Bombay High Court
Romeo Anacleto D'Souza vs Canadian Citizen on 20 December, 2013
Bench: R.D. Dhanuka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY.
ORDINARY ORIGINAL CIVIL JURISDICTION
TESTAMENTARY SUIT NO.41 OF 2006
IN
TESTAMENTARY PETITION NO.283 OF 1991
Romeo Anacleto D'Souza
Indian Christian Inhabitant
of Bombay residing at Hermine villa,
18, St. Andrews Road, Bandra (West),
Bombay-400 050. ... Plaintiff.
V/s.
Edgar Havlock D'souza
Canadian citizen, residing
at : 11011, Swallow Drive, in the
city of Richmond, in the Province of
British, Columbia, Canada, V7E5A6 ... Caveator/Defendant.
Through his C.A. Joyce Cardoz,
Dhup chaon, Four Bungalows,
Andheri (West), Mumbai 400 053.
Mr Shailesh Shah, senior Advocate i/b Nitin Raut for the Petitioner/plaintiff.
Mr B. Patel i/b Ms Severine Valado for Respondent/defendant.
CORAM : R.D.DHANUKA J.
JUDGMENT RESERVED ON : OCTOBER 23, 2013.
JUDGMENT PRONOUNCED ON : DECEMBER 20, 2013
Judgment :
The plaintiff (original petitioner) had filed testamentary petition
interalia praying for probate of the Will and Testament dated 26 th May 1986 of
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the deceased Mrs Ermina Pinto D'Souza. Some of the relevant facts for the
purpose of deciding this suit (original petition) which emerge from the record are
as under :
2. Father of the plaintiff and the defendant acquired plot No.170-171
from Salesette Co-op. Hsg. Society Ltd., situated at 18, St. Andrews Road, Bandra
(West), Mumbai 400 050 and a structure standing thereon which is known as
'Hermine Villa'. In the year 1956, defendant left India for employment and
settled down in Canada. On 18 th October 1975 father of the plaintiff and
defendant died leaving behind his wife Mrs Ermina Pinto D'Souza, three sons and
one daughter. On 26th May 1986, Mrs Ermina Pinto D'Souza (hereinafter
referred to as 'the said deceased') executed a Will and Testament. On 10 th
January 1987 the said deceased expired leaving behind her three sons and one
daughter. Plaintiff and defendant are two of the sons of the said deceased.
3. Sometime in the month of June 1988, plaintiff filed a probate petition
in this Court which was numbered as 283 of 1991 interalia praying for probate of
the alleged Will of the said deceased. On 6th November 1992, citation came to be
issued in the said probate petition. On 22 nd December 1994, plaintiff made an
application for amendment of probate petition. Plaintiff discharged his advocate
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and started appearing in person. On 22 nd December 1994, the plaintiff has
alleged to have filed a consent affidavit alleged to have been signed by the
defendant giving his no objection in favour of the plaintiff and waived citation of
the petition. On 22nd December 1994, plaintiff filed consent affidavit of his sister
Mrs Silvia Fernandes giving her no objection for grant of probate in favour of the
plaintiff and according her consent to the same. By the said affidavit, the said
Mrs Silvia Fernandes also waived service of citation of petition upon her.
4. According to plaintiff, plaintiff did not have an address of the
defendant who was staying at Canada and sought to place the address of the
defendant by seeking amendment to the petition which was carried out on 24 th
December 1994. On 28th December 1994, this Court granted probate in favour
of the plaintiff in respect of the Will and Testament alleged to have been left by
the said deceased. On 31st March 2005, the defendant issued a notice to the
plaintiff and other legal heirs of the said deceased asking for various details and
informed that plaintiff would take appropriate legal action against them for
partition and separate possession of his share in all the immovable properties and
for recovering his share in movable properties left behind by the parents.
5. The Constituted Attorney of the defendant addressed a letter to the
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society on 12th March 2005 requesting for inspection of the documents pertaining
to the said immovable property situated at Bandra and in respect of which the
said deceased was the member of the said society. On 5 th July 2005, constituted
attorney of the defendant made an application for certified copy of the
proceedings in petition No.283 of 1991. On 13 th July 2005, the said constituted
attorney took inspection of the proceedings of this petition. On 14 th July 2005,
defendant issued a legal notice to the plaintiff stating that the defendant never
executed any consent affidavit in favour of the plaintiff and that the same was
forged and fabricated with a view to obtain probate by the plaintiff. On 12 th
August 2005 and 17th August 2005, plaintiff replied to the aforesaid notice
alleging that plaintiff was not aware of the alleged consent affidavit dated 22 nd
December 1994. On 6th September 2005, defendant was issued a certified copy
of this proceedings by the Prothonotary & Senior Master of this Court.
Sometime in the year 2005, defendant filed petition (55 of 2005) in petition
No.283 of 1991 interalia praying for setting aside the probate granted by this
Court in favour of the plaintiff on 28th December 1994.
6. Plaintiff herein filed affidavit in reply in the said misc. petition No.55
of 2005 and alleged that the plaintiff was not aware as to how address of the
defendant was mentioned in petition No.283 of 1991 after amendment in the
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year 1995 and that plaintiff was not aware as to how the consent affidavit of the
defendant was filed on record. Plaintiff also denied that the signature on the
consent affidavit purported to be his signature. By an order dated 7 th July 2006,
this Court has set aside the probate granted by this Court on 28 th December 1994
in this petition and restored the petition for hearing and final disposal.
7. On 25th November 2009, S. C. Dharmadhikari, J., after perusing the
record, framed following issues which are answered by me in the later part of
this Judgment.
Sr. ISSUES FINDINGS
No.
1) Whether the last Will and Testament dated 26 th May, 1986 No.
executed by the deceased Ermina Pinto D'Souza is valid ?
2) Whether the last Will and Testament dated 26 th May 1986 No.
was duly executed by the deceased Ermina Pinto D'Souza ?
3) Whether the defendant/caveator proves that the Last Will
and Testament dated 26th May, 1986 executed by Erminia Yes.
Pinto D'Souza is a forged document and is a fabricated one ?
4) Whether the defendant/caveator proves that Erminia Pinto As per
D'Souza was bed ridden with paralytic stroke for five years order.
prior to her death ?
5) Whether the defendant/caveator proves that the deceased As per
Erminia Pinto D'Souza was not in a sound and disposing order.
state of mind ?
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6) Whether the defendant/caveator proves that the last Will
and Testament dated 26th May 1986 executed by Erminia Yes.
Pinto D'Souza is not valid ?
7) Whether the defendant/caveator proves that the petitioner is Yes.
not entitled to probate ?
8) What order ? Suit
dismissed.
9) What costs ? As per
ig order.
8. Mr Shah, learned senior counsel appearing for the plaintiff invited my
attention to the Will dated 26th May 1986 and submits that the said Will Was
duly attested by two witnesses viz. (1) Dr R. D'costa and (2) Mr J. E. Lobo. It is
submitted that since whereabouts of Dr R. D'Costa were not known, plaintiff
examined Mr J. E. Lobo as attesting witness. Learned senior counsel also invited
my attention to the caveat filed by the defendant who was the only caveator. It
is alleged by the defendant that the Will propounded by the plaintiff is forged.
The said deceased was not of sound and disposing mind since five years prior to
death of the said deceased. She was paralytic and completely bed ridden. It is
alleged that the said deceased had alleged to have bequeathed some of the
properties in which caveator has share. It is alleged in the caveat that the said
alleged Will was not intended to be acted upon and was not acted upon.
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9. Mr Shah, learned senior counsel invited my attention to the said Will
to demonstrate as to why the said deceased had disinherited the caveator from
all the properties of the said deceased in the said Will. It is submitted that the
defendant had shifted to Canada in 1956. He was not on good terms with the
said deceased. The plaintiff was taking care of the said deceased. It is
submitted that though this Court had granted probate in favour of the plaintiff on
28th December 1994, in view of the allegations made by the defendant about
alleged forgery on the consent affidavit, without admitting the allegations made
by the plaintiff and without prejudice to the rights and contentions of the
plaintiff, by consent of both the parties, the said probate granted by this Court
came to be revoked and the petition was restored to file for deciding the matter
afresh.
