- (1.) THIS is a caveator's Petition for reviewing the order dated 16/03/1990, under which probate was granted to the respondents who were the petitioners in the original Petition No. 233 of 1984 i. e. plaintiffs in Suit No. 5 of 1985. The parties will hereafter be referred to according to the position in Suit No. 5 of 1985. Suit No. 5 of 1985 (earlier filed as Petition No. 233 of 1984) was for probate of the propounded will dated 6/07/1982 of one Vishwas Vithal Tawade. Vishwas Vithal Tawade died on 31/08/1982 leaving behind his children as his heirs. Plaintiff No. 1 is the son of the deceased. The defendant (present applicant) is also one of the sons of the deceased. The defendant filed the Caveat and challenged the Will. The matter was heard ex parte on 16/03/1990 in the absence of the defendant and on evidence being taken the Caveat stood dismissed and probate was ordered to be issued to the plaintiff on his complying with the office requisitions of the Prothonotary and Senior Master, if any. Being aggrieved by the order dated 16/03/1990, the defendant has taken out the present Miscellaneous Petition which is for review of the order as stated above.
(2.) ONE of the grounds on the basis of which the order dated 16/03/1990 is sought to be set aside is as mentioned in Paragraph 4 of the present Petition. Briefly, what is stated in the said Para 4 is that in the Affidavit dated 30/01/1984 of the attesting witness Mr. Kadam, it was stated by Mr. Kadam that : "2. That on the 6th day of July, 1982, I was present together with Sharadchandra Babu Shirodkar and Dr. Jayant N. Kharkar at the deceased's residence at 35, Vincent Square, Dadar, Bombay 400 014 and we did then and there see the said deceased set and subscribe his name at foot of the testamentary paper in the English Language and Character which is referred to in the Petition hereunder and marked Exhibit "a" and publish the same as his Last Will and Testament. " Further when Mr. Kadam was examined as a witness in Court on 16/03/1990, he deposed as follows : "i was serving in Scindia Steam Ship Navigation Co. and I have retired from there. I knew the deceased Vishwas Vithal Tawade since he was my distant relative. I also know Petitioner No. 1 Sanjay Vishwas Tawade and the Caveator Dilip Vishwas Tawade. They are the sons of the deceased. After the deceased went to reside in a lodge Ram Niwas at Dadar, he told me that he wanted to make a Will. According to his desire, I remained present at the lodge on 6/07/1982. One Mr. Shirodkar was also present at that time. Dr. Kharkar was also present. I signed, then Mr. Tawade signed and the other witness signed. I was present at the time when the other witnesses signed and also when Tawade signed. (Signatures are marked Exhibit "a" collectively ). I now say that the deceased signed the will first, then I signed as Attesting Witnesses and then the other witnesses signed as attesting witnesses. " It will be observed that the attesting witness in his Affidavit dated 30/01/1984 states on oath that the Will was executed at the residence of the deceased at 35, Vincent Square, Dadar, Bombay 400 014, whereas in his deposition before the Court he states on oath that the Will was executed not at the residence of the deceased but in Ram Niwas Lodge at Dadar. Ordinarily in a Suit where the proceedings go on adversary basis, this might not have been considered an error on the face of the record if the Court did come to the conclusion on the basis of evidence before it that the Will was duly proved. However, these are probate proceedings in which the conscience of the Court is required to be satisfied. The onus lies on the propounder of the Will to remove the suspicious circumstances and further to satisfy the conscience of the Court of the due execution of the Will. It must be noted that when the defendant challenges the Will, in the face of the facts stated above, it cannot be said that the conscience of the Court is satisfied about the due execution of the Will. It may be that there may be sufficieeent explanation for the glaring contradiction that is noticed above. However, that would require to be explained or clarified and without that being done, probate ought not to have been issued. It appears that this glaring contradiction did not come to the notice of the Court when the order dated 16/03/1990 was passed. For that reason, the order required to be set aside and the matter would have to be re-heard. It has been pointed out above that the defendant was absent on 16/03/1990 when the evidence was recorded. He engaged a new Advocate who took a search on 25/09/1990 and the facts about the abovesaid evidence recorded on 16/03/1990 came to the notice of the defendant when his Advocate took search on 25/09/1990. The present Petition has been taken out on 12/10/1990. In my opinion, there is sufficient explanation for the delay.
(3.) IN view of the above said reasons, the ex parte order dated 16/03/1990 on review is set aside, the Review Application is allowed and a date for hearing be fixed of Suit No. 5 of 1985. The Suit to appear on board on 14th of March 1991 for directions. The defendant (present petitioner) shall pay costs quantified at Rs. 500. 00 to the plaintiffs (present respondents ). Probate, if issued on the basis of the order dated 16/03/1990, stands cancelled. Order accordingly.;