1 TS.22.89-TP.509.87.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION TESTAMENTARY SUIT NO. 22 OF 1989 IN TESTAMENTARY PETITION NO.509 OF 1987 Rachel Hyams alias Rachel H. Ezekeil ...Deceased Mrs. Vivenne M. Pereira ...Plaintiff Vs. D. M.Joseph & Ors. ...Defendants/Caveators Mr. Pravin Diwan i/b. Shah & Sanghavi for the Plaintiff Ms. Soniya Putta i/b. Solomon & Co., for the Defendants Plaintiff/Petitioner present CORAM : SMT. ROSHAN DALVI, J. DATED : 15TH FEBRUARY, 2011 P.C. : 1. Issues were framed in this Suit on 30th January 2003. They are as follows: 1. Does the Plaintiff prove that the deceased Rachel Hyams had the requisite testamentary capacity at the time when he made the alleged Will dated 2nd February 1977 ? 2. Does the Plaintiff prove that the deceased Rachel Hyams duly executed the Will dated 2nd February 1977 ? 2 TS.22.89-TP.509.87.sxw 3. Is Plaintiff entitled to the grant of letters of administration in respect of the said Will. 4. What order and relief ? 2. The Plaintiff has filed her affidavit of examination-in-chief as also the affidavit of examination-in-chief of two witnesses to identify the signature of the Testatrix on the Will sought to be proved as also the signature of one of the attesting witnesses who has since expired. 3. Both the attesting witnesses have expired. Hence the aforesaid three affidavits would show the due execution of the Will of the deceased sought to be propounded under the provisions of Section 69 of the Indian Evidence Act. 4. The affidavits have been taken on record and case management directions have been passed since 20th January 2011. 5. The Plaintiff has also filed an affidavit on documents and the admissibility of the documents has been considered on 20th January 2011. 3 documents have been marked on record being Will as Exhibit-A for the sake of convenience and the two death certificates of two attesting witnesses as Exhibits B and C. 3 TS.22.89-TP.509.87.sxw 6. It is for the Caveatrices to cross examine the Plaintiff and her witnesses, failing which the statements made in the affidavit of examination-in-chief would be taken to be admitted and left uncontroverted. 7. Despite directions for such cross examination passed on 20th January 2011, the Caveatrices have failed to appear as directed. They have also not given any instructions to their Advocates. 8. Their Advocates have written letters to the Caveatrices calling for instructions and referring to their previous correspondence with them under their letter dated 31st January 2011 sent through courier on 1st February 2011 and received by one of them on 2nd February 2011. 9. For want of any cross examination before the Commissioner the Plaintiff filed their praecipe to put the matter on board for dismissal of the Caveats and issuance of letters of administration with the Will dated 2nd February 1977 annexed thereto. The Advocates of the Caveatrices have informed the Caveatrices of the said praecipe also under their letter dated 10th February 2011 sent under Certificate of posting. The certificate of posting shows the delivery of that letter also to the first Caveatrix on 7th February 2011. 4 TS.22.89-TP.509.87.sxw 10.It is seen that despite repeated correspondence and the call for instructions the Caveatrices have not given instructions to their Advocates. They have also not appeared in Court despite service upon them of the praecipe for prosecuting the suit. 11.Under these circumstances the suit of the Plaintiff is required to be adjudicated upon forthwith. Since the depositions of the Plaintiff and her witnesses are not controverted they are required to be accepted. Upon such evidence the issues framed since 30th January 2003 are required to be answered. 12.The Plaintiff is seen to have proved the Will as per the depositions made in the aforesaid affidavits and the issue nos.1 and 2 are answered in the affirmative. 13.Consequently, the Plaintiff is entitled to be granted the letters of administration with the aforesaid Will. Hence issue No.3 is also answered in affirmative. Hence, the order: 1. The suit is decreed as prayed. 2. Letters of Administration with the Will of the Testator annexed thereto shall be granted to the Plaintiff. 3. The Petition is disposed off accordingly. 4. The office of the Prothonotary and Senior Master of this Court shall issue the Letters of Administration as 5 TS.22.89-TP.509.87.sxw required. 5. Drawn up decree is dispensed with 6. Copies of the letters of the Advocates of the Caveatrices addressed to the Caveatrices along with the receipt of the courier and the postal certificate are taken on record. (SMT. ROSHAN DALVI, J.)