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.It is not true to suggest that the 1/5th share allotted to my father in a partition with his sons that in his life time he bequeathed his share by executing a Will in favour of his four sons. I know one B.Ramdev, who was the manager of our family. It is true that B.Ramdev used to manage the accounts of the joint family such as collection of rents and other income of the joint family. I know one Dr.Damodar Menon, who treated my father. B.Ramdev is no more and might have died 4 or 5 years ago or more or less, but I do not know the exact date and year of his death. The witness were shown signatures on the Will Deed dated 7.1.1987 executed by Vallabhdas Bhagwan Das Shah were not identified by the witness. It is not true to suggest that the Will shown to me is the Will executed by my father and purposely I have denied. I do not know the signatures of the witnesses, i.e., Dr.Damodar Menon and B.Ramdev on the Will Deed as witnesses. I know the initial signature of my father. The initials of late Wallabhdas V.Shah was put to witness to identify, the witness denied the signature, as that of her father. (reproduced verbatim ) Thus, for the first time, the plaintiff had an opportunity to see a Will allegedly executed by her father only during her cross-examination. She had denied the execution of any Will by her father and also the signatures shown to her on the said Will dated 07.01.1987 by saying that they are not the signatures of her father. She had also stated that she does not know the signatures of Damodar Menon who had treated her father and that of B.Ramdev, who had worked as a Manager under Vallabhdas B.Shahs family. Even on the day the Will was confronted to PW1, the same was not filed into Court either with a memo or with a petition to receive documents and no request was made to the trial Court to mark the Will for identification (and subject to proof) as the Will was confronted to PW1 and the same was denied by her. In this context, the learned Senior Counsel for the plaintiff/respondent had contended that as the alleged Will was not filed into Court on the date it was confronted to PW1, there is no clarity or certainty that what was confronted to her during her cross-examination is the very same exhibit B1 Will that was subsequently filed into Court. There was no cross examination of PW1 on the other aspects of the Will. It is not even suggested to her that exhibit B1 Will is the last testament of Vallabhdas B.Shah, her father, and that he had executed the said Will in a sound and disposing state of mind and with free will and volition. Thus, the Will was filed into court during the examination-in-chief of DW1, the 1st defendant, i.e., on 07.10.2002 and was exhibited as exhibit B1. Further, no reasons are forthcoming for filing the original Will into Court belatedly in the year 2002. This Will was admittedly not produced before any public authority at any time prior to the suit. Even DW1 in his examination-in-chief did not state that Vallabhdas B.Shah had executed exhibit B1 Will in a sound and disposing state of mind. He had only stated that Vallabhdas B.Shah during his life time had executed Will dated 07.01.1987 in the presence of witnesses mentioned therein, i.e., Dr. N.D.Menon and B.Ramdev and that he had bequeathed the properties that had fallen to his exclusive share in the partition suit in O.S.No.7 of 1963 in favour of his four sons, i.e., defendants to 4 herein and that under the said will, he (DW1) was the executor and that after the death of Vallabhdas B.Shah, he had disbursed the amounts mentioned in the Will and that the plaintiff is aware of the execution of the Will and that the Will was acted upon as the plaintiff had accepted the jewellery during the life time of her mother and the cash given as per the Will as part of the amount bequeathed by her father. Vallabhdas B.Shah was unwell for quite some time before his death is borne out by the evidence on record. DW1 I his cross examination had admitted that the right side of his fathers body was paralysed and that he used to help him in wearing clothes, giving meals and medicines and also in other domestic needs and that some times, his sister (the plaintiff) also used to serve small needs of the father and that in the beginning of the paralysis attack, Vallabhdas B.Shah was in the bed for a week and that thereafter, he (DW1) used to help him in walking and that after physiotherapy, Vallabhdas B.Shah had started walking by himself after three months. In the light of the ill-health that was admittedly suffered by Vallabhdas B.Shah, DW1 ought to have stated in his evidence that his father Vallabhdas had executed exhibit B1 Will in a sound and disposing state of mind. But, he did not do so. When it was suggested to him that as on the date of execution of the Will exhibit B1, his father was attacked with paralysis stroke and that he was unable to read and write, he had denied the said suggestion. He had denied the further suggestion that they had prepared exhibit B1 and that is the reason why the same was not registered. He had also denied the suggestion that the Will Deed is created and brought up for the purpose of avoiding the share of the plaintiff and that the signatures of the Will Deed do not belong to the father. DW3 is the third defendant. He had also referred to exhibit B1 Will dated 07.01.1987 in his filed affidavit filed in lieu of examination-in-chief and had stated that Vallabhdas B.Shah had executed the said Will and had appointed the 1st defendant herein as the executor and that under the said Will, Vallabhdas B.Shah had bequeathed his 1/5th share in favour of his sons and grandchildren and that the said Will is the last testament of Vallabhdas B.Shah. He also did not state that Vallabhdas B.Shah was in a sound and disposing state of mind and that he had executed the Will with free will and on his own volition. In his cross-examination also, he had admitted that his father was attacked with paralysis somewhere in the year 1981 and that he does not remember as to which part of his fathers body was effected with paralysis; but, he had denied the suggestion that his father was unable to see properly, sign and hear and attend to routine works in the year 1981. Thus, the evidence of DWs 1 and 3 does not inspire confidence prima facie about the genuineness of the Will and the sound and disposing state of mind of the testator.
Late Raja Vallabhdas was my patient, as such he known to me. On 7-1-1987, Raja Vallabhdas called me at his residence and he executed a Will and signed it in my presence. I am also one of the attesting witnesses of the said Will executed by Raja Vallabhdas. The other attesting witness was Mr.B.Ram Dev. (reproduced verbatim) Therefore, he did not state about the sound and disposing state of mind of the executant of the Will Vallabhdas B.Shah and his said cryptic deposition on a plain reading would show that he was not shown exhibit B1 Will during his examination-in-chief and he had not identified either his signature as attestor or the signatures of Vallabhdas B.Shah on exhibit B1-Will. In his cross- examination, he had admitted that late Vallabhdas B.Shah was affected with paralysis, but he does not remember which portion of the body was affected with paralysis, but it was chest and half of the body and that he does not remember how much time he was under paralysis, but it is only a matter of months. On the aspect of execution of the Will deed, his cross-examination, which is important, reads as under: