[Cites 45, Cited by 0]
Bombay High Court
Myra Philomena Collaco vs Lilian Coelho And Ors. on 30 December, 2025
Author: M.S. Sonak
Bench: M.S. Sonak
Digitally signed
by MULEY
SHUBHAM
MULEY PRAVINRAO
SHUBHAM Date:
PRAVINRAO 2026.01.01
2025:BHC-OS:26983
14:13:55
+0530
2-APP-574-2003 (OS).DOC
Shubham
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 574 OF 2003
IN
TESTAMENTARY SUIT NO. 33 OF 1999
Myra Philomena Collaco ...Appellant
Versus
Lilian Coelho and Ors. ...Respondents
____________________________________________________________
Mr. Karl Tamboly, a/w Mr. Bhavin Shah, Ms. Alisha Lambay i/by
Lambay & Co. for Applicant.
Mr. Nigel Quraishy, a/w Mr. Dushyant Krishnan, Snehil Rai, Ms.
Shruti Dubey i/by Susmit Phatale, for Respondent Nos. 1 and 2.
____________________________________________________________
CORAM : M.S. Sonak &
Advait M. Sethna, JJ.
RESERVED ON : 27 November 2025
PRONOUNCED ON : 30 December 2025
JUDGMENT:
(Per Advait M. Sethna, J.)
Prologue :-
1. We are confronted with yet another family saga where the
slugfest between the parties, circumference around two Wills of the
deceased parents of the Appellant. It is in such context that the
contesting parties seek to assert their rival claims and legal rights
over the suit property.
2-APP-574-2003 (OS).DOC
2. The curtains open with the Appellant's deceased father's Will
creating life interest in the suit property in favour of his wife i.e. late
mother of the Appellant along with their sons Victor and Neville.
However, the Appellant's mother bequeaths the suit property being
the subject matter of the probated Will of her late husband
(Appellant's father) to the Appellant and her sons George and
Reginald.
3. The Appellant in the present proceedings, desire to have
Letters of Administration issued with the Will of her deceased mother
which was assailed by the Respondents before the learned Single
Judge of this Court. The impugned judgment and order holds that
though the Will is formally proved, there are suspicious
circumstances shrouding the said Will which ought to be considered
to the satisfaction of the Court. Accordingly, the learned Single Judge
refused to grant the Letters of Administration along with the Will of
the deceased mother of the Appellant as prayed for by the Appellant.
The Division Bench of this Court, on Appeal against the impugned
judgment set aside the order of the learned Single Judge by an order
dated 22 January 2009. Thereafter, pursuant to the directions of the
2-APP-574-2003 (OS).DOC
Supreme Court by its order dated 2 January 2025, the proceedings
were remanded to this Court. This is how the parties are before us in
the present Appeal assailing the Judgment of a Single Judge of this
Court dated 7 March 2003 passed in Testamentary Suit No. 33 of
1999 in Testamentary Petition No. 209 of 1987. ( "Impugned
Judgment" for short).
Factual Matrix :-
4. The Appellant (Plaintiff) had filed Testamentary Petition
No.209 of 1987 for grant of Letters of Administration with the Will
dated 7 July 1982 of her late mother Mrs. Maria Francisca Coelho
("deceased Maria" for short), who passed away on 24 November
1985. The subject matter for adjudication in these proceedings
relates to the legality and correctness of the Appellant's claim in
regard to the issuance of Letters of Administration, pursuant to the
Will of the deceased Maria.
5. The deceased Maria (mother of the Appellant) got married to
Mr. Sonny Rita Coelho ('Sonny' for short) in the year 1931-32.
2-APP-574-2003 (OS).DOC
6. The late parents of the Appellant i.e. the deceased Maria and
her husband Sonny had six children. The details of whom are as
under:-
1. George Coelho, who was born on 17 March 1933 (now deceased).
2. Reginald Coelho, who was born on 14 November 1935 (now
deceased).
3. Victor Coelho, who was born on 29 March 1938 (now deceased).
4. Neville Coelho, who was born on 19 March 1940 (now deceased).
5. Myra Philomena Collaco, the Appellant, who was born on 12 April
1946.
6. Anthony Coelho (deceased).
7. It is on 22 August 1971 that Sonny i.e. the father of the
Appellant left behind his Will and last Testament. Under the said Will
he appointed his wife Maria (mother of the Appellant) and their two
sons Victor and Neville as executors and trustees. He desired that
income from the said property after paying tax and other expenses
shall be enjoyed by his wife Maria (mother of the Appellant) for her
lifetime. As per the said Will, the house and plot would devolve on
2-APP-574-2003 (OS).DOC
his two sons Victor and Neville who would be tenants in common.
Victor would take the ground floor of the said house and Neville
would take the first floor subject to them paying Rs.10,000/- each to
Sonny's estate.
8. Out of the said amount of Rs.20,000/-, Rs.5,000/- each were to
be paid to the other two children namely George and Reginald and
Rs.5,000/- to the Appellant. The remaining Rs.5,000/- was to go to
the fifth son Anthony provided that he stops consuming liquor as
stated in the Will of Appellant's late father. The deceased Maria
(mother of the Appellant) was conferred a life interest by the said
Will.
9. In the year December 1971, the Appellant got married to Mr.
Saotome Collaco at Goa. He was examined as the second witness
before the learned Single Judge at the behest of the Appellant in
these proceedings.
10. It was on 26 January 1976 that the father of the Appellant-
Sonny, passed away. After him, the deceased Maria along with her
two sons Victor and Neville filed a Testamentary Petition No.929 of
2-APP-574-2003 (OS).DOC
1976 for obtaining probate of Sonny's Will dated 22 August 1971.
The said Will was probated by this Court on 24 April 1980.
11. On 7 July 1982, the deceased Maria (mother of the Appellant)
executed her last Will and Testament. According to the said Will, she
bequeathed all her movable and immovable property as she would
possess or be entitled to at the time of her death. The execution of
the said Will took place at the residence of the attesting witness i.e.
Advocate A. E. Lawrence Colaco. He was the first witness to be
examined on behalf of the Appellant.
12. The deceased Maria (mother of the Appellant) has filed an
affidavit dated 31 December 1982 which is on record of these
proceedings whereby she has sought to place on record certain facts
concerning her and her husband's Will. The deceased Maria has inter
alia stated that she had no knowledge of her husband i.e. Sonny's
Will and which she feels he would have made in a fit of temper.
13. It was on 24 November 1985 that the Maria (mother of the
Appellant) passed away in Mumbai.
2-APP-574-2003 (OS).DOC
14. Pursuant to the above, the Appellant filed Suit No.3245 of
1985 on 11/16 December 1985 against her four brothers namely
George, Reginald, Victor and Neville for administration of the estate
of her deceased mother.
15. The brother of the Appellant i.e. Victor, now deceased, filed a
written statement dated 11 April 1986 in the above Suit No.3245 of
1985. Victor had, stated therein that his mother i.e. deceased Maria
did not leave any Will or Testament dated 7 July 1982. Such Will is
not probated and is therefore not authentic. It was also averred in
the said written statement that although the suit property was joint
but, it always belonged exclusively to his late father, Sonny. The land
in relation to the suit property was purchased by his late father i.e.
Sonny out of his own funds in Salsette Catholic Cooperative Housing
Society Ltd., as his mother i.e. deceased Maria was never gainfully
employed.
16. The Appellant and her brothers George and Reginald never
raised any objection to the grant of probate of their late father's Will.
17. On 1 April 1987, the Appellant filed Testamentary Petition
No.209 of 1987 before this Court seeking the grant of Letters of
2-APP-574-2003 (OS).DOC
Administration with the Will of her deceased mother, annexed to the
said Will. PW-1 i.e. Advocate Lawrence Colaco sworn an affidavit on
1 April 1987 in his capacity as one of the attesting witnesses.
18. On 26 January 1993, Victor, son of the deceased Maria (mother
of the Appellant) passed away. His widow Lilian Coelho and children
Conrad and Dylan i.e. Respondent Nos.1 to 3 were Caveators in the
Testamentary Petition No.209 of 1987.
19. According to the Appellant during the period 1995-96, she
suffered from ischemic heart disease. She underwent surgery on 2
October 1995 for such ailment. Shortly thereafter in 1996, both the
husband and the Appellant migrated to Canada. The family did not
come to Mumbai since then. There is a reference to a medical
certificate issued by Dr. Vispi S. Buhariwalla. Though presented in
evidence, copies of the medical records in regard to the above, as
stated by the Advocate for the Appellant, are not currently available
with them.
