1 ts69-97jud.sxw pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY AND INTESTATE JURISDICTION Testamentary Suit No. 69 of 1997 in Testamentary Petition No. 284 of 1997 Antoinette Felicidade Fernandes Indian Inhabitant, Roman Catholic, Age 56 yrs, C.A. & Friend, res. at Flat No.11/12, First Floor, Marius Apartments, Dr. Peter Dias Road, Bandra (West), Mumbai 400 050 .. Plaintiff v/s. 1) Mrs. Jeanette D’Souza New Twilight Co-op. Hsg. Society Ltd., 15th Road, Bandra, Bombay 400 050 2) Marie D’Costa 3) Fabian D’Casta A/6, Sai Nagar, Versova, Andheri (West), Mumbai 400 060 4) Raymond G. Eustace, 462, President Avenue, Kirrawes, 2 ts69-97jud.sxw 2232, Sydney, NSW, Australia ..Defendants/ Caveators Ms.K.P.Reshma Ravi for the Plaintiff. None for the Defendants CORAM : R.Y.GANOO, J. DATED : 25th April, 2011 ORAL JUDGMENT : 1. The petitioner herein has filed this petition for letters of Administration for the Will, annexed in respect of the property and credits of late Mr. Ronald John Eustace. According to the plaintiff said Mr. Ronald John Eustace expired on 30.9.1996 leaving behind him testamentary instrument dated 27.8.1996. The plaintiff filed this petition as mentioned aforesaid naming therein as many as 10 persons as next of kin, more particularly stated in para 9 of the original petition. The plaintiff has filed this petition in her capacity as beneficiary under the Will. The Executor by name Allen Watts has filed an affidavit in the court resigning from his executorship. 2. Out of so many persons who were named as next of kin, Mr. Jeanette D’Souza, Mr. Mario D’Costa, Ms. Fobian D’Costa and Mr. Raymond Eustace did file caveat and also filed affidavits in support 3 ts69-97jud.sxw of the caveat opposing the grant of letters of Administration. It has been the stand of the caveators who are shown as defendants that the alleged Will is not signed by the said Mr. Ronald as the signature on the said Will does not tally with the normal signature of Mr. Ronald. According to the defendants said Ronald did not enjoy sound health in or about August 1996 and as such the Will has not been executed while late Mr. Ronald was in sound and disposing capacity. According to the defendants, the alleged Will is not natural as all the estate has been given to the plaintiff thereby excluding the claims of the next kin. 3. On the basis of the aforesaid objections issues came to be framed on 10.11.2009 which are as follows. My answer to each of the issue is mentioned against the respective issue. ISSUES FINDINGS i) Whether the plaintiff proves that In the affirmative the alleged Will of the deceased Ronald John Eustace was duly executed as per law and also duly attested on 27th August, 4 ts69-97jud.sxw 1996 as it was a natural Will? ii) Whether the plaintiff proves that In the affirmative the alleged Will bears the signature of the deceased? Iii) Whether the plaintiff proves that the In the affirmative deceased was mentally and physically fit to make this alleged Will? iv) Whether the defendants prove that In the negative the alleged Will was made by the deceased under coercion, threats and undue influence of the plaintiff and that the deceased was not a mentally and physically fit to make this alleged Will? v) What Order? As per operative part 4. At trial, the plaintiff examined Mrs. Anne Roberts, the attesting 5 ts69-97jud.sxw witness. No other witness was examined on behalf of the plaintiff. The defendants remained absent at the stage of recording of evidence. On behalf of the defendants no witness was examined. They were also absent at the time of hearing of arguments. REASONS ISSUE NOS.1 TO 4: 5. Learned Counsel Ms. Reshma Ravi appearing on behalf of the plaintiff took me through the entire record including the evidence of Mrs.Anne Robert, P.W.1 and pointed out that said Mrs. Anne Roberts has stated everything for the purpose of proving the Will and that the court has marked the said Will as Exhibit P-4. Learned Counsel appearing on behalf of the plaintiff relied upon the judgment in case of Kuwarlal Amrutlal vs. Rekhlal Koduram & Ors. reported in AIR 1950 Nagpur 88 to submit that if the evidence of attesting witness has gone unchallenged, the court is required to hold that the evidence given by the attesting witness is properly given and that the document of Will is properly proved. 