1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION TESTAMENTARY SUIT NO.24 OF 1995 IN TESTAMENTARY PETITION NO. 581 OF 1993 1 Mr.Michael Freitas, 2 Mrs.Adeline Freitas, both are residing at Freitas Cottage, Kanjur Village, Kanjur Marg, Bhandup (E), Bombay 400078 Plaintiffs/petitioners vs. 1 Mr.Frank D’Gama (father and natural guardian of Ms.Evon D’Gama & Master Brian Savio D’Gama), 2 Ms.Jennifer D’Gama, both are residing at Ganesh Prasad, 2nd floor, Opp. State Bank of India, Kanjur Village, Bhandup (E), Bombay 400 042. Caveators Ms. A. H. Masand i/b. J. Fernandes for the Plaintiffs/petitioners. None for the Defendants. CORAM :- ANOOP V. MOHTA, J. DATED :- 3rd November, 2009. ORAL JUDGMENT: 1 This is a Petition for Probate of Last Will and Testament of deceased “Mrs.Mary Sebastian” (Indian Christian). 2 The plaintiff/petitioner no.1 is the son and plaintiff/petitioner no.2 is daughter in law of the deceased. 2 3 As objection was raised/filed by the defendants, the Petition was converted into the Suit. 4 Caveator no.1 is son in law of the deceased and caveator no.2 is grand daughter of the deceased. 5 None appears for the caveators/defendants/respondents since 23rd June, 2009 for as many as seven times though the matter was on board. Therefore, listed for exparte decree on 22nd September, 2009. 6 As directed by this Court, the plaintiffs/petitioners have filed an affidavit in support of the averments made in the petition and also send the copy of the same to the caveators/defendants. The affidavit of evidence dated 15.09.2009 is filed on 22.09.09. 7 The plaintiffs have filed affidavit of service dated 12.10.2009. The endorsement “unclaimed” is recorded on the envelopes. 8 The Petition is of the year 1993. The learned counsel appearing for the petitioners/plaintiffs makes statement that the `Will’ is well within the frame work of law and the record as there are no other heirs to object the grant of Probate Petition. 9 In view of above and as the averments remained uncontroverted and as defendants though raised objection, failed to prove the same, I see there is no reason to keep this matter pending. 10 Considering the averments made in the petition and also the 3 contents of the Will and as there is no opposition, I am inclined to allow the Petition in view of un-controverted position on record. 11 Resultantly, the Objection/Caveat is rejected. The Testamentary Petition is allowed, with liberty. No costs. The Office to proceed in accordance with law. (ANOOP V. MOHTA, J.)