SUREN VADILAL KOTHARI Vs. SUDHIR VADILAL KOTHARI

JUDGEMENT

(1.) A petition for Probate is filed by the plaintiff Dr. Suren Vadilal Kothari. It is the case of the petitioner plaintiff that Dr.Vadilal Amritlal Kothari died at Panchgani on 8-9-1984 leaving behind him certain properties within Greater Bombay in the State of Maharashtra and elsewhere in India. The deceased Dr. Vadilal had made his last Will and Testament on 16-11-1979. The said Will was executed at Bombay and under the said Will, the deceased had appointed the petitioner Dr.Suren Kothari, Shri Jagdish Munsif and Shri Jayant C. Vakil as the executors. Shri Jagdish Munsif and Shri Jayant Vakil, the executors appointed under the Will have renounced and accordingly the petitioner had filed the petition for probate as an executor of the last Will of Dr. Vadilal Kothari. In the petition the petitioner has annexed the last Will of Dr. Vadilal Kothari executed on 16-11-1979 alongwith the affidavit of Shri Jayant Chimanlal Vakil, Advocate and Solicitor dated 15-4-1985. In the affidavit of Shri Vakil, it is found that deceased Vadilal Kothari was acquainted with him and on 16-11-1979 when he was in his office with one Shri Vithaldas Jamnadas Ved, the deceased Vadilal had executed the said Will by signing the said documents in presence of Shri Vakil and Shri Vithaldas Jamnadas Ved and both of them viz. Sari Vakil and Shri Ved have at the request of the deceased, signed the said Will in his presence as the attesting witnesses. In the petition the petitioner has attached Schedule-I to show the assets of the deceased and schedule-II shows the schedule of debts.

(2.) IN paragraph-9 of the petition the heirs of deceased Dr.Vadilal Amritlal Kothari, as per Hindu Succession Act, were shown viz. : 1) Dr. Suren V. Kothari - son, 2) Shri Sudhir V. Kothari - son, 3) Smt. Rekha J. Udani - married daughter and 4) Dr.(Smt.) Kelki B. Patel married daughter. As per the citation issued in the petition for probate filed by the petitioner, a caveat was lodged through advocate on 2-7-1993 by Dr. Suren Kothari, son of the deceased and another caveat was also filed through advocate on 9-7-1993 by another son of the deceased Shri Sudhir Kothari. In support of the caveat Shri Suresh Vadilal Kothari and Shri Sudhir Vadilal Kothari have filed affidavit on 9-7-1993 opposing the petition for probate filed by Dr. Suren Vadilal Kothari and in view of the caveat lodged, the probate petition is converted into suit.

(3.) WHEN the suit was ripe for hearing and notified for recording evidence, neither the caveator nor their advocates had remained present and accordingly to prove the Will of the deceased on behalf of the plaintiff Shri Jayant Chimanlal Vakil, P.W.1 was examined. In his evidence, he has stated that he is a practicing advocate and solicitor and the working partner in the firm of Tayabji Dayabhai. Deceased Vadilal was his mother's sister's husband. His relation with the deceased were cordial. It is further found from his evidence that deceased Vadilal has visited his Office on four different occasions during the month of November, 1979 and his first visit was on 5-11-1979. Deceased Vadilal with his son Suren came to his Office and the deceased had instructed him to prepare his Will and in turn he had taken instructions and the deceased was asked to come on the next day for further instructions. According to the witness the deceased had come to his office on 6-11-1979 and gave further instructions and the witness had prepared a draft Will of Shri Vadilal which was sent for approval at the residence of the deceased. On 12-11-1979 deceased Vadilal came to his office and the Will was settled in his presence and the deceased had instructed the witness to prepare final will and the witness had prepared the final Will as instructed by deceased Vadilal and he was asked to come to his office for execution on 12-11-1979. The witness has also, during the evidence, produced his appointment diary for the year 1979 and from the said diary it is found that the deceased had visited his office at 1.30 p.m. on 16-11-1979. The witness was shown the Will of the deceased Vadilal dated 16-11-1979 (Exhibit-A) and on going through the said Will, it is the case of the witness that it is the same Will which was prepared by him as per the instructions of deceased Vadilal and the said Will was executed in his presence and in the presence of Shri V.J. Ved and the witness as well as Shri Ved has signed the said Will as the attesting witnesses. While recording the evidence, I have perused the appointment diary of the witness for the year 1979 and from the said diary, visit of Dr.Vadilal at the office of the witness is found and confirmed. The witness has also identified the signature of deceased Vadilal on the said Will as well as identified signatures of Shri Ved and another attesting witness to the said Will. It is further found from his evidence that at the time when the Will was executed by Dr. Vadilal, he was an active medical practitioner and he was in sound mind. It is further found from his evidence that the attesting witness Shri Ved who was working in his office had died recently in the month of May, 1998. Deceased Vadilal had appointed his son Suren Kothari viz. the petitioner, his brother-in-law Jagdish alias Jatin Munsif and the witness to act as executors and Trustees. It is further found from his evidence that as per practice, after execution of the said Will by Shri Vadilal, the Will in question was preserved in his office and after the death of deceased Vadilal and as per the letter issued by the solicitor on behalf of the petitioner, son of the deceased, the Will was sent to the office of the solicitor. The evidence of this witness is not challenged by the defendant. Though the Vakalatnama is filed on behalf of the defendant and the names of the advocates were notified on the Board, none appeared in this proceeding, even after the matter was adjourned earlier.