1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEALS NO.98 & 111 OF 2011 1. Shri Paixao Pereira and his wife 2. Smt. Francisca Pereira Both residents of Morailem, Curchorem, Goa. …. Appellants V/s Shri Sebastiao Pereira (since deceased) Mrs. Maria Pereira (since deceased) by legal representatives 1. Mr. Eddie Pereira 2. Mrs. Cynthia Pereira, Both r/o. Morailem, Curchorem-Goa. 3. Mrs. Lizette Naik 4. Mr. Jaikumar Naik Both r/o. Igramol, Quepem, Goa. 5. Mr. Arun Pereira, r/o. Morailem, Curchorem, Goa. …. Respondents Shri R.G. Ramani, Advocate for the Appellants. Shri Sudesh Usgaonkar, Advocate for the Respondents. CORAM : F.M. REIS, J. DATE : 25th NOVEMBER, 2011 JUDGMENT : Heard Shri R.G. Ramani, learned Counsel appearing for the appellants and Shri Sudesh Usgaonkar, learned Counsel appearing for the respondents. 2 2. Both the above appeals challenge the judgment and decree passed by the lower Appellate Court whereby the judgment with regard to the legality of the Wills executed by the parents of the appellant no.1 and the deceased respondent way back in the year 1985 were declared null and void on the ground that the Wills were executed fraudulently and without complying with the provisions of law. Facts in Second Appeal No.98 of 2011 3. On 19/04/1997, Shri Constancio Pereira, the original plaintiff filed the suit against the appellants as defendants bearing Regular Civil Suit No.18/1997/A. The respondents are legal representatives of the original plaintiff who expired during the pendency of the suit. The suit was for declaration that the suit Wills dated 27/09/1985 were fraudulent documents having never been executed by late Constancio Pereira and Smt. Pedrina alias Petolina Alfonso and in the alternative to have the suit Wills adjudged void and cancelled. The original plaintiff/respondent and defendant no.1 are brothers being sons of Constancio Pereira, who expired in November, 1998 and Smt. Pedrina alia Petolina Alfonso who expired on 12/05/1994. The original plaintiff/respondent is 3 the elder brother of the appellant/defendant no.1 in the suit. The appellants thereafter also filed a suit bearing Regular Civil Suit No.25/1996/B against plaintiff and his wife Mrs. Maria Pereira in the Quepem Court in respect of the house and the plot for permanent injunction. It was the contention of the respondents that the said two Wills set up by the appellants in the said suit no.25/1996 were never executed by Constancio Pereira and Smt. Pedrina Alfonso because at the material time both were practically infirm due to old age associated with other ailments and were virtually confined within their residence. It is further their case that the said Constancio Pereira lived without proper visibility since 1979, one eye being completely lost and the other with absolute poor visibility due to some complication. The appellants thereafter filed the written statement disputing the claim put forward by the respondents and further inter alia claimed that the respondents were jealous of the appellant no.1 and hostile since 1956 and not in talking terms at various intervals. Ultimately, the respondents herein/plaintiffs and the defendants/appellants herein in Regular Civil Suit No.18/1997 made an application stating that both Regular Civil Suit No.18/1997 and Regular Civil Suit No.25/1996 filed by the appellants herein against the respondents 4 be clubbed together and common evidence be recorded or in alternate both suits be taken together and plaintiffs in Regular Civil Suit No.18/1997 be allowed to record their entire evidence in the said suit and the same be read as defence evidence in Regular Civil Suit No.25/1996 and similarly plaintiffs in Regular Civil Suit No.25/1996 be allowed to lead their defence evidence in Regular Civil Suit No.18/1997 and the same be read as rebuttal evidence in Regular Civil Suit No.25/1996. By order dated 19/06/2008, the learned trial Court allowed the joint application dated 29/03/2008 filed by the appellants and respondents. By judgment and decree dated 16/09/2010, the learned Judge dismissed the suit filed by the respondents being Regular Civil Suit No.18/1997. The respondents preferred an appeal being Regular Civil Appeal No.53/2010 before the learned District Judge and by judgment and decree dated 31/01/2011, the appeal preferred by the respondents was allowed and the trial Court decree dated 16/09/2010 set aside and the lower Appellate Court found that both the Wills dated 29/07/1985 were fraudulent and void. Being aggrieved by the said judgment and decree the present Second Appeal has been preferred. 5 Facts in Second Appeal No.111 of 2011 4. The appellants are the plaintiffs in the said Regular Civil Suit No.25/1996 which was filed on 17/04/1996 against the deceased Sebastiao Pereira and his wife Smt. Maria Pereira as defendants. By order dated 19/06/2008, the learned trial Judge allowed the joint application dated 29/03/2008 made by the appellants and the respondents herein for clubbing the two suits namely Regular Civil Suit No.25/1996 and Regular Civil Suit No.18/1997 filed by the respondents herein. By judgment and decree dated 31/08/2010, the suit filed by the appellants came to be dismissed. The appeal came to be preferred by the appellants bearing Regular Civil Suit No.519/2010 which came to be disposed of by judgment and decree dated 31/01/2011 whereby the appeal preferred by the appellants was dismissed. Being aggrieved by the said judgment and decree the appellants have preferred the present appeal. 