Sunday, 28 May 2017

Whether will can be challenged on ground that alias or nickname of executant is not mentioned?

Mr. Damania was cross-examined, though very briefly.30 The very first question put to him was whether this was the first time Mr. Damania had said that Jaswantbhai and Jaswantlal were the same person. The question is itself peculiar; Mr. Damania had no occasion to say anything of the kind before; at the time when the Petition was filed, there was no Caveat and this case by Purnima, that Jaswantbhai and Jaswantlal do not refer to the same person, had never been put up before. It is difficult to comprehend why such a question was put at all; it invited a riposte and, predictably, this followed, for Mr. Damania promptly said that that he knew the deceased as Jaswantlal N. Jolia and also Jaswantbhai N. Jolia. Now this was a frontal blow to a principal defence, and it came very early in the proceedings. To my very great surprise, I find that this answer was not further tested at all; the entire line of question was simply abandoned, and the testimony of Mr. Damania, therefore, obtained in cross-examination, remained uncontroverted. The only question that came is whether, when he drafted the Will, Mr. Damania did not state (presumably in the Will) that Jaswantbhai N. Jolia was also known as Jaswantlal N. Jolia. To this, Mr. Damania said yes; as indeed he had to, because that is what the Will says. Nothing in law requires that every alias or nickname must be inserted into every document; and Purnima's case that Jaswantbhai was only ever known as Jaswantlal is her affirmative case, the burden of proving which is squarely on her. In any case, it is difficult to see to what issue these questions are directed.
Testamentary Suit No. 74 of 2011 in Testamentary Petition No. 970 of 2009
Decided On: 14.10.2016
 Panna Surendra Mehta


Purnima Latik Shah

Hon'ble Judges/Coram:

G.S. Patel, J.

Citation: 2017(2) ALLMR 278
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