10. Plaintiff examined four witnesses. On 1 st July 2010, plaintiff filed his
affidavit in lieu of examination-in-chief. My attention is invited to paragraph 6 of
the said affidavit in which it is deposed by the plaintiff that the said Will was duly
executed by the said deceased on 26th May 1986 in presence of Dr R. D'costa and
Mr J. E. Lobo and the said deceased affixed her signature in presence of the said
two witnesses. Plaintiff was also personally present with the said deceased who
affixed her signature in presence of the said two witnesses. He also witnessed
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the said two witnesses affixing their respective signature as witnesses to the said
Will and Testament. In paragraph 36 of the said affidavit, it is deposed that
defendant never visited the parents or even stayed in the family house of
Hermine villa and/or Villete Sebastiao or even enquired about health and well
being about the parents or family. In paragraph 39 of the said affidavit, it is
deposed that the plaintiff was the only one who helped the parents to maintain
the said property and looked after them including in their old age. Plaintiff had
been staying with them from the beginning and the said deceased accordingly
made her Will in his favour which was her real intention.
11. Learned senior counsel invited my attention to the cross examination
of the plaintiff. In reply to question No.17 when witness was asked whether it
was correct to say that the said deceased never left any Will dated 26 th May 1986,
the witness denied the said suggestion and deposed that it was not correct to say
that mother never left any will dated 26 th May 1986. The witness also deposed
about the residence of the two attesting witnesses and about their profession. As
far as Dr R. D'Souza is concerned, it is deposed that he was not a physician but
he was a Veterinary Doctor. The second attesting witness Mr J. E. Lobo was
residing at Pune and was a professor in Fergusson College. In reply to question
No. 25, the witness deposed that the said Dr D'costa and Mr Lobo had signed the
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Will in presence of the deceased. The witness also denied the suggestion of the
defendant that he was not in the same room when the Will was executed.
Witness denied the suggestion that the said deceased was totally under his
protection. About drafting of the Will, the witness deposed that the lawyer of the
said deceased viz. Mr Edward D'souza had drafted the Will. Relationship of the
plaintiff and the said deceased was very good. Witness has further deposed that
he was ignorant about the contents of the Will. In reply to question 67, the
witness deposed that the signatures of the said deceased on page 2 of the said
Will were of the said deceased. Witness denied the suggestion of the defendant
in reply to question No.125 that the defendant came back to Mumbai to see his
parents. In reply to question No.150, the witness deposed that the plaintiff and
his family members were residing in Hermine Villa along with the said deceased
at the time of her death. The deceased who was staying at U.K., had come
down to India because the said deceased was seriously ill at that time and she
was residing with plaintiff and his family. In reply to question No.153, the
witness deposed that he did not have address of the caveator at the time of filing
of this petition. In reply to question No.156, witness admitted that prior to
carrying out amendment, he did not have address of the caveator and he carried
out amendment only after he came to know about the address of the caveator.
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12. The plaintiff was cross examined at length on the signature of the said
deceased on the Will and other documents. Witness denied the suggestion that
the said deceased never executed any Will. Witness also denied the suggestion
that he had forged the signature of the caveator on the consent affidavit.
Witness denied the suggestion that since the said deceased was residing with
him, he had forced and influenced to draw the Will. Mr Shah invited my
attention to the Lease Deed dated 17 th February 1938 and the signature on the
Will and would submit that handwriting was similar on both these documents.
13. Mr Shah also invited my attention to the affidavit in lieu of
examination-in-chief filed on 10th April 2010 by the attesting witness Mr Lobo. In
paragraphs 2 to 5 of the said affidavit, the said witness has deposed about the
execution of the said Will by the said deceased and identified her signature as
well as signature of the said witness and the other witness. It is also deposed
that the said deceased was of sound mind when the said Will was executed. The
said witness was also cross examined by the defendant's counsel. In reply to
question 20 and 21, the said attesting witness replied that on 26 th May 1986, the
said deceased was in good health relative to her age and denied the suggestion
that during that time she was bedridden with paralytic stroke. Witness also
denied that on 26th May 1986, the deceased was not in a condition to move her.
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The said witness also denied the suggestion that the said deceased had not
executed the said Will or that he was not present on the date of execution of the
said Will. Witness denied the suggestion that the signature of the said deceased
was not the signature in his presence or that the said deceased was not in a
position to sign the Will due to her alleged paralytic condition. In reply to
question 47, the said witness deposed that the word '' twenty sixth" and "May"
were existing when the said witness had witnessed the signature of the deceased.
In reply to question 61, the witness denied the suggestion that the words "twenty
sixth" and "May" and alleged signature of the said deceased were not in her
handwriting.
14. Mr Shah then invited my attention to the affidavit in lieu of
examination-in-chief filed by the defendant on 28 th February 2011 and more
particularly paragraphs 2, 3, 17 and 18 thereof. My attention is also invited to
the cross examination of the said witness by the plaintiff's counsel. In reply to
question No. 20, the witness admitted that between the year 2001 and 2008, the
defendant had visited India only once i.e. in the year 2008 and during the period
between 1999 and 2000, he did not visit India. Between 1953 and 1960,
defendant visited India twice. When asked as to how many times, he had visited
India during the period between 1961-1990, witness replied that he had no idea
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or that he could not remember. When witness was called upon to produce
passport, he replied that he could not produce. When defendant was shown the
passport of the said deceased, he identified signature of the mother on the
passport and her name and addressed mentioned thereon. When witness was
shown the signature of the deceased below the photograph, he however, denied
that it was the signature of his mother on the passport. Signature of the
deceased was marked as 'X-6' for identification. Mr Shah, learned senior counsel
submits that signature of the deceased on passport when compared with
signatures on other documents they are similar. It is submitted that the said
document is a public document and the signature of the said deceased was
affixed on the passport by the passport authority and thus, cannot be disputed as
genuine signature of the said deceased.
15. In so far as health of the said deceased is concerned, defendant was
asked in cross examination as to when according to the defendant, the said
deceased was suffering from paralytic stroke and elphantitis as alleged by the
defendant in his affidavit, the defendant replied that he could not recall the date
of the stroke but the said deceased suffered from elphantitis from many many
years. In reply to question No. 46, the witness admitted that he did not have any
proof of documentary evidence in his possession to show that his deceased
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mother suffered paralytic stroke and elphantitis. Witness was shown letter dated
30th November 1988 (Exhibit-F) addressed by the defendant in which he had
acknowledged his knowledge of the Will and was asked whether he filed any
caveat immediately thereof. The witness answered in negative. Witness was
asked whether he addressed any letter to the society after 30 th November 2008
inquiring about the status of the estate of the said deceased, the witness
answered in negative and deposed that he did not write to the society because he
he had no cause to do so. In reply to question No. 63 when defendant was asked
whether he knew the names of the doctor regarding his allegation of paralytic
stroke and elphantitis alleged to have been suffered by the mother which doctor
could have treated her, the witness replied that he did not have any proof of any
doctor.
16. Mr Shah learned senior counsel submits that though the said deceased
used to put her full signature initially, at later stage she started putting short
signature. On the allegations of paralytic stroke made by the defendant
suffered by the said deceased, the plaintiff was cross examined by the defendant's
counsel at length. The said deceased had joint account with the plaintiff with
Bank of India, Bandra branch. The witness admitted that mother of the parties
was operating the said account which could be operated either by the plaintiff or
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by the said deceased. In reply to question No.164, the witness deposed that the
said deceased was operating the said account as long as she could. When witness
was asked as to when last time the said deceased operated the said account, the
witness deposed that he did not remember. When witness was asked whether
the said deceased when got the paralytic stroke was operating the said account,
the witness answered in negative. The witness however, denied the suggestion
of the defendant that the said deceased stopped operating the account about four
years prior to her death and that she could not operate the account due to
paralytic stroke.
17. The plaintiff also admitted that he took possession of all the
documents that were lying in the cup-board of the said deceased with the
knowledge of his another brother Eric. The witness however, denied that the
documents which he took charge of, comprised of all her medical papers. Witness
admitted that in most cases, he used to accompany the said deceased to hospital
for treating her by the doctors. Witness admitted that after her getting paralytic
stroke, she was not in a position to keep the medical papers. Witness admitted
that he took charge of all the medical papers which were paid by him. When
witness was asked since he had paid the major portion of the bills whether he
had possession of her medical papers, it was deposed that the same was kept in a
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file with his mother. When witness was asked whether the file containing the
medical papers was kept in her cupboard, witness deposed that he did not
remember. Witness admitted that he had access to the medical file of the
mother.
