Bombay High Court
S.P.Palan vs Bharat Purshottam Pala on 25 February, 2019
Author: R.D. Dhanuka
Bench: R.D. Dhanuka
Nalawade TS-47 of 1994.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO.47 OF 1994
IN
TESTAMENTARY PETITION NO. 119 OF 1992
S.P. Palan ...Plaintiff.
Vs.
Bharat Purshottam Palan and ors. ...Defendants.
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Mr. Suneel D. Mogre for the Plaintiff.
Mr. H.J.Thacker, Senior Counsel with Jeetendra Ranawat I/by
Sudhakar Lakhani for the Defendant.
CORAM : R.D. DHANUKA, J.
DATE : 25th February, 2019 PC :
Name- Bharat Purshottam Palan Age -66 years.
Occupation- Business Address- Viral Apartment, 112, Garodia Nagar, Ghatkopar (E), Mumbai-400077.
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Cross examination of the witness by Shri. Suneel Mogre, learned counsel appearing on behalf of the defendant. Witness is on Oath :-
Q.236 Whether on 29th December 1987 at 11.00 a.m., your father was taken to Dr. Rajendra Trivedi?
A. My sister had taken my father to Doctor Rajendra Trivedi on the date of his demise. The said Doctor was however not available.
(The witness is shown certified copy of the affidavit dated 30.7.1989 filed by the mother of the witness in Chamber Summons NO.624 of 1989 in Suit No.707 of 1989 filed in this Court.) Q.237) Will it be correct to say that this affidavit filed by the mother does not mention that your father was taken to the Dr. Rajendra Trivedi but he was not available?
A.- It is correct that it is not mentioned in the said affidavit that
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when my father was taken to the Doctor at 11.00 a.m. on 29.12. 1987 and the said Doctor was not available. The fact remains that the said Doctor was not available. Q 238 Would you agree that statement made by your mother in the said affidavit is correct?
A. I can't say that affidavit made by my mother discloses truth. Q-239 Can you tell when Dr. B.C. Lohana expired?
A. Sometime in the year 2015.
(Witness is shown death certificate of Dr. B.C.Lohana.) Q-240 It is correct that Dr. B.C.Lohana expired on 23.10.2013.
Mr. Mogre, learned counsel for the plaintiff tenders death certificate dated 31.3.2012 of Dr. B.C. Lohana. Dearth Certificate is taken on record and marked Exhibit-P-2. Q-241 Will it be correct to say that your allegation that Dr. B.C.Lohana had examined the deceased is not mentioned by you in any of the affidavit filed by you?
A. It must not have been mentioned in any of the affidavit filed
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by me.
(Witness is shown examination-in-chief Paragraph 12 of Page 7 dated 9.12.2004) Q-242 Can you tell as to when Dr. B.C.Lohana had measured the blood pressure of your father?
A. It was at about 11.15 a.m. on 29.12.1987. Q-243 Can you assign any reason as to why you did not mention anything about the examination of your father by Dr. B.C.Lonana on 29.12.1987 at about 11.15 a.m. in the affidavit in support of the caveat dated 31.8.1994? A. I can't assign any reason because my affidavit in support of the caveat application was prepared by my mother. Q-244) In your affidavit in support of the caveat dated 31.8.1994 you have mentioned that you have read the affidavit filed by your mother dated 31.8.1994 ? Whether this statement in your affidavit is correct?
A. Yes.
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Q-245 When affidavit of your mother dated 31.8.1994 was
read by you, did you notice that there was no reference of Dr. Lohana in the said affidavit filed by your mother? A. I do not recollect. I did not notice any such reference in the affidavit filed by my mother.
(Witness is shown cross examination of the plaintiff by the defendant's counsel i.e. answer to Question No.241) Q-246 Will it be correct to say that till 22.1.2014 you did not refer the certificate issued by Dr. B.C.Lohana dated 29.12.1987? A. It is correct. There was no such reference in the affidavit filed by my mother.
Q-247 I put it to you that you introduced the Certificate of Dr.Lohana only in the cross examination of the plaintiff on 22.1.2014 since the said Doctor expired on 23.10.2013?
A. It is not correct. Q-248 Is it correct to say that the said Doctor Certificate of Dr.
Lohana dated 29.12.1987 including prescription was not
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referred by you even in Suit No.707 of 1988 between the same parties?
A. It is correct . I have not referred to any such certificate in my pleadings in the said Suit No.707 of 1988.
Q-249 When did you read the Petition No.119 of 1991 for the first time?