6 ts69-97jud.sxw 6. After having gone through the evidence of Mrs. Anne Roberts, P.W.1, as also the judgment relied upon and mentioned as aforesaid, I am inclined to observe that the attesting witness has proved the execution of the Will of late Mr. Ronald as per the requirements of Section 63 of the Indian Succession Act, 1925. It is required to be noted that sufficient opportunity was given to the defendants to remain present. They have remained absent all along. As the evidence of Mrs. Anne Roberts, P.W.1, has gone unchallenged, I hold that the Will has been duly proved. Once the Will is duly proved, the plaintiff is entitled to appropriate reliefs in as much as the suit will have to be decreed and order will have to be passed directing the office to process the probate petition and grant probate as per the rules. Learned Counsel appearing on behalf of the plaintiff had taken me through the said Will dated 27.08.1996 at Exhibit P-4 and has submitted that said Mr. Ronald was looked after by the plaintiff for several years before execution of the Will and that is how said Mr. Ronald had a desire to bequeath all his estate and assets to the plaintiff. Learned Counsel appearing on behalf of the plaintiff had submitted that specific mention about the desire of the plaintiff to give all his assets is found in the Will and therefore the Court should respect the desire of the 7 ts69-97jud.sxw testator, though apparently, it may go to show that the next of kins have been excluded. 7. I have considered the submission advanced by learned Counsel for plaintiff. The text of the Will is very clear in as much as the testator Mr. Ronald has clearly indicated that he wanted to bequeath all his estate and assets to the plaintiff. The reason for doing so is clarified by use of the following words: “I have been looked after by one Mrs. Antoinette Felicidade Fernandes for the last several years. The said Mrs. Antoinette Felicidade Fernandes has been with me with her two daughters. It is my desire that all that I possess at the time of my death should go to the said Mrs. Antionette Felicidade Fernandes.” After having perused the aforesaid portion of the Will it is clear that said Mr. Ronald has disclosed special reasons to give all his estate and assets to the plaintiff. This, in my view, is a special circumstance which has been mentioned in the Will and is sufficient to accept as to why the said Mr. Ronald has excluded all the natural heirs. It is required to be mentioned that none of the defendants appeared before the Court at the stage of recording of evidence. As such the stand 8 ts69-97jud.sxw taken by the defendants and put up through their affidavit in support of the caveat has not been made out. The evidence of attesting witness Mrs. Anne supports the case of the plaintiff and as such the suit is required to be decreed. 8. For the reasons mentioned aforesaid, I recording my findings on the issues at serial nos.1 to 4 as follows: Issue no.1 is answered in the affirmative. Issue no.2 is answered in the affirmative. Issue no.3 is also answered in the affirmative. Issue no.4 is answered in the negative. ISSUE NO.5, In view of the answers to issue nos.1 to 3 in the affirmative, and answer to issue no.4 in the negative the petition is required to be accepted. The challenge put up to the Will is required to be rejected and the probate is required to be granted to the plaintiff. Accordingly, issue no.5 is decided as per the operative part. 9. For the reasons mentioned aforesaid, I pass the following decree: 9 ts69-97jud.sxw DECREE i) Suit is decreed in favour of the plaintiff. The plaintiff has been able to prove the Will dated 27.8.1996 executed by Mr. Ronald John Eustace. Plaintiff is entitled to probate in regard to the Will dated 27.8.1996. ii) Office is directed to process the probate petition and grant the probate subject to removal of office objections. Iii) Engrossing of decree is dispensed with. iv) There shall be no order as to costs. [R.Y.GANOO, J.]