Bombay High Court
Harjit Kaur Sahni vs Sardar Jagmohan Singh Anand And Ors And ... on 24 September, 2021
Author: G. S. Patel
Bench: G.S. Patel
2-IAL21706-2021-IN-CTS-22-2021-IN-TS-128-2013-IN-TP-1756-2012.DOC
Shephali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
INTERIM APPLICATION (L) NO. 21706 OF 2021
IN
CAVEAT NO. 22 OF 2021
IN
TESTAMENTARY SUIT NO. 128 OF 2013
IN
TESTAMENTARY PETITION NO. 1756 OF 2012
Sardar Kuldip Singh Anand ...Deceased
Harjit Kaur Sahni ...Applicant
In the matter between
Jagmohan Singh Anand ...Plaintiff
Versus
Bhupender Singh Anand ...Defendant
Ms Hubab Sayyed, with Nadeem Shama, i/b Thakordas &
Madgavkar, for the Applicant.
Mr Rahul Karnik, with Mr Singh & Avinash Joshi, i/b Rahul Karnik,
for the Plaintiff.
Mr Gauraj Shah, with Vini Joshi, i/b Chitnis Vaithy & Co., for
Defendants Nos. 1 & 2.
An Advocate, i/b Chitnis Vaithy & Co., for Defendant No.3
SHEPHALI
SANJAY CORAM: G.S. PATEL, J
MORMARE
Digitally signed by DATED: 24th September 2021
SHEPHALI SANJAY
MORMARE
Date: 2021.10.06
PC:-
17:03:30 +0530
Page 1 of 5
24th September 2021
2-IAL21706-2021-IN-CTS-22-2021-IN-TS-128-2013-IN-TP-1756-2012.DOC
1.I have what is arguably one of the most astonishing interim applications in a testamentary matter. This is filed by one Harjit Kaur Sahni, represented by Ms Sayyed.
2. Harijit Kaur Sahni is one of the daughters of the deceased Sardar Kuldip Singh Anand.
3. The matter was listed today for re-examination of the 2nd Defendant's first witness. I completed that, and was told that Harjit Kaur had filed this Interim Application. I took it up at once. No one objected.
4. Harjit Kaur seeks leave to enter a Caveat and an order condoning a delay of at least eight years in filing that Caveat. This is not a case where the Applicant was not served or was unaware of the proceedings. In fact, this application comes to be made after the Plaintiff has closed his case and his evidence. The 2nd Defendant's first witness has been cross-examined.
5. But that is not all. Harjit Kaur is herself an attesting witness to the Will. This is undisputed. She does not dispute that even now. She filed an Affidavit at page 16 of the Petition affirmed on 22nd October 2012 in her capacity as an attesting witness. But there is more. At pages 19 and 20 of the Petition is another Affidavit dated 22nd October 2012 by Harjit Kaur. In paragraph 1, she affirms that she knew about the Will in question. In paragraph 2, she gives a free and full consent for the probate without service of citation and Page 2 of 5 24th September 2021 2-IAL21706-2021-IN-CTS-22-2021-IN-TS-128-2013-IN-TP-1756-2012.DOC without justifying surety. She then specifically waives service of citation upon her and says she has no objection to the grant of probate.
6. But it does not end even at that. Harjit Kaur was a witness in the trial. She filed an Affidavit in lieu of examination-in-chief on 10th August 2015. This is not denied. Chapter and verse she reiterated her consent and that she was an attesting witness. Indeed she was cross-examined on this. That cross-examination was not before a Commissioner but was before Mr Justice KR Shriram on 23rd March 2017.
7. In her Affidavit in lieu of Examination-in-Chief, she specifically identified the signatures including her own on the Will in question and said that it should be taken in evidence and marked as an exhibit. She in terms identified the certified true copy of the Will lodged in our Registry referencing entry No. 656 of 2012 and said a photocopy of this was at serial No. 2 of the compilation of documents.
8. In her further examination-in-chief she confirmed that what she was shown was a certified copy of the deceased's Will and that she had signed it as an attesting witness. She identified the signatures of the Testator herself and the other attesting witness.
9. She was cross-examined by Defendants Nos. 1 and 2 and then by Defendant No. 3 separately. As many as 27 questions were put to her. Throughout, she maintained her case that the Will was genuine, Page 3 of 5 24th September 2021 2-IAL21706-2021-IN-CTS-22-2021-IN-TS-128-2013-IN-TP-1756-2012.DOC was drawn by the Testator and that she had signed it as an attesting witness in his presence. Indeed, in answer to question 10 she said that when the Will was prepared, all the children (i.e. including herself ) were present, but when it was signed (i.e. executed) at Kurla only two children were present apart from the deceased and the other attesting witness.
10. Obviously, therefore, she was present at both times, when the Will was prepared and also when the Will was signed, because she has never disputed that she was an attesting witness.
11. Notably, she said in answer to question 4 that she read the writing, i.e. the Will before she signed it.
12. Now in the present interim applications the allegation is that the Will is a forgery and is fabricated. The complaint is that Harjit Kaur was never served a citation and a copy of the Petition. But that is absurd. She had expressly waived service of the citation. She had done so not only in an ordinary writing but in an Affidavit affirmed before a Notary and included as part of the Petition. She had also filed an Affidavit with the Petition in her capacity as an attesting witness. She then gave evidence as an attesting witness. She was cross-examined on her Evidence Affidavit.
13. There is not the slightest possibility of Harjit Kaur saying that she had not seen the Will or was unaware of it or that what is annexed to the Petition is not the Will that she attested. Conceivably, the interim application exposes this Applicant to a very Page 4 of 5 24th September 2021 2-IAL21706-2021-IN-CTS-22-2021-IN-TS-128-2013-IN-TP-1756-2012.DOC serious charge of perjury and contempt of Court, and not once, but several times over. For it necessarily means that her Consent Affidavit filed with the Petition, her Affidavit as an attesting witness filed with the Petition, her Evidence Affidavit in lieu of examination- in-chief and the deposition before Mr Justice KR Shriram on Solemn Affirmation were all false to her knowledge. She would also have to face proceedings in contempt of court.
14. There is no question of entertaining such an interim application. It is a gross abuse of the process of the Court. The Applicant is only trying to take chances with this Court. I need not speculate as to the reasons.
15. The Interim Application by Harjit Kaur Sahni is dismissed.
16. For statistical purposes, the Interim Application is to be numbered finally.
17. All concerned will act on production of a digitally signed copy of this order.
(G. S. PATEL, J) Page 5 of 5 24th September 2021