RODA FRAMROZE MODY Vs. KANTA VARJIVANDAS SARAIYA

JUDGEMENT

(1.) This is an appeal from the judgment of Mr. Justice Kania dated December 7, 1944. The appeal raises a short though interesting question with regard to the proof necessary to establish due execution of a will on a petition for probate which is contested.

(2.) The deceased in this case was Dr. H.M. Mody, who died on October 21, 1942. He had married his second wife Manoramabai in September, 1942, and on October 6, 1942, he executed a testamentary document in her favour which purports to be attested by a solicitor and his clerk. On October 15, 1942, it is alleged that he executed a second testamentary document and this purports to be attested by Mr. Somne and one Choudhari Mohammed Mustaqueem Khan. This document of October 15 is the one in respect of which the petitioner asks for probate, and except for the signatures, it is typewritten on a sheet of the Doctor's note paper and is in the following terms: Last Will I hereby cancel all my wills and bequeath all my estate to Mrs. Roda Framroze Mody, whom I direct to pay 1/10 of the estate to Petit Memorial Library, and spend a slum of Rupees One thousand towards my funeral and other ceremonies, and utilise a sum of Rupees one hundred annually towards anniversary ceremony of my wife Urmila.

(3.) Then in typescript is "1. Witness" and under that "2. Witness" and in ink the signature which purports to be that of Dr. Mody and under the "1. Witness " the signature in ink of Mr. Somne and then under the " 2. Witness" the signature in Urdu which purports to be that of Chowdhari Mohammed Mustaqueem Khan. The document is dated October 15, 1942. If it is a valid testamentary disposition, the question of the validity of the previous will of October 6 would not arise. The parties went to trial on the sworn caveats in lieu of statements of defence and the caveat of Manoramabai contained the following statement: I say that I have taken inspection of the will dated the 15 day of October 1942 alleged to have been executed by my late husband and filed in Court by the petitioner above named. From such inspection, I deny that the signature on the said will is that of my husband. In this respect I have also compared the signature of my husband on his last will and testament dated the 6 day of October 1942 with the alleged signature on the alleged will dated the 15 day of October 1942 and I say that the signature on the alleged will dated the 15 day of October 1942 fits not that of my husband. I have further found on such inspection that the said alleged will is attested by two witnesses, the first witness of whom is one Mr. Khanderao Bhagwantrao Somne who had, to my knowledge, never visited my husband during his lifetime. The signature of the second witness is in Urdu and from the office translation thereof, it appears that the said signature is that of one Pathan who had also, to my knowledge, never visited my husband during his lifetime. I, therefore, say that the said signature on the said alleged will dated the 15 day of October 1942 is not that of my husband and that it is a forgery.