: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION TESTAMENTARY SUIT NO.6 OF 1997 IN TESTAMENTARY PETITION NO.830 OF 1996 Raymond Roque Tixeria .. Petitioner/ Plaintiff v/s. Maxy Roque Tixeria and Ors. .. Caveators/ Respondents ......... Mr. R.R. Tixeria plaintiff in person Mr. S.M. Sakhardande i/by P.H. Dharmadhikari for defendant no.1. Mr. Clive D’Souza for defendant nos. 2 and 3. ......... CORAM : R.Y.GANOO, J. DATE : 25th JUNE, 2010. ORAL JUDGEMENT : 1. The plaintiff herein instituted the Testamentary Petition No.830 of 1996 in order to have Will dated 5th November, 1992 purported to have been executed by Mr. Roque Nicholas Tixeria. Said Mr. Roque Nicholas Tixeria expired on : 2 : 20th March, 1995. Said Mr. Roque Nicholas Tixeria shall hereafter be referred to as the deceased. Defendant nos. 1, 2 and 3 being heirs of said deceased came on record and Testamentary Petition was converted into Testamentary Suit being Testamentary Suit No.6 of 1997. It has been the case of the defendants that the Will dated 5th November, 1992 (hereinafter referred to as the said Will) is forged. It was also the contention of defendant no.2 that the plaintiff had obtained the said Will by practicing fraud upon the deceased. According to defendant no.2 in November, 1992, the deceased was not in a sound mind and as such incapable of executing the Will. Based on the text of affidavit in support of the caveat, following issues came to be framed on 15th December, 2008. My finding as regards every issue is mentioned against the respective issue. (i) Does plaintiff prove that deceased Roque Nicholas Tixeria executed Will dated 5th November, 1992 being his last Will and Testament ? - In the Negative : 3 : (ii) Does the defendant no.2 prove that Will dated 5th November, 1992 on the basis of which petition is filed is forged ? - Does not survive. (iii) Does the defendant no.2 prove that Will dated 5th November, 1992 is obtained by the petitioner in fraudulent manner ? - Does not survive. (iv) Does the defendant no.2 prove that in the year November 1992, the deceased was not of in sound mind as and as such incapable of executing the Will ? - Does not survive. (v) What Order ? - As per final order. 2. At trial, plaintiff gave evidence as PW-1. Plaintiff examined Onil A. Kinny as PW-2 as attesting witness. No other witness was examined on behalf of the plaintiff. On behalf of the defendants, defendant no.2 Mrs. Celina O. D’Cunha stepped into witness box. No other witness was examined on behalf of the defendants. : 4 : REASONS : 3. Issue No.1 :- I have heard plaintiff in person as also I have perused the written arguments tendered by the plaintiff. Learned Counsel Mr. Sakhardande appearing on behalf of the defendant no.1 and Mr. Clive D’souza appearing on behalf of defendant nos. 2 and 3 had chosen to advance the submissions orally. I have heard those submissions. This being a Testamentary Petition, it was necessary for the plaintiff to prove the Will. For the purposes of proving the Will, it was necessary for the plaintiff to examine the attesting witness and plaintiff has examined PW-2 Onil as attesting witness. I have perused the evidence of plaintiff PW-1 as well as Mr. Onil PW-2. Plaintiff had relied upon number of documents. Those documents came to be marked as Exhibits P-1 to P-16. Those documents relate to certain properties. Reading the evidence of PW-1, plaintiff and PW-2 Onil, it is clear that the plaintiff has not been able to prove the Will. Documents at Exh.P-5, P-6, P-16 were shown to plaintiff in the course of cross-examination and he identified signatures appearing : 5 : thereon as the signatures of his father. That of course will not help the plaintiff in contending that the Will is duly proved. To that extent the said evidence is of no use. Plaintiff through his evidence has not been able to prove the said Will. 4. As indicated earlier, though Onil PW-2 was examined to prove the Will, his evidence in no where close to proving the said Will. No doubt, he has identified his signature as a signature of attesting witness, however, his examination as a whole does not show that he has proved the Will. 5. Defendant no.2 Mrs. Celina Ozu D’Cunha DW-1 was examined. Documents at Exh.P-5, P-7 and P-16 were shown to her. She has identified the signatures