1 NMT.25.2011-TS.65.2000-TP.282.2000.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 25 OF 2011 IN TESTAMENTARY SUIT NO. 65 OF 2000 IN TESTAMENTARY PETITION NO.282 OF 2000 Mrs. Zelinda D’Souza ...Deceased Caroline Naronha & Ors. ...Plaintiffs Vs. Joseph Rebello ...Defendant/Caveator Ms. Nikita Trivedi, Advocate i/b. YKS Legal for the Plaintiffs Mr. I.S. Macwan, Advocate for the Defendant/Caveator CORAM : SMT. ROSHAN DALVI, J. DATED : 29TH JUNE, 2011 P.C. : 1. This Notice of Motion is taken out by the Defendant for framing a preliminary issue or for declaring that the Plaintiffs are not entitled to the estate of the deceased or for declaring that the suit is not maintainable in law and dismissing the suit and for other incidental reliefs. The Plaintiffs are the children of the deceased original Plaintiff who was the mother-in-law of the deceased Mrs. Zelinda D’Souza. The deceased died leaving behind neither a widower nor a leneal descendant nor a parent nor a brother or a sister. The Plaintiffs have claimed as kindred of the deceased under Section 48 of the Indian Succession Act. 2 NMT.25.2011-TS.65.2000-TP.282.2000.sxw 2. The Defendant claims to be the adopted brother of the deceased. He claims to have been adopted by the parents of the deceased. He relies upon one incomplete Baptism Certificate. The copy of the Baptism certificate is annexed as Exhibit-1 to the affidavit in support of the application. The Baptism certificate only shows that he was Baptised under a given name on a given date. The margin shows that he was adopted by the two persons whose names are mentioned in the certificate. These are stated to be the parents of the deceased. The original certificate is not produced. Even a completed photo copy of the certificate is not produced. The typewritten copy shows the aforesaid details without any further details which are left blank. The Plaintiffs have relied upon and produced in their affidavit in reply a certain order showing the cancellation of the birth certificate of the Defendant. 3. Mr. Mecwan on behalf of the Defendant claims that the Defendant was adopted in the State of Goa whilst it was under Portuguese Rule. It is not known and it is not shown that adoption could be validly made under Portuguese Law. It is also not shown which procedure is adopted for adoption. These are questions of fact for which the Defendant would have to lead oral evidence. The Defendant shall have to prove the Baptism Certificate, which is a private document by the direct oral evidence of the author of the document. The certified copy of the order of cancellation of the birth certificate relied upon by the Plaintiffs may be seen in evidence as a document without any further oral evidence as it is a certified copy of judicial records which carries the prosecution as to its correctness. 3 NMT.25.2011-TS.65.2000-TP.282.2000.sxw 4. Subject to the above it is for the Defendant to prove that he is the adopted brother who would be entitled to the estate of the deceased. If that is proved, the Defendant would be entitled to the estate of the deceased under Section 47 of the Indian Succession Act. If the Defendant becomes entitled, the Plaintiffs would not be entitled to claim any part of the estate of the deceased. 5. The Defendant’s application to frame the preliminary issue as drafted in prayer (a) is the same as issue No.1 framed by Justice S. J. Vazifdar on 6th July 2007. Mr. Mecwan claims that the Plaintiffs must prove issue No.1 first. It is seen that even if the Plaintiff do not prove issue No.1, the Defendant would not be entitled to any part of the estate of the deceased until he proves that he is the adopted brother. The Court would not be able to initially decide whether the Plaintiffs would be entitled or not to the estate, until the Defendant proves that he is the brother of the deceased, validly adopted under the law in force entitled to succession as such adopted brother. This application is therefore, misconceived. 6. Consequently, from the issues which are framed, issue No.4, which relates to the proof of the Defendant as a legal heir of the brother of the deceased would actually have to be tried & decided first. The onus of proving the issue is upon the Defendant. It would be for the Defendant to prove it as he deems fit by either oral or documentary evidence or both. 7. Seeing the issues as they are framed and seeing that issue No.4 4 NMT.25.2011-TS.65.2000-TP.282.2000.sxw would have to be proved first, the Defendant would have the right to begin. Save and accept that direction reliefs under prayers (a), (b) and (c) cannot be granted as prayed for by the Defendant. 8. The Defendant shall file his affidavit of examination-in-chief, if any, required to lead oral evidence. If the Defendant relies upon only documentary evidence, which can be taken on record without any oral evidence and without any proof by direct oral evidence the Defendant may tender such documents in Court. If the Defendant seeks to prove that issue only as a question of law upon admitted facts, the Defendant may show such law to the Court. 9. After such evidence is led and issue No.4 is answered, the Plaintiffs would have to prove that they are entitled to the estate of the deceased as per Issue No.1. 10.The relationship of the Plaintiffs with the deceased is admitted. Hence the Plaintiffs’ claim upon such admitted relationship would have to be seen under Section 48 of the Indian Succession Act. Hence the Plaintiffs would have to show that they are the nearest kindred to the deceased in such relationship. Upon showing that issue Nos. 1 and 2 would be answered. 11.Issue No.3 would require such oral evidence of both the parties as they may deem fit to tender. Issue No.5 would follow issue No.4. 12.Save and accept setting down the procedure as above there shall be no order in the Notice of Motion. No order as to costs. 5 NMT.25.2011-TS.65.2000-TP.282.2000.sxw 13.The Defendant shall file his affidavit of examination-in-chief, if any, on or before 29th July 2011. 14.The Defendant shall also file the affidavit of documents, if any, relied upon by the Defendant. 15.The suit is adjourned to 29th July 2011 for considering the admissibility of the documents, if any, of the Defendant. 16.Mr. Macwan applies for stay of this order. Stay is implicit in the fact that the suit is adjourned for one month for the Defendant to file his affidavit in reply. Hence the application for stay is misconceived and hence rejected. (SMT. ROSHAN DALVI, J.)