18. Mr Shah learned senior counsel invited my attention to the oral
evidence led by the defendant (caveator) on this issue and particularly answer to
question No.46 and 63 and would submit that defendant has not led any
evidence on the issue whether the said deceased had suffered paralytic stroke
whether before or after execution of the Will and Testament. In reply to question
No.63, the defendant admitted that he did not have any proof of any doctors who
had treated the said deceased. In reply to question No.46, the witness admitted
that except his bare words that the said deceased suffered from paralytic stoke
and elphantitis, he did not have any proof. It is submitted that the burden of
proof was on the defendant whether the said deceased had suffered any paralytic
stroke before execution of the Will and Testament and was not having good
health, sound and disposing mind by leading positive evidence which the
defendant has failed to discharge. Learned senior counsel submits that the
defendant has also failed to prove with any documentary evidence or oral
evidence whether he had visited the said deceased five years before the date of
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execution of Will and Testament. Learned senior counsel submits that merely
because the attesting witness was brother-in-law of the plaintiff, his evidence
cannot be discarded. Reliance is placed on the Judgment of Supreme Court in
case of Sonelal v. State of M.P. reported in AIR 2009 Supreme Court 760 in
support of his submission that relation of the witness with a party would not be a
factor to affect the credibility of the witness. Paragraph 13 of the said Judgment
reads thus :
The over insistence on witnesses having no relation with the victims often
results in criminal justice going away. When any incident happens in a dwelling house
the most natural witnesses would be the inmates of that house. It is unpragmatic to
ignore such natural witnesses and insist on outsiders who would not have even seen any
thing. If the Court has discerned from the evidence or even from the investigation
records that some other independent person has witnesses any event connecting the
incident in question then there is justification for making adverse comments against
non-examination of such person as prosecution witness. Otherwise, merely on surmises
the Court should not castigate a prosecution for not examining other persons of the
locality as prosecution witnesses. Prosecution can be expected to examine only those
who have witnessed the events and not those who have not seen it though the
neighbourhood may be replete with other residents also.
19. Learned senior counsel submitted that whether the Will was forged or
not as alleged by the defendant (caveator) is concerned, onus to prove the
forgery was on the defendant who had made such allegation which he has failed
to prove. Mr Shah also placed reliance on the Judgment of Supreme Court in
case of State of State of U.P., reported in 2009 All Maharashtra (Cri) 600
(S.C.) and in particular paragraph 10 in support of his submission that merely
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because the witness being the close relative of a party, such relationship is not a
factor to affect credibility of a witness. Paragraph 10 of the said Judgment reads
thus :
" 10. The plea of defence that it would not be safe to accept the evidence of the eye-
witnesses who are the close relatives of the deceased, has not been accepted by this
Court. There is no such universal rule as to warrant rejection of the evidence of a
witness merely because he/she was related to or interested in the parties to either side.
In such cases, if the presence of such a witness at the time of occurrence is proved or
considered to be natural and the evidence tendered by such witness is found in the
light of the surrounding circumstances and probabilities of the case to be true, it can
provide a good and sound basis for conviction of the accused. Where it is shown that
there is enmity and the witnesses are near relatives too, the Court has a duty to
scrutinize their evidence with great care, caution and circumspection and be very
careful too in weighing such evidence. The testimony of related witnesses, if after deep
scrutiny, found to be credible cannot be discarded. It is now well settled that the
evidence of witness cannot be discarded merely on the ground that he is a related
witness, if otherwise the same is found credible. The witness could be a relative but
that does not mean his statement should be rejected. In such a case, it is the duty of
the Court to be more careful in the matter of scrutiny of evidence of the interested
witness, and if, on such scrutiny it is found that the evidence on record of such
interested witness is worth credence, the same would not be discarded merely on the
ground that the witness is an interested witness. Caution is to be applied by the court
while scrutinizing the evidence of the interested witness. It is well settled that it is the
quality of the evidence and not the quantity of the evidence which is required to be
judged by the court to place credence on the statement. The ground that the witness
being a close relative and consequently being a partisan witness, should not be relied
upon, has no substance. Relationship is not a factor to affect credibility of a witness.
It is more often that ot that a relation would not conceal actual culprit and make
allegations against an innocent person. Foundation has to be laid if plea of false
implication is make. In such cases, the Court has to adopt a careful approach and
analyse the evidence to find out whether it is cogent and credible."
20. Mr Shah, learned senior counsel submits that the plaintiff as well as
witness examined by the plaintiff have proved the due execution of Will and that
the said deceased was in good health condition and was of disposing mind at the
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time of execution of Will and Testament. It is submitted that the defendant has
failed to prove that there was any forgery committed in execution of Will.
Defendant has also failed to prove that the said deceased was not of good health,
sound and disposing mind on the date of execution of the Will and Testament.
21. Mr Shah, learned senior counsel also placed reliance on a letter dated
30th November 1988 addressed by the defendant admitting that deceased had left
a Will and Testament and threatened to file proceedings against the plaintiff
when the matter was not settled with the sister. The said letter reads thus :
30th November 1988
" Dear Romeo and Eric,
I received a letter from Sylvia and a copy of the Will and I am not one bit happy to
hear that you two are trying to deprive Sylvia of her rights. I had not intentions of
getting involved in this matter, but seeing your greed, I am now making it my
business.
All I am asking you both to do is what was stated in the Will, to provide Sylvia with a
two bedroom flat by constructing this flat on either of the two plots or buy her one in
the locality. Now I want to hear from you both as soon as possible in this matter
confirming that you will provide her with this flat. Failing which I will make it my
personal business to completely challenge the Will because after reading it, it makes
me sick.
Please do not push me to challenge the Will because in my financial position I am
capable of dragging this in court for years. Besides legally Romeo you are are in a
position to be the Sole Executor of this Will and have absolutely no right in the share
in the property and it may become very embarrassing for you and your family if this
matter is dragged into court.
So once again I state that I am not one bit interested in the properties as I am well
settled in Canada, but if you two become too greedy, I am afraid I will be forced to
take action.
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I am looking forward to hearing from you and please give this matter very serious
thought."
It is submitted that in view of such document on the part of the
defendant about execution of Will, defendant cannot be permitted to dispute the
existence and contents of the Will and Testament left by deceased mother.
22. Mr Patel, learned counsel appearing on behalf of the defendant
submitted written submissions and supplemented with oral submission. It is
submitted that the said deceased was 81 years old at the time when the alleged
Will was executed and was not of sound health and sound mind as she was
suffering from paralysis. The plaintiff had got the Will prepared without the
knowledge of the deceased with assistance of a lawyer and had called two
witnesses for execution of the said document. One of the witness who had
attested the Will was brother-in-law of the plaintiff. It is submitted that the
second alleged witness to the Will was a Veterinarian and a complete stranger to
the family and the deceased. Whereabouts of the said doctor is not known. The
plaintiff was residing with the deceased and was the main beneficiary and was
claiming to be sole executor under the said Will. Learned senior counsel submits
that in the year 1994, plaintiff had discharged his advocate and started appearing
in person. Petition was amended and the alleged residential address of the
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defendant in Canada was set out which was wrong address. The plaintiff also
deliberately and wrongly stated that the defendant was temporarily in Mumbai
when the said amendment was carried out in the testamentary petition. It is
submitted that the defendant never signed any such consent affidavit filed by the
plaintiff on record of the testamentary proceedings. The alleged consent affidavit
bares the signature of the plaintiff. It is submitted that surprisingly the plaintiff
has also denied his own signature on the consent affidavit filed in this
proceedings. Learned counsel submits that in cross examination, the plaintiff
admitted that there was a fraud played on the Court by filing consent affidavit of
the defendant but has blamed his then lawyer who was assisting him though the
plaintiff was appearing in person. It is submitted that the Salsette Catholic Co-
operative Hsg. Society has in collusion with plaintiff transferred the plots in the
name of the plaintiff and his brother which leads to a conclusion that there was
no Will in existence when the application for transfer was made by the plaintiff.
23. Learned counsel submits that the said deceased was not keeping good
health when the Will was alleged to have been executed and was suffering from
paralysis and was bed-ridden. All the medical records of the deceased were in
the control of the plaintiff either prior to or after the death of the deceased.
