Disposed

Piloo Fali Bomanji and Another v. Ms. Mahabanoo Navroz Kotwal

Bombay HC14 Jul 2014APP/325/2014

Case brief

AI extract

What is this about?

This short order held an appeal against a Chamber Summons order in a testamentary suit was not maintainable relying on a Supreme Court decision. The court directed parties to raise contentions before the Trial Court and reserved the final challenge for later.

What the court decided

AI extract

Piloo Fali Bomanji and Another Vs Ms. Mahabanoo Navroz Kotwal — Bombay HC (2014) — LawSathi Research

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1 of 5 APP.325.2014

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

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APPEAL NO.325 OF 2014 IN CHAMBER SUMMONS (L) NO.67 OF 2014 IN TESTAMENTARY SUIT NO.26 OF 1999

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Piloo Fali Bomanji & others Appellants

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versus

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Mrs.Mahabanoo Navroz Kotwal

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Mr.Pravin Samdani, Sr.Advocate i/by Janhvi Bejoy for Appellants. Mr.Rajesh Shah with Mrs.Deepali Shetty and Ms.Harshal Manik i/by M/s.Rustamji & Ginwala for Respondent/original Plaintiff.

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CORAM : MOHIT S. SHAH, C.J. AND M.S.SONAK, J.

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PC :

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The Appellants/original Defendants in the testamentary suit have challenged the order dated 10 June 2014 of the learned Trial Judge allowing the Chamber Summons of the original Plaintiff for a direction that some of the portion of the affidavit in lieu of the examination-in-chief filed by Dr.Navroz Kotwal dated 8 April 2014, proposd to be examined as a witness by the Appellants, be expunged or appropriate order be passed to ignore those statements referred to in the schedule to chamber Summons and that Plaintiff need not cross examine the said witness in respect of such part of deposition referred in the schedule to the Chamber Summons.

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2 of 5 APP.325.2014

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Learned counsel for the Respondent/Plaintiff has raised preliminary objection about maintainability of the appeal. Learned counsel has relied upon a decision of Supreme Court in Shah Babulal Khimji Vs. Jayaben D. Kania and another (AIR-1981-SC-1786) and particularly the observations made in paragraph 115 of the said judgment. Learned counsel has also relied upon the order dated 10 December 2013 of another Division Bench of this Court in an appeal against a similar order.

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Learned counsel for the Appellants has, however, submitted that though the Appellants-defendants had objected to the Chamber Summons in its entirety, the Appellants would like to confine their objection to the deletion of only the following portions of the affidavit of Dr.Navroz Kotwal, which read as under :

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“Para no.6 : I used to visit the said Mrs.Cassad for months in Parsee General Hospital. Health of Mr.Keki P. Cassad worsened and breathing became very distressed. Mahabanoo asked for a Will to be made so that the Flat could be left to her. She wanted Mr.Cassad to make a separate Will to that effect. The said Mr.Cassad refused to do so. Mr.Cassad refused to make any Will in her favour. In fact, Mr.Keki P. Cassad would repeatedly tell me and Mahabanoo that an astrologer had told him that he would die soon after making his Will. He refused to make his Will for that

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reason. … … …

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3 of 5 APP.325.2014

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I was greatly surprised in November 1995 when Mahabanoo produced a Will on the top floor of the members enclosure of the Mahalaxmi Racecourse in front of Mr.D.P.Kothavala and Mr.E.M.Todywala. Mahabanoo then proceeded to take the signatures of Mr.D.P.Kothavala and Mr.E.M.Todywala on the Will.... … … (On 19.12.1995) I took charge of Keki's body, accompanied the body to the Tower of Silence and took Nargis to the funeral with great difficulty, as Nargis by now could not even talk or walk on her own.”

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It is submitted that above quoted portions in paragraph 6 of the affidavit of Dr.Navroz Kotwal related to the previous joint will from which, according to the Plaintiff, some paragraphs are repeated in the will under challenge allegedly executed in February 1996 and the last quoted portion pertains to the period of about two months before execution of the will under challenge.

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Learned counsel for Appellants/Defendants submits that the above quoted portions ought not to have been allowed to be deleted. The Appellants do not object to deletion of other portions of the affidavit of Dr.Navroz Kotwal directed to be deleted by the learned Trial Judge in the order impugned.

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4 of 5 APP.325.2014

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Having heard the learned counsel for parties, we are inclined to accept the preliminary objection raised by the learned counsel for Respondent/Plaintiff that in view of the law laid down by the Supreme Court in Shah Babulal Khimji (supra) , this appeal would not be maintainable.

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At this stage the learned counsel for the Appellants/Defendants submits that the Appellants would like to request the learned Trial Judge to permit the Appellants-defendants to refer to the above quoted portions of the affidavit of Dr.Navroz Kotwal for the limited purpose of challenging the credibility of Plaintiff's case as regards the Plaintiff's contention that the will of Mrs.Cassad under challenge in these proceedings is alleged to have been made by taking a portion of the joint will alleged to have been made by Mr.Cassad and Mrs.Cassad (deceased) in October 1995, and for the purpose of showing Mrs.Cassad's physical condition two months before execution of the alleged will. Learned counsel submits that notwithstanding filing of affidavit in lieu of examination-in-chief, it is open to the Defendants to ask their witness a few questions on which the Plaintiff can cross examine the witness.

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Without expressing any opinion, we leave it open to the parties to raise such contentions and to make such prayers as are available to the parties before the Trial Court.

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It goes without saying that whatever may be the outcome of such attempt which the Appellants may make before the learned Trial

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5 of 5 APP.325.2014

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Judge and whatever be the order which the learned Trial Judge may pass, the Appellants-defendants will always be at liberty to challenge such order and the impugned order at the time of challenging the final order or the decree, if necessary.

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The appeal is accordingly disposed of in terms of the above observations. There shall be no order as to costs.

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(CHIEF JUSTICE)

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(M.S.SONAK, J.)

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MST

Piloo Fali Bomanji and Another v. Ms. Mahabanoo Navroz Kotwal

Case brief

What is this about?

What the court decided

Piloo Fali Bomanji and Another v. Ms. Mahabanoo Navroz Kotwal

Case brief

What is this about?

What the court decided

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