mukadum @ Minoo B. Mukadum @ M. B. Mukadum ?

4. What order ?

ISSUE NOS.1 & 3 :

5. The plaintiffs in support of their case filed an affidavit of examination-in-chief and presented themselves before the Commissioner who was appointed by the Court on 05.09.2008. The affidavit-in-chief was taken on record. The defendant, inspite of service and notice and knowledge never appeared to cross-examine the plaintiffs. The plaintiffs have examined three witnesses; i.e. (a) Jehangir Ardeshir Rabadi, PW 1 (Plaintiff No.1-executor/beneficiary of the Will); (b) Mr. Zubeen D. Nallaseth, PW 2 (attesting witness to the Will) and (c) Avnesh Kantilal Jadav, PW 3 (Plaintiff No.2-executor of the Will). The other attesting witness who expired long back was Mr. Sorab J. Irani, Advocate.

6. All these evidence and the averments so made by them remained uncontroverted. Though presented for cross-examination, the defendant never appeared and never cross-examined them. The testimony, therefore, remained intact for all the purpose to support their case and to discharge their burden as per issue Nos.1 & 3.

ISSUE NO.2 :

7. The defendant though raised objection that resulted into the present Suit, but never appeared thereafter to support the averments so raised. The plaintiffs led the evidence and made themselves available in support of their case. The defendant neither led evidence in support of issue no.2 and/or otherwise nor presented herself for cross-examination. In the result, she failed to discharge the burden as per issue no.2 the parties having raised objection/allegation. Issue no.2 which cast burden on the defendant to prove that the deceased Minoo B. Mukadam had executed his Last Will and Testament dated 01.03.1994. The defendant, in the absence of her evidence and any material to support the same, not placed on record that itself, in my view, sufficient to dismiss the objection so raised, specially when the plaintiff in support of issue Nos.1 and 3 have already led evidence to support that the deceased Minoo had executed his last Will and Testament dated 23.02.1997 in favour of the plaintiffs. They have discharged the burden in accordance with law. The defendant failed to discharge her burden. Therefore, the adverse inference also need to be drawn against the defendant.

8. But for this objection, otherwise the matter could have been disposed of at the initial stage in the year 2000 itself. Though objection raised, but not contested by leading evidence in support of their case. This conduct of defendant itself, in my view, is self-destructive and goes against the defendant and it supports the case of the plaintiffs which they have proved by leading sufficient evidence.

9. The plaintiffs, apart from above, even otherwise, able to prove their case, in view of the evidence of PW 1, PW 2 and PW 3. The attesting witness Mrs. Zubeen has stated that he knew and acquainted with the deceased. He was present on 23.02.1997 with Mr. Sorab J. Irani, Advocate at the house of the deceased, when the deceased set his left hand thumb impression at the foot of the Will which was in English. This witness has identified his signature and also signature of Mr. Sorabji. He also stated that the said document was signed in their presence. He also stated that the said deceased had put his thumb impression on every page also. Apart from the main page where Mr. Sorab Irani had written (LHTI) of the deceased below the thumb impression.

10. PW 1-plaintiff himself led evidence along with PWs.2 and 3 who were the executors of the Will. The plaintiffs have stated that the deceased left him surviving as his only heirs and next of kin according to Parsee Succession Act, 1925. Only two sons Ms. Sheroo Rustom Tarapore and Ms.Tehmi Nariman Mukadam (defendant herein). The plaintiff has also filed additional affidavit of deposition on 16.03.2009 referring to the other property including shares and Bank accounts. That also remained uncontroverted. Therefore, the oral, as well as, the documentary evidence placed on record by plaintiff no.1 remained un-challenged. The same case with witness no.3, who has stated and supported the case of plaintiffs with regard to the assets of the deceased.

11. The affidavit dated 7.4.2000 of one R. H. Khambatta, Joint Account Holder with the deceased has given no objection to grant of Probate in favour of the plaintiffs and affidavit dated 7.4.2000 of one Mrs. Arin P. Master, the joint account holder with the deceased in Central Bank of India, has given no objection for grant of probate in favour of the plaintiffs (Exhibits P-5 and P-6). There is also an Affidavit dated 9.6.2000 of Mr. Sorab J. Irani, Advocate, who was also attesting witness to the Will and who had acknowledged the signature and to the Will of deceased Exh.7. All these documents apart from the evidence so led sufficient to accept the case of the plaintiffs that the deceased had executed the Will dated 23.02.1997. There is no other contra material placed on record and/or brought on record by the defendant.

12. In view of this, I am inclined to grant the Probate to the petitioners/plaintiffs as the plaintiffs proved the case in view of issue nos.1 and 3 and defendant has failed to prove the issue no.2. The issues are answered accordingly.

13. Resultantly, the Caveat is rejected. The Testamentary Suit/Petition is allowed. A Probate of Administration of the last Will of the deceased Minoo Burjorjee Mukadam dated 23.02.1997 be issued in accordance with law.

14. No costs.

Suit allowed.