IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY TESTAMENTARY & INTESTATE JURISDICTION TESTAMENTARY & INTESTATE JURISDICTION TESTAMENTARY & INTESTATE JURISDICTION TESTAMENTARY SUIT NO.46 OF 1994. TESTAMENTARY SUIT NO.46 OF 1994. TESTAMENTARY SUIT NO.46 OF 1994. IN IN IN TESTAMENTARY PETITION NO.424 of 1986. TESTAMENTARY PETITION NO.424 of 1986. TESTAMENTARY PETITION NO.424 of 1986. Camil Francis Kinny, res. at Worli Village, Koliwada House No.138 A, Worli, Bombay 400 025 ..Petitioner versus Anselm Francis Kinny res. at Worli Village, Koilwada House No.138-A, Worli, Bombay 400 025 ..Caveator Mr.D.S.Rajpurkar for the Plaintiff Mr.S.P.Jog for the defendant/Caveator CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 10th Nov., 2008. DATED : 10th Nov., 2008. DATED : 10th Nov., 2008. JUDGMENT. 1. One Mr.Adrian Francis Kinny instituted probate petition No.424 of 1986 to have the Will of one late Francis Sabestian Kinny @ Francis Kinny @ Francis Bastia @ Francis Bastio Kinny being writing purported to be Will dated 26.5.1981. The said Francis (hereinafter referred to as testator) died on 5.12.1983. Subsequently, the original petitioner Adrian expired and that is how the petition came to be amended and Camil Francis Kinny -2- came on record and the petition was then converted into petition for letters of administration with the Will annexed that of said Francis. Citation was served upon one Anselm Francis Kinny . Said Anselm filed caveat and subsequently he filed affidavit in support of the caveat and objected to the grant of the reliefs asked by the petitioner. As a result of that, the petition got converted into suit and was numbered as Testamentary Suit No.46 of 1994. Said Anselm filed caveat on 26.4.1994 and objected to the grant of the prayers contending that the deceased Francis was not entitled to dispose off the property, the signature at the foot of the Will is forged, that the deceased used to put thumb impression wherever necessary, that the deceased being 90 years at the time of making of the Will was unable to understand the contents of the Will and his memory had failed, the endorsement of the attesting witness Mr. Kinny with the Will was explained is absent and that since 1978 the deceased Francis was deaf and blind and unable to understand the various events. 2. Based on the rival contentions, following issues came to be framed on 21.1.2008. Answer to -3- each of the issue is mentioned against respective issue. i) Whether the plaintiff proves that the Will is executed in accordance with law and the said Will is a last Will of the deceased?...In the Negative. ii) Whether the plaintiff proves that the Will is obtained by the Petitioner by undue influence, fraud or misrepresentation?...Does not survive. iii) Whether the defendant proves that the suit property bearing Collectors New Number 4122 and Cadestral Survey No.255, House No.138-A, Koliwada, Worli, Mumbai 400 025 is an undivided ancestral property?...Does not survive. iv What reliefs are the plaintiffs entitled to?...Plaintiff’s suit is required to be dismissed. v) What Order?...As per the Operative -4- part. 3. At the stage of recording of evidence plaintiff Camil stepped into the witness box and gave evidence as P.W.1. No other witness was examined on behalf of the plaintiff. On behalf of the defendant, Mr. Sammy A. Kinny, C.A. of the defendant stepped into the witness box as D.W.1. No other witness has been examined on behalf of the defendant. 4. I have heard learned Advocates on both the sides and perused the record. The document dated 26.5.1981 purported to be a document of Will is said to be attested by two attesting witnesses, namely Mr. Walter T. Kinny and Mr. Gangadhar S. Patil. The plaintiff has not examined any of these attesting witnesses. The plaintiff has chosen to prove the Will dated 26.5.1981 by leading evidence by himself. 5. At the outset, perusal of the issue at No.2 would go to show that there is a typographical mistake and instead of the word "plaintiff", the word "defendant" ought to have been typed, because -5- the burden to show that the Will was executed by undue influence, fraud or misrepresentation was on the defendant. It is in the light of this observation I have considered the record. Reasons: Issue Nos.1 to 3. 6. Since the above issues raised in the aforesaid suit are interconnected, they can be discussed together. The plaintiff has come to the court contending that the said Francis had executed a Will on 26.5.1981 and it was duly attested by the two witnesses as mentioned aforesaid. It is in these circumstances, the initial burden of proof was on the plaintiff to show that the Will was so executed by the said Francis in accordance with the provisions of law and that it was the duty of the plaintiff to prove the said Will. Once that burden is discharged, then the question of shifting of burden upon the defendant would come up, so far as the point raised by the defendant whereby the defendant wants to contend that the Will was executed by undue influence etc. 7. The plaintiff in the evidence at paragraph -6- 4 has stated that on the original Will the deceased Francis has tendered his signature. The plaintiff has produced before the Court