VEENA RAMCHANDRA PATEL Vs. BAKHTAWAR ARZAN GHADIALLY

JUDGEMENT

(1.) The suit is a result of the defendant opposing the grant of Letters of administration with Will annexed to the property and credits of one Dinshaw Hormusji Gandhi, a widower, in Mumbai. The plaintiff claims to be the sole legatee and has filed Testamentary Petition No. 360 of 2014 seeking grant, as aforesaid. The defendant-Caveator claims to be the grand-niece of the deceased by reason of her claim to the "deceased wife's cousin brother's daughter". The Caveat is supported by an affidavit dated 15 th December 2014.

(2.) The pleadings, in brief, are as follows :- One Dinshaw Hormusji Gandhi, the deceased, died on or about 7 th December 2013 at Mumbai. He was a resident of flat no. 3 in Sodawaterwalla Building No. II, Batliwala Villa Compound, Sleater Road, Naushir Bharucha Marg, Mumbai and left properties in Mumbai and in the State of Maharashtra. According to the plaintiff, the deceased left behind a Will said to have executed on 27 th December 2009. Since no executor was appointed, the plaintiff as a legatee filed this suit. The deceased's wife Homai predeceased him on 17th August 2006 and the deceased had no children. The plaintiff has contended that there are no legal heirs from either his father's side or his mother's side. Whereabouts of distinct relatives, agnates or cognates, were not known. Thus, no heirs contemplated under Sections 54 and 55 of the Indian Succession Act, 1925, were known to the plaintiff and as a result of which the plaintiff proceeded to apply for service of Citation by publication in two newspapers. The plaintiff has averred that no other petition or application has been filed in any District Court or in other High Court for probate of the Will of the deceased or for Letters of Administration with Will annexed.

(3.) The Caveat filed by the defendant is supported by her affidavit dated 15th December 2014, in which the defendant has contended that the Will dated 27th December 2009 is not an authentic document, because the deceased was said to be 82 years old at the time of execution of the Will and was physically unfit to execute the Will. The defendant has disputed the authenticity of the signature and the thumb impression of the deceased and contended that the signature and the thumb impression may have not been affixed by the free will of the testator, but due to undue pressure brought on the deceased by the plaintiff, taking advantage of old age and ill health of the deceased. The defendant says so because the plaintiff is a total stranger and not related to the deceased. The defendant also contended that the deceased was forgetful and the Will was not genuine and is a forged and fabricated document. That apart, the deceased had no right to prepare the Will in relation to the property, which is allegedly joint family property belonging to the defendant's grand-father one Edulji Daruvala and aunt Nargis Edulji Daruvala. There are also bank accounts in the Zoroastrian Co-operative Bank and the Central Bank of India, in which the defendant claims right.