Learned counsel invited my attention to the cross examination of the plaintiff at
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question Nos.159 to 186 in which plaintiff admitted that the deceased was not
keeping good health and had suffered from paralytic stroke and was not
operating her bank account which was a joint account with the wife of the
plaintiff. Plaintiff had also admitted that he used to accompany his mother to
hospital for treatment and after the said deceased suffered a paralytic stroke, she
was not in a position to keep medical papers. Plaintiff also admitted that only he
and his family members resided with the deceased at the time of her paralytic
stroke. Plaintiff also admitted that he had taken charge of those medical papers
which were paid by him. It was admitted that major portion of the medical bills
of the deceased was paid by him. Learned counsel submits that in view of the
admissions made in cross examination about the health of the said deceased and
that she had suffered from paralytic stroke and she was not operating her bank
account and that the plaintiff had taken charge of medical papers which were
paid by him, it was duty of the plaintiff to produce the medical records of the
deceased for the relevant period when the alleged Will was executed which
would demonstrate the medical condition of the deceased at the time of
execution of the alleged Will. It is submitted that evidence of the plaintiff would
indicate that the deceased was not operating her bank account and that wife of
the plaintiff was operating the same and that the deceased was not able to even
put her signature.
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24. As far as making and drafting of the Will is concerned, learned
counsel invited my attention to the cross examination of the plaintiff at question
Nos.45 to 51 and 74 and 75 and would submit that the Will of the deceased was
drafted by the lawyer Mr Edward D'Souza. The deceased had visited the office of
the lawyer for drafting of the Will. The relationship of the plaintiff with the
deceased was very good. The plaintiff cannot plead ignorance of the contents of
the Will. Plaintiff was present when the Will was executed by the deceased at the
request of the deceased. Witness has admitted that after coming in possession of
the Will plaintiff did not approach the advocate who had prepared the Will and
did not inform the defendant and the sister but sent a copy of the same to the
sister. No copy of the Will was sent to the defendant. Learned counsel submits
that the evidence of the plaintiff raises suspicion with regard to making/drafting
of the Will. It is submitted that explanation of the plaintiff cannot be accepted
that the deceased who was 81 years old went alone to the advocate for drafting
of the Will without the knowledge of the plaintiff and without disclosing the
same with the plaintiff. The plaintiff was appointed as sole executor and was the
main beneficiary under the said Will.
25. Mr Lobo who was examined as one of the witness by the plaintiff
deposed that he knew Dr R. D'Costa socially and did not know where he resided
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permanently. It is submitted that the said Dr R. D'Costa was not a physician but
was practicing as veterinary doctor and was not a family doctor of the deceased.
There is no evidence on record as to how the deceased came in contact with Dr
R. D'Costa.
26. Mr Patel learned counsel submits that the witness Mr Lobo resided at
Pune. The address mentioned below his signature is of Mumbai obviously with a
view to show that the said witness was residing at Mumbai. It is submitted that
the Will was surrounded by various suspicious circumstances which have not
been satisfactorily explained by the plaintiff or the attesting witness.
27. Learned counsel submits that the deceased always signed as " Ermina
Pinto D'souza" and not as "E. D'souza" as shown in the Will. Learned counsel
invited my attention to Exhibit-C and D which are two lease deeds dated 17 th
February 1938 executed by Salsette Catholic Co-operative Housing Society Ltd as
the owners of plot Nos.170 and 171 in favour of the father and the said
deceased. The signature of the said deceased on the said two lease deeds is not
the same what is alleged to be on the said Will and Testament. Learned counsel
also placed reliance on the two nomination forms which are marked as Exhibit-J
and K which were alleged to have been signed by the said deceased in favour of
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the plaintiff and his brother Eric. Even the signature on nomination form differs
from the signature on the Will. Learned counsel invited my attention to the
cross examination of the plaintiff at question Nos.314 to 319 in which plaintiff
has admitted that the signature on the lease deeds is that of the deceased.
Plaintiff however, stated that sometimes the deceased signed as 'Ermina Pinto
D'souza' and sometimes as 'E. D'souza'. It is submitted that the Will has been
executed by the deceased twice. Both the signatures are not identical. Learned
counsel submits that plaintiff ought to have produced the bank documents
executed by the deceased to prove her signature.
28. Mr Patel learned counsel submits that the deceased had expired on
10th January 1987 whereas petition No.123/91 came to be filed by the plaintiff
sometime in the year 1991. It was stated in the petition that the whereabouts of
the defendant and his address was not known. The said deceased had four
children. Three sons that are defendant, the plaintiff and Mr Eric and one
daughter (Sylvia). The daughter is not bequeathed any property under the
alleged Will. It is however, stated in the said Will that it was the wish of the
deceased that as and when the said plots are developed by the sons, a flat be
given to the daughter in the said building. The defendant has not been
bequeathed any property under the alleged Will.
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29. Learned counsel submits that on 22 nd December 2094, the plaintiff
had moved an application for amendment of the petition. The amendment was
to put in the address of the defendant as in Canada and the same further stated
that the defendant presently is in Mumbai at the careof address of the plaintiff.
On 22nd December 1994, consent affidavit is alleged to have been signed by the
defendant giving his no objection in favour of the plaintiff and waiving the
citation of the petition filed by the plaintiff. On the basis of such alleged
consent affidavit, plaintiff obtained the probate fraudulently. On 31 st March
2005, the defendant issued a notice to the plaintiff. On 12 th March 2005, the
constituted attorney of the defendant made an application to the Society for
inspection and on 5th July 2005 applied for certified copies of the proceedings in
petition No.283 of 1991. After obtaining inspection of the record and
proceedings in this Court, defendant issued a legal notice to the plaintiff pointing
out that defendant had never executed any consent affidavit in favour of the
plaintiff and that the same was forged and fabricated by the plaintiff with a view
to obtain the probate. In response to the said letter, plaintiff replied that the
plaintiff was not aware of the alleged consent affidavit dated 22 nd December
1994 and as to how the same came on record of the proceedings. The defendant
thereafter filed Misc. Petition No.55 of 2005 in this Court for setting aside the
probate granted to the plaintiff. Plaintiff filed his affidavit in reply in the said
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petition alleging that he was not aware as to how the address of the defendant
was mentioned in the petition after amendment in 1994 and the plaintiff was not
aware as to how the consent affidavit of the defendant was filed on record.
Plaintiff also denied that the signature on the consent affidavit purported to be
his signature. By an order dated 7 th July 2006, this Court as set aside the probate
granted to the plaintiff and restored the said testamentary petition.
30.
Learned counsel invited my attention to the cross examination of the
plaintiff at question Nos.228 to 328 and would submit that the plaintiff had
committed fraud on this Court and on the defendant in forging the signature of
the defendant on the alleged consent affidavit and fraudulently mentioning the
Bombay address of the defendant by carrying out an amendment ex-parte and
without service of citation. Plaintiff has agreed to get the probate granted by
this Court set aside by an order dated 7th July 2006. The conduct of the plaintiff
raises suspicion with regard to genuineness of the alleged Will. Learned counsel
submits that since the plaintiff committed fraud in obtaining probate from this
Court by committing forgery, the plaintiff must have forged the signature of the
said deceased on the alleged Will and thus, in view of such suspicious
circumstances, alleged Will is not a genuine Will and thus petition for obtaining
probate of alleged Will deserves to be dismissed on this ground alone.
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31. Mr Patel learned counsel submits that the nomination form submitted
by the plaintiff for transfer of plot No.171 in the name of Mr Eric and plot
No.170 in the name of the plaintiff also raises suspicion. It is submitted that the
society by its letter dated 18th March 1987 had alleged to have informed the
plaintiff that share certificate in respect of plot No.170 was transferred to his
name and plot No.171 was transferred in the name of his brother Eric. Learned
counsel invited my attention to the cross examination of Mr Ralph Fernandes,
the Manager of the society and would submit that the said witness was not aware
whether the said deceased had made any application to the society for issuance
of nomination form. It is submitted that nomination form was accepted by the
society after the death of the deceased. Nomination form was not attested by
any witness. The plaintiff never submitted copy of the Will to the society for
transferring the shares. Will of the deceased was not placed before the Managing
Committee of the society. The plots were transferred on the basis of the
Indemnity Bond and not on the basis of the alleged Will of the said deceased. It
is submitted that this evidence on record would indicate that there was no Will in
existence when the plaintiff made an application to the society to transfer the
share certificate in respect of those two plots.
