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The Indian Evidence Act, 1872
Kanwarjit Singh Dhillon vs Hardyal Singh Dhillon And Ors on 12 October, 2007
Gurdev Kaur & Ors vs Kaki & Ors on 18 April, 2006
Section 73 in The Indian Evidence Act, 1872
Krishna Kumar Birla vs Rajendra Singh Lodha & Ors on 31 March, 2008

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View the actual judgment from court
Bombay High Court
Deceased Abovenamed vs H on 18 August, 2009
Bench: Anoop V.Mohta

This Order is modified/corrected by Speaking to Minutes Order 1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION rt

TESTAMENTARY SUIT NO.44 OF 1989

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IN

TESTAMENTARY PETITION NO.128 OF 1989 C

Mrs.Savita Dattatraya Karandikar

of Bombay, Indian Inhabitant, Residing at Karandikar Bunglow Ganesh Baug,

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Kurla, Bombay-400070,

deceased abovenamed.

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the Sole Executrix of the Will of the ...Plaintiff/Petitioner

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Vs.

1 Nishikant Sadashiv Karandikar, y

a Hindu, Indian Inhabitant, R/o.Kashi Bhuvan, ba

2nd floor, Halav Pool, Opp.Dhobi Ghat, Kurla(W), Bombay 400070,

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2 Mrs.Aparna Arvind Agnihotri,

a Hindu, Indian Inhabitant, R/o.

1, Urmikunj Society, Shashiprabha

Navrang Pura, Ahmedabad-380009,

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3 Gajanan Sadashiv Karandikar,

a Hindu, Indian Inhabitant, R/o.

Mangal-Murty, Pandurang Wadi,

Manpada Road,Dombivli (East),

District-Thane

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4 Shekhar Sadashiv Karandikar

(since deceased),

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4(a) Sm t.Meeta Shekhar Karandikar

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4(b) Mrs.Swati Ranjeet Oak,

Aged 34 years, 11/2, Sneha

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Vardhaman Nagari Near Lumming

Engg.College, Karve Nagar, Pune,

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4( c) Mrs.Priti Amit Vaidya,

Aged 30 years, ig

4/2, Jaykar Smruti,

Aarey Road, Goregaon(West),

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Mumbai 400062 ...Respondents/ defendants/

Caveators

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Mr.Yashodhan Divekar i/b. M/s.Divekar & Co. for the Petitioner/Plaintiff. Mr.D.N. Hungund for Defendants 4-A to 4-C. om

Mr.Javeed Hussain for Defendants 1 to 3. CORAM :- ANOOP V. MOHTA, J.

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DATED :- 18th August, 2009.

ORAL JUDGMENT:

1 The present Petition is for Probate of the last Will dated 20.04.1986 and Testament of late Smt. Umabai Sadashiv Karandikar (the deceased) of ::: Downloaded on - 09/06/2013 14:54:58 ::: This Order is modified/corrected by Speaking to Minutes Order 3

Bombay, a widow, who died on 3rd September, 1988. rt

2 As a caveat was filed to the Petition, the same was converted into ou

the present Suit. C

3 This Court, after hearing both the parties, framed the following issues on 02.04.2009 :

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1. Whether the plaintiff proves that the Will dated 20.04.1986 of late Smt.Umabai Sadashiv Karandikar has been duly executed by her in accordance with law?

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2. Whether defendants 4a to 4c prove that the testatrix was in her proper state of mind and mentally fit to understand the text of the Will?

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3. Whether the defendant nos.4a to 4c prove that the Will executed by the deceased was under undue influence, force and/or by misrepresentation?

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4. What order?

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4 The petitioner led evidence of one Uday Madhusudan Mahajan, through Affidavit dated 02.12.2006 being attesting witness to the Will. 5 The defendants/caveators have examined one witness Smt.Meeta Shekhar Karandikar (defendant no.4a). She has filed Affidavit dated 28th ::: Downloaded on - 09/06/2013 14:54:58 ::: This Order is modified/corrected by Speaking to Minutes Order 4

July, 2008 accordingly on behalf of all defendants. rt

6 One Sadashiv Ramchandra Karandikar, who was father of the ou

decease3d Shekhar Sadashiv Karandikar and husband of the deceased Umabai Sadashiv Karandikar (the mother of the deceased Shekhar C

Sadashiv Karandikar) expired on 21.11.1964 leaving behind wife, 4 sons and 4 daughters namely:

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Sadashiv Ramchandra Karandikar

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4 Sons 4 daughters

Umabai (1) (2) (3) (4) (1) (2) (3) (4) y

widow of Dattatraya

Sadashiv

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Gajanan Nishika Shekh Suhashini Sushila Aparna Hemlata S. nt ar

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7 After the death of Sadashiv R. Karandikar, the deceased Umabai by a registered released deed dated 16th July, 1966, got the entire share in the B

property in her name only.