four documents i.e. Exhibit P-1, Exhibit P-2, Exhibit P-3 and Exhibit P-4 being the document purported to have been executed by said Francis during his life. According to the plaintiff considering his evidence that the signature at the foot of the Will is original signature of said Francis coupled with the documents at Exhibit P-1 to P-4 would go to show that the plaintiff has discharged the burden so far as proving the said Will is concerned. As against this, learned Advocate Mr. Jog appearing on behalf of the defendant had drawn my attention to the evidence of the plaintiff in cross examination where the Camil P.W.1 has admitted that at the time when the Will was executed, he was not present at the spot where the Will was executed, but he was in the house. According to learned Advocate Mr.Jog, even if this word of Camil -P.W.1 is accepted as it is, it may at the most go to show that the said Camil-P.W.1 was in the house when the Will was executed. However, it will definitely go to show that the said CamilP.W.1 has not seen said Francis executing the said Will. According to Mr. Jog, -7- this will go to show that the plaintiff has failed to prove that the signature appearing on the original Will is that of said Francis and that it was tendered in the presence of said Camil-P.W.1. Mr.Jog submitted that even if one considers the evidence of Camil-P.W.1 as it is, the plaintiff has failed to prove the Will particularly when the attesting witnesses have not been examined. He had also submitted that in the absence of any other evidence the burden cast on the plaintiff has not been discharged and therefore the Court should hold that the Will is not duly proved and therefore the Court should dismiss the suit. 8. In so far as the issue of execution of the Will by undue influence or fraud, learned Advocate Mr.Jog submitted that if the initial burden is not discharged by the plaintiff, there was no question of the burden being shifted on the defendant. Learned Advocate Mr. Jog submitted that Issue No.2 be answered accordingly. He had also taken me through the evidence of Sammy-D.W.1 and had submitted that Sammy-D.W.1 had led appropriate evidence to show that the property which is the subject matter of the present Will was joint -8- property and therefore disposition of the entire property by said Francis was not proper and to that extent the Will is improperly executed. Mr. Jog therefore submitted that the Court should dismiss the suit by recording appropriate finding as regards the nature of the property covered by the Will. 9. I have considered the rival submissions. Initial burden was on the plaintiff to show that the documents purported to be Will of said Francis was infact executed by said Francis. It is true that Camil-P.W.1 has stated in her evidence that the signature appearing on the said document is the signature of Francis. However, that is not sufficient evidence to prove the said Will. Even if it is accepted that said Camil P.W.1 was present in the house on 26.5.1981 when the Will is purported to have been executed in the house of said Francis, that also is not sufficient to say that Plaintiff has seen said Francis executing the Will because Camil- P.W.1 has specifically admitted that she has not seen Francis signing the document. The plaintiff has produced the documents at Exhibit P-1, P-2, P-3, P-4. Those documents seem to have -9- been executed by said Francis while he was alive. Even if those documents are read as it is, that by itself cannot be considered to hold that the plaintiff has proved that the Will dated 26.5.1981. If this be so, issue No.1 will have to be answered in the negative. 10. Having answered issue No.1 in the negative, issue No.2 which is as regards execution of the Will under undue influence etc does not survive and to that extent issue No.2 is answered to hold that it does not survive. 11. Issue No.3 relates to the testamentary capacity of Francis to dispose off the property mentioned in the Will. According to the defendant the property was undivided property and Francis had limited rights. Once it is observed that the plaintiff has failed to prove the Will, the issue whether he had testamentary capacity to dispose off a particular property would not survive and accordingly issue No.3 is answered to hold "the issue does not survive". Issue No.4. -10- 12. Issue No.4 relates to grant of the relief to the plaintiff. Since the plaintiff has failed to prove the Will dated 26.5.1981, the plaintiff would not be entitled to probate in terms of the document which is placed before the Court and as such the plaintiff’s suit will have to be dismissed. Accordingly, issue No.4 is answered to hold that "plaintiff’s suit is required to be dismissed". 13. Issue No.5 - Keeping in view, the answers to issue Nos.1 to 4, plaintiff’s suit is required to be dismissed. Appropriate decree shall be passed accordingly. The defendant would be entitled to cost of the suit. Accordingly, issue No.5 is answered as per the operative part. 14. For the reasons mentioned aforesaid, I pass the following decree: DECREE . Suit is dismissed. -11- . Plaintiff to pay to the defendant costs of this suit. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)