testamentary petition is converted into a suit, provisions of Code of Civil
Procedure 1908 and Indian Evidence Act 1872 would apply to civil proceedings.
The defendants thus could not consider the said affidavit of attesting witness filed
in the year 2005 as evidence. Learned counsel submits that in any event, the
affidavit of attesting witness was filed in Form-102 prescribed under Bombay High
Court (O.S.) Rules and thus the plaintiff could not have made any changes in the
said format prescribed by the Bombay High Court rules. It is submitted that in any
event, there was no material inconsistencies or incorrect statement made in the said
affidavit by Mr H. D. Pithawalla and by Ms Dolly Divecha and the same as per the
prescribed format of Form-102 and over and above the same. Mr.Shah learned
counsel for the defendants submitted that in any event even if such affidavit was
required to be filed in any format prescribed, the plaintiff could not have made any
false and incorrect statement in such affidavit. It is submitted that the said witness
was cross examined by the defendants on both the affidavits. The defendants are
thus entitled to point out the contradictions in both the affidavits with her cross
examination.
91. In my view, Mr shah learned counsel appearing for defendants is right in his
submission that even if an affidavit is required to be filed in particular format, even
if the facts of a particular case do not match with the format prescribed and
disclosure of such fact would lead to inconsistency with the format or would
amount to false statement, party is still not bound to follow such format as it
stands. In my view, a party cannot take shelter of such format and can make false
and incorrect statement so as to comply with the format prescribed.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
TESTAMENTARY SUIT NO. 85 OF 2005
IN
TESTAMENTARY PETITION NO. 604 OF 2005
Jivaji Framroze Tarachand
V
Mr.Minoo S. Mistry
Judgment pronounced on : SEPTEMBER 25, 2014
Citation;2016(1) ALLMR730