8 Defendant no.4, (now Deceased) as at the time when released deed was executed was minor and hence, he instituted a Suit No.698/88 in the City Civil Court for a declaration that the said Release Deed dated ::: Downloaded on - 09/06/2013 14:54:58 ::: This Order is modified/corrected by Speaking to Minutes Order 5

16.7.1966 was null and void, ineffective and inoperative. The said Suit was decreed on 6.10.2003 in his favour. An Appeal No.58 of 2004 against rt

the same is still pending.

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9 Smt.Umabai, who was party to the suit filed by her son Shekhar S. C

Karandikar died during the pendency of Suit on 3.09.1988. However, by her Last Will in question dated 20.04.1986, she bequeathed all her h

property to her daughter-in-law, the present petitioner/plaintiff i.e. Savita, ig

wife of son-Dattatraya. She excluded all her four sons and four daughters. H

Therefore, the petition by the daughter-in-law, challenged by only three sons and two daughters including defendant no.4-Shekhar. y

ISSUE NO.1 :

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10 The burden lies upon the plaintiff to prove that the Will has been duly executed or not. Plaintiff's witness- Uday Madhusudan Mahajan, who om

was working as an Assistant Advocate with M/s.Divekar & Co., Advocates and Solicitors, as an attesting witness to the Will, stated that on or about 20.04.1986, on instructions along with the draft Will attended the B

residential premises of the deceased Smt.Umabai, which was executed at about 10.30 a.m. And the same was brought back to the Office. On 20.04.1986 the deceased Umabai was present at the residence. She enquired about her document/Will as sent by Mr.Divekar. She requested to wait for her family Doctor for some time, who came after 15 minutes. ::: Downloaded on - 09/06/2013 14:54:58 ::: This Order is modified/corrected by Speaking to Minutes Order 6

After his arrival, he enquired in his presence from Umabai about her health and also checked up her blood pressure, which was found normal. In his rt

presence, this attesting witness, had read out the Will and explained to her ou

by translating the same in Marathi language. He had also enquired whether the contents of the Will were correct and whether it was prepared C

as per her instructions. As the deceased was in sound health, mind and as understood the contents of the Will, replied positively and said "yes". h

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He further stated that the deceased requested her grand daughter H

Bharati D. Karandikar to bring the scale and draw straight line on the document/Will. The deceased signed the Will in his presence and also in the presence of Doctor Mr.Arun Magar, who also signed the Will, as an y

attesting witness no.1 and put remark on the Will that he had examined ba

the testatrix and found found her in sound, understanding and good health om

and signed under the remark accordingly. This witness has also stated that thereafter, he put his signature on the Will as second attesting witness and that further remarked that he interpreted and explained the document to B

testatrix in Marathi language before she signed the same and put his signature under the remark accordingly. This witness has also stated that the deceased handed over the Will and they left the premises along with the Doctor. The Will was handed over to Mr.Divekar on the very day. ::: Downloaded on - 09/06/2013 14:54:58 ::: This Order is modified/corrected by Speaking to Minutes Order 7

12 The Advocate for defendants 2 to 6 cross-examined this witness, but nothing could be extracted to destroy the case either to support their rt

defence and/or to dis-prove /destroy the case of the plaintiff, merely ou

because the place where Will was executed is missing that itself cannot be the reason to overlook, otherwise the executed Will. The contents of the C

Will, if explained in vernacular language and as, at the relevant time, she was in sound mind and as was understood the contents and as it was h

drafted as per her instructions, I see there is no reason to find fault with ig

this execution of the Will by the deceased in the presence of attesting witness including a Doctor. The Doctor was not examined, but the H

attesting witness, as recorded above, able to support the case and I see there is no reason even on that ground to overlook such validly executed y

Will.

