Bombay High Court
Ruby Cyril Dsouza vs Cecilia Reynold Dsouza on 16 January, 2025
Author: B. P. Colabawalla
Bench: B. P. Colabawalla
2025:BHC-OS:685-DB
APPL.65.24.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.65 OF 2024
IN
INTERIM APPLICATION(L)NO.20977 OF 2023
IN
TESTAMENTARY SUIT NO.5 OF 2005
IN
TESTAMENTARY PETITION NO.226 OF 2004
Ruby Cyril D'souza
through POA Holder
Viz James Nunes & Ors ..Appellants
(Orig.Defendants)
Versus
Smt.Cecilia Reynold D'souza
the widow of the deceased,
Mazgaon, Mumbai & Ors ..Respondents
(Orig.Plaintiffs)
Digitally signed
ANJALI by ANJALI
TUSHAR
TUSHAR ASWALE
Date:
ASWALE 2025.01.16
WITH
16:51:50 +0530
INTERIM APPLICATION NO.971 OF 2024
IN
APPEAL NO.65 OF 2024
IN
INTERIM APPLICATION(L)NO.20977 OF 2023
IN
TESTAMENTARY SUIT NO.5 OF 2005
IN
TESTAMENTARY PETITION NO.226 OF 2004
Ruby Cyril D'souza
Mazgaon, Mumbai & Ors ..Appellants
(Orig.Defendants)
Versus
Smt.Cecilia Reynold D'souza
the widow of the deceased,
Mazgaon, Mumbai & Ors ..Respondents
(Orig.Plaintiffs)
Page 1 of 16
January 16, 2025
Aswale
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APPL.65.24.DOC
Mr.Nitin Gangal with Prerna Shukla, Prapti Karkera
i/b Namita Mestry, Advocates for the Appellants.
Mr.Raj Patel with Vinayak J. Phadake, Karshil Shah,
Abhishek Khabekar, Martha D'souza, Vishal Tiwari,
Advocates for the Respondents.
CORAM: B. P. COLABAWALLA &
FIRDOSH P. POONIWALLA, JJ.
Reserved On: 26th August, 2024.
Pronounced On:16th January, 2025.
JUDGMENT (Per B. P. Colabawalla, J.)
1. The above Appeal challenges the order dated 24th
January 2024 passed by a learned Single Judge of this Court in
Interim Application (L) No.20977 of 2023 in Testamentary Suit
No.5 of 2005 in Testamentary Petition No.226 of 2004. By the
impugned order, the learned Single Judge dismissed the Interim
Application filed by the Defendants which inter alia sought a
prayer to frame an additional issue in the above Suit. What the
issue was, we will refer to later, as we go along.
2. The facts of this case would reveal that the deceased,
John Dominic D'Souza, died on 21st June 1999. The deceased, at
the time of his death, was survived by his son Reynold John
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D'Souza and four daughters, namely, (i) Ruby Cyril D'Souza, (ii)
Edna Nobert Remedius, (iii) Mrs. Alda Alex Fernandes and (iv)
Jennifer Alexandra. Under the Will of the deceased, Reynold John
D'Souza (the son) was named as a sole beneficiary. Advocate Mr.
Dineshchandra G. Jain was an attesting witness along with Cecilia
D'Souza, the wife of Reynold D'Souza. Since, under the aforesaid
Will of the deceased, no executor was appointed, the beneficiary
Reynold D'Souza applied for Letters of Administration with Will
annexed. The daughters of the deceased, namely, Ruby Cyril
D'Souza, Edna Nobert Remedius, Mrs. Alda Alex Fernandes, and
Jennifer Alexandra, contested the grant and the above
Testamentary Petition No.226 of 2004 was converted into
Testamentary Suit No.5 of 2005. It appears that during the
pendency of the proceedings, some of the parties to the Suit [as
originally filed] have passed away and their legal heirs have also
been brought on record.
3. Be that as it may, on the basis of the pleadings, issues
were framed (in the above Testamentary Suit) by order dated 30 th
March 2015. These issues pertained to various aspects of the
validity of the Will executed by the deceased. The issues framed
were as under:-
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1. Whether the Plaintiffs prove that the writing dated 16 th
April 1994 was duly and validly executed in accordance
with law by John Dominic D'Souza as his last Will and
testament?
2. Whether the Plaintiffs prove that at the time of said
writing the deceased was of sound and disposing state
of mind, memory and understanding?
3. Whether the Defendants prove that the alleged Will is
false and fabricated?
4. Whether the Defendants prove that the alleged Will was
procured by undue influence?
5. Whether the Defendants prove that the alleged Will is
unnatural?
6. What Relief and Order?
4. On the basis of the aforesaid issues, the parties led
their respective evidence and the same was completed in October
2019. Thereafter, since April 2021, the above Suit is being listed
for hearing and final disposal.