20. On 15 April 1999, Mrs. Lilian Coelho, Respondent No.1 i.e.
widow of the Appellant's brother Victor filed a Caveat for herself and
on behalf of her then minor children i.e. Respondent Nos.2 and 3 to
2-APP-574-2003 (OS).DOC
oppose the grant of Letters of Administration. Consequent to filing of
the said Caveat, the Testamentary Petition No.209 of 1987 was
converted into Testamentary Suit No.33 of 1999. The said Caveators
raised various objections to the proceedings filed by the Appellant for
grant of Letters of Administration along with the Will of the deceased
Maria, which are set out therein.
21. Pursuant to the above, on conversion of the Testamentary
Petition into Testamentary Suit No.33 of 1999, the following Issues
were framed:-
"1. Does the plaintiff prove the due execution and attestation of
the will dated 7.7.1982 of the deceased Mrs. Maria Francesca
Coelho?
2. Does the plaintiff prove that the said deceased was of sound and
disposing state of mind and had testamentary capacity at the time
of execution of the Will dated 7.7.1982?
2(a). Whether the defendants prove that the deceased was not in a
disposing state of mind and did not have testamentary capacity at
the time of execution of the Will?
3. Do the defendants prove that the signature of the deceased on
the Will dated 7.7.1982 was forged?
2-APP-574-2003 (OS).DOC
4. Do the defendants prove that the Will dated 7.7.1982 was
executed by the deceased under undue influence, coercion and
threats and fraud was played on the deceased by the Plaintiff?
5. Whether the plaintiff is entitled to the letters of administration
as prayed?"
22. During the hearing of the Suit, the Appellant examined two
witnesses between 9 November 2000 and 1 February 2001. The first
witness on behalf of the Appellant was Advocate Lawrence Colaco
(PW-1). He was the lawyer who drafted the Will of the deceased
Maria (mother of the Appellant). The second witness of the
Appellant was her husband-Mr. Saotome Collaco (PW-2).
23. Between 26 July 2001 and 30 August 2001, the Respondents
examined only one witness i.e. Respondent No.1 herself. It was on 30
August 2001 that the Appellant's husband (PW-2) was permitted to
lead evidence in rebuttal, to refute the testimony of DW-1
(Respondent No.1).
24. The learned Single Judge of this Court passed his judgment
dated 7 March 2003 in the said Testamentary Suit disposing of the
same. By the impugned judgment, the learned Single Judge
answered the Issues relating to the formal attestation, execution of
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the said Will, testamentary capacity of the deceased and issues
pertaining to coercion and undue influence, in favour of the
Appellant.
25. This Court, however, found existence of three suspicious
circumstances surrounding the execution of the Will of the deceased
Maria. These being (a) the Will is cryptic and it does not mention the
property of the deceased; (b) the Plaintiff (Appellant) took
prominent part in the execution of the Will; (c) the Will does not
contain any explanation as to why the other two sons of the deceased
Maria i.e. Victor and Neville were excluded from the said Will.
Therefore, notwithstanding the findings on the issues noted above in
favour of the Appellant, the learned Single Judge dismissed the
Testamentary Suit. The Court held that the Appellant had failed to
explain the said alleged suspicious circumstances, resulting in the
dismissal of the Suit of the Appellant.
26. The Appellant, aggrieved by the order of the learned Single
Judge (supra) preferred an Appeal before the Division Bench of this
Court. The Division Bench by an order dated 22 January 2009, set
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aside the impugned judgment of the learned Single Judge, holding in
favour of the Appellant.
27. The Respondents, aggrieved by such judgment and order of the
Division Bench (supra) preferred a Civil Appeal No.7198 of 2009
before the Supreme Court.
28. The Supreme Court by its order dated 2 January 2025, inter
alia, set aside the judgment of the Division Bench dated 22 January
2009. It observed that the approach of the Division Bench was not
correct and that the reasoned judgment of a Single Judge cannot be
interfered with without deep consideration. For such reasons, the
proceedings were remanded to the Division Bench of this Court for
fresh consideration in accordance with law.
Rival Contentions : -
Submissions of the Appellant :-
29. Mr. Karl Tamboly, learned counsel for the appellant, in support
of the appeal has made elaborate submissions. Referring to the
factual matrix in the given case, he would submit that the appellant
has proved the due execution of the Will of the deceased Maria
2-APP-574-2003 (OS).DOC
through PW-1 and PW-2. In fact, the learned Single Judge in the
impugned judgment and order has found that the appellant has
proved the due execution of the Will of deceased Maria dated 7 July
1982.
30. Mr. Tamboly would urge that the learned Single Judge has
disbelieved the stands of the respondents and accepted appellant's
evidence regarding execution and attention of the deceased Maria's
Will. So also, the learned Single Judge has accepted the appellant's
case in regard to the soundness of mind and testamentary capacity of
the deceased.
31. Mr. Tamboly would then submit that there are no cross
objections preferred by the Respondents, to the extent the impugned
judgment was in favour of the Appellant. Accordingly, the findings in
this regard become final and binding. The Appellant has thus proved
the due execution and attestation of the Will along with the
testamentary capacity of the deceased.
32. In the above context, Mr. Tamboly would urge the Court to
consider the principles as have been propounded by judicial
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principles to apply in contentious cases, relating to proof of Wills,
which are set out below:-
a) A Will is proved if it meets the requirements of Section 59, 61
and 63 of the Indian Succession Act, 1925. Proof of a Will means
proof in its solemn form i.e. in accordance with the requirements of
Section 59, 61 and 63 of the said Act. In this regard, Mr. Tamboly
would place reliance on the decision of Shirish Popatlal Shah Vs.
Arun Popatlal Shah1.
b) Mr. Tamboly would then submit that the Will must be proved not
only in accordance with Section 63 of the Indian Succession Act but
also Section 68 of the Indian Evidence Act. In this regard he would
rely on the decision of the Hon'ble Supreme Court in Niranjan
Umeshchandra Joshi Vs. Mrudula Joshi Rao and Ors 2; H.
Venkatachala Iyengar Vs. B. N. Thimmajamma and Ors 3; Uma Devi
Nambiar and Ors Vs. T. C. Sidhan (Dead) 4 and the decision of a
coordinate Bench of this Court in Shirish Popatlal Shah (Supra) .
. (2016 (6) (Mh.L.J) 257)
. (2006) 13 SCC 433
. 1958 SCC Online SC 31
. (2004) 2 SCC 321
2-APP-574-2003 (OS).DOC
c) The propounder of a Will is required to lead satisfactory evidence
that the testator put his/her signature to the Will, out of his or her
freewill and that he/she were in sound and disposing state of mind
at the relevant time. The onus on the propounder is discharged on
the proof of these essential facts, as held by the Supreme Court in H.
Venkatachala Iyengar (Supra) .
33. Mr. Tamboly would then urge that the learned Single Judge has
found in favour of the appellant, qua the execution and attestation of
the Will, soundness of mind of the testator at the relevant time,
absence of any fraud, collusion and undue influence in the execution
of the Will. This being the case, there was no question of the
existence of any suspicious circumstances surrounding the making of
such Will of the deceased.
34. Mr. Tamboly would then contend on the findings in the
impugned judgment with regard to the three suspicious
circumstances as noted in the said judgment. In this regard, Mr.
Tamboly would submit that none of these actually exist in the given
facts and circumstances and therefore a serious error both on facts
2-APP-574-2003 (OS).DOC
and in law has crept in the impugned judgment and order of the
learned Single Judge, which ought to be set aside.
35. Mr. Tamboly would contend that the jurisdiction of
testamentary court is not of suspicion, skepticism, but of
circumspection and caution. He would once again place reliance
Shirish Popatlal Shah (Supra). Such suspicious circumstance must
either appear from document itself or must be shown to exist by
cogent evidence and must be such that they are real, germane and
not fantasy of the doubting mind.
36. Mr. Tamboly would urge that a Will is not required to be in any
particular form and there is no particular format under the Indian
Succession Act for a Will to be specifically worded as held in Hari
Narayan Khedkar (deceased) and Ors Vs. Pandurang through LRs
Dwarkabai wd/o Pandurang Khedkar and Ors 5. In such view of the
matter, the findings of the learned Single Judge in the impugned
judgment qua the absence of any particulars of the properties by the
deceased in her Will, owned by her, cannot be a suspicious
circumstance. According to Mr. Tamboly, the probate Court is
. (2003) 4 Mh.L.J. 277)
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concerned only with the due execution of the Will. As the learned
Single Judge had otherwise held in favour of the appellant on all
Issues pertaining to the execution of the Will, the ground of suspicion
circumstances could have never disentitle the Appellant from
claiming the reliefs in terms of issuance of the Letters of
Administration, with her deceased mother's Will.