appearing on the said documents as that of her father. However, this evidence is of no use to the plaintiff. Hence, I observe that the plaintiff has not proved the Will. 6. The plaintiff has through written argument has : 6 : contended that the said Will was registered with the Sub- Registrar of Assurance and, therefore, the Court should treat the Will as duly proved. In so far as this argument is concerned, learned advocate Mr. Sakhardande appearing on behalf of defendant no.1 had relied upon the judgment in the case of Rani Purnima Debi and Anr. V/s. Kumar K. Narayan Deb and Anr. Reported in AIR 1962, SC 567. By this judgments learned Counsel Mr. Sakhardande wanted to contend that the registration of the Will cannot be equated with proof of the Will. According to him, the requirements of Section 68 of the Indian Evidence Act ought to have been fulfilled and the Will ought to have been proved independent to the fact of registration. He had therefore submitted that if the Will is not proved in accordance with the requirements of Section 68 of the Indian Evidence Act, the evidence lead by the plaintiff would be inadequate and would not favour the plaintiff. 7. I have perused the judgment mentioned above. The said judgment speaks of consequences of registration of the : 7 : Will and the certain other requirements, which are required to be fulfilled with reference to the satisfaction of the Registering Authority as regards the execution of the Will by the deceased. In any case, one cannot dispute the preposition advanced by learned Counsel Mr. Sakhardande that merely because the Will was registered with the Sub- Registrar of Assurance, the requirement to prove the Will is not dispensed with. In this connection, one can gainfully refer to the provisions of Section 68 of the Indian Evidence Act, which are as follows: “68. Proof of execution of document required by law to be attested : - If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.” : 8 : 8. A perusal of this Section would indicate that in order to prove the Will, the attesting witness has to be examined and the registration of the document would not dispense with the requirements set out in the first portion of above Section. This is so because of use of the word “not being a Will”. For want of evidence as regards proof of the Will, I hold that the Will is not duly proved by the plaintiff. The plaintiff has failed to comply with the minimum requirements for the purposes of securing the finding in his favour so far as issue no.1 is concerned. In view of the aforesaid observations, issue no.1 is answered in the Negative. 9. Issue nos. 2,3 and 4 : Since the plaintiff has not proved the said Will, the issue nos. 2,3 and 4 do not fall for my determination. Accordingly, those issues do not survive. Accordingly, issue nos. 2,3 and 4 are answered as “These issues do not survive”. 10. Issue No.5 :- In view of the finding recorded at issue : 9 : no.1, the plaintiff will not be able to get probate in respect of the Will dated 5th November, 1992. On account of this, the plaintiff’s suit will have to be dismissed. Hence, I pass the following decree. DECREE (i) The plaintiff’s suit is dismissed. (ii) In the facts and circumstances of the case, there shall be no order as to costs. (iii) Since the Testamentary Suit is dismissed, the probate petition filed by the petitioner being Petition No.830 of 1996 is also dismissed. There shall be no order as to costs. 11. Learned Counsel Mr. Clive D’Souza submitted that on account of order dated 16th August, 2005, the assets such as investments in National Savings Certificate and Mutual Funds were redeemed by the Prothonotary and Senior Master and the amount received therefrom have been invested. Learned Counsel Mr. D’souza pressed for an order : 10 : asking Prothonotary and Senior Master to distribute the said amount amongst the heirs. This submission cannot be accepted as the Prothonotary and Senior Master cannot decide as to what amount should be distributed to a particular heir. In view of this, any person who is interested in claiming the said amount as a whole or in part is at liberty to institute appropriate proceedings and seek appropriate orders. Till such time, the said orders are obtained, amount shall remain invested. (R.Y.GANOO, J.)