Arif S Doctor, J.

[1] The present Testamentary Suit has been filed for Letters of Administration alongwith a copy of the Will of one Pishorilal Sethi alias Pishorilal Baxi Sreechand Sethi ('the deceased'). The deceased passed away on 16th February 2009 leaving behind a writing dated 27th November 2003 ('the said Will') which the Plaintiff is propounding as being the last Will and Testament of the deceased. It is based on this Will that the Plaintiff has sought Letters of Administration.

[2] The Plaintiff is the wife of the deceased who had initially filed Testamentary Petition No.1360 of 2016 ("the said Testamentary Petition") for the grant of Letters of Administration in respect of the said Will. The Plaintiff and the deceased had five sons. The Defendants are four sons of the deceased all of whom who have filed caveats opposing the grant of Letters of Administration to the Plaintiff. The grant of Letters of Administration based on the said Will is essentially opposed on the following grounds viz., (a) that the Defendants did not believe that the signature appearing on the said Will was the genuine signature of the deceased, (b) that the Plaintiff was acting at the behest of another son of the deceased, namely, Arun Sethi, (c) that the said Will was not a natural Will as the deceased would not disinherit the Defendants from any legacy and (d) that the deceased would not have bequeathed his entire estate to the Plaintiff. These are broadly identical grounds of the challenge taken in all the caveats filed.

[3] Based on the case pleaded in the caveats, Testamentary Petition was converted to Testamentary Suit No.11 of 2017, in which the following Issues were framed for determination:-

"1] Whether the plaintiff proves that the writing dated 27.11.2003 was duly and validly executed in and attested in accordance with law as the last Will and Testament of the deceased Pishorilal Sethi alias Pishorilal Baxi Sreechand Sethi?

2] Whether the defendant proves that the alleged Will is fabricated?

3] Whether the defendants prove that signature on the document purported to be will dated 27.11.2003 is not that of Late Shri Pishorilal Sethi?

4] What order?"

The Parties in support of their rival cases, led the following evidence, viz.

Plaintiffs Evidence:

i. Evidence of the Plaintiff.

ii. Evidence of one Rajeev Trivedi under Rule 384 of the Bombay High Court (Original Side) Rules, 1980.

iii. Evidence of Dr. Pankaj Kantilal Shah.

Defendants Evidence:

i. Evidence of Defendant No.1.

ii. Evidence of Defendant No.2.

The Defendants, however, after completion of the evidence did not appear when the matter was taken up for final hearing. No arguments were therefore for advanced on behalf of the Defendants at the final hearing.

[4] Mr. Gehani, Learned Counsel appearing on behalf of the Plaintiff made the following submissions and dealt with the Issues framed as follows.

[5] Insofar as the first issue was concerned, Mr. Gehani invited my attention to the Affidavit of Evidence of the Plaintiff. He pointed out therefrom that the Plaintiff had in detail deposed to the making of the said Will. Learned Counsel fairly pointed out that though the Plaintiff had filed a detailed Affidavit of Evidence, the cross examination of the Plaintiff remained incomplete on account of the Plaintiffs advanced age and indifferent health. Learned Counsel submitted that the Plaintiff had thus been relieved from cross-examination by an order dated 03rd September 2018.

[6] Mr. Gehani then submitted that the said Will had been attested by two witnesses, namely one Mr. Mustaquim Rahamtulla Usmani (M. A. Usmani) and one Mr. Rajendra Upadhyay. He submitted that since both the attesting witnesses were untraceable, the Plaintiff had filed the Affidavit of Evidence in lieu of Examination in Chief under Rule 384 of the Bombay High Court (Original Side) Rules, 1980 of one Mr. Rajeev Trivedi, who was present at the time of execution of the said Will. Learned Counsel invited my attention to the Affidavit of Evidence of Mr. Rajeev Trivedi and pointed out therefore that he had specifically deposed as follows:-

"2. That on the 27th November, 2003 I was present together with one (1) Shri Mustaquim Rahamtulla Usmani (M. A. Usmani) and (2) Shri Rajendra Upadhyay at the office of Shri Pishorilal Sethi having address at Sonika Apartment, Ground Floor, 9 th Road Extension, Juhu, Mumbai - 400 049, and I did then and there see the said deceased set and subscribe his name at the foot of the testamentary paper in English language and character, which is referred to in the Petition herein and marked Exhibit "B", and declare and publish the same as his last Will and Testament. A copy of the said testamentary paper described as Will is also filed at Annexure No.'39' of the list of documents filed separately and is dated 27 th November, 2003. I am informed that the said Will has also been separately kept in the office of the Prothonotary and Senior Master, OOCJ, High Court. I say that on looking at the copy of the said Will, I can recognize and identify the signature of Shri Pishorilal Sethi.