37. Mr. Tamboly would urge that the only evidence which has
come on record regarding the participation of the Appellant in the
Will of the deceased, which according to the Appellant, would be
clear from the following facts :- (a) the Appellant was present when
the deceased Maria executed the Will at the residence of PW-1 and
the same was attested by PW-1 and his wife attesting witnesses; (b)
PW-1 drafted the Will as per the instructions of the deceased Maria,
once the same was ready, he telephoned the Appellant to bring the
deceased Maria to his residence; (c) the Appellant accompanied the
deceased Maria to the residence of PW-1 for making her Will.
38. It is thus clear that, the Appellant apart from accompanying her
deceased mother, who was 70 years old at the relevant time, played
no active role in making of the Will in question. This being the case,
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it can hardly be said to be suspicious circumstance disentitling the
grant of relief, as prayed for, to the Appellant. It is well settled that
mere presence of propounder of Will at the time of execution is, by
itself, insufficient to create any doubt regarding the testamentary
capacity of the testator, or the genuineness of the Will as also
observed by the Supreme Court in Smt. Malkani Vs. Jamadar and
Ors6 and Pentakota Satyanarayana & Ors Vs. Pentakota
Seetharatnam & Ors7.
39. Mr. Tamboly would contend that even the other two sons of the
deceased Maria i.e. George and Reginald are equal (1/3)
beneficiaries under the Will of the deceased along with the
Appellant. It is nobody's case that they had any role to play in the
making of the Will. As beneficiaries, they are equally entitled in law
to apply for Letters of Administration with the Will annexed. Had
they done so, the grant of Letters of Administration would not have
been refused on the ground that the Appellant allegedly participated
in making of the Will.
. (1987 1 SCC 610)
. (2005 8 SCC 67)
2-APP-574-2003 (OS).DOC
40. Mr. Tamboly would contend that exclusion of a natural legal
heir by a Will in itself can never be a suspicious circumstance
disentitling the grant of probate or Letters of Administration with the
Will annexed as observed by the Supreme Court in Ved Mitra Verma
Vs. Dharam Deo Verma8, Rabindra Nath Mukherjee and Anr Vs.
Panchanan Banerjee (Dead) By Lrs and Ors 9 and decision of a
coordinate Bench of this Court in Shirish Popatlal Shah (Supra).
41. According to Mr. Tamboly, the learned Single Judge in the
impugned judgment has, inappositely, drawn an adverse inference
against the Appellant. The learned Single Judge failed to appreciate
that even though the Appellant did not examine herself, her husband
- PW-2 was orally examined. He was competent to answer the
question regarding the life of the deceased as he has known her well
since his childhood. None of this was at all tested in his cross
examination by the respondent, therefore, it can be deemed that the
respondents accepted the testimony of PW-2 as observed by the
Supreme Court in Muddasani Venkata Narsaiah (Dead) Through
Legal Representatives Vs. Muddasani Sarojana 10. That apart, the
. (2014) 15 SCC 578
. (1995) 4 SCC 459
. (2016) 12 SCC 288
2-APP-574-2003 (OS).DOC
learned Single Judge in his impugned judgment failed to appreciate
the evidence which had come on record, to justify the reason for the
Appellant who could not travel from Canada to India because of
illness, heart issues followed by surgery in the year 1995.
42. The learned Single Judge seems to have accepted the oral
submissions made on behalf of the respondents at the time of final
hearing regarding the alleged suspicious circumstances and drew an
adverse inference against the Appellant. In any event, drawing an
adverse inference, Mr. Tamboly would submit, is the discretionary
power of the Court. This is evidenced by use of the word "may" in
Section 114 of the Indian Evidence Act, 1872. Therefore, such
discretion in light of the overall findings in the impugned judgment
ought not to have been exercised against the Appellant, by the
learned Single Judge.
43. Mr. Tamboly would emphatically urge that the core issues in
the said case have been held in favour of the Appellant. It is well
settled that the respondent may defend herself without taking
recourse to filing cross-objections, to the extent that the decree
stands in her favour. But, when the Respondent intends to assail any
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part of the decree, it is obligatory on her part to file a cross
objections, as observed by the Supreme Court in Hardevinder Singh
Vs. Paramjit Singh and Ors 11. Thus, in the absence of any appeal or
cross objections by the respondents, it was not open for respondents
to assail the findings on the core issue answer in favour of the
Appellant, in the given facts.
Case of the Respondents :-
44. Mr. Quraishy, learned counsel for the Respondents has
vehemently refuted all the submissions made on behalf of the
appellant. In sum and substance, he would contend that the
impugned judgment, warrants no interference in Appeal. This is
because the learned Single Judge has considered all factual and legal
nuances on record resulting in a reasoned judgment.
45. Mr. Quraishy would premise his submission on provisions of
the Indian Succession Act namely Section 89, 81 and 180. He would
submit that considering these provisions in-totality, there is no
justification in law to grant Letters of Administration in favour of the
. 2013 9 SCC 261
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appellant with respect to the Will of the deceased Maria by
interfering with the impugned judgment.
46. Mr. Quraishy would at the outset submit that the Will of the
deceased Maria falls foul of Section 89 of the Succession Act and is
void on the account of uncertainty. This is in as much as the extract
of the Will would reveal that deceased Maria purportedly bequeathed
all movable and immovable properties which she may be possessed
of or entitled to at the time of her death, to three out of five children.
However, the said Will neither describes any property, nor does it
offer any explanation as to why the two children i.e. Neville and
Victor have been disinherited from the estate.
47. Mr. Quraishy would submit that in the above context, there is
no explanation forthcoming from PW-1 i.e. the lawyer who drafted
the Will, for not setting out the particulars/details of the subject
property.
48. Further to the above, Mr. Quraishy submitted that the
explanation so offered by PW-1 would fall foul of Section 81 of the
Indian Succession Act. Mr. Quraishy would rely on the illustrations
under Section 81 read with Section 89 of the said legislation. Mr.
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Quraishy would then submit that the Will of the deceased Maria, in
terms of the property set out therein, read as a residuary clause
which is, no doubt, permitted under Section 103 of the Indian
Successions Act. However, such a provision would apply only for the
property in respect of which the testator has not made any other
testamentary disposition which is capable taking effect.
49. A perusal of schedule of property to the said Will of the
deceased Maria makes it evident that a Will is silent on the said
statutory requirement, under Section 89 of the Act. In such
circumstances, considering the clear ambiguity or deficiency
apparent on the face of the Will, no extrinsic evidence can be
admitted to ascertain the intention of the testator, deceased Maria, in
the present case.
50. Mr. Quraishy would submit that the schedule of the property in
the said Will describes a property in Bandra, ordinarily as a plot of
land with a building standing thereon, drawing the Court's attention
to the affidavit in respect of the Caveat (at Page-28 of Paperbook).
Mr. Quraishy would contend that such property at Bandra was the
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subject matter of Testamentary Petition No. 929 of 1976, filed for
probating Will of the deceased father of the Appellant.
51. Mr. Quraishy contended that this petition was filed by none
other than the deceased, Maria, for the probate of the last Will and
testament of her late husband, Sonny Coelho, which was duly
probated, a fact which is not disputed. Further to the above, Mr.
Quraishy would next contend that having applied for and obtained
probate of the last Will and testament of her husband, it is pertinent
to note that the same treated the property at Bandra as being under
his Sole ownership. Thus, the deceased Maria had exercised her right
to elect as stipulated under Section 180 of the Indian Succession Act,
giving up any right to bequeath the same property being the subject
matter of her late husband's probate Will. Mr. Quraishy would place
due reliance on Section 180 of the Indian Succession Act to make
good his submissions.
52. He would further contend that the above aspect in the matter
has been duly considered and reasoned findings have been arrived at
in paragraph 15 to 18 of the impugned judgment of the learned
Single Judge. These would make it clear that the deceased Maria
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having propounded the Will, her late husband and was aware and
conscious of the fact that the said Bandra property was solely owned
by her husband. There is no reason, much less justification to stray
away and or defer from such findings in the impugned judgment.
53. Mr. Quraishy would then submit that the suspicious
circumstances surrounding the Will are succinctly enumerated in the
impugned judgment (Page-115 of paperbook). The detailed and
cogent findings on these crucial aspect of the matter, in the given
facts, warrant no interference.
54. Mr. Quraishy would place reliance on the judgment of the
Supreme Court in the case of Kavita Kanwar Vs. Mrs. Pamela Mehta
& Ors12. (Para 23.2) where the Supreme Court has held that when a
Will is surrounded by suspicious circumstances, the Court would
expect that the legitimate suspicion should be removed before the
document in question, is accepted as the last Will of the testator.
Further in the said case, the Court has also relied upon the definition
of 'suspicious circumstance' as held in Shivakumar and Ors Vs.
Sharanabasppa and Ors13, where the Court held that, "A circumstance
. Civil Appeal No. 3688 of 2017 decided on 19 May 2020.
. Civil Appeal No. 6076 of 2009 decided on 24 April 2020.