32. Learned counsel submits that since the plaintiff has not produced the
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bank documents which could have been produced by the plaintiff or the medical
documents, this Court shall draw adverse inference under Section 114(g) of the
Evidence Act. It is submitted that plaintiff who was propounder of the Will was
to prove execution of the Will as well as that the said deceased was of sound and
disposing mind.
33. Mr Patel learned counsel invited my attention to verification clause of
the petition which would indicate that the petition was verified on 15 th April
1988. Second verification was done on 24 th June 1991 and third verification
was done on 31st December 1994. Plaintiff had signed the verification clause.
Address of the defendant was amended. Amendment was carried out by the
plaintiff in person. Even Canada address of the defendant mentioned in the
amended paragraph was not correct. Plaintiff was fully aware of the Canada
address. The letter addressed by the defendant from Canada was showing the
Canada address. It is not in dispute that the consent affidavit of the sister Sylvia
whose affidavit was also filed on the same date when alleged consent affidavit of
the defendant was filed in this proceedings. In the cross examination of the
plaintiff, it is admitted by the plaintiff that he had put one initial in paragraph 1b
of the petition but disputed the Bombay address and second initial. It is
submitted that the entire amendment was carried out on the same day and was
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in the same handwriting including the handwriting in the verification clause.
Learned counsel placed reliance on the Judgment of Supreme Court in case of
Smt. Jaswant Kaur vs. Smt. Amrit Kaur & Ors reported in (1977) 1 Supreme
Court Cases 369 and in particular paragraphs 9 and 10 in support of his
submission that when there are suspicious circumstances surrounding the
execution of Will, such Will cannot be probated. Paragraphs 9 and 10 of the
said Judgment read thus :
" 9. In cases where the execution of a will is shrouded in suspicion, its proof
ceases to be a simple Us between the plaintiff and the defendant. What, generally, is an
adversary proceeding becomes in such cases a matter of the court's conscience and then
the true question which arises for consideration is whether the evidence led by the
propounder of the will is such as to satisfy the conscience of the court that the will was
duly executed by the testator. It is impossible to reach such satisfaction unless the party
which sets up the will offers a cogent and convincing explanation of the suspicious
circumstances surrounding the making of the will.
10. There is a long line of decisions bearing on the nature and standard of evidence
required to prove a will. Those decisions have been reviewed in an elaborate judgment
of this Court in R. Venkatachala Iyengar v. B.N. Thirnmajamma and Ors.
MANU/SC/0115/1958 :[1959] Su. 1 S.C.R. 426. The Court, speaking through
Gajendragadkar J., laid down in that case the following propositions :-
1. Stated generally, a will has to be proved like any other document, the test to
be applied being the usual test of the satisfaction of the prudent mind in such
matters. As in the case of proof of other documents, so in the case of proof of
wills, one cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be attested, it
cannot be used as evidence until, as required by Section 63 of the Evidence Act,
one attesting witness at least has been called for the purpose of proving its
execution, if there be an attesting witness alive and subject to the process of the
court and capable of giving evidence.
3. Unlike other documents, the will speaks from the death of the testator
and therefore the maker of the will is never available for deposing as to the
circumstances in which the will came to be executed. This aspect introduces an
element of solemnity in the decision of the question whether the document
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propounded is proved to be the last will and testament of the testator.
Normally, the onus which lies on the propounder can be taken to be
discharged on proof of the essential facts which go into the making of the will.
4. Cases in which the execution of the will is surrounded by suspicious
circumstances stand on a different footing. A shaky signature, a feeble mind,
an unfair and unjust disposition of property, the propounder himself taking a
leading part in the making of the will under which he receives a substantial
benefit and such other circumstances raise suspicion about the execution of the
will. That suspicion cannot be removed by the mere assertion of the
propounder that the will bears the signature of the testator or that the testator
was in a sound and disposing state of mind and memory at the time when the
will was made, or that those like the wife and children of the testator who
would normally receive their due share in his estate were disinherited because
the testator might have had his own reasons for excluding them. The presence
of suspicious circumstances makes the initial onus heavier and therefore, in
cases where the circumstances attendant upon the execution of the will excite
the suspicion of the court, the propounder must remove all legitimate
suspicions before the document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is surrounded by
suspicious circumstance that the test of satisfaction of the judicial conscience
has been evolved. That test emphasises that in determining the question as to
whether an instrument produced before the court is the last will of the
testator, the court is called upon to decide a solemn question and by reason of
suspicious circumstances the court has to be satisfied fully that the will has
been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the
execution of the will, such pleas have to be proved by him, but even in the
absence of such pleas, the very circumstances surrounding the execution of the
will may raise a doubt as to whether the testator was acting of his own free
will. And then it is a part of the initial onus of the propounder to remove all
reasonable doubts in the matter."
34. In so far as letter addressed by the defendant to plaintiff on 30 th
November 1988 is concerned, Mr Patel learned counsel for defendant submits
that said letter was addressed by the defendant for having inspection of the
alleged original Will and Testament of the said deceased. The defendant realized
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fraud and forgery committed by the plaintiff and after taking inspection of the
record and proceedings and the alleged original Will. It is submitted that the
said letter addressed by the defendant cannot be construed as admission of
existence of alleged Will & Testament of the deceased mother and the plaintiff
has failed to prove the existence, attestation of Will and that the deceased was of
sound and disposing mind at the time of execution of Will.
35.
In rejoinder, Mr Shah learned senior counsel appearing for the
plaintiff submits that it is not in dispute that defendant came to India on very few
occasions to meet the said deceased or took any care of the deceased. Learned
senior counsel fairly admitted that when defendant made serious allegations of
forgery and disputed his signature on the consent affidavit, plaintiff did not
return the probate obtained from this Court for cancellation. Consent affidavit
was signed by the sister Sylvia Fernades on the same day which was propounded
before the notary public in Hemstead. Mr Shah submits that citation was served
on the defendant in the month of September 1993. Defendant however did not
file any caveat immediately. It is submitted that after plaintiff discharged his
prevision advocate, plaintiff started appearing in person. One of the practicing
advocate was helping the plaintiff. It is submitted that in so far as allegation of
the defendant that signature of the advocate identifying the signature on the
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application for amendment and alleged consent affidavit are different. Plaintiff is
not at all concerned with the said affidavit of the defendant alleged to have been
filed in this proceedings. It is submitted that if consent affidavit would have been
filed by the plaintiff on 22nd December 1994, plaintiff would not have carried out
amendment on 23rd December 1994. Learned senior counsel submits that though
plaintiff had not committed any fraud as alleged by the defendant, without
prejudice to the rights and contentions of the plaintiff, plaintiff agreed for setting
aside the probate obtained by the plaintiff and for denovo trial of the
testamentary suit. Even in oral evidence led by the plaintiff, he stood by his case.
On the contrary, defendant has not discharged one of such proof by leading any
positive evidence on Issue Nos.3, 4 and 5. It is submitted that forgery has to be
proved by positive evidence. Defendant has not led any evidence in support of
his allegation that the deceased was bed-ridden. Even on Issue No.5 as to
whether the deceased was not in a sound and disposing state of mind at the time
of execution of Will and Testament, defendant did not lead any evidence.
36. In so far as submission of the defendant that in view of non
production of the bank document by the plaintiff to show that the said deceased
was operating the bank account and was not suffering from paralysis is
concerned, Mr Shah learned senior counsel submits that witnesses examined by
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the plaintiff have stood by their case in cross examination that the said deceased
was of good health and of sound and disposing mind to execute the Will and was
not suffering from paralysis at the time of execution of Will. On the contrary,
defendant failed to prove that the said deceased was suffering from paralytic
stroke five years prior to her death or that at the time of execution of the alleged
Will. Mr Shah submits that in examination in chief of the plaintiff and in
particular paragraph 7, it was deposed that the said deceased suffered paralysis
after execution of Will, there was no cross examination of the said witness by the
defendant on this deposition of the witness and that part of evidence remained
uncontroverted and was proved.
37. In so far as medical bills produced by the plaintiff are concerned, it is
submitted that in view of the defendant objecting to those bills to be marked as
exhibits, the said bills were marked 'X-1' for identification. It was not possible to
prove those bills by examining the author of the bills after so many years. It is
submitted that no case was put to the witness that the said deceased was
suffering from paralytic stroke at the time of execution of Will. Learned senior
counsel submits that merely because the plaintiff did not prove the medical bills,
no adverse inference can be drawn since the said fact was already proved by the
plaintiff as well as two witnesses examined by the plaintiff. In this regard
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learned counsel placed reliance on the cross examination of the plaintiff recorded
at question Nos.169 to 179. Learned senior counsel also placed reliance on
paragraph 16 of the affidavit in lieu of examination-in-chief of the plaintiff
regarding medical bills.
