MIRZBAN DARABSHAW SURTI Vs. CEDRIC VAZ

JUDGEMENT

(1.) One Vivien Theresa Vaz ("Vivien") died at Mumbai on 3rd March 1988. According to the Petitioner, Mirzban Darabshaw Surti ("Mirzban"), Vivien left a Will dated 21st August 1997. Mirzban says he is the sole executor under this Will. He seeks to probate it.

(2.) Under the Will Mirzban propounds, Vivien bequeathed her Provident Fund and Gratuity to Mehernosh Marzban Surti ("Mehernosh") and Rumi Marzban Surti ("Rumi") equally. Her Family Pension Fund and her Co-operative Society dues were allegedly willed to Rumi and Mirzban respectively. To her nephew, one Ryan Elton Xavier, the Defendants' son, she allegedly bequeathed a sum of Rs. 2 lakhs and her share in the sale of 102, Manish Sea Croft, Sherly Mala Road, Bandra(West), Bombay 400 050 should that flat be sold after her death. Her jewellery she left to her sister-in-law, i.e., Defendant No 2. She also allegedly made a bequest to Mirzban of the balances standing to the credit of all her bank accounts, the contents of her bank lockers, and all her investments including fixed deposits, shares, debentures, bonds, government securities and all immovable properties held singly by her or jointly with Mirzban. The remainder was also bequeathed to Mirzban and, failing him, to Mehermosh and Rumi equally.

(3.) The Defendants are Vivien's brother and sister-in-law, respectively. They entered a Caveat on 25th October 2000 and filed a joint Affidavit in Support on 31st October 2000. In that Affidavit, the Defendants disputed the execution of the Will. They alleged that Vivien had not executed the alleged Will voluntarily and that it was not prepared under her instructions. Vivien was, the Defendants alleged, in no physical and mental condition to make any such testamentary disposition. She was, they said, under Mirzban's control, and the Will was obtained by undue influence. According to the Defendants, Vivien died intestate.