BAPULAL MAGANLAL CONTRACTOR Vs. NITIN BAPULAL CONTRACTOR

JUDGEMENT

(1.) The Testamentary Petition No.602 of 2001 was filed on 11th April, 2001 by Umakant Bapulal Contractor and Nalin Bapulal Contractor for grant of probate in respect of the Last Will and Testament dated 11th February, 1997 of the deceased Shri Bapulal Maganlal Contractor (hereinafter referred to as "˜the said Will "™), who expired on 20th June, 2000. The Executors named in the said Will are the two sons of the deceased Umakant and Nalin i.e. the Plaintiffs/Petitioners herein. A copy of the said Will which is in English language is annexed as Exhibit-B to the Petition. Along with the Petition the Plaintiffs/Petitioners filed an Affidavit dated 5th February, 2002 of Mr. Narendran Madhavan Menon, one of the attesting witnesses to the said Will. Along with the said Petition the Plaintiffs/Petitioners also filed a Joint Consent Affidavit dated 11th April, 2001 of Smt. Parvatiben Bapulal Contractor (wife of the deceased) and Smt. Jayshreeben P. Khambhati (married daughter of the deceased) and also a Consent Affidavit dated 13th August, 2001 of Smt. Sushila I. Contractor (married daughter of the deceased). By the said Affidavits, the wife of the deceased "˜Parvatiben "™ and his married daughters "˜Jayshree "™ and "˜Sushila "™ deposed that the said Will was the last Will of the deceased. The same was genuine and valid and the deponents had no objection if the Probate in respect of the said Will was issued to the Plaintiffs/Petitioners, and they consent for the same.

(2.) In the said Petition No. 602/2001, the Defendant who is admittedly one of the son "™s of the deceased and brother of the Plaintiffs/Petitioners filed a Caveat dated 3rd May, 2002 wherein the Defendant contended that he is not aware of any Will prepared by his father during his lifetime and that he has received a citation issued by the High Court inter alia informing that the Petition has been filed by his two brothers i.e. the Plaintiffs/Petitioners herein, for grant of Probate in respect of the said Will allegedly left by the deceased. Since he has not been served with a copy of the said Will and the Petition, it is not possible for him to give para-wise reply to the alleged Will or the Petition. He therefore reserved his right to file a detailed reply after receiving a copy of the alleged Will. The Defendant without allegedly not having seen the Will submitted :- "my father was paralysed since years and bedridden before his death and was not able to sign anything. I say and submit that the said Will was not executed by my father." Again, without having allegedly seen the said Will, and the Defendant having reserved his right to file a detailed Affidavit, nonetheless stated in his Affidavit dated 3rd May 2002 that the Will allegedly left by the deceased is false and fabricated. In fact on 18th July, 2009 when the arguments in the Suit commenced, it was submitted by the Learned Advocate appearing for the Defendant before this Court that the Defendant is not contending that the deceased was suffering from paralysis as stated in the Affidavit in Support of the Caveat. This Court has noted the fact that the Defendant is unable to speak and understand English. His Affidavit of Examination-in-Chief dated 20th April, 2009 is interpreted and explained to him by the Office of the Translator, High Court and the questions put to him during his examination and cross-examination were either put to him directly in Gujarati or w vere put to him in English and thereafter translated in Gujarati. Despite this, the Affidavit of the Defendant in support of the Caveat dated 3rd May, 2002 nowhere states that the same has been read out and/or explained/interpreted to the Defendant in Gujarati. The contents of the Affidavit dated 3rd May, 2002 are not confirmed/reiterated by the Defendant in his Examination-in-Chief. In view of the aforesaid Caveat filed by the Defendant, the Petition was converted into a Suit.

(3.) Though the Defendant had stated in the Affidavit in support of the Caveat that he has not even seen the said Will propounded by the Plaintiffs/Petitioners and that he will be filing a detailed Affidavit after receiving a copy of the said Will, no such Affidavit was filed by the Defendant at any time thereafter. Even when the matter was placed for framing of the Issues none appeared for the Defendant and this Court proceeded to frame the following Issue in the absence of the Defendant:- "Whether the Plaintiffs prove that the Will dated 11th February 1997 is a Will duly executed by the Testator in accordance with Law."