Sahidullah Munshi, J. - (1.) P.L.A. 94 of 2012 was registered at the instance of Rajesh Goenka, praying for grant of probate of the Will of deceased Mohanlal Goenka, executed on 29th January, 1999 in favour of the sole executor named in the said Will with effect throughout the Union of India. Citations were issued and served upon the concerned heirs and legal representatives of the deceased Mohanlal Goenka by order of this Hon'ble Court. Probate application discloses the names and address of the natural heirs of the deceased. Such particulars of the natural heirs have been mentioned in paragraph 4 of the probate petition. The probate petition stood amended vide order dated 26th February, 2016, passed by the Hon'ble Justice Sudip Ahluwalia in G.A. 364 of 2016. After the citations were served, one of the legal heirs, namely, Chandra Prakash Goenka, filed an affidavit. In pursuance of filing of the said affidavit the probate proceeding was treated as a contentious cause and the proceeding has been converted into a testamentary suit being T.S. No.22 of 2015.
(2.) In the affidavit filed by the said Chandra Prakash Goenka, it has been alleged that the Will is not a genuine Will of the deceased for the reason that the testator, on the day of execution of the alleged will, was approximately of 90 years of age; he was extremely old and in feeble state of mind and body; on the date of execution of the alleged Will the deceased, owing to his extreme old age, mental and physical weakness, was unable to understand the nature of the disposition contained in the Will; the feeble state of the testator is visible from the shaky signature on the Will; such debility, physical and mental, militates strongly against the voluntary character of the Will and raises an irresistible presumption of undue influence. All the legitimate heirs of the testator have been disinherited without any justifiable reason. As a result of which, the Will should be treated to be an unnatural Will; that the Will, if at all executed by the deceased, has been caused by fraud, coercion and undue influence.
(3.) Although, the said Chandra Prakash Goenka filed his affidavit but at no stage of hearing the caveator contested the matter. Even at the stage when issues were settled the defendant did not appear. Accordingly, in his absence, issues were framed by this Court. By an order dated 3rd August, 2017 this Court observed that despite order dated 7th December, 2016 whereby the defendant was allowed to disclose document, if any, no steps were taken, nor has any document been disclosed on behalf of the defendant. There was also a direction for framing of issues but no one appeared with suggested issues. After hearing the learned counsel for the plaintiff, following issues were settled :- 1. Is the suit maintainable in law? 2. Is the plaintiff entitled to probate of the last Will and Testament dated 29th January, 1999 allegedly executed by Mohanlal Goenka? 3. Whether the deceased had testamentary capacity at the time when the Will and Testament was executed on 29th January, 1999? 4. Whether the Will has been procured by the plaintiff by exercising undue influence over the testator as alleged by the defendant? 5. Whether the execution of the Will is shrouded by any suspicious circumstances or not? 6. To what reliefs is the plaintiff entitled to? The matter was directed to be listed on 23rd August, 2017 for witness action.;