38. In so far as submission of the learned counsel appearing for defendant
that the attesting witness examined by the plaintiff was brother-in-law of the
plaintiff and thus his evidence cannot be considered as an evidence of
independent witness is concerned, learned senior counsel submits that merely
because the said Mr Lobo was relative of the plaintiff, his evidence cannot be
disbelieved. He was subjected to thorough cross examination by the defendant
and had stood by his case deposed by him in his examination-in-chief.
39. In so far as submission regarding drafting of Will by advocate
advanced by the defendant is concerned, Mr Shah learned senior counsel submits
that there are no suspicious circumstances in making of the Will. Learned senior
counsel invited my attention to cross examination of the plaintiff recorded at
question No.45 to 63 and would submit that the docket of the advocate on Will
would indicate that the said Will was drafted by the said advocate. It is
submitted that execution and attestation of the Will is duly proved by the
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plaintiff and the two witnesses examined by the plaintiff. In so far as submission
of the defendant that whereabouts of Dr R. D'Costa, the second attesting witness
was not known to the plaintiff creates suspicion, is concerned, Mr Shah would
submit that after twenty years from the execution of the Will, plaintiff would not
have remember about the whereabouts of the said attesting witness. My
attention is invited to the cross examination of the plaintiff on this issue recorded
in question No.18 to 27 and question Nos.27 to 36 of the cross examination of
the another attesting witness Mr Lobo.
40. As far as submission of the defendant that signature of the deceased
was not confirmed by the bank officer of the bank in which the said deceased had
bank account or that plaintiff did not take any steps to lead the evidence on
disputed signature by examining the witness from the bank is concerned, Mr
Shah submits that the deceased died long ago and evidence was recorded much
later. Signature of the deceased was already proved by the plaintiff and the
attesting witness and thus adverse inference can be drawn by this Court merely
because plaintiff did not examine any witness from the bank.
41. In so far as question as to whether nomination form of the deceased
was submitted to the society before the death of the said deceased or after is
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concerned, Mr Shah submits that the said deceased was owner of those two plots.
The said deceased had nominated the plaintiff in respect of one plot and his
brother Eric in respect of second plot. Nomination form was filed before the
death of the deceased. Learned senior counsel invited my attention to the cross
examination of the society's witness recorded at question Nos.52, 125, 126 and
135 and submits that in re-examination of the said witness, the said witness
clarified that the copies of nomination form was filed after the death of the said
deceased with the society whereas original thereof was already filed prior to the
death of the said deceased. It is submitted that in any event whether the said
nomination form was filed earlier or later would not have any bearing on
execution of the Will.
42. Mr Shah placed reliance on the letter dated 30 th November 1988
marked as Exhibit-F which is addressed by the defendant to the plaintiff and his
brother Eric in which the defendant had referred to a letter received from his
sister Sylvia along with copy of the Will of the said deceased. Defendant has
expressed his unhappiness to hear that the plaintiff and Eric was trying to
deprive Sylvia of her rights. In the said letter, defendant has informed that he
had no intention of getting involved in that matter but seeing the alleged greed
of the plaintiff and Eric, he was making it his business. Defendant also asked the
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plaintiff to provide Sylvia with a two bedroom flat by constructing the building
either of those two plots or buy her one in the locality as stated in the Will.
Defendant asked the plaintiff and Eric to confirm that they would provide Sylvia
with that flat failing which he would make it personal business to completely
challenge the Will because after reading it, it made him sick. Defendant further
asked the plaintiff not to push the defendant to challenge the Will because in his
financial position he was capable of dragging that course in Court. It is stated
that the defendant was not interested in the properties as he was well settled in
Canada and if the plaintiff and Eric became too greedy, he would be forced to
take action. Mr Shah learned senior counsel placed strong reliance on the said
letter dated 30th November 1988 addressed by the defendant to the plaintiff and
his brother Eric and submits that in view of such letter, defendant cannot dispute
the execution of Will. Learned senior counsel submits that there is is no
substance in the submission made by the learned counsel appearing for the
defendant that the said letter was based on copy of the Will received from the
sister and defendant had not taken inspection of the original and thus the said
letter could not be construed as an admission on the part of the defendant
regarding execution and existence of the Will of the deceased. Learned senior
counsel submits that the plaintiff has thus proved his case and the reliefs as
prayed in the plaint deserve to be granted in favour of the plaintiff.
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Reasons And Conclusions :
43. The deceased had three sons i.e. plaintiff, Mr Eric and defendant
herein and one daughter Sylvia. When the alleged Will was executed, the said
deceased was 81 years old. The Will was alleged to have been attested by Dr R.
D'Costa and Mr J. E. Lobo. Dr D'Costa was a veterinary doctor and was not a
family doctor. Mr J. E. Lobo is admittedly brother-in-law of the plaintiff. The
plaintiff had examined himself, the said Mr J. E. Lobo as witness and one staff
member of the society. The plaintiff claimed to be personally present when the
said deceased who had alleged to have signed the Will and her signature was
attested by two witnesses. It is the case of the plaintiff that the plaintiff was the
only one who had helped the parents to maintain the property and looked after
them including in their old age. Mr J. E. Lobo, brother-in-law of the plaintiff
who was examined as second attesting witness was residing at Pune and was
professor in Ferguson College. It is the case of the plaintiff that relationship of
the plaintiff and the said deceased was very good and cordial. It is alleged by the
plaintiff that he was totally ignorant about the contents of the Will. It is alleged
that the plaintiff did not have address of the defendant at the time of filing of
testamentary petition and also did not have address of the defendant when he
carried out the amendment to the petition. The plaintiff who was cross
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examined by the defendant's advocate, denied the suggestion that the plaintiff
had forged the signature of the defendant on the consent affidavit. The attesting
witness Mr Lobo in his evidence identified the signature of the deceased as well
as signature of the other witness and also deposed that the said deceased was of
sound mind when she executed the Will.
44. Mr Shah, learned senior counsel submitted that since last several
decades, defendant had visited India only once and never bothered to find out
about the health of the deceased or to take care of the said deceased and the
deceased father. It is submitted that defendant had deliberately disputed the
signature of the said deceased on the passport. In so far as the issue as to
whether deceased was suffering from paralytic stroke and elphantitis prior to the
date of execution of alleged Will or suffered such strike after execution of Will is
concerned, it is submitted by the plaintiff that since defendant had alleged that
the said deceased was not having good health and was not of sound and
disposing mind when the alleged Will was executed, onus was on the defendant
to prove such allegations. It is submitted that in cross examination of the
defendant, it was admitted by the defendant that he could not produce any proof
in support of his allegation that the deceased was suffering from paralytic stroke
or elphantitis before execution of the alleged Will.
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45. It is the case of the defendant on the other hand that the said
deceased was suffering from paralytic stroke and elphantitis much prior to the
date of execution of Will and thus could not have made any such alleged Will. It
is submitted that the address of Mr Lobo who is brother-in-law of the plaintiff
was deliberately given as of Bombay though he was resident of Pune. It is the
case of the defendant that this Court shall not believe the story of the plaintiff
that the plaintiff who claimed to stay with the deceased all through out with his
family would engage an advocate for drafting of Will and would not know about
the contents of the Will. It is the case of the defendant that since the plaintiff
has taken keen interest in execution of the Will and being one of the major
beneficiary under the said Will, it could indicate that plaintiff has fabricated the
Will and has fabricated the signature of the said deceased in collusion with the
attesting witnesses. It is submitted that the Will is surrounded by suspicious
circumstances. It is the case of the defendant that the signature of the said
deceased on the lease deeds and the alleged signature on the Will are different.
Signature of the deceased on the nomination form and on the alleged Will are
also different. It is the case of the defendant that though the said deceased
expired on 10th January 1987, testamentary petition came to be filed only in the
year 1991 i.e. after more than three years. The plaintiff did not explain as to
why there was such a gross delay in filing testamentary petition. In cross
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examination of the plaintiff at Question Nos.314 to 319, plaintiff has admitted
that the signature on the lease deeds is that of the deceased. It is not in dispute
that daughter of the said deceased as well as the defendant has not been
bequeathed any property under the said alleged Will. It is the case of the
plaintiff that in the said Will however, it was mentioned by the said deceased
that it was wish of the deceased that as and when the said plots are developed by
the sons, a flat may be given to the daughter in the said building. It is the
submission of the plaintiff that since the defendant has admitted execution of the
Will in his letter dated 30 th November 1988, defendant cannot dispute the
execution of the Will at this stage.