5. It is at this stage [i.e. the stage of hearing and final
disposal] that the Appellants (Original Defendants) filed Interim
Application (L) No.20977 of 2023 seeking to frame an additional
issue in the above Suit. The proposed additional issue was stated
in paragraph 5 of the Interim Application, but during the course of
arguments, the learned advocate appearing for the Appellants
(Original Defendants) submitted a draft issue in place of the
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proposed issue at paragraph 5 of the Interim Application. That
proposed draft issue tendered to the Court was the issue that the
learned Single Judge was considering as to whether the same
should be added or otherwise. The additional issue proposed by
the Defendants was as under:-
"Whether Letters of Administration with Will dated
16th April, 1994 annexed thereto can be granted to
the Petitioners as the grant pursuant to the bequest
made by the said Will is void under the latter part of
Section 67 of the Indian Succession Act, 1925
constituting an exception to such grant under
Section 255 of the said Act?"
6. The addition of this issue was opposed by the
Respondents herein (Original Plaintiffs) by filing a reply to the
Interim Application. Thereafter, the learned Single Judge heard
the parties and by a detailed order dated 24th January 2024 (the
impugned order) dismissed the Interim Application essentially
holding that the jurisdiction of the Testamentary Court was
limited to the aspect of whether the Will was validly executed and
the said Will was the last Will and testament of the deceased
person. It is being aggrieved by this decision of the learned Single
Judge that the present Appeal is filed.
7. Mr. Gangal, the learned counsel appearing on behalf
of the Appellants (Original Defendants), submitted that the
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aforesaid issue was proposed by the Original Defendants because
the sole beneficiary under the Will of the deceased was his son (the
Original Plaintiff) and the husband of Plaintiff No.1. One of the
attesting witnesses to the said Will of the deceased was Plaintiff
No.1 herself (i.e. daughter-in-law of the deceased). According to
the Defendants, since the daughter-in-law of the deceased has
attested the Will and her husband was the beneficiary thereunder,
would not mean that the Will is insufficiently attested, but under
Section 67 of the Indian Succession Act 1925, the bequest under
the said Will in favour of her husband would be void. The learned
counsel submitted that in the face of such facts, the issue
propounded by the Defendants ought to have been framed by the
learned Single Judge because the aspect of exception to grant of
Letters of Administration with Will annexed [under Section 255 of
the Indian Succession Act, 1925] deserves to be determined in
these very proceedings (namely, the Testamentary Suit). It was
the case of the learned counsel that the Testamentary Court
exercising jurisdiction for grant of Probate or Letters of
Administration with Will annexed, is the very Court that can go
into the said question by applying Section 67, and if necessary,
hold that the Will is void to the extent specified in the said
provision. According to the learned counsel, a conjoint reading of
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Section 67 and Section 255 (of the Indian Succession Act, 1925)
clearly demonstrates that this Court in the present proceedings
had the jurisdiction to consider the proposed additional issue, and
therefore, the learned Single Judge ought to have framed the same
for determination. In not having done so, the learned Single Judge
clearly erred which requires interference in appeal by us. The
learned counsel also took us through the provisions of Section 67
as well as Section 255 of the Indian Succession Act, 1925. Relying
upon the aforesaid provisions, the learned counsel submitted that
Section 255 has to be read with Section 67 and when done so, it
would be clear that the Testamentary Court would certainly have
jurisdiction to decide the issue proposed by the Defendants. In
support of the said proposition, the learned counsel appearing on
behalf of the Appellants (the Original Defendants) relied upon the
following decisions:-
(a) Re POOLEY [40 ChD 1] [Court of Appeal dated 31 st
October 1988];
(b) Hepzibah Annathai Rengachari vs R.Ananthalakshmi
Rangachari [AIR 1975 MADRAS 342].
(c) J. G. Boaz & Ors vs Dr.(Mrs) Dorothy Ruth Masih
Afzal & Anr [1982 All LJ 1461].
(d) Lisamma v/s Saramma [(2017) 2 KLJ 927.
8. On the other hand, Mr. Patel, the learned counsel
appearing on behalf of the Respondents fully supported the
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impugned order passed by the learned Single Judge. Mr. Patel
submitted that the learned Single Judge has correctly understood
and interpreted the provisions of Section 67 and Section 255 of the
Indian Succession Act, 1925. He submitted that it is now too well
settled that in probate proceedings or in proceedings for Letters of
Administration with Will annexed, the Court is only concerned
with the question as to whether the Will of the deceased is genuine
and that it has been made voluntarily. Any questions of title of
any property, or any bequest of a property, or the validity of any
bequest of a property, forming the subject matter of the Will is not
within the domain or purview of the Testamentary Court to rule
on. For those purposes, the aggrieved party would have to
approach a Civil Court. This is exactly what has been held by the
learned Single Judge, and therefore, the above Appeal holds no
merit and ought to be dismissed.