2-APP-574-2003 (OS).DOC
is "suspicious" when it is not normal or is 'not normally expected in a
normal situation or is not expected of a normal person'. As put by
this Court, the suspicious features must be 'real, germane and valid'
and not merely the 'fantasy of the doubting mind".
55. Mr. Quraishy in the above context would refer to the said
decision in Kavita Kanwar (supra), where the Supreme Court has
also referred to the decision in H. Venkatachala Iyengar (supra),
wherein the Court held that the where the propounder of a Will has
taken a prominent part in its execution and has received substantial
benefit under it, such circumstances are generally treated as
suspicious.
56. Mr. Quraishy would contend that in the present case, it has
come on record that the said Will of the deceased Maria was drafted
by PW-1, i.e. the lawyer i.e. Collaco who was known to the
Appellant. Referring to the evidence on record he contended that it
was the appellant who brought the said deceased Maria to the house
of the said lawyer for the execution of the Will, and she was present
at the time of signing of the said Will; The said lawyer, PW-1, and his
wife were witness to the Will; The said lawyer PW-1 had also advised
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the appellant by giving a written opinion on the said Bandra
property.
57. Mr. Quraishy in his submissions would rely on the findings of
the learned Single Judge in the impugned judgment, where it is
rightly noted and considered the fact that the Will has been drafted
by a lawyer who charged fees for the same, it remains cryptic and
mentions neither any property nor the name of an executor. Not just
that but also the said Will drafted by the said lawyer excludes two
children, without any explanation, which comes within the realm of
a suspicious circumstances.
58. As regards the exclusion of Victor and Neville from the said
Will, there is no explanation forthwith therefrom neither the
evidence of PW-1 and PW-2 throw any light in this regard. During
arguments, an explanation was sought to be put forward by the
Appellant to the effect that they were already beneficiaries of the
Will of their late father-Sonny. However, the said explanation was not
accepted, as it was not born out of the evidence of PW-1 or PW-2.
59. Mr. Quraishy would rely on the recent Supreme Court
judgment in Gurdial Singh (Dead) through LR Vs. Jagir Kaur (Dead)
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and Anr. Etc 14, where the Hon'ble Supreme Court summarized the
legal principles regarding the proof of a Will and clearly held that the
onus lies on the propounder to dispel any suspicious circumstances
surrounding the Will, to the satisfaction of the conscience of the
Court. The Court further relied on the decision in H. Venkatachala
Iyengar (Supra) wherein it was held that even in the absence of any
plea of fraud, collusion, coercion or undue influence by the caveator
or where suspicious circumstance exist, it is the duty of the
propounder of the Will to remove all dues to the satisfaction of the
Court. He would urge that the decision of the Hon'ble Supreme in
Gurdial Singh (Supra) and Kavita Kanwar (Supra) negate the
contention of the Appellant that having decided on Issue Nos. 1 to 4
in favour of the appellant, the learned Single Judge could not have
declined to grant Letters of Administration with the Will of the
deceased Maria (mother of the Appellant).
60. Mr. Quraishy would then urge that the learned Judge, in the
impugned judgment and order has rightly drawn an adverse
inference as regards the failure of the appellant to examine herself,
. Civil Appeal No(s). 3509-3510 of 2010 decided on 17 July 2025.
2-APP-574-2003 (OS).DOC
which was essential to dispel the suspicious circumstances
surrounding the said Will. According to him, the learned Single
Judge thus had rightly contended that PW-2 (husband of the
Appellant) had no personal knowledge regarding the circumstances
surrounding the execution of the Will. PW-2 failed to prove that the
Appellant was unable to come to India to record evidence in the year
2000-2001, despite the plea of her ill health that pertained to the
year 1995-1996. Mr. Quraishy would further submit that PW-2
(Husband of the Appellant) admitted that he did not personally
know PW-1 and was not present at the time of execution of the Will.
Accordingly, his testimony does not take the case of the Appellant
any further.
61. For all the above reasons, Mr. Quraishy would urge that the
appeal is completely devoid of merits and should be accordingly
dismissed.
Rejoinder Submissions of the Appellant :-
62. Mr. Tamboly in his rejoinder submission would first respond to
the contention of the respondent that the deceased Maria (mother of
the Appellant) had not set out or itemized her property in her Will.
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He submits that this contention is not relevant, primarily because it is
well settled that the probate Court is not concerned with the title to
the estate. In this regard, Mr. Tamboly places reliance on the Krishna
Kumar Birla Vs. Rajendra Singh Lodha & Ors 15 and Kanwarjit Singh
Dhillon Vs. Hardyal Singh Dhillon and Ors16.
63. Mr. Tamboly would next contend that the reliance of the
respondent on Section 180 of the Indian Succession Act is completely
inapposite. During her lifetime, and after the death of her late
husband the deceased Maria had always treated the subject Bandra
property, as her very own. She had in her lifetime got share
certificate issued by Salsette Catholic Co- operative Housing Ltd
Society transferred in her own sole name. In this context, it is
submitted that the deceased Maria and her late husband-Sonny had
taken assignment in respect of the subject Bandra property under the
lease dated 20 February 1956 as joint tenants for the said property
and not as tenants in common.
64. According to Mr. Tamboly it is well settled that in the case of
joint tenancy, upon the death of one joint holder, his or her name in
. (2008) 4 SCC 300.
. (2007) 11 SCC 357
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the property devolves upon the remaining joint holders by survivor-
ship and is not governed by law of succession. Thus, the deceased
Maria (mother of the Appellant) in her lifetime has always treated
the suit property at Bandra as her own property pursuant to the
death of her husband-Sonny, therefore, being the sole owner of the
property upon death of her husband. Thus, reliance of Mr. Quraishy
on Section 180 of the Indian Succession Act is misconstrued. He
would, to the contrary, submit that the Hon'ble Supreme Court had
the occasion to address similar situation in Valliammai Achi Vs.
Nagappa Chettiar& Anr17 to negate the submission of Mr. Quraishy on
Section 180 of the Indian Succession Act.
65. Mr. Tamboly would further submit that the submissions of the
Respondents that the legal effect of the deceased Maria's Will has
nullified the dispositions in her late husband-Sonny's Will can hardly
be stated as suspicious circumstance. Mr. Tamboly would submit that
the law of joint tenancy vis a vis tenancy in common would
necessarily impact the bequests made under Sonny's Will. There is no
prohibition to probate such Will, under law.
. 1967 2 SCR 448.
2-APP-574-2003 (OS).DOC
66. Mr. Tamboly would next contend that the Appellant would be
entitled to get an equal share in the estate of the deceased, as her
brothers i.e. George and Reginald, as per the said Will. Referring to
Section 218 of the Indian Succession Act,1925 he would submit that
both George and Reginald were both competent in law, to apply for
Letters of Administration annexed with the said Will, there is no
fetter in this regard.
67. According to Mr. Tamboly it is not the respondent's case that
George and Reginald had any role to play in making of the said will.
Had they been the propounders of the said Will in question, the
suspicious circumstances allegedly existent would not be said to
exist, in which case the grant of Letters of Administration would have
to be allowed, given the other findings in the impugned judgment.
This, according to Mr. Tamboly, is not considered by the learned
Single Judge in the impugned judgment.
68. This Court ought to consider that making of the Will of the
deceased Maria was not vitiated by exercising of alleged undue
influence, fraud or coercion upon her. The respondents have not even
admitted to address this issue, despite being raised by the appellant.
2-APP-574-2003 (OS).DOC
69. Mr. Tamboly would submit that the order passed by this Court
on 18 April 1990 in Testamentary Petition No. 209 of 1987 filed by
the Appellant would show that Victor was represented before this
Court and was fully aware of the Testamentary Petition filed by the
Appellant. Victor passed away on 26 January 1993 without filing a
Caveat and/or challenging the Will of deceased Maria. Whereas,
Neville, the other son who despite being excluded from estate of the
deceased never objected to the grant of Letters of Administration in
favour of the Appellant.
70. Mr. Tamboly would thus submit that this Court be pleased to
test the alleged suspicious circumstances also on the above
parameters coupled with the findings against the respondent
regarding the allegations of undue influence, fraud, coercion, forgery
and the testamentary capacity of the deceased. In doing so, this
Court may consider the fact that Respondent No. 1 at the time of her
oral evidence herself admitted that Victor and the respondent did not
visit the deceased after 1981-1982.
71. For all of the above reasons Mr. Tamboly would submit that
impugned judgment and order dated 7 March 2003 passed by the
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learned Single Judge deserves to be interfered with and ought to be
set aside in the present proceedings by allowing the appeal of the
Appellant.
Analysis & Conclusion :-
72. At the threshold, a perusal of the impugned judgment,
answering the issues framed by the learned Single Judge vide the
impugned order dated 7 March 2003, the Appellant has formally
proved the Will of the deceased Maria. This is in terms of the
parameters, inter alia, laid down under Section 68 of the Indian
Evidence Act, coupled with the settled legal principles set out in the
impugned judgment.