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13 The suggestion so put to this witness that she did not sign the Will in his presence and it was in the office of M/s.Divekar and/or she did not sign the Will in his presence and/or he did not tell her to sign on every page of B

the Will or he did not put house of the deceased and/or he did not enquire abut her sons or daughters presence, this, in my view, are not suggestion and/or extracted material to destroy the evidence already led by the attesting witness to support the Will. ::: Downloaded on - 09/06/2013 14:54:58 ::: This Order is modified/corrected by Speaking to Minutes Order 8

14 Apart from this, as noted, the other issues 2 and 3 whereby the burden was upon the defendants to support their case/defence that the rt

testatrix in proper state of mind and mentally fit to understand the text of ou

the Will and that the Will executed by the deceased was under undue influence, force or by misrepresentation, but nothing could be extracted C

even in this cross-examination. The attesting witness should have been tested from all these points to support the defence as raised, though h

specific pleas or affidavit referring to those averments were raised. ig

Therefore, once the plaintiff proves the case that the Will in question has been executed by her in accordance with law, then the burden to disprove H

the same lies upon the defendants who raised these averments of undue influence, force and/or misrepresentation. As mere allegations or y

averments are insufficient. Because, in view of above, there is no ba

suspicious circumstances raised and/or able to point out and/or could be extracted from this witness. If there are no suspicious circumstances om

and/or any doubt to the execution of the said Will, then the Court need to consider the evidence of defendants whether is sufficient to prove their B

case as per Issue Nos. 2 and 3.

ISSUE NOS. 2 AND 3 :

15 As noted, one Meeta Shekhar, led the evidence on behalf of all defendants. She has stated apart from the pending litigation, as referred ::: Downloaded on - 09/06/2013 14:54:58 ::: This Order is modified/corrected by Speaking to Minutes Order 9

above, about the deceased, who according to her was an illiterate and unsuspecting woman of a traditional type was blindly following the advice rt

of petitioner's husband, without feeling any necessity whatsoever of ou

consulting others. She stated that the petitioner/plaintiff took undue advantage of the implicit faith and trust reposed by the deceased and C

utilised his fiduciary relationship and dominated the execution of the Will. She also stated that the petitioner/plaintiff obtained the signature of the h

deceased either on the blank paper and/or subsequently committing the ig

same to the writing of their own in order to pass it off as the last Will of the deceased without explaining her to know and contents thereof by H

misleading the same. She has also stated that the alleged Will is an unregistered document and she managed to get the said Will prepared y

through an Advocate4. These averments, according to me, are quite ba

general in nature. These averments are not sent to say and/or accept the case of the defendants that the alleged Will is concocted and fabricated om

document. Mere allegation of undue influence or breach of fiduciary relationship and/or trust or any kind of domination are insufficient in view B

of the evidence led by the plaintiff and, even otherwise, as recorded above, nothing could be extracted or demonstrated from the plaintiff's evidence. Merely because the Will is unregistered that itself, in my view, is not sufficient reason to overlook the said document as the same was executed and kept with the Advocate as referred above, since then. The non- ::: Downloaded on - 09/06/2013 14:54:58 ::: This Order is modified/corrected by Speaking to Minutes Order 10

registration of the Will that itself cannot be the reason to raise any doubt to the execution of the Will and/or sufficient to raise any suspicion as alleged. rt

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16 She has further stated that during the year 1986-1987, the deceased was physically and mentally unfit, because she was suffering from C

uncontrolled diabetics which led her to pass into a state of coma on many occasions for days on ends. She has also stated that she was suffering from h

high blood pressure and, therefore, she could not have capacity or ability to ig

think or making such Will and bequeathed accordingly, excluding her all H

legal heirs. The raising of doubt from the certificate given by the Doctor, without material evidence to support the same, except the averments, in the present case, in my view is also insufficient. As noted, she was living y

with the petitioner since very long. She was looked after her and providing ba

all mental, physical and emotional supports. There is nothing brought on om

record except these bare averments that she was not of sound mind and body, physically, mentally or even otherwise, except the averments that she was suffering beyond uncontrolled diabetics and/or high blood pressure. B

