KUSUM BHARAT ASARPOTA Vs. JAGDISH DAMODARDAS ASARPOTA

JUDGEMENT

(1.) APPLICANTS in the chamber summons are the original defendants (caveators). Applicant in the notice of motion is original petitioner (plaintiff). The applicants in the chamber summons have prayed for leave to place on record an additional affidavit dated 6th April, 2014 in support of the caveat on their behalf. Applicant in the Notice of Motion has prayed for dismissal of caveat dated 9th July, 2012 and affidavit in support of caveat dated 13th July, 2012 of the caveators and seeks declaration that the caveat as well as affidavit in support are not maintainable. By consent of parties both the proceedings were heard together and are being disposed of by a common order. Some of the relevant facts for the purpose of deciding these two proceedings are as under: - - Smt. Kusum Bharat Asarpota is widow of the deceased late Mr. Bharat Ladharam Asarpota who has alleged to have executed a Will dated 15th June, 1996 and had appointed the plaintiff as the executrix of the said Will. The plaintiff also claims to be the sole legatee to the properties of her late husband under the said Will. On 12th March, 2009 the testator expired. On 20th November, 2011 the plaintiff herein filed a petition inter aha praying for probate of the Will and Testament of the deceased dated 15th June, 1996. Alongwith the said petition, the plaintiff filed consent affidavit of her two sons Mr. Aashish Bharat Asarpota and Mr. Vinayak Bharat Asarpota giving their full and free consent in favour of the plaintiff for grant of probate without service of any citation upon them. It was stated in the petition that the said deceased had left the plaintiff and her two sons only as the surviving next of kin according to the Hindu Succession Act, 1956. It was also stated that the deceased had no daughter and the father and mother are predeceased the deceased.

(2.) ON 24th May, 2012 and 28th May, 2012 the plaintiff filed affidavit of Mr. Raju Vithaldas Jangla and Mr. Jayraj Damodardas Gajaria endorsing the signatures of Mr. Bhagwan Asarpota and Govind L. Parmanand as attesting witnesses to the alleged Will. On 9th July, 2012 the applicants to the chamber summons filed two separate caveats. Mr. Jagdish Asarpota affirmed an affidavit in support of caveat on 13th July, 2012.

(3.) ON 28th August, 2013 the caveator No. 2 filed a chamber summons in this court inter alia praying for permission to adopt the affidavit in support of caveat filed by caveator No. 1. On 30th July, 2013, probate petition is converted into a suit by an order of this court. On 19th August, 2013 this court directed the plaintiff to file affidavit in lieu of examination -in -chief of the first witness which is filed by the witness of the plaintiff on 12th September, 2013. On 19th September, 2013 caveator No. 2 affirmed in support of caveat in Bahrain. On 28th October, 2013, this court in the Chamber Summons (L) No. 104 of 2013 condoned the delay in filing affidavit in support of caveat by the caveator No. 2. Caveator No. 2 is a partnership firm in which the two alleged attesting witnesses were partners alongwith the said deceased and other family members.