HARISH VITHAL KLKARNI Vs. PRADEEP MAHADEV SABNIS

JUDGEMENT

(1.) Plaintiffs who claim to be executors under the Will and testament dated 11th October, 1991, alleged to have been executed by the deceased Mahadeo Sabnis (hereinafter referred to as the said deceased) have filed testamentary petition inter alia praying for grant of probate in favour of the petitioners/plaintiffs having effect through0ut the State of Maharashtra. The deceased had expired on 23rd April, 1992 leaving behind him Smt. Sudha Mahadeo Sabnis, widow of the deceased and Mr. Pradeep Mahadeo Sabnis, son of the deceased. On the date of the death of the deceased, both the said legal heirs were alive. On 8th October, 1993, defendant herein filed Suit (3354 of 1993) in this court inter alia praying for the letter of administration in respect of the estate of the said deceased. Mother of the defendant who was widow of the said deceased was impleaded as defendant in the said suit. It was alleged in the said suit that the deceased died intestate. Defendant had taken out Notice of Motion in the said suit (Notice of Motion No. 2403 of 1993) inter alia praying for appointment of the Court Receiver and injunction.

(2.) In the said alleged Will dated 11th October, 1991, the deceased had alleged to have directed the executors to invest Rs. 1 lac each separately and to pay the same along with the interest thereon to two grand sons Master Nehal and Master Sahil, sons of the defendant herein at the time of their attaining the age of 21 years. The deceased had alleged to have issued directions for giving Rs. 1 lac for giving scholarships and prices to the deserving students every year. The deceased had also alleged to have bequeathed Rs. 1 lac to North Kanara Goud Saraswat Brahmin Sangh, Laxmi Sadan, Vithalbhai Patel Road,Bombay 4 for social work. The residual properties were alleged to have been bequeathed to the institutions engaged in blind, deaf and dumb relief work such as Pragati Andh Vidyalaya, Badlapur, Blind Welfare Workshop, Bombay, Happy Home School for the Blind, Bombay, Institute for deaf and deaf-blind, Bombay etc. As far as defendant herein is concerned, it is alleged to have been stated in the said Will that the testator did not wish to bequeath any of the properties to defendant and/or his wife due to various reasons alleged in the said alleged Will. As far as widow of the deceased is concerned, it is alleged that he had paid sufficient amount to his wife during his life time and she had accumulated such amount and was sufficient for her maintenance. The testator has alleged to have directed the executers to realize and pay to his wife the amount with interest kept deposited with the State Bank of India, Shivaji Park Branch, Bombay 28 under Public Provident Fund Scheme 1968 having A/c. No. SBI/SP 4364 (L.F. No. 3412). The said alleged Will was witnessed by Mr. B.M. Shah and Mr. H.V. Kotadia. The age of the deceased mentioned in the said Will was 73 years. The said alleged Will is not registered.

(3.) Along with the testamentary petition, the plaintiffs herein filed affidavit of the widow of the deceased. In the said affidavit it was alleged that she was aware of the Will executed by the said deceased and that the plaintiffs were appointed as executors. In the said affidavit, she has alleged to have given no objection for issuance of probate in favour of the plaintiffs in respect of the said alleged Will. In the affidavit in support of the caveat, defendant disputed execution of the Will. It is alleged that the deceased never prepared and/or drafted and/or finalized and/or settled and/or executed any Will as alleged or at all. In Paragraph 3(a) of the said affidavit it was alleged that the said Will was got up, concocted, fabricated and forged. It was alleged that five years prior to his death and during the period when the said Will was alleged to have been executed by the deceased, the deceased had been suffering from acute asthama and had become mentally and physically infirm and frail during the said period and such condition continued until his death. It is also alleged that the said purported Will is obtained by the plaintiffs and/or widow of the deceased by exercising undue influence. It is also alleged that the said Will was not outcome of the independent mental exercise and the act of volition by the deceased himself but the said Will was obtained by the petitioners or certain individuals fraudulently. On filing of caveat and affidavit in support, said testamentary petition was converted into the suit and was numbered as Suit No. 13 of 1994.