Bombay High Court
Jane Elizabeth Cox C A Of Arun ... vs Rama Badri-Narayan Sharma on 9 August, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
18-tp-1587-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY PETITION NO.1587 OF 2024
Jane Elizabeth Cox (Constituted Attorney of
VISHAL Arun Badrinarayan Sharma) ...Petitioner
SUBHASH
PAREKAR vs.
Rama Badri-Narayan Sharma
Digitally signed
by VISHAL
SUBHASH
@ Rama Sharma ...Deceased
PAREKAR
Date: 2024.08.14
17:50:16 +0530
Mr. Aditya Mehta a/w. Mrs. Chhaya Parab, Ms. Meghna Mehta i/b.
M/s. Shah & Sanghavi, for the Petitioner.
CORAM : N. J. JAMADAR, J.
DATE : AUGUST 9, 2024
P.C.:
1. Heard the learned counsel for the petitioner.
2. The petition is moved before the Court for direction to accept the affidavit of the person who claims to have witnessed the execution and attestation of the Will, under Rule 384 of the Bombay High Court (Original Side) Rules, 1980.
3. This petition is filed for grant of Letters of Administration of the last Will and Testament dated 20th May, 1993 of Rama Badri- Narayan Sharma @ Rama Sharma. The Will is purportedly attested by Jashwant C. Shah, the partner of M/s. Shah & Sanghavi, Advocates and Solicitors and Bharat P. Jogi who was then working as an Accountant with M/s. Shah & Sanghavi.
4. The petitioner asserts, Jashwant Shah passed away on 9 th Vishal Parekar ...1 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 17/08/2024 16:23:04 ::: 18-tp-1587-2024.doc May, 2008. The whereabouts of Bharat Jogi, who was working as an Accountant with M/s. Shah & Sanghavi till June, 1993, are not known. It is further asserted that Mr. Paresh Shah, an Advocate and Solicitor who had witnessed the execution and attestation of the Will has filed an affidavit in compliance with Rule 384 of the Bombay High Court (Original Side) Rules, 1980. Since it is not possible for the petitioner to file affidavit of the attesting witnesses as Jashwant Shah has passed away and whereabouts of Bharat Jogi are not known, the petitioner be permitted to file affidavit of Paresh Shah.
5. Mr. Aditya Mehta, the learned counsel for the petitioner, submitted that Paresh Sahh is the son of late Jashwant Shah. Mr. Paresh Shah had joined the firm M/s. Shah & Solicitors in the year 1975. Paresh J. Shah had the opportunity to witness the execution and attestation of the Will. The learned counsel for the petitioner further submitted that under section 69 of the Evidence Act, if no attesting witness can be found, it must be proved that attestation of one attesting witness at least is in his handwriting and that the signature and the person executing the document is in the handwriting of that person. Inviting attention of the Court to the provisions in Rule 384 of the Rules, the learned counsel for the petitioner submitted that, in the facts of the case at hand, the Vishal Parekar ...2 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 17/08/2024 16:23:04 ::: 18-tp-1587-2024.doc requirements of the said Rule have been, complied with.
6. Reliance was placed on an order passed by this Court in the case of Roda Billimoria Desai and Others 1 and a decision of the Supreme Court in the case of Moturu Nalini Kanth vs. Gainedi Kaliprasad2.
7. I have perused the averments in the petition, affidavit in support of the prayer for accepting the affidavit and affidavit of Paresh J. Shah. Mr. Paresh Shah affirms that he is a partner of M/s. Shah & Sanghavi, Advocates and Solicitors. He joined the said firm in 1975 as trainee with his father Jashwant C. Shah. He is familier with the working of the firm M/s. Shah & Sanghavi. The deceased was a family friend and client of late Jashwant C. Shah, his father. On 20th May, 1993 late Jashwant Shah had informed him that the deceased visit was for execution of the Will. The deceased was explained in detail the contents of the Will by Jashwant Chimanlal Shah. Thereafter, he saw the deceased set and subscribe her full signature on the left hand bottom of the page No. 1 of the testamentary paper in English language and character. Thereafter, he saw late Jashwant Chimanlal Shah and Bharat P. Jogi attest the Will in the presence of the deceased and in the presence of each other. Jashwant Chimanlal Shah and Bharat P. Jogi were both 1 2020 SCC OnLine Bom 10960.
2 2023 SCC OnLine SC 1488.
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present together. Bhrat Jogi was an Accountant working with M/s. Shah & Sanghavi till June, 1993 and at present his whereabouts are not known. Paresh J. Shah identified the signatures of the deceased, late Jashwant Chimanlal Shah and Bharat P. Jogi on the said testamentary writing.
8. Upon perusal of the affidavit of Mr. Paresh Shah, who is an advocate by profession, it appears that he had the opportunity to be present at the time and place where the testamentary writing was purportedly executed and also had opportunity to see the signatures of late Jashwant Shah and Bharat Jogi, in regular course.
9. In the case of Moturu Kanth (supra), the Supreme Court observed that for the purpose of section 69 of the Evidence Act it is not enough to merely examine a random witness who asserts that he saw the attesting witness affix his signature on the Will. The very purpose and objective of insisting upon examination of at least one attesting witness to the Will would be entirely lost if such requirement is whittled down to just having a stray witness depose that he saw the attesting witness sign the Will.
10. In the case at hand, Paresh J. Shah appears to be the person who had both the right and opportunity to be present at the time of execution and attestation of the Will. I am, therefore, satisfied that Vishal Parekar ...4 ::: Uploaded on - 14/08/2024 ::: Downloaded on - 17/08/2024 16:23:04 ::: 18-tp-1587-2024.doc the provisions of Rule 384 of the Bombay High Court (Original Side) Rules, 1980 are duly satisfied and complied with.
11. The Department is, thus, directed to accept the affidavit of Mr. Paresh Jashwant Shah under Rule 384 of the Bombay High Court (Original Side) Rules, 1980 and proceed further with the petition in accordance with law.
(N. J. JAMADAR, J.)
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