73. The impugned judgment was challenged before the Division
Bench of this Court by the Appellant in Appeal. By an order dated 22
January 2009, the impugned judgment of the learned Single Judge
was set aside. The Respondents carried the said decision on appeal to
the Supreme Court. By an order dated 2 January 2025, the Supreme
Court remanded the proceedings to this Court. This was primarily on
the ground that a further probe is required as to whether suspicious
circumstances surround the Will in question.
2-APP-574-2003 (OS).DOC
74. Apropos the above, our endeavor in the present factual
situation is to analyze and adjudicate upon the findings in the
impugned judgment, primarily, on the issue of existence of suspicious
circumstances. The learned Single Judge on such premise concluded
that the relief to the Appellant (Plaintiff) ought not to be granted, in
terms of the issuance of the Letters of Administration. By our order
dated 27 November 2025, during arguments, we had suggested to
the parties, through their counsel, to see whether any settlement
could be explored, for which we had granted the parties four weeks'
time. However, we were subsequently informed that the same is not
possible. It is in such a backdrop that we proceed to examine the
Issues and rival contentions placed before us.
75. We are conscious that the idea behind the execution of a Will is
to interfere with the normal line of succession, held in Rabindra Nath
Mukherjee (Supra). This has been the thrust of Mr. Tamboly's
submission.
76. Mr. Tamboly has strenuously urged that once the execution of
the Will is duly proved in favour of the Appellant (Plaintiff) then the
mere existence of the alleged suspicious circumstances ought not to
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act as a deterrence for issuance of the Letters of Administration in
favour of the Appellant (Plaintiff). We shall test the correctness,
legality or otherwise of this submission in the discussions in the
paragraphs hereinafter.
77. What appears from the contentions of Mr. Tamboly is that
when a Will is formally proved, relying upon the impugned judgment
there can be no ground of interference in as much as the intention of
the testator is reflected in such Will.
78. It appears that the learned Single Judge, in the impugned
judgment, has held in favour of the Respondents mainly on three
grounds viz. (a) Will is cryptic and it does not mention the property
of the deceased; (b) the Appellant took prominent part in the
execution of the Will; (c) the Will does not contain any explanation
as to why the other two sons of the deceased Maria namely Victor
and Neville, were excluded from any benefits. These alleged
circumstances, branded as suspicious, according to Mr. Tamboly
cannot invalidate a Will of the deceased Maria which is otherwise
formally proved.
2-APP-574-2003 (OS).DOC
79. Merely because the Respondent (Defendant) has contended
existence of some suspicious circumstances that would not per se
result in refusing the grant of Letters of Administration with the Will
of the deceased Maria. Merely because two of the legal heirs i.e.
Neville and Victor have been consciously disinherited from the Will
that alone is not a suspicious circumstance, in the given factual
matrix. On a first blush, such submissions/ contentions appear to be
attractive. However, when one delves into the details and nuances in
the unique and peculiar factual complexion this may not be the
correct position.
80. Examining the first suspicious circumstance, namely that the
said Will is bereft of necessary particulars/details, we may first
advert to the Will of the deceased Maria, which is reproduced
below:-
"LAST WILL AND TESTAMENT
I. Mrs. MARIA FRANCICA COELHO wife of the late Sonny Rita
Coelho residing at Casa Maria". 44, St. Paul's Road, Bandra,
Bombay 400050 do hereby make and declare this as my last will
and testament hereby I have bequeath and give to my children
(1) George Patrick Coelho (2) Reginnald Christopher Coelho and
(2) Mrs, Myan Philomena Collaco (nee Coelho), to each of them
2-APP-574-2003 (OS).DOC
in equal shares, all my property movable and immovable which I
may be possessed of or be entitled to at the time of my death.
IN WITNESS WHEREOF I, the said Mrs. MARIA FRANCISCA
COELHO, have hereunto signed at Bombay this the 7th day of
July, 1982.
Sd/- 7.7.1982.
Mrs. Maria Fransieca Coelho.
Signed by the said Mrs.MARIA FRANCISCA COEHO as her last
will and testament in the presence of us, present at the same
time, who is her presence and is the presence of each other, sign
as witnesses hereto.
1. Signature Sd/-
Name L.A. Collaco, 49 Nova
Rose, Society.
Address St. Dominic Road,
Bandra, Bombay 400050.
2) Signature Sd/-
Name Zita Calhco.
Address 42, Nova Rose Society,
St. Dominic Road,
Bandra,Bombay
400050."
A perusal of the above Will of the deceased Maria clearly brings out
the fact that the details of the property sought to be bequeathed are
not mentioned therein. This becomes relevant as there is nothing on
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record of the proceedings to show that the deceased Maria stated in
her probate petition that she possessed half of share in the subject
property though her deceased husband - Sonny.
81. Under his Will, he clearly intended to dispose of the entire
subject property in favour of his two sons Victor and Neville
conferring only a life interest in favour of the deceased Maria.
82. The above facts, along with a bare perusal of the deceased
Sonny's Will, clearly demonstrate that he always treated the subject
property as his own and never as joint property with his deceased
wife, Maria. The said Will was duly probated on 24 April 1980,
which the Appellant does not assail. Further, there is nothing on
record to demonstrate that the Appellant, Myra, opposed the grant of
such probate of her late father's Will. Such objection becomes
relevant, given that, according to the Appellant, her deceased father,
under his Will, could not have disposed of the entire property, which
was joint property of both her parents.
83. The fact that intrigues us is that the Appellant, Myra, remained
silent for about 6 years after the probate of her deceased father's
Will, granted on 24 April 1980. It was only around 16 December
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1985 that she filed Suit No. 3245 of 1985 against her four brothers
for the administration of her mother's estate, seeking a declaration of
her share therein. The Appellant has, inter alia, stated that her
deceased father's Will was probated in April 1980 in the said Suit
preferred by the Appellant.
84. The Will of the deceased Maria, sought to be propounded by
the Appellant, came into existence on 7 July 1982, i.e. after about 21
months, pursuant to the grant of the probate to the Will of her father,
which was probated on 24 April 1980. Noting the material and
relevant fact that the subject properties sought to be bequeathed are
common under the Wills of both the deceased parents of the
Appellant, the said Wills are interlinked. This fact thus assumes
significance.
85. When the deceased Maria was very much aware that only a life
interest in the property in question was created in her favour, under
her deceased husband's Will, it is natural that the details of the
property ought to have been specified. This is more so when the said
Will of the deceased Maria was drafted by a lawyer i.e. PW-1.
Describing the property of the deceased Maria which she intended to
2-APP-574-2003 (OS).DOC
bequeath, in the given factual complexion, would have lent certainty
and predictability.
86. Contextually, Section 89 of the Indian Succession Act reads
thus:-
"89. Will or bequest void for uncertainty.--A will or bequest not
expressive of any definite intention is void for uncertainty."
In light of the above, we find that the Will of the deceased Maria
only refers to the expression 'my property'. However, it lacks the
necessary details and/or particulars.
87. As noted earlier, the fact that Will was drafted/made by a
lawyer engaged for this purpose gives rise to a reasonable
expectation that the Will would bear the necessary particulars
regarding the property sought to be bequeathed thereunder. In this
context, the evidence of PW-1 becomes pertinent and relevant. He, in
his cross-examination, has inter alia deposed that:
a) The deceased, Maria, i.e., the testator herself, gave him oral
instructions and general information about the property
without specifying what the property was.
b) He did not ask for the details of the said property. He
prepared the draft of the Will, which was executed at his
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residence on 7 July 1982, and even charged fees for drafting
the said Will.
c) After the Testator, i.e. deceased Maria, read the draft and
approved the same, there were corrections in the draft in
respect to the spellings, name and addresses of the children.
d) He was not sure whether such corrections were made by the
Testator i.e. Maria herself. However, in the affidavit dated 1
April 1987, sworn by him in the capacity of attesting
witness, he, inter alia, stated that the deceased, in her own
handwriting, corrected the name of Myra before the
execution of the Will.
e) PW-1 had suggested to the deceased Maria to appoint an
executor to the said Will, to which she disagreed.
88. On perusal of the deposition of PW-1 i.e. one of the attesting
witnesses to the deceased Maria's Will, being
unimpeached/unassailed, in the factual matrix, necessitated the
details of the bequeathed property to be specified, to overcome the
vice of uncertainty. In this context, we now refer to the decisions
cited by Mr. Tamboly in Kanwarjit Singh Dhillon (Supra) and Krishna
Kumar Birla (Supra). These stand for the proposition, inter alia, that
the probate Court is not competent to determine the question of title
to the suit properties nor will it go into the question whether the suit
2-APP-574-2003 (OS).DOC
properties bequeathed by the Will were joint ancestral properties or
self-acquired by the Testator.
