R.K.ABICHANDANI - (1.) The appellants challenge the judgment and order dated 25-11-1978 passed by the City Civil Court, Ahmedabad, granting probate of the Will, Exh. 77, dated 1-5-1967, executed by Bai Chandan, daughter of Patel Somnath Bhudardas, and widow of Badrinarayan Jamnadas, to the executors of the Will, who were the original respondent Nos. 1, 2 and 3 in this appeal. During the pendency of this appeal, the appellant No. 2, Shardaben, who was the other widow of Badrinarayan, died, and as per the Court's order dated 25-6-1987, passed on Civil Application No. 1799 of 1986, her son Janardan, the appellant No. 1 was also shown as her heir. The original respondent No. 1, Sheth Ambalal Himatlal, the original respondent No. 3, Kesuprasad Motilal Jani, have also died during the pendency of the appeal, and as per the order made in Civil Application No. 3926 of 1994 on 27- 9-1994, the respondents No. 1/1 Shri A. K. Trivedi; 1/2 Shri Anand Chandrakant, and 1/3 Shri Thakorbhai, were brought on record as the newly appointed "trustees", as per the terms of the Will. The appellant No. 1, Janardan Badrinarayan Patel was the step-son of the testatrix, and the respondent No. 4, Manoramaben, and the respondent No. 5, Premila, her step-daughters. Respondent Nos. 6 and 7, Vadilal and Shantilal, were the cousin brothers of the testatrix.
(2.) A petition for probate, being Misc. Application No. 552 of 1970, of the Will in question was filed on 21-10-1970, under Rule 165 of the Ahmedabad City Civil Court Rules, 1961, in the City Civil Court, Ahmedabad, stating that the applicants, Sheth Ambalal Himatlal, Sheth Chandrakant Motilal Jagabhaivala and Kesuprasad Motilal Jani were the executors named in the Will of Chandanben and they would faithfully administer the property. A certified photo copy of the Will was produced along with the application stating that the original Will be produced during the hearing. The affidavits of the attesting witnesses, Chandulal Jagannath and Chimanlal Jivanlal were filed along with the application, as required by law. In that probate application, the step-son of the testatrix, Janardan put forth his objections at Exh. 31. The said Caveator alleged that the Will was false and got up and that at the relevant time, when it purports to have been executed by Chandanben, she was not in a sound disposing state of mind and that she was completely overpowered by the applicants and had acted under undue influence. It was also alleged that the Will was not executed by deceased Chandanben and, even if proved, it would not be operable, since it was vague, uncertain and wanting in necessary particulars. It was also alleged that Chandanben was keeping ill-health due to old age and due to cataract in both the eyes, she had nearly lost her vision. It was contended that the testatrix did not know and could not consider the implications of the dispositions made in the Will. It was also alleged that the original applicants were co-trustees with the deceased in several trusts and therefore, they had taken advantage of their position and exercised undue influence over the deceased in getting the Will executed. It was further alleged that the Will was unnatural and was created to defeat the interest of the Caveator, his real mother and sister.
(3.) The Caveator, Manoramaben, who is the present respondent No. 4, objected against the Will by her affidavit Exh. 33, which she later adopted as her written statement, by filing note Exh. 21 in the civil suit, into which the said probate application was converted because of the contest, contending that the testatrix was, at the time of the alleged execution of the Will, an old lady of feeble mind and that she along with her sister, Premila, and mother, Shardaben, was residing with her, for the purpose of looking after her health and requirements for about 20 days prior to her death on 7-5-1967. It was alleged that she was not in a position to comprehend the extent of her property and the nature of claim of others and to form the necessary judgment. It was also alleged that the Will was the result of undue influence exercised upon the testatrix by the propounders and that it was not legally executed and attested. In paragraph 25 of her affidavit, which has been adopted by her as her written statement, it was alleged that the petitioners took possession of the estate and applied seals on the date of the death of the testatrix, without intimating the next of kins about their rights and powers under the alleged Will, nor even apprising them with the situation.;