5. It is pertinent to note that the reliefs in the suit filed by the appellants and the respondents essentially revolve upon the validity of the said Wills dated 27/09/1985 executed by Constancio Pereira and his wife Smt. Pedrina alias Petolina Alfonso. Hence, by 6 consent of the learned Counsel both the appeals were taken up together for hearing. 6. Shri R.G. Ramani, learned Counsel appearing for the appellants has assailed the impugned judgment essentially on the ground that though the learned trial Judge while disposing of the suit filed by the respondents to declare the Wills as null and void has come to the conclusion that the Wills were duly executed in accordance with the provisions of law, nevertheless, the lower appellate Court had unsettled the said findings erroneously on the ground that merely because DW2 who was officiating at the relevant time was a subordinate of the appellant no.1, that by itself would vitiate the Will. Learned Counsel further pointed out that on the relevant day though appellant no.1 was the Sub-registrar of the District, the Wills were executed when he was on half day leave and, as such, DW2 was officiating on his behalf. Learned Counsel has taken me through the judgment of the trial Judge and pointed out that the learned Judge has rightly appreciated the evidence on record and considered the material adduced by the parties and has come to the conclusion that the Wills were executed in accordance with law. Learned Counsel further pointed out that the lower 7 Appellate Court has mis-appreciated the evidence on record especially the evidence of DW1 and DW2 and has come to the erroneous conclusion that merely because wife of appellant has not been examined an adverse inference was drawn for her non- examination. Learned Counsel further submitted that the lower Appellate Court has taken note of irrelevant contradictions of the appellants to draw the conclusion that there was infirmity in the compliance of the provisions of law at the time of the execution of the impugned Wills. Learned Counsel further submitted that the appellants were not in position to examine the witness as well as the translator as according to him they had already expired at the time of the disposal of the suit. Learned Counsel further pointed out that the lower Appellate Court has erroneously held that six witnesses had to be present when no such requirement was necessary at the relevant time. Learned Counsel further took me through the judgment of the lower Appellate Court and pointed out that the lower Appellate Court has misread the evidence on record specially the evidence of DW2 and has erroneously disbelieved the said witness in coming to the conclusion that the Wills executed by the testators are null and void. Learned Counsel, as such, submitted that in view of perversity in the findings of the lower 8 Appellate Court to come to the conclusion that the Wills stand vitiated on account of fraud and for non-compliance of provisions of law, the above appeal deserves to be considered under the provisions of Section 100 of the Civil Procedure Code. 7. On the other hand, Shri Sudesh Usgaonkar, learned Counsel appearing for the respondents has supported the impugned judgment. Learned Counsel has pointed out that the lower Appellate Court has rightly appreciated the evidence on record and has come to the conclusion that there was a cloud of suspension with regard to the execution of the Wills and, as such, considering that the appellants have failed to discharge the burden cast on them to establish the execution of the said Wills in accordance with law there is no infirmity committed by the lower Appellate Court to come to the conclusion that the Wills are null and void. Learned Counsel further submitted that the lower Appellate Court has rightly considered the evidence of DW2 to the effect that in his cross-examination he has stated that he did not know the witnesses to the Will while in the impugned Wills there was specific certificate by the said DW2 to the effect that the witnesses were known to him. Learned Counsel further pointed out that the Will 9 itself manifests that the father of appellant no.1 had poor vision and, as such, he was asked to put thumb impression on the Will. Learned Counsel further took me through the provisions of Article 1917 of the Portuguese Civil Code and pointed out that once the reader has been appointed such Will has to be read over by the reader to the testator in the presence of the witness and this requirement of law admittedly has not been done by DW2. Learned Counsel further pointed out that the lower Appellate Court has taken note of the fact that DW1 has admitted that both the testators were bed ridden and were unable to leave out of the house and, as such, there was no justification shown as to why DW2 was not taken to the residential house for the execution of the said Will which itself discloses the suspicious manner in which the Will was executed. Learned Counsel has also taken me through the provisions of Article 1919 of the Portuguese Civil Code and pointed out that the default in complying with any of the principles itself vitiates the Will and considering that the reader has not read the Will is also the circumstance which would vitiate the impugned Will. Learned Counsel, as such, submitted that the contentions raised by the learned Counsel appearing for the appellants are essentially questions of fact which cannot be re-appreciated by this 10 Court under Section 100 of the Civil Procedure Code and, as such, no substantial questions of law arise in the present appeal. Learned Counsel, as such, submitted that the above appeal deserves to be rejected. 