3. That thereupon, the said Shri Mustaquim Rahamtulla Usmani (M. A. Usmani) and one Shri Rajendra Ubadhyay did at the request of the said deceased and in his presence and in the presence of each other all being present at the same time set and subscribe their respective names, addresses and signatures at foot of the said testamentary paper as witnesses thereto."

Learned Counsel then invited my attention to the cross-examination of Mr. Rajeev Trivedi and pointed out that the evidence led by Mr. Rajeev Trivedi proving due execution of the Will remained entirely unassailed. In support of his contention, he invited my attention to the following questions put to Mr. Rajeev Trivedi in cross-examination:-

"Q. 21 Have you interacted with Arun Sethi in any manner whatsoever in connection with these proceedings?

Ans. After the 13 day ceremonies, after demise of deceased, Mr. Arun Sethi called me to his office and informed me that his mother told him that the deceased had made a Will but the Will was not traceable. I used to go and visit the deceased at his office. When he used to enquire about the real estate market and we used to discuss about the same. At that point in time, I informed Arun Sethi that the deceased had in fact executed a Will in my presence and that he should properly search for the same in the house. I also informed him that the deceased had informed me that he had informed his wife about the fact that he had executed a Will before he died. After almost 2 / 2.5 years after the death, Mr. Arun Sethi informed me that he had found the Will. He showed me the original Will for 5 minutes at his residence in the presence of his mother and I confirmed that this was the same Will which was executed in my presence. After a few days, Mr. Arun Sethi inquired how I knew about the Will. This was also in the presence of his mother at their residence which I attended because they called me. At that time (at the residence), I told them that I was present when the Will was executed and I informed them what transpired at that time. I told Mr. Arun Sethi that the deceased had called me the night prior and requested me to remain present at his office the next morning at 10 a.m. for some work. I reached 10 minutes late. At that time I found two other persons already present with the deceased. I knew one of them viz. Usmani (pet name). He was an estate broker. The other gentleman whom I saw for the first time was introduced to me by the deceased as his friend Mr. Rajendra Upadyaya. I have not met him thereafter. At that point in time the deceased took out his Will and asked me whether I would sign as a witness. He informed me that I would have to accompany him to Bandra for registration. I politely declined because I had other professional commitments which were already fixed at 12'o Clock. After the deceased read the Will, he signed it in my presence. Usmani then signed the Will as a witness. Thereafter Rajendra Upadayay signed it as a witness. There were to corrections on the first page which were made on the Will after it was executed in my presence. These corrections were also countersigned by the deceased. The deceased also wrote the date on the last page in his own handwriting.

Because I am experienced in property business, I informed Mr. Arun Sethi that he should go to court and obtain a probate of the Will.

Q. 47 So therefore, is it your testimony that you saw the deceased affix his signature on any document, for the first time on 27 th November 2003?

Ans. Yes.

Q. 49 Did you see Shri Mustaquim Rahamtulla Usmani (Usmani) affix his signature on any document at any time prior to 27 th November 2003?

Ans. Yes.

Q. 56 Prior to this occasion in or about April 2016, did you see the Original Will?

Ans. Yes, I had seen it on the date when it was executed i.e. on 27 th November 2003.

Q. 60 Can you tell us whether the deceased affixed his signatures on the last page (page No.5) of the Will prior to or after the signatures of the attesting witnesses?

Ans. The deceased first made the corrections on page No.1 of the Will and affixed his signature against such corrections and also at the bottom of the page. He then signed at the bottom of page Nos.2, 3, 4 and thereafter he affixed two signatures on page No.5. Thereafter, the two attesting witnesses signed the Will."

From the above, Learned Counsel submitted that it was beyond the pale of doubt that execution of the said Will had been duly proved by Mr. Rajeev Trivedi.

[7] Learned Counsel then invited my attention to the medical certificate issued to the deceased by Dr. Pankaj Kantilal Shah which reads as under: -

"MEDICAL CERTIFICATE

I have examined this 25 th day of November 2003 the Testator abovenamed and found him to be in good health and sound disposing mind and to have fully understood the contents of the within will.