9. We have heard the learned counsel for the Appellants
as well as the Respondents. Before we proceed further, it would be
apposite to reproduce the provisions of Section 67 and Section 255
of the Indian Succession Act, 1925.
"67. Effect of gift to attesting witness. - A Will shall not be deemed to be
insufficiently attested by reason of any benefit thereby given either by
way of bequest or by way of appointment to any person attesting it, or
to his or her wife or husband; but the bequest or appointment shall be
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void so far as concerns the person so attesting, or the wife or
husband of such person, or any person claiming under either of
them"
******************.
"255. Probate or administration, with Will annexed, subject to exception -
Whenever the nature of the case requires that an exception be made,
probate of a Will, or letters of administration with the Will annexed,
shall be granted subject to such exception."
10. From a bare perusal of Section 67, it becomes clear
that the said Section is in two parts. The first part of Section 67
clearly stipulates that the Will shall not be deemed to be
insufficiently attested by reason of any benefit thereby given either
by way of bequest or by way of appointment to any person
attesting it, or to his or her wife or husband. In other words, like
in the present case, if the beneficiary's wife is an attesting witness
would not mean that the Will is insufficiently attested. The second
part of Section 67 of the Indian Succession Act, 1925 declares that
such bequest or appointment as contemplated in the first part
shall be void in so far as it concerns the person so attesting or the
wife or the husband of such person, or any person claiming under
either of them.
11. Section 255 specifies that a probate of a Will or
Letters of Administration with Will annexed can be granted
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subject to an exception whenever the nature of the case requires
that such an exception be made.
12. It is the case of the Appellants that reading Section
255 in conjunction with Section 67, and considering the prayers
sought are for grant of Letters of Administration with Will
annexed, this Court has jurisdiction to go into this issue. In other
words, it is the case of the Appellants that the second part of
Section 67 (namely that the bequest is void) can constitute an
exception to the probate of the Will or Letters of Administration
with Will annexed, and which can be determined in these very
proceedings. We are afraid, we are unable to agree with this
submission. The use of the words "whenever the nature of the
case requires" appearing in Section 255 clearly indicates that the
exception contemplated thereunder necessarily pertains to an
exception found within the contents of the Will, whereby the
bequest may be limited or conditional. It would also apply in a
situation where part of the Will is not found worthy of probate,
and therefore, the exception is relatable to the contents and text of
the Will. The question whether the bequest is void or otherwise
would not, in our opinion, fall within the "exception" as
contemplated in Section 255 to confer jurisdiction on the
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Testamentary Court to rule on whether a particular bequest is void
or not. Section 257 provides that whenever a grant with exception,
has been made, the person entitled to the Probate or the Letters of
Administration of the remainder of the deceased's estate may take
a grant of Probate or Letters of administration, as the case may be,
of the rest of the deceased's estate. The general rule is that an
application for Probate or Letters of Administration with Will
annexed must ordinarily be in reference to whole of the estate, but
where the nature of the case requires that an exception be made,
then the Probate or the Letters of Administration may be granted
subject to such exception mentioned in the Will. As an illustration,
if the testator appoints one Executor for a special purpose or in
respect to a special fund only, and another executor for all other
purposes, the latter may take Probate, save and except for that
special purpose or the special fund.
13. In fact, we find that the issue raised in the present
Appeal, namely whether the Testamentary Court can rule whether
a particular bequest is void or otherwise, is squarely covered by a
decision of the Hon'ble Supreme Court in the case of Ishwardeo
Narain Singh v/s Kamta Devi & Ors [1953 SCC OnLine SC 34 :
(1953) 1 SCC 295]. In the facts of this case, one Jagdishwar Prasad
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Singh died on 18th August 1934 leaving a minor daughter Kamta
Devi. His wife had predeceased him, but Jagdishwar Prasad Singh
did not remarry. It was alleged that Jagdishwar Prasad Singh had
on 18th December 1930 made his last Will and testament which
was attested by two witnesses, one Sahdeo Singh and one
Rameshwar Lal. By this Will, the testator had appointed one of his
step-brothers, namely, Ishwardeo Narain Singh, as the Executor.