89. In the given facts, this is not the issue for consideration before
this Court. We are called upon to examine the Will of the deceased
Maria, more particularly and specifically, in the context of the
suspicious circumstances (supra) allegedly surrounding the Will.
These ought to be repelled to the satisfaction of the Court, which is
trite law. It is therefore incumbent upon us to holistically consider
and examine all relevant and material facts. We ought not to focus
on a single factor like the title of the property as sought to be
contended by Mr Tamboly in support of the judgments cited by him
(supra).
90. It is apposite to refer to a decision of the Privy Council in
Hames Vs. Hinkson18. The Privy Council observed that where a Will is
charged with suspicion, the rules enjoin a reasonable skepticism, and
as Judges we cannot close our minds to the truth. Therefore, we are
afraid the decisions cited by Mr Tamboly (supra) do not assist him.
. AIR 1946 PC 156
2-APP-574-2003 (OS).DOC
91. The second suspicious circumstance alleged is that the
Appellant had taken a prominent part in the execution of the Will of
her deceased mother, Maria, which the Appellant seeks to propound.
In this regard, we firstly refer to the evidence of PW-1. He, in his
cross-examination, has inter alia deposed that;
(a) PW-1 did not know the deceased Maria directly. He was
introduced to her through the Appellant.
(b) PW-1 was consulted by the Appellant on private legal matters,
not about the disputed property.
(c) The Appellant had brought the deceased Maria to his house for
the purpose of executing the Will, after which he did not give any
notice in respect of the property of the deceased Maria.
(d) PW-1 has also referred to a legal opinion given by him to the
Appellant in respect of a property.
92. The evidence of PW-2 i.e. Saotome Collaco i.e. husband of the
Appellant, more particularly in his cross-examination, demonstrates
that:
(a) He, along with the Appellant, migrated to Canada in 1996.
Thereafter, his family did not come to Bombay. He came to Bombay 4
2-APP-574-2003 (OS).DOC
to 5 times in connection with the case.
(b) He was not personally present at the residence of PW-1 along
with the Appellant and the deceased Maria at the time of execution
of the said Will of the deceased Maria.
(c) He had only spoken to PW-1 over the telephone.
(d) The deceased Maria did not have good relations with one of her
sons, Victor, but had good relations with the other son, Neville, who
did reside with the deceased Maria.
93. Such evidence as noted above has remained unassailed on the
part of the Appellant. It is thus evident that PW-1, being the attesting
witness, came on the scene through the Appellant and did not know
the deceased Maria personally at any given point in time. It was PW-
2 who deposed as a witness on behalf of the Appellant when, in the
given factual complexion, it is apparent that he was not directly
concerned and/or possessed knowledge of the facts surrounding the
deceased Maria's Will, nor was he present at the time of its execution
before PW-1.
94. The Appellant admittedly chose not to be a witness and/or
offer herself for examination and cross-examination. It was the
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Appellant who sought to propound the Will of her deceased mother,
who was personally aware of all the facts relevant and necessary
surrounding the property sought to be bequeathed under her
deceased mother's Will. It is trite that as the propounder of her
deceased mother's Will, it was the bounden duty of the Appellant to
remove all suspected features.
95. Mr. Tamboly has urged that it is well settled that mere presence
of the propounder of the Will at the time of execution is insufficient
to create any doubt regarding the testamentary capacity or
genuineness of the Will. In this regard he would rely on the decision
in Smt. Malkani (Supra) and Pentakota Satyanarayana (Supra).
These observations were made in the peculiar facts and
circumstances of those situations. However, in our view, the
Appellant being in the know of all the relevant facts and
circumstances surrounding the Will, would be relevant and
significant. Therefore, taking recourse to what happens ordinarily, as
contended by Mr Tamboly, would not in itself be enough. However,
this was observed in those peculiar facts and circumstances.
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96. We now examine the aspect of the Appellant choosing not to
lead evidence in the given proceedings. According to the Appellant,
she was taken ill and was suffering from ischemic heart disease when
migrated to Canada sometime in the year 1995-96, inter alia for her
surgery. However, pertinent it is to note that the medical certificates
produced on record by PW-2 speak about her health condition as of
September/October 1995. It is undisputed that recording of the
evidence in this case began after about 7 years i.e. on 9 November
2002. There is nothing brought on record by the Appellant to
demonstrate that the Appellant's health condition did not permit her
to travel to India for the purpose of giving evidence.
97. On a careful perusal of the record, we find that the evidence of
PW-2 i.e. the Appellant's husband came to be recorded in January
2001. However, there is no explanation regards the Appellant's
health, in the form of material/documents/evidence in respect of
such period to justify her absence.
98. In the above context, we do not advert to the submission of Mr.
Quraishy in the context of Section 81 of the Succession Act, which
reads thus:-
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"81. Extrinsic evidence inadmissible in case of patent ambiguity
or deficiency.--Where there is an ambiguity or deficiency on the
face of a will, no extrinsic evidence as to the intentions of the
testator shall be admitted.
Apropos the above, we advert to the given fact situation, when there
is an ambiguity or deficiency in the description of the property
sought to be bequeathed under the deceased Maria's Will. The same,
as noted above, cannot be cured by extrinsic evidence of the
Appellant, by going behind the intent of the Will of the testator. This
is not what the law would mandate. The stand of the Appellant if
accepted would lead to the contrary and thereby run contrary to
Section 81 (supra). In the context of Section 81 of the Succession Act
we may add that this is not a case, where the extrinsic evidence can
be read into unoccupied interstices of the statute when there are
none.
99. From a careful perusal of the Will of the deceased Maria, we
gather that it describes a property in Bandra essentially a plot of land
with building standing thereon. There is an ex facie ambiguity in this
regard. For the reasons narrated above and the common property
sought to be bequeathed under both the said Wills of the Appellant's
deceased parents, silence as to its description/particulars in the
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deceased Maria's Will, raises doubts. This, we are afraid, is not
dispelled by the Appellant to the Court's satisfaction.
100. We find substance in the contention of Mr. Quraishy to the
effect that it was the Respondent No.1 who chose to be examined
and cross-examined personally, unlike the Appellant, though it is the
Appellant who seeks to propound the said Will. During her testimony
the said Respondent had inter alia deposed that her father-in-law i.e.
the deceased father of the Appellant-Sonny had bequeathed equal
share in the subject property to his sons Victor and Neville with life
interest to his deceased wife Maria. Such Will was probated by the
said two sons and the deceased Maria. She also deposed that the
deceased Maria had told Victor how the deceased could divide her
property and give a share to the Appellant when her husband had
made the Will and divided the property.
101. The Evidence Act under Section 106 cast a burden of proving a
fact especially within the knowledge on such person. In the present
factual complexion, such person is none other than the Appellant
herself. It is she who desires to propound her deceased mother's Will
and the law casts upon her an obligation to dispel any circumstances
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even bordering around suspicion, to dispel the same to the
satisfaction of the Court.
102. Mr. Tamboly, in our view, cannot dispute the settled position
that when the Appellant who seeks to propound her deceased
mother's Will she is legally obligated to dispel any unnatural,
unusual circumstances surrounding it.
103. We are not impressed with the grounds of her health in not
leading evidence for the reasons indicated by us above. We are not
persuaded by Mr Tamboly when he submits that PW-2, i.e. husband
of the Appellant, had knowledge of all the facts and circumstances
surrounding the execution of the Will for the reasons noted by us
above. It is apposite at this juncture to refer to a decision of the
Supreme Court in Vidyadhar Vs. Manikrao and Anr.19, paragraph 17
of which reads thus: -
"17. Where a party to the suit does not appear into the witness
box and states his own case on oath and does not offer himself to
be cross examined by the other side, a presumption would arise
that the case set up by him is not correct as has been held in a
series of decisions passed by various High Courts and the Privy
Council beginning from the decision in Sardar Gurbakhsh Singh
v. Gurdial Singh (AIR 1927 PC 230). This was followed by the
. 1999 AIR SC 1441
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Lahore High Court in Kirpa Singh v. Ajaipal Singh (AIR 1930 Lah
1) and the Bombay High Court in Martand Pandharinath
Chaudhari v. Radhabai Krishnarao Deshmukh (AIR 1931 Bom
97). The Madhya Pradesh High Court in Gulla Kharagjit
Carpenter v. Narsingh Nandkishore Rawat (AIR 1970 MP 225,
1970 MPLJ 586) also followed the Privy Council decision in
Sardar Gurbakhsh Singh's case (supra). The Allahabad High
Court in Arjun Singh v. Virender Nath (AIR 1971 ALL 29) held
that if a party abstains from entering the witness box, it would
give rise to an inference adverse against him. Similarly, a
Division Bench of the Punjab & Haryana High Court in Bhagwan
Dass v. Bhishan Chand (AIR 1974 P&H 7), drew a presumption
under Section 114 of the Evidence Act against a party who did
not enter into the witness box."