8. Having heard the learned Counsel and on perusal of the record, the lower Appellate Court whilst setting aside the judgment passed by the learned trial Judge in coming to the conclusion that the impugned Will stands vitiated, has found that there were suspicious circumstances which surround the execution of such Will. The learned Judge has taken note of the fact that the testator was of old age and had poor vision besides the fact that appellant no.1 had admitted that he was confined to the house. So also the mother of appellant no.1 who executed the Will on the same day was also bed ridden and was uneducated. Considering the said aspect, the learned Judge came to the conclusion that there were suspicious circumstances which are disclosed from the evidence on record and, as such, burden was on the appellants to establish that the Wills have been executed in accordance with law. Lower Appellate Court has further appreciated the evidence of DW2 and pointed out that the reading of the evidence of DW2 as a whole 11 discloses that the formalities as contemplated under the Portuguese Civil Code with regard to the execution of the Will have not been complied with. Learned Judge has found that neither the witnesses nor the wife of the appellant no.1, namely the appellant no.2 herein has been examined to establish the execution of the said Will. Though it was sought to be contended by Shri Ramani, learned Counsel appearing for the appellants that the witness as well as the testator has expired, nevertheless, it was incumbent upon the appellants to produce some evidence or examine any other person to establish the execution of the Will. Even assuming the witnesses and/or testator had expired, the Apex Court in the recent judgment reported in 2010 (5) SCC 274 in the case of S.R. Srinivasa & Ors. V/s. S. Padmavathamma dealing with the provisions of Section 68 of the Evidence Act has held that the findings of the lower Appellate Court as to the existing of the suspicious circumstance recorded on the basis of the evidence on record are matters which cannot be interfered with under Section 100 of the Civil Procedure Code. In the present case, the learned Lower Appellate Court on appreciating the evidence on record has categorically given finding about the suspicious nature in which the Wills have been executed. Learned Counsel appearing for the appellants was unable to point 12 out that such findings have been arrived at on the basis of no evidence on record. The other contentions raised by the appellants are essentially assailing appreciation of the evidence on record which cannot be resorted by this Court while deciding the Second Appeal under Section 100 of the Civil Procedure Code. Shri Ramani, learned Counsel appearing for the appellants is right to contend that the lower Appellate Court was not justified to come to the conclusion that six witnesses were required for the purpose of execution of such Will. In view of the amendment, three witnesses were enough for execution of such Will, but however, this by itself cannot negate the findings of the lower Appellate Court to the effect that there are suspicious circumstances which vitiate the Wills executed by the testators. Apart from that, the evidence further discloses that the lower Appellate Court has also noted that the witnesses to the impugned Wills were professional witnesses who were available at the office of the sub-registrar for executing such Will. Besides that, there is no evidence on record to show on what material the notary came to the conclusion that the testators were in proper senses to execute such Will and that despite of their ill health and deformity they were in their position to execute such Will. The learned Judge has also noted that the provisions of 13 Article 1917 of the Portuguese Civil Code have not been complied with as the testators did not know to read. Article 1919 of the said Code clearly provides that when any of the formalities are lacking the Wills shall be of no effect. Hence, these findings of the learned lower Appellate Court are in accordance with law and no infirmity has been pointed out by the learned Counsel appearing for the appellants. 9. In view of the above, I find that no substantial question of law which arises in the above appeal under Section 100 of the Civil Procedure Code. In view of the above, both the appeals stand dismissed with no order as to costs. F.M. REIS, J. NH/-