Sd/-Shah PK

Rubber Stamp".

Learned Counsel invited my attention to the Affidavit of Evidence of Dr. Pankaj Kantilal Shah and pointed out therefrom that the same set out plainly and clearly that the deceased was in sound and disposing state of mind at the time of execution of the said Will. He submitted that Dr. Pankaj Kantilal Shah had deposed to the fact that the deceased had specifically visited the clinic of Dr. Shah since the deceased was making his last Will and Testament. He, therefore, submitted that it was established conclusively by the evidence on record that (a) that the said Will had been duly and validly executed by the deceased and (b) that the deceased was in sound and disposing state of mind at the time of execution of the Will. He thus submitted that the requirement of Section 63 of the Indian Succession Act, 1925 had duly been complied with.

[8] Learned Counsel then submitted that the Defendants had in their respective Caveats had not raised any legally tenable grounds to either dispute or dispel due execution of the said Will or oppose the grant of Letters of Administration based thereon. He pointed out that reasons to dispute the said Will and oppose the grant of Letters of Administration to the Plaintiff were really based on conjecture and surmise and nothing else. Learned Counsel submitted that the deceased had in his lifetime, provided for his sons, including the Defendants and had, therefore, by his last Will and Testament bequeathed everything to his wife, the Plaintiff. He therefore submitted that the Will was not unnatural in any respect. He submitted that the Defendants had suppressed this fact from this Court. He submitted that the fact that the deceased had provided for the Defendants in his life time was clear from the answers given by Defendant No.1 in his cross-examination, viz. :-

"Q 23 Can you name to the best of your memory, the names of the buildings your father had constructed and the area in which these buildings are located ?

Ans. Sethi Sadan in Goregaon; Plot No.209 in Goregaon; Plot No.53 in Goregaon; Plot No.208 in Goregaon; Plot No.260 in Goregaon; Plot No.28 in Goregaon; I do not remember the exact plot numbers, however he had constructed a few buildings in Sher-e-Punjab Society at Andheri (East); a couple of buildings in Malad and Kandivali (W) and few buildings in Juhu. This is what I remember presently."

From the above, Mr. Gehani pointed out that the contention of the Defendants that the said Will was an unnatural Will, or that the deceased had not provided for the Defendants was entirely incorrect and devoid of any merit or substance.

[9] Mr. Gehani then submitted that though the Defendants had loosely contended that the signature appearing on the said Will did not appear to be of their father, (the deceased), not even an attempt was made by the Defendants to substantiate and/or prove the same. No evidence whatsoever was led in support of this contention. He submitted that the Defendants had not even attempted to furnish any report of a handwriting expert nor produced any signatures of the deceased on the basis of which they would contend that the signature appearing on the said Will was forged. He therefore submitted that it was clear that the Defendants themselves were conscious of the fact that there was no merit in the contentions raised by them in respect of the signature not being that of the deceased.

[10] Mr. Gehani then submitted that another factor based on which this Court could draw a presumption of due execution of the said Will was the fact that the same was registered. In support of his contention that a registered Will brings with it the presumption of due execution, he placed reliance upon a judgment of the Hon'ble Supreme Court in the case of Rabindra Nath Mukherjee and ors. v/s. Panchanan Banerjee (Dead) by L.Rs. and ors., 1995 AIR(SC) 1684 In which the Hon'ble Supreme Court was pleased to hold as follows:- "6. Insofar as the third circumstance is concerned, we may first observe that witnesses in such documents verify whether the same had been executed voluntarily by the concerned person knowing its contents. In case where a will is registered and the Sub-registrar certifies that the same had been read over to the executor who, on doing so, admitted the contents, the fact that the witnesses to the document are interested lose significance. The documents at hand were registered and it is on record that the Sub-registrar had explained the contents to the old lady. So, we do not find the third circumstance as suspicious on the facts of the present case."

Placing reliance upon the above judgement, Mr. Gehani submitted that this fact alone was enough to establish conclusively that the deceased had understood and accepted the contents of the said Will and there were no suspicious circumstances involved in the execution thereof.

