SHOBHANA SAHADEV SHAH, OCCUPATION: BUSINESS, AGE: RELIGION: JAIN OF BOMBAY INDIAN INHABITANT RESIDING AT C Vs. SANGEETA PORBANDERWALA, A U.S. CITIZEN OF INDIAN ORIGIN, HAVING HER ADDRESS AT 162
LAWS(BOM)-2017-2-113
HIGH COURT OF BOMBAY
Decided on February 10,2017

Shobhana Sahadev Shah, Occupation: Business, Age: Religion: Jain Of Bombay Indian Inhabitant Residing At C Appellant
VERSUS
Sangeeta Porbanderwala, A U.S. Citizen Of Indian Origin, Having Her Address At 162 Respondents

JUDGEMENT

G.S. Patel, J. - (1.) . JUDGEMENT_113_LAWS(BOM)2_2017.htm Page references follow the numbering of the record. A. INTRODUCTORY This contested probate petition is unlike most in one critical, central aspect: neither of the two attesting witnesses to the Will is willing to depose or make an affidavit that accords with the 1st Plaintiff's version of the due execution of the Will. Specifically, both attesting witnesses deny the presence of the testator at the time they signed the Will; the first, a solicitor of this Court, Mr Ramesh Makhija, admits only to a telephonic communication with the testator. So does the second attesting witness, one Dr Vinod Shetty. Neither attesting witness filed an Affidavit in lieu of Examinationin - Chief. Their examinations-in-chief were taken in Court. The Plaintiffs were permitted specifically to put questions to Mr Makhija in the nature of cross-examination. Similar leave was sought for Dr Shetty, but I find no record of any specific permission. Both attesting witnesses were then cross-examined by the Defendants.
(2.) The case turns on a single determinant: whether the attesting witnesses' evidence, taken as a whole, should be believed. If it is, and neither saw the testator sign the testamentary document but, at best, received only a telephonic confirmation, and neither signed as attesting witnesses within his eyesight, can such a Will be said to have been 'proved in its solemn form'?
(3.) On the question of due execution and attestation, a most unusual submission came from the Plaintiffs: they said the 1st Plaintiff's 'version' of execution and attestation should be preferred to that of the two attesting witnesses. In other words, the Plaintiffs accepted that these versions did not accord. They said the attesting witnesses' evidence - their own witnesses - should not be believed. This seems to me to have been an attempt to bring the case within Section 71 of the Evidence Act: where an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. Neither Mr Makhija nor Dr Shetty denied execution and attestation at all. They only denied the presence of the testator. He was not present before them when he signed it, and he was not present when each of them, separately, attested it. The question is therefore not of an attesting witness's denial of execution, but whether, first, with this evidence from the attesting witnesses, the 1st Plaintiff's contrary evidence should receive any weightage, and, second, whether the evidence on record meets the requirements of Section 63(c) of the Indian Succession Act.;


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