This itself, in my view, is not sufficient to observe on such vague plea that she was unfit, mentally or physically and was not in a position to understand the contents of the Will which was prepared as per her instructions by the Advocate. Merely because the Doctor was not examined that itself, in my view, no reason to accept the case of the defendants. In a ::: Downloaded on - 09/06/2013 14:54:58 ::: This Order is modified/corrected by Speaking to Minutes Order 11

given case, the defendants could be brought on record more material to justify their case of her ill-health or physical and/or mental condition. In rt

the present case, in my view, the defendants failed to support the issue abut ou

undue influence, force and/or misrepresentation. C

17 She has also stated that the exclusion of sons and daughters, that itself creates a suspicious circumstance. She has stated that none of them h

had any relation with the petitioner/plaintiff and, therefore, they were ig

living separately. She has further stated that the petitioner/plaintiff never H

used to allow the deceased to talk and/or contact with other sons and daughters. This itself means that the sons and daughters were not visiting and/or taking care of the deceased. The deceased was with the petitioner y

since long. There was nothing on record to show that the deceased was ba

prevented from visiting and/or meeting her sons or daughters. The om

exclusion in this background by the deceased cannot be said because of undue influence, force, fraud and/or misrepresentation. Such exclusion is not prohibited under the law. Under what circumstances, she excluded her B

own heirs and bequeathed the property to the daughter in law, the petitioner, in view of above, just cannot be the reason to reject the petition for probate. This evidence of defendant itself supports the case of the plaintiff that there was sufficient reason and cause for the deceased to live separately and with the petitioner without any objection since long. The ::: Downloaded on - 09/06/2013 14:54:58 ::: This Order is modified/corrected by Speaking to Minutes Order 12

husband of the petitioner, being one of the son of the deceased, has never objected this Probate Petition. Therefore, the property even if so rt

bequeathed in a way goes to the petitioner/plaintiff as well as one of the ou

son with whom the deceased was living for many years. C

18 The defendants also stated in detail about the pendency of the litigation and basically a decree and the pendency of the Appeal against the h

same. Therefore, the property which was the subject matter of the Suit, ig

even if bequeathed by the deceased by excluding the others and in H

contravention of the decree itself and as the Appeal is pending, this issue of title and/or ownership of part of the property, just cannot be gone into in this Probate Petition. This is not the scope and purpose of grant of Probate y

Petition, based upon the Will. Once the execution of the Will is proved as ba

contemplated and Courts find it so, the grant or rejection of probate only om

the order which the Court can pass in this Probate Petition. The issue about title or ownership about bequeathed property even, if any, need to be decided in different forum. The remedy is elsewhere. The parties are at B

liberty to settle the matter, but that cannot be the reason to reject the Probate Petition as contented by raising preliminary objection. 19 Having once examined one attesting witness of the Will, merely because the petitioner failed to step into the witness box, that cannot be ::: Downloaded on - 09/06/2013 14:54:58 ::: This Order is modified/corrected by Speaking to Minutes Order 13

the reason to overlook the material and evidence on record supporting the execution of the Will. The defendants, inspite of addition of two issues, did rt

not raise any further evidence except as recorded above. The plaintiff, ou

therefore, also chosen not to lead further evidence having once discharged the burden as per Issue No.1. Even otherwise, that cannot be the reason to C

reject the Probate Petition.

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20 The submission that particulars in paragraphs 9 and 10 of the ig

evidence of Ms. Meeta (DW 2a) gone unchallenged has also no force. H

The Court need to consider the whole record, material and the evidence which in the present case, in my view, support the case of the plaintiffs. I am inclined to accept the submission that the evidence of PW-1 is y

unreliable, untrustworthy being the person interested merely because he ba

was an employee, at the instance of whom he has gone to execute the Will. om

21 Though issue about the signature was raised, but the defendants could not even able to get exhibited those documents about different B

signatures. Therefore, the Court even under Section 73 of the Evidence Act, in such circumstances, cannot take judicial note of those signatures as documents on which signatures were made not exhibited. Mere allegation that the signatures appears on the last page is also not of the deceased and that the deceased had not signed on all the pages except last paragraph, ::: Downloaded on - 09/06/2013 14:54:58 ::: This Order is modified/corrected by Speaking to Minutes Order 14

therefore, in the absence of pleading and material on record and merely because upon the submission as raised, is also unacceptable. In the rt

present case, though opportunity was available and though documents ou

were placed on record which were marked for identification only, the defendants failed to get those documents exhibited. In view of this, I am C

inclined to accept the case of the petitioners/plaintiffs revolving around Section 73 of the Evidence Act. Though, a doubt was raised about the h

signature, in her evidence and in the submissions, the affidavit in support ig

of the caveat, there was no such plea or objection about the signature raised. Therefore, in the absence of such plea, at appropriate time, the H

objection to the signature of the deceased is also without basis and material.