[11] Mr. Gehani, then placed reliance upon a judgment of the Hon'ble Supreme Court in the case of H. Venkatchala Iyengar v/s. B. N. Thimmajamma and ors., 1959 AIR(SC) 443 and submitted that a Will is required to be proved by satisfactory evidence that (i) the Will was signed by the testator; (ii) the testator at the time was in a sound and disposing state of mind; (iii) the testator understood the nature and effect of the dispositions; and (iv) the testator had put his signature on the document of his own free will. Learned Counsel submitted that in the present case all four requirements, as laid down by the Hon'ble Supreme Court in the case of H. Venkatachala Iyengar (supra) have been met and that therefore the Plaintiff was entitled to the grant of Letters of Administration based upon the said Will.

[12] I have heard learned Counsel appearing on behalf of the Plaintiff, gone through the Caveats and the Affidavit in support thereof as also the respective evidence led in the matter and find as follows, viz.

12.1 At the very outset, I must note that the Defendants though served have chosen not to appear and advance any arguments at the final hearing of the present Suit. The primary ground of challenge raised by the Defendants is that the signature as appearing on the said Will does not appear to be that of the deceased. Issue No. 2 and 3 were thus framed as follows, viz.

"2. Whether the defendant proves that the alleged Will is fabricated?

3. Whether the defendants prove that signature on the document purported to be will dated 27.11.2003 is not that of Late Shri Pishorilal Sethi?"

The Defendants have admittedly not led any evidence in support of either of the above two issues. Not even an attempt has been made to demonstrate what the alleged fabrication in the said Will is or on what basis the Defendants have stated that the signature appearing on the said Will was not that of the deceased. I find that not even an attempt has been made by the Defendants to disprove the signature of the deceased as appearing on the said Will as also to disprove due execution of the said Will. A careful consideration of the evidence of the Defendant does not even remotely substantiate either of these grounds. Thus, I have no hesitation in holding that the defendants have failed to discharge the burden of proving both Issue No. 2 and Issue No. 3. Issue Nos.2 and 3 are therefore answered in the negative.

12.2 Now coming to the main Issue, i.e., Issue No.1 namely,

1. Whether the plaintiff proves that the writing dated 27.11.2003 was duly and validly executed in and attested in accordance with law as the last Will and Testament of the deceased Pishorilal Sethi alias Pishorilal Baxi Sreechand Sethi?

While the Plaintiff has in her Affidavit of Evidence set out the reasons and circumstances in which the deceased executed the said Will, I cannot ignore the fact that it is well settled that a Will propounded by a person who receives a substantial benefit thereunder, would itself be treated as a suspicious circumstance. Therefore, for the moment I shall ignore evidence of the Plaintiff and consider the other evidence on record by which the Will is sought to be proved, viz. that of Mr. Rajeev Trivedi. A careful consideration of the evidence of Mr. Rajeev Trivedi also clearly establishes due execution of the said Will. The questions put to Mr. Rajeev Trivedi in cross-examination, do not in any manner, shake or discredit the evidence given by him on the question of due execution of the said Will. On the contrary, the answers in cross-examination unequivocally bear out the due execution of the Will of the deceased. I find that no real attempt has been made by the Defendants to displace the factum of due execution of the Will. Even a careful reading of the affidavit in support of the Caveat clearly pleads a case that really proceeds more on conjecture and surmise than on any substantial basis.

12.3 Additionally, the evidence of Dr. Pankaj Kantilal Shah, not only bears out that the deceased was in sound and disposing mind, but also that he had visited Dr. Shah with the intention of ensuring that the said Will was valid in all respects. There is no cross-examination whatsoever which discredits the testimony of Dr. Shah. Hence the fact that the deceased was in sound disposing mind is beyond the pale of doubt and has been established unequivocally.

12.4 Another factor which lends credence to the presumption of due execution and validity of the said Will is the fact that the same has been duly registered soon after the date of its execution. In the facts of the present case, I have no reason for not accepting the contention that proposition laid down by the Hon'ble Supreme Court in the case of Rabindra Nath Mukherjee and ors. would squarely apply to the facts of the present case. No case whatsoever was put forth by the defendants for me to take any contrary view.

[13] Thus, given the totality of the facts and evidence in the present case, I have no hesitation answering Issue No. 1 in the affirmative. Issue No. 2 and 3 having already been answered in the negative, I pass the following order,viz.

i. Testamentary Suit No.11 of 2017 is therefore decreed.

ii. The office to grant Letters of Administration to the Plaintiff expeditiously as per Rules.

[14] Testamentary Suit No.11 of 2017 is accordingly disposed of