KIRITBHAI MELABHAI TADVI Vs. NARMADASHANKAR PREMJIBHAI DAVE

JUDGEMENT

(1.) This appeal under Section 100 of the Code of Civil Procedure is at the instance of original objector No.1 in Probate Application No.174 of 2003 filed by respondent Nos.1 to 12 herein- original applicants on 15.9.2003 in the Court of learned Civil Judge (S.D.) at Vadodara seeking declaration that Will annexed with the application is genuine. Respondent No.13 in this appeal was objector No.2, who since passed away, his heirs have been brought on record.

(2.) It is the case of the applicants that deceased Shanabhai Shivabhai Tadvi and his wife, named Suryaben, executed Will on 13.6.1991 in their favour in presence of Notary Ms. Mrunaliben S. Bhatt and two witnesses, namely Patel Jethabhai Motibhai and Patel Ghanshyambhai Chhotabhai, for their properties mentioned in the application. Properties described in the application in para 3 are (1) land bearing Survey No.54 admeasuring 5 Hector 53 Are and 4 Sq. Mtrs. and (2) house No.3 with open Vada. Both the properties are stated to be situated in village Harmanpura, Taluka Waghodia, District Vadodara. As stated in the application that deceased Shahabhai- the testator of the Will died on 7.6.1994 and thereafter, acting upon the Will, the applicants have taken possession of the properties in question and they have been in possession of the said property. Suryaben, wd/o. deceased Shanabhai died on 5.10.1995. Pursuant to the public notice, the objectors lodged their objections on 23.10.2003, inter alia, stating that deceased Shanabhai had no issue and deceased Shanabhai and his widow were maternal uncle and aunt respectively of the father of the objectors. It is further stated that the Will is bogus and thumb impression on the Will is not of deceased Shanabhai. It is further stated that thumb impression of deceased is found only on the last page and not on every page. It is also pointed out that all pages of the Will are typed and are divided in paragraphs except bottom paragraph on the last page, which is handwritten and thumb impression is found below it which raises great suspicion about execution of the Will. It is further stated that deceased Shanabhai was always putting his signature for all kind of transactions with Government or semi Government department. It is further stated that deceased Shanabhai was member of Bakrol Group Gram Panchayat and he was regularly attending meetings of the Gram Panchayat and was putting his signature in minute books of the Gram Panchayat. It is further stated that documents presented with list were also executed by deceased Shanabhai by putting his signature and therefore, thumb impression on the Will creates great suspicion as regards genuineness of the Will. It is further stated that nowhere in the Will, name of widow of Shanabhai is found nor even on the last page of the Will, where thumb of deceased Shanabhai is affixed, thumb impression or signature of his widow is taken but on the reverse page, thumb impression of widow of deceased Shanabhai is stated to have been taken. Objectors have further stated that first two pages of the Will contain page numbers but last page has no page number. It is further stated that the land held by deceased Shanabhai was of restricted tenure under Section 73-A of the Bombay Land Revenue Code and could not have been given by Will to the applicants without prior sanction of the Collector. Objectors have further raised objection that the applicants have got bogus Will prepared from deceased Shanabhai to play fraud with the Statute. It is further stated that the objectors have got interest in the property of deceased Shanabhai, being heirs of deceased Shanabhai, and since the Will is bogus and surrounded with suspicious circumstances, the objectors have lodged objections to prevent the applicants from grabbing the property of deceased Shanabhai.

(3.) On appreciation of the evidence, learned Trial Judge came to the conclusion that the applicants have failed to discharge heavy onus of explaining the suspicious circumstances surrounding the execution of the Will and failed to establish that the document which they propounded was the last Will and testament of the testator. Learned Trial Judge recorded that the applicants have miserably failed to prove genuineness of the Will, whereas objectors have proved that the Will in question is bogus, fabricated and suspicious. On such conclusion, learned Trial Judge rejected the application by judgment and order dated 1.8.2005.