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22 The Will is dated 20.04.1986. The deceased expired on 03.09.1988 om

i.e. after filing of the present Petition and the Caveat to the same. By Order dated 02.04.2009, though plaintiff wanted to examine himself as witness, after framing of the additional issues, as defendants even after B

framing of those two issues, refused to examine any further witness. Therefore, the submission that the plaintiff ought to have examined himself to support the case is of no assistance. That itself no way sufficient to discharge defendants burden in support of two newly added issues where the burden was upon the defendants to prove that the Will in question was ::: Downloaded on - 09/06/2013 14:54:58 ::: This Order is modified/corrected by Speaking to Minutes Order 15

executed under undue influence, pressure, or misrepresentation or she was not in proper state of mind and mentally fit to understand the text of the rt

Will.

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23 The plaintiff has confronted the witness of the defendants with those C

photographs (Ex. P-2) which were never disputed to show that at the function of 25th Anniversary of the wedding of the plaintiff and her h

husband held on 23.04.1986 i.e. Just after three days after the execution of ig

the Will that the deceased was in good health and moved around and H

participated in the said function.

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24 In the cross-examination, the defendants witness unable to deny ba

that the petitioner alone took care of the deceased-testatrix and further that she looked after, took care of the deceased during her lifetime since om

she resided with the petitioner and her family. B

25 In view of above, I am of the view that the plaintiff has proved his case referring to Issue No.1 and defendants failed to support his case and failed to discharge his burden as per issue Nos. 2 and 3. Even otherwise, considering the whole record and the evidence led by the parties, I am of the view that there are no suspicious circumstances found to be surrounded ::: Downloaded on - 09/06/2013 14:54:58 ::: This Order is modified/corrected by Speaking to Minutes Order 16

in the execution of the Will, the testatrix has executed the Will of signing the same in sound and mentally, physical condition by understanding the rt

contents of the same as the same was drafted as per her instruction by the ou

Advocate and as the same was signed in the presence of the Doctor, who is also marked/noted the sound mental condition of the deceased and the C

attesting witness has supported the same. The Will is dated 20.04.1986. The deceased died on 03.09.1988.

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The exclusion even if any, of any of the legal heirs by the deceased, H

in the facts and circumstances, cannot be be gone into like Appellate Court over the deceased of the testators. This cannot be said to be the suspicious circumstance enough to discard the case of the plaintiff. The Apex Court in y

Gurdev Kaur and others v. Kaki and others, (2007) 1 SCC 546, has ba

observed as under:

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"75 The High Court in the impugned judgment has observed as under:

"In the normal circumstances a prudent man would have bequeathed the property in favour of his legal heirs. However, in the present case, the testator has disinherited the plaintiffs." B

76 The High Court also observed that "no father in normal circumstances would like to disinherit the daughters". 77 The High Court has clearly deviated from the settled principle of interpretation of the Will. The court does not sit in appeal over the right or wrong of the testator's decision. The court's role is limited to examining whether the instrument propounded as the last will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind. It is only for the purpose of ::: Downloaded on - 09/06/2013 14:54:58 ::: This Order is modified/corrected by Speaking to Minutes Order 17

examining the authenticity or otherwise of the instrument propounded as the last will, that the court looks into the nature of the bequest.

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79 If a will appears on the face of it to have been duly ou

executed and attested in accordance with the requirements of the statute, a presumption of due execution and attestation applies."

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27 The issue regarding title and ownership of the property, even if the h

Appeal is pending that itself cannot be the reason to overlook the validly ig

executed will. It is is difficult to decide the said issue in this probate H

proceeding. The remedy is elsewhere. The Apex Court in Kanwarjit Singh Dhillon vs. Hardyal Singh Dhillon & ors., (2007) 11 SCC 357 and Krishna y

Kumar Birla vs. Rajendra Singh Lodha & ors., (2008) 4 SCC 300, has ba

observed that "The question whether a particular bequest is good or bad is not within the purview of the Probate Court". ..... "It is true that the om

probate of the will granted by the competent Probate Court would be admitted into evidence that may be taken into consideration by the Civil Court while deciding the suit for title but grant of probate cannot be B

decisive for declaraqtion of title and injunction whether at all the testator had any title to the suit properties or not." 28 In the result, the Caveat is dismissed. The Testamentary Suit/Petition is allowed. A Probate of Administration of the Last Will of ::: Downloaded on - 09/06/2013 14:54:58 ::: This Order is modified/corrected by Speaking to Minutes Order 18

the deceased Smt.Umabai Sadashiv Karandikar dated 20.04.1986 be issued in accordance with law.

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29 No costs.

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(ANOOP V. MOHTA, J.)

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