JERBANOO KHURSHED CURSETJI Vs. ADI KHURSHEDJI CURSETJI

JUDGEMENT

(1.) THIS is a petition for probate in respect of Will and Codicils of late Dr. Khurshed J. Cursetji.

(2.) ON or about 20th October 1983, Mrs. Jerbanoo Khurshed Cursetji alias Jer of Bombay, Mrs. Meher Rusi Dalal, Mr. Hormuzdiar Dinshawji Choksi and Mrs. Dinaz Hormuzdiar Choksi, filed Petition No. 770 of 1983, seeking probate of the last Will and Testament and three Codicils of Dr. Khurshed, J. Cursetji, referred to in the petition. Dr. Khurshed, J. Cursetji alias Dr. Khurshed Jehangirji C. alias Dr. Khurshed Jehangir Jameshedji Cursetji alias Dr. K. J. J. Cursetji alias Dr. Cursetji Khurshed J. J. alias Dr. Khurshed J. J. Cursetji is hereinafter referred to as "the Testator". The Testator died at Bombay on or about the 1st day of May 1983. The Testator left him surviving as his only heir and next-of-Kin according to Indian Succession Act applicable to Parsees, the following persons i. e. (1) Mrs. Jerbanoo Khurshed Cursetji, widow (2) Mrs. Meher Rusi Dalal, daughter (3) Mr. Adi Khurshed Cursetji, the son. The petitioners averred in the petition that the petitioners were executors of the said Will and codicils. Mr. Johanbux, J. Gandevia, one of the remaining executors has issued a letter (duly marked as an exhibit in this suit) supporting this petitioners. The Testator was a medical practitioner. The petitioners have averred in the petition that on 22nd January 1968, the Testator had executed a Will duly attested by Mr. Rusi N. Sethna well-known Advocate and Solicitor of this Court. The testator was client of M/s. Romer Dadachanji Sethna, a firm of Advocates and Solicitors. By Clause 1 of the said Will, the Testator appointed the petitioner No. 1 his wife, petitioner No. 2, his daughter and petitioner No. 3 his friend as executrices and the Executor of the said Will. By Clause 3 of the said Will the Testator bequeathed all his estate and effects whatsoever and wheresoever situate subject to and after payment of funeral and testamentary expenses and debts, rates, taxes and duties and any legacies which he may bequeath by any codicil to the Will, to his wife, the petitioner No. 1 absolutely. By Clause 4 of the said Will, it was provided that in the event of petitioner No. 4 predeceasing the Testator or dying under circumstances in which it was impossible to ascertain who died first, the following provisions shall take effect :

(3.) ON 29th August 1985, Mr. Adi (Ardeshir) Khurshed Cursetji, the only son of the testator filed a caveat challenging the petition for probate of the Will. On 3rd September 1985, the said caveator filed his affidavit dated 2nd September 1985, in support of the caveat. By the said affidavit, the caveator contended that the petitioners had not disclosed the entire estate of the deceased in as much as the deceased possessed large and valuable collection of old and rare books, curies and coins, stamps and gramophone records, which were not disclosed in Schedule I of Assets to the petition. The caveator contended that the consent of the executor Shri J. J. Gandevia was not obtained by the petitioners before filing of the petition for probate of the Will. The caveator contended that the petitioners had not come to the Honble Court with clean hands as the petitioners were not fit and proper persons to be appointed as an executors to the knowledge of the testator. The caveator further contended in para 5 of the said affidavit as under :