The Bombay high court will first examine the attesting witnesses (witnesses in whose presence a will has been signed) in the Bal Thackeray will dispute matter. Justice Gautam Patel said on Friday: "On December 4, at 3 pm, the matter will be taken up for cross-examination of the plaintiffs' (Shiv Sena leader Anil Parab and others) attesting witnesses followed immediately by cross-examination, time permitting, of the plaintiff himself."
A dispute arose over late Thackeray's will dated December 13, 2011, after his estranged son Jaidev moved high court (HC) alleging that the Shiv Sena supremo was not in sound mind while executing the will.
The judge recalled his earlier order of November 10 when he had rejected the request of Uddhav Thackeray's counsel, Rajesh Shah, that the attesting witnesses need to be examined first as their evidence and cross-examination would be short.
"At that time, the only ground given was that the attesting witnesses were professionals and their cross-examination was likely to be short. I rejected that submission," said Justice Patel.
Justice Patel later had another unrelated matter wherein the question arose that whether an attesting witness's evidence should invariably lead first in contested testamentary matters.
"In Walter D'Souza vs Anita D'Souza & Ors., I have held that as a matter of law, in view of the provisions of Sections 68, 69 and 71 of the Evidence Act, the evidence of the attesting witness must always be led first so that the will in question is marked as a document in evidence," observed justice Patel.
The judge recalling his order of November 10, observed: "In this view of the matter, the order of November 10, 2014 declining Shah's request to lead the evidence of the attesting witness first is clearly incorrect, and that order is recalled."
Uddhav and other petitioners — Sena leader and lawyer Anil Parab, former Sena MP and noted lawyer Adhik Shirodkar (he passed away recently), architect Shashi Prabhu and Ravindra Mhatre who was personal assistant to the late leader — have attached a copy of the will purportedly signed by the late leader in the presence of two witnesses, Dr Jalil Parkar, a lung specialist who attended to the Sena chief for several years, and advocate Flanian D'souza of Bandra.
Bal Thackeray, who died on November 17, 2012, had signed his will on December 13, 2011. A copy of the will which was attached with Uddhav's petition says that Thackeray Sr had appointed Uddhav, Adhik Shirodkar, Anil Parab, Shashi Prabhu and Ravindra Mhatre as the executors of the will.
On November 10, the HC had rejected Uddhav's plea for a complete in-camera trial observing: "The fact that the deceased (Bal Thackeray) was and at least one of the plaintiffs is a public figure is not in itself any reason to give this matter any preferential treatment or make an exception that is not applicable to other litigants before this court."
The judge had, however, allowed Uddhav to seek in-camera of certain witnesses if he could substantiate it with sufficient evidence. "That being said, it will be open to both sides to make an application at an appropriate time in regard to any particular witness or at any particular time during the trial to request that a certain portion of the trial be held in camera. I am making it clear that no such application will be entertained merely for the asking, but must be made for good and sufficient reasons," Justice Patel had added.
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