Bombay High Court
Mahesh N.Bhatt vs Mark Uppaluri Through C.A. Shri ... on 8 January, 2019
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
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43-TS88.08
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 88 OF 2008
IN
TESTAMENTARY PETITION NO. 1078 OF 2007
Mahesh Nanabhai Bhatt ..... Plaintiff
VERSUS
Mark Uppaluri ..... Defendant
Mr.Nikhil Bafna for the Plaintiff.
Mr.Vijay Hiremath, a/w. Mr.Swaraj Jadhav for the Defendant.
CORAM : R.D. DHANUKA, J.
DATE : 8th JANUARY, 2019 P.C.
The plaintiff has relied upon six documents. The defendant has filed a statement of admission and denial of the documents proposed to be relied upon by the plaintiff. Out of six documents, the defendant has admitted only one document which is at serial no.1 of the compilation of the documents i.e. the death certificate of the deceased. The rest of the five documents are disputed.
2. A copy of the death certificate is accordingly marked as Ex.P-1.
3. Insofar as a copy of the Will of the deceased Mr.U.G.Krishnamurti is concerned, learned counsel for the plaintiff invited my attention to the deposition of Mr.David Solomon in his affidavit in lieu of examination in chief dated 5 th August,2016 and more particularly in paragraphs 17, 19, 20, 21 and 22 to prove the ::: Uploaded on - 15/01/2019 ::: Downloaded on - 15/01/2019 23:18:45 ::: kvm 2/4 43-TS88.08 existence of the Will of Mr.U.G.Krishnamurti. In view of the deposition in the aforesaid paragraphs, the Will dated 1st July, 2005 (431 of 2007) is marked as P-1 subject to the rights of the defendant to cross examine the witness.
4. Insofar as document at serial no.3 is concerned, the said witness Mr.David Solomon has deposed in paragraph 18 of the affidavit in lieu of examination in chief. In view of the deposition in paragraph 18 of the affidavit in lieu of examination in chief, document at serial no.3 is marked as Ex.P-2.
5. Insofar as document at serial no.4 is concerned, learned counsel appearing for the plaintiff placed reliance on the affidavit in lieu of examination in chief of Ms.Ellen J. Chrystal (PW-2) and more particularly paragraph (7). In view of the deposition of the witness PW-2, the document at serial no.4 is accordingly marked as Ex. PW-2-
1.
6. Insofar as document at serial no.5 is concerned, in view of the deposition of paragraph (7) of the affidavit in lieu of examination in chief of the same witness, the said document is marked as Ex.PW-2(2).
7. Insofar as document at serial no.6 is concerned, the said document is also marked as PW-2(3) in view of the deposition of the affidavit in lieu of examination dated 8th August,2016.
8. By consent of parties, an additional issue is framed which would ::: Uploaded on - 15/01/2019 ::: Downloaded on - 15/01/2019 23:18:45 ::: kvm 3/4 43-TS88.08 be numbered as issue no.1-A as under :-
"1-A. Whether this court has territorial jurisdiction to entertain, try and dispose of Testamentary Suit No.88 of 2008 ?"
9. Pursuant to the order dated 17th and 22nd November, 2017 passed by Shri S.C.Gupte, J. learned counsel appearing for the plaintiff states that all the three witnesses would be available for the purpose of cross examination through video conferencing permitted by this court by the said order. Statement is accepted. It is however made clear that the evidence of the attesting witness would be recorded first. Learned counsel for the defendant states that the cross examination of these witnesses would be completed within 2 to 3 weeks from the date of commencement of the cross examination of the first witness. Statement is accepted.
10. The parties are directed to proceed with the cross examination for the purpose of recording evidence of the three witnesses as directed aforesaid. The plaintiff is permitted to tender original affidavit of evidence before the learned Court Commissioner.
11. Learned counsel appearing for the parties have agreed to convey this order to the learned Court Commissioner appointed by this court by an order dated 17th and 22nd November, 2017 in advance including dates of recording the evidence of these three witnesses to enable him to remain present at the time of recording evidence.
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12. The learned Court Commissioner is requested to submit report on or before 30th April,2019.
13. Both the parties are directed to co-operate with each other and with the learned Court Commissioner in recording the evidence within the time prescribed.
14. In view of the fact that this court has permitted the recording of evidence of these three witnesses by video conferencing, the learned Prothnotary and Senior Master is directed to depute an officer of this court with the original documents which would be required to be confronted to the witnesses by the defendant's advocate.
15. The parties are directed to adjust the timing in such a way that the original documents are returned to the Office of the learned Prothonotary and Senior Master during the course of the day or atleast on the next day of the day of recording of the evidence.
17. The fees and expenses of the staff deputed by the learned Prothonotary and Senior Master for the purpose of carrying the court records shall be exclusively borne by the plaintiff.
[R.D. DHANUKA, J.] ::: Uploaded on - 15/01/2019 ::: Downloaded on - 15/01/2019 23:18:45 :::