Mr. Mukesh Raishi Chheda vs Dhirajlal Raishi Chheda
2016 Latest Caselaw 5309 Bom

                                       2-TS107-15.DOC




     ATUL




                                                                                   
          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
            TESTAMENTARY AND INTESTATE JURISDICTION




                                                           
                   TESTAMENTARY SUIT NO. 107 OF 2015
                                            IN
              TESTAMENTARY PETITION NO. 1137 OF 2013




                                                          
     Mukesh Raishi Chheda                                                    ...Plaintiff
           Versus




                                            
     Dhirajlal Raishi Chheda                                              ...Defendant
                             
     Mr. Karl Tamboly, with Mr. Jatin Shety, for the Plaintiff.
     Mr. P.A. Sarvankar, with Mr. Dipen Furia, i/b M/s. Shah & Furia
                            
           Associates, for the Defendant.


                                   CORAM:      G.S. PATEL, J
      


                                   DATED:      16th September 2016
     PC:-
   



     1.

The cross-examination of the Plaintiff's second witness is

being taken in Court. He is said to be one of the two attesting witnesses to the Will propounded. The witness has made an earlier Affidavit dated 31st December 2014. This was not filed along with the Petition but at some point later. He has thereafter filed an

Affidavit of Evidence in compliance with Order 18 Rule 4 of the Code of Civil Procedure, 1908 ("CPC") on 26th February 2016.

2. I am not for the moment considering Mr. Sarvankar's submission that there is yet another Affidavit. He is yet to put that

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to the witness and I will not pre-empt his cross-examination. I am

making this order because there is clearly an inconsistency or at the very least an incongruity between the two Affidavits filed by this

witness in this matter. Again, undoubtedly, the Defendants will have the fullest latitude in cross-examining the witness on both these Affidavits and on the differences between them. I note only that

there are obvious differences.

3. It seems to me that the first Affidavit of 31st December 2014,

like many others in the testamentary department was filed in conformity with Form 102 under Rules 374 and 375 of the High

Court (OS) Rules. I have also found some cases where the department raises an objection if the Affidavit of an attesting

witness to be filed along with the Petition under those Rules does not conform exactly to this Form. This is wholly incorrect. I have previously noted that this Form is inaccurate in many ways. For

example, Clause (3) speaks of both witnesses needing to be present

at the same time in presence of the deceased Testator. This is not a requirement of law under Section 63 (c) of the Indian Succession Act, the substantive law. A Form in the High Court Rules cannot

possibly impose a restriction not to be found in the statute. The form is at best a guideline for the minimum that needs to be stated. It must admit of such variations as are necessary or proper. In a given case where the witnesses were not both present at the same

time, it should be permissible for them to file Affidavits saying precisely that without the department raising an objection.

4. Indeed, it seems to me that it is an altogether unsound practice for the department to insist that the Affidavit of the

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attesting witness should strictly conform to Form 102. The reason is

that at the time when the Petition for probate or Letters of Administration is filed, no opposition is anticipated in the sense that

there is no lis properly so called and there is no defendant. The Petition therefore does not set out more than the barest minimum. It does not address any opposition; it cannot. Form 102 has come to

serve a some sort of easy short cut by saying the minimum rather than adhering to what is accurate and complete. Once a Caveat comes to be filed, this creates problems because the attesting

witness needs to then put in further details in his Evidence Affidavit under Order 18 Rule 4 of the CPC -- his relationship with the

deceased, how he knew the deceased, particulars of dates, times, people and events and so on.

5. There is absolutely no reason why all this information should not be included in the Affidavit to be filed under Rules 374 and 375

as well. Those Rules only say that there must be an Affidavit of the

attesting witness. This is necessary because the Will is a document that requires to be attested, and proof of execution of a document require by law to be attested can only be given in conformity with

Sections 68 to 71 of the Indian Evidence Act. An Affidavit of Evidence under Order 18 Rule 4 of the CPC is filed by an attesting witness to prove such a document in compliance with Sections 68 to 71 of the Indian Evidence Act. There is, therefore, conceptually no

difference between the Affidavit under Rules 374 and 375 and the Evidence Affidavit under Order 18 Rule 4 of the Code of Civil Procedure, 1908. It follows, therefore, that the Affidavit to be filed along with the Petition should conform more closely to the requirements of an Affidavit under Order 18 Rule 4 of the CPC

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rather than simply repeating the (inaccurate) contents of Form 102.

The contents of that form may serve as a guideline or base. It is not open to the department to raise an objection if an Affidavit does not

strictly adhere to that Form. It will then be for the Court to determine whether the necessary requirements under Sections 68 to 71 of the Indian Evidence Act in a given case have been established

or not.

6. Even in uncontested cases, it would be safer if the affidavit of

the attesting witness filed with the Petition is at least substantially the same as that which the attesting witness would have had to file

had the Petition been contested and had he been required to file an Affidavit of Evidence under Order 18 Rule 4 of the CPC. Filing a

detail and more thorough Affidavit has no disadvantages that I can tell. On the other hand, not filing such an Affidavit raises significant perils and an otherwise good cause may be compromised on account

of such discrepancies. It also consumes a needless amount of a

Court's or a Commissioner's time at trial when the cross-examining defendant's counsel has necessarily to address himself to such discrepancies. Therefore, an adherence to Form 102 rather than to

the requirements of Sections 68 to 71 of the Indian Evidence Act is neither advisable nor salutary. On the other hand, if a complete affidavit is filed with the Petition, if and when that matter is contested and tried as a suit, it may be entirely possible for an

attesting witness to submit merely that his Affidavit filed under Rules 374 and 375 should be treated as his Affidavit of Evidence under Order 18 Rule 4 of the CPC.

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7. In short, therefore, Form 102 sets out the basic requirements

of the affidavit of an attesting witness (subject, of course, to an avoidance of its evidently incorrect stipulations). An attesting

witness while filing his affidavit in compliance with Rules 374 and 375 may include additional relevant material of the nature he would set out in his Evidence Affidavit if that cause is contested. If an

attesting witness does so, the department cannot object to the inclusion of additional material.

8. Let a copy of this order be kept before the Additional Prothonotary & Senior Master (In charge of the Testamentary

Department).

(G. S. PATEL, J.)

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