46. In my view, the issue of execution of Will and Testament will have to
be considered by considering the entire material on record and also the
suspicious circumstances surrounding the making of the Will. It is not in dispute
that on the date of alleged execution of Will, the said deceased was 81 years old.
A perusal of the evidence indicates that the plaintiff had taken keen interest and
had played an active role in getting the Will drafted by an advocate. It is not in
dispute that the plaintiff had visited the office of the advocate. Relations of the
plaintiff with the said deceased were admittedly cordial. Plaintiff along with his
family members only were staying with the said deceased. In my view, it is not
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possible to accept the submission of the plaintiff that the said deceased had given
instructions to the advocate for making the said Will and the plaintiff was totally
unaware of such instructions and/or contents of the Will. Plaintiff also did not
contact the said advocate on demise of the said deceased and did not furnish any
copy of the Will to the defendant. The petition is filed after more than three
years from the date of demise of the deceased. Plaintiff has not rendered any
explanation about such a gross delay in filing testamentary petition. One of the
attesting witness Dr R. D'Costa was veterinarian doctor and was not known to the
family. Whereabouts of the said doctor were not known. Though Mr Lobo who is
brother-in-law of the plaintiff was staying at Pune his address on the Will was
given of Bombay. Admittedly signatures of the said deceased on the lease deeds,
nomination form and the signature on the alleged Will are different. The
plaintiff could not even prove the signature of the said deceased on the passport.
47. It is not in dispute that the Salsette Catholic Co-operative Hsg. Society
transferred the plot in favour of the plaintiff and Mr Eric without there being
copy of the alleged Will on record of the society produced by the plaintiff. Mr
Patel, learned counsel for the defendant is right in his submission that there was
no Will on record of the society when application for transfer was made by the
plaintiff to Salsette Catholic Co-operative Hsg. Society. Plaintiff could not
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produce any evidence on record as to how the deceased came in contact with Dr
R. D'Costa.
48. It is not the case of the plaintiff that the relations of the deceased were
not cordial with daughter Sylvia but in spite thereof the said deceased had not
bequeathed any property to the said daughter. On bare reading of the alleged
Will, it is clear that the said deceased according to that Will had only desired that
as and when the plots are developed by the sons, a flat be given to the daughter
in the said building. The defendant has been totally disinherited under the said
Will.
49. On perusal of the letter dated 30th November 1988 addressed by the
defendant, it is clear that the said letter contains the Canada address of the
defendant which is relied upon by the plaintiff. The plaintiff however, in the
testamentary petition mentioned that the address of the defendant was not
known. Plaintiff discharged his advocate and started appearing in person.
Plaintiff applied for amendment of the petition and stated that the defendant was
temporarily in Mumbai when the said amendment was carried out in the
testamentary petition. The alleged consent affidavit of the defendant was filed in
the testamentary proceedings for grant of probate. The alleged consent
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affidavit also bore the signature of the plaintiff. When defendant came to know
about the probate obtained by the plaintiff, on taking search of the proceedings,
defendant revealed that the signature of the defendant on the consent affidavit
was forged as he had not come to India at that point of time nor had signed any
such consent affidavit. The defendant accordingly addressed a letter to the
plaintiff bringing these facts on record. In reply to the said letter, plaintiff
expressed surprise that such affidavit was filed in the proceedings. Plaintiff also
disputed his own signature on the affidavit.
50. In cross examination of the plaintiff, it was admitted by the plaintiff
that there was fraud played on the Court by filing consent affidavit of the
defendant but he has blamed his then lawyer who was assisting him though he
was appearing in person.
51. A perusal of the amendment indicates that the plaintiff had sought to
place the address of the defendant of Canada and further stated that the
defendant was presently in Mumbai at the care of address of the plaintiff. It is
proved that defendant was not at Mumbai when application for amendment was
made and/or when amendment was carried out. By the said alleged consent
affidavit, defendant had alleged to have given no objection in favour of the
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plaintiff and had alleged to have waived the citation of the petition filed by the
plaintiff. The said consent affidavit is also countersigned by the plaintiff. A
perusal of record indicates that at the same time affidavit of Mrs Sylvia, daughter
of the said deceased was also filed by the plaintiff giving her no objection for
grant of probate and waiving her right to citation. Plaintiff has not disputed that
the said affidavit was filed by the plaintiff at the same time. Surprisingly plaintiff
has disputed his own countersignature on the alleged consent affidavit of the
defendant. Plaintiff has pleaded ignorance about filing of the said affidavit. It is
not in dispute that on the basis of the consent affidavit of Mrs Sylvia and on the
basis of alleged consent affidavit of the defendant, probate was granted in favour
of the plaintiff. Plaintiff has obtained probate from this Court and sought to
implement the same. It is also not in dispute that when the defendant raised an
objection about the fraud committed by the plaintiff, plaintiff did not return the
probate obtained from this Court though admitted fraud on Court.
52. When defendant raised objection and pointed out that the defendant
had never executed any consent affidavit in favour of the plaintiff and the same
was forged and fabricated by the plaintiff with a view to obtain probate, plaintiff
replied that plaintiff was not aware of the alleged consent affidavit dated 22 nd
December 1994 and as to how the same came on record of the proceedings. In
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affidavit in reply in Misc. Petition No.55 of 2005 which was filed by the
defendant for revocation of probate, plaintiff has alleged that he was not aware
as to how address of the defendant was mentioned in the petition after
amendment in the year 1994 and as to how the said consent affidavit of the
defendant was filed on record. In cross examination of the plaintiff at Question
Nos.228 to 328, plaintiff admitted that fraud was committed on this Court. It is
not in dispute that plaintiff has agreed to get the probate granted by this Court
set aside by an order dated 7th July 2006. On perusal of the original of the
petition duly amended, it is clear that verification clause was signed first on 15 th
April 1988, second verification of the plaint was thereafter done on 25 th June
1991 and re-verification was thereafter done on 31 st December 1994. Plaintiff
has singed verification clause on all the three dates. Address of the defendant
has been amended. In cross examination of the plaintiff, he has admitted that he
had put one initial in paragraph 1b of the petition but disputed the Bombay
address and second initial. A perusal of amended paragraph clearly indicates
that the entire amendment was carried out on the same day and was in the same
handwriting including the handwriting in the verification clause. I am thus not
inclined to accept the explanation of the plaintiff that he was not aware of any
such consent affidavit of defendant or as to how the said affidavit came on
record. I am not inclined to accept the explanation of the plaintiff that only part
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of the amendment was carried out by the plaintiff and not the entire amendment
though handwriting in the amendment as well as verification clause is of the
same person. In my view, denial of the countersignature by the plaintiff on the
alleged consent affidavit of the defendant is also ex-facie false.
53. It is clear that only the plaintiff could be benefited of such order of
grant of probate by filing such consent affidavit on behalf of the defendant who
was staying at Canada. In view of the fact that the plaintiff himself has admitted
that fraud was committed on this Court and had agreed for revocation of probate
granted by this Court without prejudice to his rights and contentions, in my view,
role of the plaintiff in filing such consent affidavit of the defendant and carrying
out amendment in the plaint, waiving of citation etc. and obtaining probate
based on such alleged consent affidavit and after obtaining probate not to return
the same to the Court for cancellation, clearly indicates that the plaintiff was
involved in the fraud committed on this Court by obtaining probate by filing
forged consent affidavit of the defendant in this Court.