104. A perusal of the above would categorically drive home the
point that this is a case where adverse inference ought to be drawn
against the Appellant under Section 114 of the Evidence Act, under
the canopy of the above decision. The Section employs the word
'may' as a prefix to 'presumption of existence of fact'. We find that
the learned Single Judge has correctly applied the said provision in
the given factual complexion. We are therefore not inclined to upset
the findings dovetailed with the reasons, grounded in law, which
manifest in the impugned judgment.
105. Adverting to these submissions and the decisions relied on by
Mr. Tamboly more particularly in Muddasani Venkata Narsaiah
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(Dead) through Legal Representatives (Supra) and Hardevinder
Singh (Supra) does not in any manner apply to the given facts and
circumstances. For the reasons indicated above as also is evident
from the record, it is PW-2 who was cross-examined and despite such
opportunity his deposition does not support, much less, lend any
credence to the case sought to be espoused by the Appellant.
106. At this stage, it is pertinent to refer to the decision of the Privy
Council in Sardar Gurbakhsh Singh Vs. Gurdial Singh and Anr 20 and
the telling words of the Privy Council in the said case, which read
thus:-
"The true object to be achieved by a Court of justice can only be
furthered with propriety by the testimony of the party who
personally knowing the whole circumstances of the case can dispel
the suspicious attaching to it. The story can then be subjected in all
its particulars to cross-examination."
107. We may now advert to the submission of Mr. Quraishy when he
relies on Section 180 of the Indian Succession Act which reads thus:-
"180. Circumstances in which election takes place.--Where a
person, by his will, professes to dispose of some thing which he
has no right to dispose of, the person to whom the thing belongs
shall elect either to confirm such disposition or to dissent from
. 1927 AIR Privy Council 230
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it, and, in the latter case, he shall give up any benefits which
may have been provided for him by the will."
108. In terms of the above, the Appellant cannot escape from the
fact that her deceased mother Maria had not challenged the probate
of the Will of her deceased husband. In fact, she, along with her two
sons, Neville and Victor, who were the named executors in the said
Will, had applied for probate of the said Will, which treated the
subject property at Bandra, being of his sole ownership. Therefore,
there is substance in the submission of Mr. Quraishy that the
deceased Maria had exercised her right to elect and considering the
clear and unambiguous language and purport under Section 180 of
the Succession Act, the deceased Maria gave up any right to
bequeath the same property, which, undisputedly, formed the nerve
center of the Appellant's deceased father's Will. It may be apposite to
refer to the definition of the expression life interest as defined under
the Black's Law Dictionary (7th Edition) as "an interest in real or
personal property measured by the duration of the holder's or
another named person's life". The same definition is found in Mitra's
Legal and Commercial Dictionary. Juxtaposing this to the given facts
such life interest created in favour of the deceased Maria under her
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deceased husband's Will excluded the power of absolute transfer. The
life interest created in her favour under her deceased husband's Will
would extinguish on her death.
109. In the above context, we have equally noted the rebuttal of Mr
Tamboly in this regard, who would submit that reliance on Section
180 is misconstrued inasmuch as the deceased Maria, in her lifetime,
had the share certificate transferred in her sole name. Therefore,
being the sole owner of the property upon the death of her husband,
there was no question of election to be made by her in terms of
Section 180 (supra).
110. Accepting the above contention of Mr. Tamboly would
completely turn the facts on its head as also the meaning and purport
of Section 180. In fact, having applied for and obtained probate of
the Will of her deceased husband which treated the property at
Bandra under his sole ownership, the deceased Maria had exercised
her right to elect as conferred under Section 180 of the Succession
Act. She, therefore, relinquished her right to bequeath the very same
property under her deceased husband's Will which, undisputedly,
conferred only a life interest in her favour. Subsequently, even her
2-APP-574-2003 (OS).DOC
daughter i.e. the Appellant has not opposed the probate to her
deceased father's Will when, undisputedly, the Bandra property
sought to be bequeathed is common.
111. We find that reliance of Mr. Tamboly on the decision in
Valliammai Achi (Supra) is of no assistance to the Appellant as the
fact situation in that case cannot simply be interpolated to this case
under consideration. In the given facts and as discussed above, the
distinction between joint tenant and tenants in common as sought to
be canvassed by Mr Tamboly pales insignificance. For such reasons,
we find that the reliance of Mr. Tamboly on the decision in Suresh
Kumar Kohli Vs. Rakesh Jain & Anr.21 on this issue, in the given
factual matrix, is misplaced.
112. We may now advert to the third suspicious circumstance,
namely the exclusion of the two sons, namely Victor and Neville,
from the Will of the deceased Maria. In this context, the case of the
Appellant is that under the Appellant's deceased father's Will, the
said two sons were already made beneficiaries. Therefore, there is
. AIR 2018 SC 2708
2-APP-574-2003 (OS).DOC
nothing unnatural and/or suspicious in this regard. However, the
given facts and the record narrate a different story.
113. There is not even an iota of explanation to be found in the Will
of the deceased Maria in this regard. Nor has the Appellant, the
propounder of her late mother Maria's Will stepped into the witness
box to explain the circumstances in regard to exclusion of her
brothers Victor and Neville from the said Will. The evidence of PW-2
who has sought to replace the Appellant does not throw any light on
this vital aspect which could have been best explained by the
propounder of the said Will i.e. the Appellant herself. Moreover,
referring to Section 106 of the Evidence Act, the evidence of PW-1
brings out nothing to justify the exclusion of Victor and Neville, in
the manner as the law would mandate.
114. It is a fact that the other two brothers George and Reginald for
reasons best known to them have not contested the Will of their
deceased mother which is sought to be propounded only by the
Appellant, making her the de facto and de jure sole beneficiary under
the said Will. Mr. Tamboly in his rejoinder/additional submissions
has referred to an order dated 18 April 1990 passed in these
2-APP-574-2003 (OS).DOC
proceedings, to buttress that Victor was at all times aware of the
Testamentary Petition preferred by the Appellant. He therefore
cannot plead ignorance in regard to the Will of the deceased Maria.
However, written statement dated 11 April 1986 filed by Victor
referred to (supra) belies this. Victor has categorically denied the fact
that the deceased Maria left any Will dated 7 July 1982, putting the
Appellant to its strict proof.
115. In the above context, the decision cited by Mr. Quraishy in H.
Venkatachala Iyengar (Supra) is apposite in the present factual
matrix. The Supreme Court has held that when the propounder of a
Will has received a substantial benefit under the same by taking a
prominent part, in its execution, that itself is generally treated as a
suspicious circumstance. In fact the findings of the Supreme Court in
the said decision, inter alia, in regard to the existence of suspicious
circumstances demonstrate that the findings in the impugned order
have duly considered such position.
116. Now, on a careful perusal of the impugned judgment we find
that this Court has relied upon the affidavit of the deceased Maria
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dated 31 December 1982 which is on record in the proceedings. The
Affidavit reads as under:-
"AFFIDAVIT
I, MRS MARIA FRANCISCA COELHO, wife of the Late Mr.
Santa Rita de Spirito Santo Coelho, residing at 44-A, St. Paul
Road, "Casa Maria, Bandra, Bombay 400050, do hereby state
as follows:
1. Immediately after my husband's death, my son, Victor
Coelho informed me that he had to carry out certain
formalities concerning my and my husband's property. I was
not able to understand, and having implicit faith in my son, as
I have in all my children, I signed whatever he wanted me to
sign and gave my oath wherever he wanted me to do so. Later
on, I learnt that this concerned my husband's will of which I
had no knowledge and which I feel he might have made in a
fit of temper. My husband loved me very much and I cannot
believe he would have made such a will.
2. I trusted my daughter Myra Philomena Collaco (nee
Coelho) and my son Neville Cyril Coelho, and with these two
children, I have left certain unwritten objectives, which they
will carry out if they love me.
3. My daughter Myra and my son, Neville funded me from
time to time to pay my electricity bills, water bills, municipal
taxes. Wherever possible, my daughter, Myra went into appeal
to reduce or to do away with the tax burdens which were
unnecessarily levied on the property.
4. I approached my son, Victor Coelho for a family settlement
and equal distribution of the property, but he refused to agree.
5. I left a will and asked my daughter to work hard to bring
justice and peace in the family.
6. I suffered immensely at the hands of my tenant Mr. Roger
D'Rego who has deceived my husband and me and taken
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shelter on my property. He is the heir to immense wealth and
despite this wants to deprive my children of their rights.
