Allowed

Mrs. Vilasben Mahesh Pujara v. Kalpana Dhawal Jha

Bombay HC8 Jul 2013TS/50/2000

Case brief

AI extract

What is this about?

Petitioner, as niece of a deceased, sought Letter of Administration with Will annexed. Finding the Will validly executed and the deceased sound of mind after noting lack of cross-examination by respondent, the court issued the administration to the petitioner.

What did the court decide?

Letter of Administration with Will annexed issued in favour of the Petitioner, with effect throughout India.

Mrs. Vilasben Mahesh Pujara Vs Kalpana Dhawal Jha — Succession and Inheritance | Bombay HC (2013)

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GAG

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION.

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T.S. NO.50 Of 2000

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T.P. NO.1029 Of 1997.

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Savitaben Revashankar Vyas	..Deceased
Vilasben Mahesh Pujara	..Petitioner.
*Versus*
Kalpana Dhawal Jha	..Defendant.

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Appearance =>

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Ms. Jayaishree Surati i/by M/s. S. Ashwinikumar & Co.,Advocate for the Petitioner.

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None present for the Defendant.

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CORAM => R.D. DHANUKA, J. DATE => 8^th JULY, 2013.

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P.C. :-

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This petition is filed by the petitioner who is niece of the deceased Savitaben Revashankar Vyas. The Petitioner seeks Letter of Administration with Will annexed of the property and credits as beneficiary named in the last will of the said deceased. Pursuant to the citation served, none of the legal heirs filed any caveat. However, the defendant Kalpana Jha filed caveat and affidavit in its support. In view of the caveat , Testamentary Petition was converted as a Suit. The deceased had executed a Will dated 1^st Mach, 1997.

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(2) One of the attesting witness to the said will was Mr. Champakbhai N. Pujara. By an order dated 7^th January, 2011 passed by this Court (Coram : Mrs. Roshan Dalvi, J.) following issues were framed.

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ISSUES FINDINGS

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(1) Whether the last Will and Testament of the deceased Savitaben Revashankar Vyas dated 1^st March, 1997 was validly executed.?

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Yes

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(2) Whether the deceased was in sound state of mind at the time of execution of the Will.?

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Yes

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(3) What relief, if any, the Petitioner/Petitioner is As per final entitled to.? Order

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(3) Pursuant to the order dated 13^th September, 2011 passed by this Court ( Coram : D.G. Karnik, J.) Advocate Mr. A.R. Bapat, was appointed as a Court Commissioner to record the evidence by way of cross examination of the petitioner as PW 1 and also recording the evidence of the attesting witnesses. Pursuant to the said order, the petitioner examined herself by filing an affidavit in lieu of examination in chief and also a ffidavit of Mr. Champakbhai N. Pujara, one of the attesting witness affirmed on 8^th February, 2011.

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(4) Inspite of the various opportunities given by the learned Court Commissioner, none appeared for the defendant for cross examining the witnesses examined by the Petitioner. In the order dated 23^rd February, 2012 passed by this Court (Coram : Mrs. R.P. SondurBaldota, J.) it is observed that, the despite ample opportunity, the defendant did not appear before the Commissioner for cross-examining the Petitioner and her witness. The Commissioner has therefore, closed the evidence. The matter was adjourned from time to time. By an order dated 17^th June, 2013 passed by this court (Coram : Mrs. Roshan Dalvi, J.) it was observed that,

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“...the petitioner had led her evidence and also evidence of attesting witness. The valid execution of the will can be seen

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from the evidence. Petitioner is not cross examined. Ex-parte decree shall have to be passed. The suit is adjourned to 8^th July, 2013 for Ex-parte decree.”

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(5) None appeared for the defendant even at this stage. The learned Court Commissioner appointed by this court has submitted his report, which indicates that various opportunities were given to the defendant to cross examine the petitioner as well as her witness. There was however no cross examination of the witness.

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(6) On perusal of the affidavit of attesting witness Champakbhai N. Pujara, it is clear that the said witness was present together with the Mr. A.J. Mehta and Mr. Thakkar, Advocates at the residence of the deceased on 1^st March, 1997 and witnessed to deceased while affixing his signature at the foot of testamentary paper in Gujarati language. It is also deposed that the said witness alongwith Mr. A.J. Mehta and Mr. Thakkar, Advocates at the request of the deceased and in presence of each other and all being present at the same time, scribed their respective names and the signatures at the foot of the testamentary paper. The original will produced by the petitioner is already numbered as Will No.392/1997.

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(7) In view of the fact that witnesses examined by the Petitioner not having been cross examined, in my view, the Petitioner has proved that last Will and Testament of deceased Savitaben Revashankar Vyas dated 1^st March, 1997 was validly executed when the deceased was in sound state of mind and it was not forged and fabricated. Issue No.s. 1 and 2 are accordingly, answered in the affirmative. Letter of Administration with will annexed is required to be issued as prayed. I, therefore, pass the following order :-

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ORDER

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i) Prothonotary and Senior Court Master, High Court of Judicature at Bombay, Original Side is directed to issue Letter of Administration in favour of the Petitioner with Will annexed of the property and credits granted to her as the beneficiary named in the last will of deceased Savitaben Revashankar Vyas having effect throughout India.

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ii) Drawn up order is dispensed with.

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iii) There shall be no order as to costs.

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( R.D. DHANUKA, J.)

Mrs. Vilasben Mahesh Pujara v. Kalpana Dhawal Jha

Case brief

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Mrs. Vilasben Mahesh Pujara v. Kalpana Dhawal Jha

Case brief

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