54. Based on these background of the matter, it was urged by the learned
counsel appearing for the defendant that the plaintiff had also forged and
fabricated the alleged Will & Testament of the said deceased and has not proved
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the due execution thereof. It was submitted that plaintiff has also not proved
that the said deceased was of sound and disposing mind when the said deceased
executed the Will. Supreme Court in case of Smt. Jaswant Kaur (supra) has
held that where the execution of a will is surrounded by suspicion, its proof ceases to
be a simple one between the plaintiff and the defendant. In such cases, it is matter
of the court's conscience and then the true question which arises for consideration is
whether the evidence led by the propounder of the will is such as to satisfy the
conscience of the court that the will was duly executed by the testator. It is
impossible to reach such satisfaction unless the party which sets up the will offers a
cogent and convincing explanation of the suspicious circumstance surrounding the
making of the will. It is is held by the Supreme Court that the presence of the
suspicious circumstances makes the initial onus heavier and therefore, in cases
where the circumstances attendant upon the execution of the will excite the
suspicion of the court, the propounder must remove all legitimate suspicions before
the document can be accepted as the last will of the testator. It is held that the
propounder himself taking a leading part in the making of the will under which he
receives a substantial benefit and such other circumstances raise suspicion about the
execution of the will. It is held that the suspicion cannot be removed by the mere
assertion of the propounder that the will bears the signature of the testator or that
the testator was in a sound and disposing state of mind and memory at the time
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when the will was made, or that those like the wife and children of the testator who
would normally receive their due share in his estate were disinherited because the
testator might have had his own reasons for excluding them. In this background
of the matter, Court has to appreciate the evidence led by both the parties and
ascertain whether the Will was surrounded by suspicious circumstances.
55. It is not in dispute that the relations between the plaintiff and the
deceased were cordial. The defendant was staying at Canada and hardly visited
the said deceased. It is not the case of the plaintiff that relations of the said
deceased with the daughter were not cordial. It is not in dispute that the said
deceased was suffering from paralytic stroke and elphantitis. It was the case of
the plaintiff that the said deceased suffered from such diseases after execution of
Will and not earlier. No doubt, defendant could not depose much on this issue
about the sickness of the said deceased as he was not in India for almost entire
period. The question then arises is that whether plaintiff has proved the due
execution of the Will and that the said deceased was keeping good health and
was of sound and disposing state of mind at the time of execution of Will.
Admittedly the said deceased was 81 years old when the Will was alleged to have
been executed. Plaintiff has not disputed that the said deceased was not keeping
good health. It was the case of the plaintiff in the evidence before this Court that
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the plaintiff used to carry the said deceased for medical treatment. Most of the
medical bills were incurred by the plaintiff himself. Plaintiff has also admitted
that he had access of all the files of the said deceased before and after her death.
Plaintiff however, could not prove the medical records though he claimed to have
access of all medical records of the said deceased. It was one of the relevant fact
which in my view which ought to have been proved by the plaintiff that the said
deceased was suffering from paralytic stroke and elphantitis after execution of
the alleged Will. The plaintiff was the best person to place these facts on record
before the Court by leading appropriate evidence.
56. Some of the cash vouchers/bills produced by the plaintiff could not be
proved by the plaintiff and were accordingly not marked in evidence. It was the
case of the plaintiff that the bank account was jointly in the name of the wife of
the plaintiff and the said deceased. In cross examination of the plaintiff, he has
admitted that when the said deceased was suffering from paralytic stroke, she
was not operating the bank account. When plaintiff was asked, since when the
said deceased was not operating the bank account, plaintiff did not give any clear
reply and avoided the question. In my view, if according to plaintiff, the
account was jointly operated by the said deceased with the wife of the plaintiff,
plaintiff ought to have examined his wife and/or staff of the concerned bank to
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prove the last date of operation of the bank account by the said deceased. It
is urged by the defendant that the said deceased was not in a position to affix her
signature. In these circumstances, in my view, the plaintiff failed to bring the
best evidence on record and failed to prove that the said deceased got paralytic
stroke and elphantitis after execution of alleged Will and was operating the bank
account by affixing her signature.
57.
Under Section 114(g) of the Evidence Act 1872, it is provided that the
Court may presume the existence of any fact which it thinks likely to have
happened, regard being had to the common course of natural events, human
conduct and public and private business, in their relation to the facts of the
particular case for that evidence which could be and is not produced would, if
produced, be unfavourable to the person withholds it. In my view, since the
plaintiff who ought to have produced the medical records and could have
examined the bank officer or wife of the plaintiff to demonstrate that the
deceased was not suffering from paralytic stroke and elphantitis prior to the date
of execution of the Will, has deliberately not produced and has withheld such
evidence for consideration of this Court which if would have been produced, it
would have been unfavourable to the plaintiff. I am therefore drawing adverse
inference against the plaintiff for not producing the medical records, bills and not
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examining the wife of the plaintiff and the bank officer that the said deceased
was suffering from paralytic stroke and elphantitis prior to execution of Will and
could not have executed the alleged Will. I am of the view that the said deceased
was not keeping good health and was not of sound and disposing mind. I am
not inclined to accept the submission of learned senior counsel Mr Shah that
after so many years, it was not necessary to examine the officer of the bank to
prove that the account was duly operated by the said deceased before the date of
execution of Will.
58. In my view, the plaintiff has played active role in getting the Will of
the said deceased drafted. Plaintiff was a major beneficiary under such alleged
Will. I am not inclined to accept the submission of Mr Shah learned senior
counsel that though plaintiff had visited the office of the advocate, plaintiff was
not aware of the contents of the Will. Plaintiff and his family members were
admittedly staying with the said deceased. Plaintiff did not contact the advocate
who alleged to have drafted the alleged Will. Plaintiff did not bother to furnish
copy of the alleged Will to the defendant. The said deceased died on 10 th
January 1987 whereas testamentary petition has been filed only in the year
1991. Plaintiff has not explained the gross delay in filing testamentary petition.
Defendant who was also one of the sons of the said deceased and Mrs Sylvia,
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daughter of the deceased could not have been disinherited in the Will of the
deceased in ordinary course.
59. Dr R'Dcosta was not a family doctor and was a Veterinary doctor . His
alleged signature on the Will itself is not proved. In ordinary course, no party
would have taken the signature of an outsider and that also a Veterinary doctor
and whose whereabouts are not known. Admittedly other alleged attesting
witness was brother-in-law of the plaintiff. Such brother-in-law was though
staying permanently at Pune, his address is shown that of Bombay in the alleged
Will. The oral evidence of the plaintiff and said witness does not inspire
confidence considering the conduct of the plaintiff and even otherwise.
60. In my view, the plaintiff has failed to prove the due execution of the
Will & Testament and also that the said deceased was of good health and of
sound and disposing mind at the time of execution of the Will.
61. In so far as nomination form produced by the witness examined by the
plaintiff is concerned, it is clear that the society was not informed about the
alleged execution of the Will. This fact also indicates that there was no execution
of the alleged Will as propounded by the plaintiff when plaintiff applied for
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transfer of the plots in his favour and in favour of his brother Eric.
62. In so far as letter dated 30th November 1988 addressed by the
defendant to the plaintiff is concerned, I am inclined to accept the submission
made by the learned counsel appearing on behalf of the defendant that the said
letter was addressed by the defendant when defendant did not have benefit of
inspection of the original of the alleged Will & Testament and could raise
objection about the authenticity of the said alleged Will only after taking
inspection of the documents and thus such letter in isolation cannot be construed
as an admission on the part of the defendant regarding execution of alleged Will
& Testament. The plaintiff was independently liable to prove the due execution
and attestation of the alleged Will in question which in my view, the plaintiff has
failed to prove.
63. Issue Nos.1 and 2 are accordingly answered in negative. It is proved
that the Will & Testament of the said deceased is a forged document and is
fabricated. Issue No.3 is accordingly answered in affirmative. In so far as Issue
Nos.4 and 5 are concerned, though the initial onus was on the defendant to
prove that the said deceased was suffering from paralytic stroke for five years
prior to her death, in my view, since the plaintiff and his family members were
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staying with the said deceased and their relations with the said deceased were
cordial and the plaintiff had alleged to have taken the said deceased to the
hospital for medical treatment, plaintiff ought to have produced the medical
records and ought to have examined the wife of the plaintiff and bank officer to
prove the said material fact. Plaintiff having withheld the relevant evidence from
this Court though plaintiff had an opportunity to produce the said evidence, this
Court has drawn adverse inference against the plaintiff for withholding such
evidence under Section 114(g) of the Evidence Act and the issues are answered
accordingly. Defendant has proved that the last Will & Testament dated 26 th
May 1986 was not valid and Issue No.6 is accordingly answered in affirmative.
64. Defendant has proved that the plaintiff is not entitled to grant of
probate in respect of the alleged Will & Testament dated 26 th May 1986. Issue
No.7 is accordingly answered in affirmative. I, therefore pass the following
order.
65. Suit is dismissed with costs.
(R. D. DHANUKA, J.).
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