Bombay High Court
Veena Jaswant Shah vs Rajendra Vinayak Mehta on 11 February, 2021
Author: G.S. Patel
Bench: G.S. Patel
11-TS-225-2016.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO. 225 OF 2016
IN
TESTAMENTARY PETITION NO. 282 OF 2010
Veena Jaswant Shah ...Plaintif
Versus
Rajendra Vinayak Mehta ...Defendant
Mr BK Barve, with Laxmi Ingle and Janvi Barve, i/b BK Barve &
Co, for the Plaintiff
Ms Smita Patel, constituted attorney for the Defendantf
CORAM: G.S. PATEL, J
DATED: 11th February 2021
PC:-
1.The matter is for framing issues in the Testamentary Suit. A ARUN RAMCHANDRA SANKPAL very brief background will be necessary having regard to the Digitally signed by ARUN RAMCHANDRA trajectory of this and allied litigations, which have been pending in SANKPAL Date: 2021.02.12 11:00:38 +0530 this Court for over a decade.
2. The Petition is for Probate of a Will dated 14th May 1992 allegedly made by one Shrimati Vinayak Mehta. She died in Arizona, USA on 28th November 1995. The Probate Petitioner ("Veena") is Shrimati's sister's daughter. She claims to have been appointed as an Executor by and under Shrimati's Will of 14th May Page 1 of 7 11th February 2021 11-TS-225-2016.DOC 1992. The Petition itself cites Shrimat's two sons, Rajendra Vinayak Mehta ("Rajendra") and Deepak Vinayak Mehta ("Deepak"), both resident in the United States as her heirs and next-of-kin. Shrimati's husband, Vinayak, died on 6th March 1995 before Shrimati herself.
3. Upon citations being served, both Rajendra and Deepak entered Caveats and contested the Probate Petition. The Petition was thus renumbered as Testamentary Suit No. 225 of 2016.
4. The two sons' case has been prosecuted throughout by their constituted attorney Ms Smita Patel.
5. There was an earlier Testamentary Petition No. 237 of 2009 that Rajendra fled seeking Probate of a later Will that he claimed Shrimati had made. Rajendra's Probate Petition succeeded. Veena fled Miscellaneous Petition No. 54 of 2010 for revocation of the Probate that Rajendra had obtained.
6. Self-evidently, the Miscellaneous Petition had to proceed frst. The present Testamentary Suit No. 225 of 2016, which sought Probate of an earlier Will, had to await the outcome of Veena's own Revocation Petition. The reason is plain. If Veena's Revocation Petition failed, then the Probate granted to Rajendra, being in respect of a later Will, would prevail and the present Testamentary Suit fled by Veena would automatically fail and be dismissed. However, it was also clear that the converse was not true. This meant that if Veena's Revocation Petition succeeded, and the grant Page 2 of 7 11th February 2021 11-TS-225-2016.DOC to Rajendra was set aside, Rajendra and Deepak would nonetheless be entitled to contest Veena's Testamentary Suit for probate of Shrimati's earlier Will.
7. It is not necessary to go into very many details regarding the litigation history of Veena's Miscellaneous Petition. It is enough to note it was listed for framing issues, and these were in fact framed. A trial was ordered.
8. But then matters took another turn. Rajendra passed away on 27th September 2017. Earlier that year, while Rajendra was still alive, Deepak appeared in person before KR Shriram J on 24th February 2017, and made a statement that he was agreeable to the Revocation Petition being allowed and the Probate granted to Rajendra of the later Will being set aside. Rajendra himself was not present to make any statement. The matter was adjourned.
9. Then Rajendra Mehta died on 27th September 2017. On his passing, Ms Smita Patel's authority to represent him as a Constituted Attorney ended. Thus, one opponent to the Revocation Petition had told the Court he did not want to continue his contest, and the other had passed on. Since 2017, no one had attempted to bring Rajendra's heirs on record. This position remained without change for a full four years.
10. On 19th January 2021, I accordingly allowed the Revocation Petition. The Probate Rajendra had obtained was set aside.
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11. This meant that Veena now had to proceed with the present Testamentary Suit in quest of probate to Shrimati's earlier Will of 14th May 1992. It also meant that Deepak and the heirs of his deceased brother, the Caveator would be entitled to contest the present Testamentary Suit.
12. This, very briefy, is how the present Testamentary Suit comes to be listed for framing issues today.
13. A few administrative directions are now necessary. The cause title only shows the name of Rajendra Mehta. That is evidently incorrect. The Caveat was by both Rajendra and Deepak.
14. For completeness of record, Rajendra's heirs, viz., his widow, Anjani and their daughter, Tejal Mehta Seth will have to be joined as Defendants Nos. 1(a) and 1(b) to the Testamentary Suit. Deepak will have to be shown as the 2nd Defendant.
15. Ms Patel states that she has a Power of Attorney from Anjani and Tejal. This Power of Attorney is taken on record and will be placed with the papers in the present Suit.
16. Mr Barve will make the necessary amendments without need of reverifcation to the cause title of the Testamentary Suit.
17. I now take up the Suit itself for framing issues. Issues are framed and these are annexed to this order.
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18. The Evidence Afdavit of Dinesh Vishawanth Vyas, one of the attesting witness has already been fled.
19. List the matter for cross-examination of Dinesh Vyas on 17th March 2021 at 2.30 pm.
20. Having regard to the fact that Ms Patel appears as the constituted attorney, and having regard to the past history in the matter, I will take that evidence in Court itself rather than referring the parties to a Commissioner for recording evidence.
21. Ms Patel makes a submission that there are some records that are in the safe custody and safe keeping of the 10th Metropolitan Magistrate's Court, Andheri, Mumbai in Criminal Case No. 48/SS/ 2005 (Old Case No. 1644/2001) in the matter of Deepak Vinayak Mehta v Veena Jaswant Shah and others. She submits that she will need these documents to conduct her cross-examination of Dinesh Vyas. There can be no possible objection to this.
22. The Registry will immediately call for the entire original record from the Court of the 10th Metropolitan Magistrate's Court, Andheri, Mumbai in this case. The record will be retained in the safe custody of the Prothonotary and Senior Master of this Court until required at the trial. They are to be brought to Court on 17th March 2021.
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23. Ms Patel on behalf of newly added Defendants Nos. 1(a) and 1(b) and the newly renumbered 2nd Defendant, waives service of the amended Testamentary Petition/Testamentary Suit.
24. This order will be digitally signed by the Personal Assistant of this Court. All concerned will act on production of a digitally signed copy of this order.
(G. S. PATEL, J) Page 6 of 7 11th February 2021 11-TS-225-2016.DOC ISSUES FRAMED ON 11TH FEBRUARY 2021 TESTAMENTARY SUIT NO. 225 OF 2016 IN TESTAMENTARY PETITION NO. 282 OF 2010 Veena Jaswant Shah ...Plaintif Versus Rajendra Vinayak Mehta ...Defendant ISSUES
1. Does the Plaintif proves that the Will allegedly dated 14th May 1992 said to have been executed by the deceased, Shrimati Vinayak Mehta on 14th May 1992 was duly and validly executed and attested in accordance with law as the last Will and Testament of the deceased?
2. Whether the Defendants prove that the alleged Will is forged?
3. Whether the Defendants prove that the alleged Will is fabricated?
4. Whether the Defendants prove that the alleged Will is unnatural?
5. What relief and what orders?
(G. S. PATEL, J.) Page 7 of 7 11th February 2021