A. I can't recollect. I have seen the same but I don't think that I may have read the same.
(Witness is shown Petition No.119/1991.Witness is also shown certified copy of the registered will annexed to the petition which is at page 5 of the petition.) Q-250 Will it be correct to say that registration number mentioned on Page Nos. 5 and 11 of the document are correct? A. It is not in dispute that Will shown to me is registered.
(Witness is shown document marked at Exhibit D-49 collectively produced by the defendant.) Q-251 Have you filed any appeal against the order passed by the registering authority for not issuing the certified copy of the
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Will?
A. I have not filed any appeal against the order passed by the
registering authority stating that certified copy of the Will could not be issued.
(Witness is shown Page 2 of Exh.30 dated 24.9.2014.) Q-252 After you were issued certified copy of the Address Book from the office of the Sub-registrar of Assurances (Exh.D-50), did you make any enquiry whether Will was posted on 26.4.1993 as mentioned therein? A. No. I did not make any such enquiry with the registration office.
Q-253 It is correct to say that said Exh.30 was given by you to the Handwriting expert for his opinion in respect of Col. No.2 of the said document?
A. Yes. Q.254 Whether you made any efforts to ascertain the
correctness of your father's signature in Col.4 of Exh.30?
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A. I did not make any efforts to ascertain the correctness
of my father's signature in Col. 4 of Exh. 30. I cannot assign any specific reason as to why I did not refer the signature of my father in Col. NO.4 to the Handwriting expert for his opinion.
Witness volunteers : I was only interested in Col. No.2 of the said Will and not Col. No. 4. From this document it is proved beyond doubt that my brother (plaintiff) had gone to the office of the Registrar when the said entry came to be made. The name and address of my brother in Col. No.2 are correct.) Q-255 According to you whether the signature of your father in Col.
No.4 of the Will is important or not for you? A. I have already answered that I was only interested in Col. No.2 and not what was mentioned in Col. No.4.
Q-256 Is it your case that because the plaintiff along with your father visited the Sub register's office, Will is invalid? A. It is not my case that because the plaintiff went with my father to Sub registrar's office, the Will is not valid.
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Q-257 After obtaining certified copy of Exh.30 did you make any
enquiry with the Office of Sub-Registrar as to whether your father had visited the Sub Registrar's office on 29.12.1987 or not?
A. I did not make any such efforts to make any such enquiry in the Sub-Registrar Office. I am not suggesting that Sub Registrar office has issued the certified copy of a bogus Will. Q-258 Are you willing to send the signature in Col. No.4 of Exh. 30 to the same handwriting expert who has been examined as witness by you?
A. I can's say. Q-259 According to you why the registered Will of your father is bogus? A. I have disputed the Will on the ground that there was no reason
for my father to change his earlier Will prepared in 1982. My father was happy with all the grand children and also because all of us were living with him. The plaintiff after getting married left my father 's house.
(Witness is shown the original Will dated 29.12.1987 Page Nos. 6 & 7.)
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Q-260 Whether the signatures appearing on these pages of the Will of
your father are correct or not?
A. They look similar.
Q-261 It is correct to say that your father used to sign all the documents
in Gujrati?
A. Yes.
Q-262. Whether do you recollect whether any public notice was issued by your deceased father informing the members of the public about his alleged severance of relations with the plaintiff?
A. I can't recollect. I am not aware whether my deceased father had issued any such notice informing the members of public about the alleged severance of relations with the plaintiff. Cross examination of the witness is concluded. No re-examination by Mr. Thacker, learned Senior counsel for the defendant.
Witness is discharged.
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Mr. Thacker, learned Senior counsel for the defendant at this stage seeks liberty to send two more documents which are not exhibited but on record of this proceeding to the same handwriting expert whom the defendant wants those documents to be examined. Permission is granted. Mr. Mogre, learned counsel for the plaintiff has no objection if those documents are referred to the same Handwriting expert. Statement is accepted. The said Handwriting expert is permitted to take inspection and photographs of the said documents in presence of both the parties and in the chamber of the Prothonotary and Senior Master of this Court. The fees and the expenses of the handwriting expert if any shall be borne by the defendant exclusively. The defendant shall issue 48 hours notice to the plaintiff's Advocate.
Mr. Thacker, learned Senior counsel for the defendant on instructions states that the affidavit in lieu of examination in chief of two more witnesses will be served upon the learned Advocate for the plaintiff within two weeks from today. If the defendant proposes to examine any other witness in addition to two more witnesses, the affidavit in lieu of examination in chief of such witness will be filed within three weeks from today and a copy of the
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said affidavit will be served on the plaintiff's Advocate simultaneously.
Statement is accepted.
( R.D. DHANUKA, J.)
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