7. I have full right to my husband's property and I do not see
how my son, Victor can assume the responsibility of executor
and trustee.
In June 1946, I opened an account (savings) with Bank of
India, Bandra Branch and I saved money in it given to me by
my father from time to time, money given to me by my
husband as presents and also money I earned from the sale of
sweets, embroidery and masalas. Igave from this money for
the purchase of land when my husband was carrying out
negotiations with the Catholic co-operative Society in the year
1950. I also disbursed from this account from time to time
towards the property. I sold my gold jewellery which was
given to me by my parents at the time of my marriage and
realised a sum of approximately Rs. 14,000/= which I gave to
my husband for the property.
8. This affidavit is being deposed by me with a view to
establish the correct facts regarding my children, the property
and other related matters.
SOLEMNLY AFFIRMED AT BOMBAY
this twenty-ninth 31st day of December 1982 Deponent"
117. A perusal of the above affidavit does indicate an element of
suppression of facts which remains to be explained and/or justified
by the Appellant. It is not for this Court to read into and/or fill in the
gaps, as that would tantamount to conjecturing, which cannot be
countenanced. This is more particularly when the deceased Maria
clearly deposed in the said affidavit that she left "certain unwritten
objectives which they will carry out if they love me". Thus, it is only
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the Appellant and/or Neville who can throw light and/or explain as
to what such unwritten instructions were. In the absence of evidence,
more particularly led by the Appellant and/or Neville, we are not
expected to assume and/or presume situations. It is not for this Court
to undertake such an exercise.
118. We find that there is nothing on record which would help
and/or assist Mr. Tamboly in his submissions in support of the
Appellant's case, inter alia, as far as the above aspect is concerned.
The Notary who notarized the said affidavit was cross-examined.
However, a perusal of the evidence of the said Notary is of no
assistance insofar as the above-referred affidavit of deceased Maria
and the averments therein are concerned. We are unable to decipher
the missing links as noted above which bother our conscience more
particularly in the absence of cogent reasoning and convincing
explanation on the part of the Appellants to dispel the existence of
the alleged suspicious circumstances.
119. The definition of the expression 'suspicious circumstance' is
found in the Supreme Court's decision in Shivakumar & Ors. Vs.
2-APP-574-2003 (OS).DOC
Sharanabasppa & Ors.22, where the Supreme Court held "A
circumstance is 'suspicious' when it is not normal or is 'not normally
expected in a normal situation or is not expected of a normal person'.
As put by this Court, the suspicious features must be 'real, germane
and valid' and not merely the 'fantasy of the doubting mind".
120. The Supreme Court propounding the principles relating to
proof of Will in Smt. Jaswant Kaur v. Smt. Amrit Kaur & Ors. 23
gainfully referred to its earlier decision in H. Venkatachala Iyengar
(Supra). For the present, paragraph 9 of the said decision is apposite
which reads thus:-
"9. In cases where the execution of a will is shrouded in
suspicion, its proof ceases to be a simple lis 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."
. Civil Appeal No.6076 of 2009 decided on 24 April 2020.
. (1977) 1 SCC 369
2-APP-574-2003 (OS).DOC
121. Similarly, in Ram Piari vs. Bhagwant & Ors .24; in paragraph 23,
the Supreme Court held that when suspicious circumstances exist,
the Court should not be swayed by due execution of the Will alone.
In Indu Bala Bose & Ors. vs. Manindra Chandra Bose & Anr. 25 the
Supreme Court held that every circumstance is not a suspicious
circumstance. Paragraph 8 of the said judgment reads thus: -
8. Needless to say that any and every circumstance is not a
"suspicious" circumstance. A circumstance would be "suspicious"
when it is not normal or is not normally expected in a normal
situation or is not expected of a normal person."
122. The Supreme Court in the Privy Council's decision in Hames v.
Hinkson (supra) is now referred to, the relevant portion of which
reads thus:-
17............where a Will is charged with suspicion, the rules enjoin
a reasonable scepticism, not an obdurate persistence in disbelief.
They do not demand from the Judge, even in circumstances of
grave suspicion, a resolute and impenetrable incredulity. He is
never required to close his mind to the truth."
123. It was again reiterated in PPK Gopalan Nambier vs. PPK
Balakrishnan Nambiar & Ors.26 that suspected features should not be
. (1993) 3 SCC 364
. (1982) 1 SCC 20
. 1995 Supp (2) SCC 664
2-APP-574-2003 (OS).DOC
mere fantasies of a doubted mind, but they must be real, germane
and valid suspicious features.
124. The above decisions find reiteration in the recent most decision
of the Supreme Court on the issue of suspicious circumstance is in
Gurdial Singh (Dead) through LR (supra) where the Supreme Court
has summarized the legal principles regarding proof of a Will. The
Court has held that the onus is on the propounder to dispel such
suspicious circumstances surrounding the Will to the satisfaction of
the conscience of the Court.
125. Having examined the existence of the alleged suspicious
circumstances in totality, as narrated above, in our view, suspicious,
doubtful circumstances surrounding the said Will of the deceased
Maria do exist in the given facts and circumstances. The Appellant,
despite being the propounder of the Will, has not fully satisfied the
conscience of this Court in dispelling the same, despite that being a
legal obligation to do so. For such reasons, the decision cited by Mr
Tamboly in Surendra Pal & Ors. Vs. Dr Mrs. Saraswati Arora & Anr .27
for the proposition that suspicious circumstances, if any, must appear
. (1974) 2 SCC 600.
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from the document itself/cogent evidence, will not apply to the given
facts.
126. We now advert to the reliance placed by Mr. Tamboly on the
decisions in Shirish Popatlal Shah, Niranjan Umeshchandra Joshi,
Hari Narayan Khedkar (supra) in support of the proposition on the
validity and legality of the Will which is formally proved. In this
regard, there can be no quarrel to the principles/parameters for
formally proving a Will as laid down in the said judicial
pronouncements. We have also perused the additional compilation
tendered by Mr. Tamboly. We may hasten to add that as a catena of
judgments have been relied on by parties, to avoid prolix, we may
not have referred to each, separately more so when they deal with
the same proposition.
127. We do not find any irregularity much less illegality in the
impugned judgment and order dated 7 March 2003 which is assailed
in the present proceedings. We therefore are not inclined to interfere
and/or disturb the findings recorded in the said impugned judgment,
which in our view, does not pass the muster of legal parameters, to
interfere in appellate jurisdiction.
2-APP-574-2003 (OS).DOC
128. Referring to the decision cited by Mr. Tamboly on the issue of
suspicious circumstances, we think, it may be apposite to refer to the
celebrated decision in Quinn Vs. Leathem28, where it is held that a
case is only an authority for what it itself actually decides. It cannot
be quoted for a proposition that follows logically from it. The Earl of
Halsbury L. C. observed that every judgment must be read as
applicable to the particular facts, since the generality of the
expressions which are found there are not intended to be the
exposition of the whole law but governed and qualified by the
particular facts of the case in which such expressions are found and a
case is only an authority for what it actually decides. Such a dictum
was approved and followed by the Supreme Court in several
decisions, including Sarv Shramik Sangh vs. State of Maharashtra 29
and Bihar School Examination Board vs. Suresh Prasad Sinha30.
129. Before parting we may observe that ordinarily we would have
chartered the usual course and walked the common path i.e. where
the Will is formally proved, in the absence of allegations of fraud,
undue influence and the like, relief could be granted. However, the
. 1901 AC 495
. (2008) 1 SCC 494
. (2009) 8 SCC 483
2-APP-574-2003 (OS).DOC
law mandates that the obligation cast upon us does not end here. In
a given case, when there are allegations of the existence of suspicious
or unusual circumstances, peculiar and unique to the factual
complexion, the same ought to be examined and taken to its logical
conclusion. The yardstick to be scrupulously applied in such cases is
that the alleged existence of the same are to be dispelled by the
propounder of a Will, to the satisfaction of the court's conscience. In
the words of Justice M. C. Chagla in The State of Bombay v/s Morarji
Cooverji31, though in a Writ Petition, the observations are all
pervasive that the party must satisfy the court that making an order
will do justice and that justice lies on his side. In the given
complexion, we are guided by these time-tested legal principles.
130. In contemporary times, we often hear the famous phrase
"Vasudhaiva Kutumbakam," meaning that the world is one family.
However, cases such as the present one are classic examples of stark
differences: disputes within families over property that show no end
in sight and ultimately result in delayed litigation. This is a tendency
. 1958 SCC Online Bom 188
2-APP-574-2003 (OS).DOC
that ought to be curtailed in larger societal interest. We conclude
with this solemn and optimistic hope.
131. For all the above reasons, we find no merit in the Appeal, and
it is therefore dismissed.
132. No Costs.
(Advait M. Sethna, J) (M.S. Sonak, J)