In the said Will, the testator had inter alia directed that after his
death a grove should be planted on certain lands situated in village
Kundesar and a temple should be constructed in the grove and an
idol of Sri Thakurji should be installed therein and all the
zamindari rights together with the grove and the Katcha properties
and the zamindari share in certain villages mentioned therein
should be dedicated to Thakurji and the income therefrom should
be utilized towards the expenses relating to the rag, bhog, puja and
construction and repairs of the Thakur Bari. On 29 th October 1934,
Ishwardeo Narain Singh presented a Petition to the District Judge,
Ghazipur for grant of Probate to him. At the foot of that Petition,
Rameshwar Lal, one of the attesting witnesses, declared that he
was present and saw the testator affix his signature thereto. An
objection was put in on behalf of Kamta Devi, the daughter of the
testator. Thereafter, the said Petition went to trial. After the
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evidence was led and hearing took place, the Trial Court was
satisfied that the Will had been duly executed and that the testator
had a sound disposing mind. He, however, found that the
disposition contained in the Will in favour of Thakurji was void for
uncertainty. The learned Trial Court held that the Will was not
expressive of any definite intention and was, therefore, not a Will
as defined in Section 2 (h) of the Indian Succession Act, 1925. In
view of this finding, the learned Trial Court rejected the
application for Probate. The order of the Trial Court was
thereafter challenged before the High Court also without any
success. In these facts, the Supreme Court, after inter alia opining
that whether a particular bequest is good or bad is not within the
purview of the Probate Court, allowed the Appeal filed before it.
What is important to note in this judgment is the opinion of the
Hon'ble Supreme Court in paragraph 4 which reads thus:-
"4. The dismissal of the application for probate on the ground that the
disposition in favour of Thakurji is void for uncertainty can on no
principle be supported and indeed the learned counsel appearing for
the respondent has not sought to do so. The Court of Probate is only
concerned with the question as to whether the document put forward
as the last will and testament of a deceased person was duly executed
and attested in accordance with law and whether at the time of such
execution the testator had sound disposing mind. The question
whether a particular bequest is good or bad is not within the purview
of the Probate Court. It is surprising how this elementary principle of
law was overlooked by both the Courts below. However, as the
learned counsel appearing for the respondents has not sought to
support this ground nothing further need be said on that."
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(emphasis supplied)
14. We find that the facts of the present case squarely fall
within the ratio laid down by the Hon'ble Supreme Court in the
case of Ishwardeo Narain Singh (supra). Whether a particular
bequest is good or bad is not for the Probate Court to examine.
This, as the Supreme Court succinctly puts it, is an elementary
principle of law. Once this is the case, we find that the learned
Single Judge was fully justified in dismissing the Interim
Application filed by the Appellants seeking to incorporate an issue,
seeking a ruling on whether a particular bequest made under the
Will was void under the latter part of Section 67 of the Indian
Succession Act, 1925. This is something that the Testamentary
Court would have no jurisdiction to go into, and therefore, the
learned Single Judge correctly did not frame the aforesaid issue
and dismissed the Interim Application filed by the Appellants.
15. We are not separately dealing with the judgments
relied upon by the learned counsel for the Appellants because the
same have been correctly and adequately dealt with, by the
learned Single Judge in the impugned order.
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16. For all the aforesaid reasons, we find that the learned
Single Judge was fully justified in dismissing the Interim
Application filed by the Appellants seeking to frame the additional
issue as set out by us above. Consequently, we find no merit in the
above Appeal, and it is accordingly dismissed. However, in the
facts and circumstances of the case, there shall be no order as to
costs.
17. In view of the dismissal of the above Appeal, nothing
survives in the above Interim Application and the same is also
accordingly disposed of.
18. This order will be digitally signed by the Private
Secretary/ Personal Assistant of this Court. All concerned will act
on production by fax or email of a digitally signed copy of this
order.
[FIRDOSH P. POONIWALLA,J.] [B. P. COLABAWALLA, J.]
19. After the judgment was pronounced, the learned
advocate appearing on behalf of the Appellant submitted that they
would like to test our judgment by filing an SLP before the Hon'ble
Supreme Court. They, therefore, requested that the interim relief
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granted by this Court on 27th June 2024, by which it was directed
that Testamentary Suit No.5 of 2005 shall not proceed till the
Appeal is heard, be continued for a period of eight weeks from
today.
20. We have heard the learned counsel appearing on
behalf of the Appellant. We are not impressed with this argument.
We find that the issue in this case is squarely covered by a decision
of the Hon'ble Supreme Court. We, therefore, do not think that
this is a fit case where the interim order passed by us on 27 th June
2024 ought to continue further. This is more-so when one takes
into consideration that the Testamentary Suit is of the year 2005
and is ripe for hearing and final disposal. In these circumstances,
the aforesaid request is rejected.
21. This order will be digitally signed by the Private
Secretary/ Personal Assistant of this Court. All concerned will act
on production by fax or email of a digitally signed copy of this
order.
[FIRDOSH P. POONIWALLA,J.] [B. P. COLABAWALLA, J.]
January 16, 2025
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