Savitri Devi Kabra Vs Kiran Gaurishankar Jhawar

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1-TS-210-2015.DOC

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JSN

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTE JURISDICTION TESTAMENTARY SUIT NO. 210 OF 2015

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IN

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TESTAMENTARY PETITION NO. 1385 OF 2015

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Savitri Devi Kabra
Versus

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…Plaintiff

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Mrs. Kiran Gaurishankar Jhawar and others…Defendants

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Mr. Karl Tamboly, with Shaheda Madraswala and Aditi Bhansali i/b
Bharucha and Partners for the Plaintiff.

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Mr. Snehal Shah, with Rohan Rajadyaksha and Niket Jani i/b Vigil
Juris for Defendants.

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CORAM: G.S. PATEL, J DATED: 26th September 2016

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PC:-

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1.P.W.1 is still under examination in chief. I have had to put a
stop to this trial. There are very many things that have gone totally
and utterly wrong with this matter. To begin with, I find that there is
a wholly improper verification of this Petition. It was done before a
notary, one Mr. R.R. Sharma. The verification clause has critical
blanks in it: it does not specify which of the paragraphs are true to
the Petitioner’s knowledge and which are on information and belief.
There are blanks left for these paragraphs. These were never filled
in. The Petition was lodged and taken on file by the Court’s registry
with these blanks. Merely because the so-called verification (which

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26th September 2016

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1-TS-210-2015.DOC

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is no verification at all) was purported to be done before a Notary
the matter has been admitted to file and allowed to proceed.

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2.I understand that our rules permit notarisation of Affidavits
(which includes pleadings) for convenience of parties. Rule 379 says
that such Petitions in testimony matters are to be verified as in the
manner prescribed for Plaints. Rule 44 says that Plaints have to be
verified before an officer of the Court in Mumbai and elsewhere in
India before an officer indicated by Section 139 of the Code of Civil
Procedure 1908. Rule 196 permits Affidavits to be sworn before an
officer referred to Rule 197 in Mumbai and elsewhere in India before
a person mentioned in Section 139 of the CPC. Section 139 of the
CPC allows for an affirmation before notaries. Rule 209 says the
word Affidavit is to include a Plaint, Written Statement, Petition or
any document required to be sworn. I am told there is an
amendment that allows such notarization even in Mumbai. It is on
account of this that Affidavits and Petitions are being affirmed
before notaries.

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3.I believe this is a matter that needs to be addressed on the
administrative side in some suitable manner to ensure the proper
notarization of affidavits and pleadings. The Registry should not be
bound to accept improperly verified pleadings merely because these
have been signed before a notary. A system needs to be instituted to
require checking for proper verification, affirmation, interpretation,
etc. In a case such as this, where the verification clause is
incomplete, the Registry ought to have taken an objection and at the
very least have had the matter placed for directions.

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26th September 2016

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1-TS-210-2015.DOC

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4.There are two other problems. Paragraph 3 of the Petition
says that a photocopy of the original Will is annexed at Exhibit ‘B’.
This appears to be incorrect. Exhibit ‘B’ is again a photocopy of
what appears to be a notarised copy. It bears a notarial stamp of one
Mr. Shamrao Deshmukh, Advocate and Notary, and the rubber
stamp ‘True Copy’ at the top. This is not to be found in the original
Will. Therefore, what is annexed to the Petition is not a photocopy
of the Will, but a photocopy of a notarised photocopy of the Will.
When it comes to proof of documents required to be attested these
are significant issues, and are not trivial. The identity of the
document sought to be proved is all-important. Indeed, in law, these
are all separate documents and one cannot be substituted for the
other. It is for this reason, inter alia, that the Succession Act, 1925,
makes separate provisions for probate or proof of a Will and probate
or proof of a copy of a Will.

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5.It is evident, therefore, that with a statement like this in
paragraph 3 the absence of a proper verification assumes even
greater importance.

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6.Finally, I find that there is a practice in the Registry of
allowing amendments to cure objections, and these orders are
granted by endorsements on praecipe. This practice should stop.
These are, after all, orders, and the Registrar or Officer concerned
must pass an order, not just make an endorsement, and this order
must be uploaded. This is required so that there is a complete
record maintained of the orders passed in various matters. In the
present matter I find that there have been several amendments
permitted at an initial stage to paragraph 8, the table below

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26th September 2016

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1-TS-210-2015.DOC

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paragraph 9 and to the schedule annexed to the Petition. There is a
handwritten reverification in red ink. This reverification seems to
have been done in Court. That reverification is of 14th September
2015 a few months after the date of the Petition, 31st July 2015.

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7.Further, if this is so, I see no reason why the original Petition
could not have been affirmed in Court instead of before a notary.

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8.The Prothonotary and Senior Master is requested to take
immediate note of this and to obtain suitable directions as to the
issue of a practice note to the effect that no such amendments are to
be permitted by mere endorsements on a praecipe but must be by an
order that comes to be uploaded.

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9.In the present case, the amendments seem to have been
effected on a praecipe dated 10th September 2015. This amendment
was allowed by a single endorsement on 10th September 2015. Mr.
Shah says that that amended copy has not been served on the
Advocates for the Defendants / Caveators.

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10.In view of all this, Mr. Tamboly seeks leave to withdraw
Petition with liberty to file a fresh Petition for probate. Leave
granted with liberty as prayed.

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11.In the circumstances, the Court Fees paid by the Petitioner
on this Petition will be allowed to be adjusted in full against the
Court Fees required to be paid on the fresh Petition that may be
brought for proof of the same Will.

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26th September 2016

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1-TS-210-2015.DOC

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12.Mr. Shah points out, quite correctly, that in her examination
in chief the witness has already given certain answers. These are
required to be maintained as part of the record of this Petition.
Copies of this transcript will be made available to both sides. What
use is to be made of this, if any, is left for another date.

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(G. S. PATEL, J.)

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Page 5 of 5
26th September 2016

Savitri Devi Kabra v. Kiran Gaurishankar Jhawar

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Savitri Devi Kabra v. Kiran Gaurishankar Jhawar

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