1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice of Motion No.40 of 2008 IN Suit No.5 of 2004 IN Probate Petition No.46 of 2002 Mr.Eugene C. Pinto & anr. .. .. Plaintiffs/Petitioners v/s. Rita Cynthia Pinto & ors. .. Defendants/Caveators Mr.Haresh Mahsukharia with Ms.Sujata Mhadgut for plaintiffs/petitioners. Mr.Zal Andhyarujina with Mr.R.V.Talasikar i/by Javed Gaya for respondents. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 2nd May 2008 P.C. : 1.The affidavit of examination-in-chief of plaintiff No.1 has been filed in this court since 18.11.2004. It has been received in evidence two and half years ago. The original documents are now produced. The admissibility of the documents shall have to be considered. 2.Plaintiff No.1 tenders a list of original documents relied upon by him in his evidence. The documents at Sr.Nos.1 and 2 are sought to be proved by secondary evidence under 2 paragraph-11 of the affidavit of evidence. Document No.1 is marked Exhibit-A. Document No.2 is marked Exhibit-B. 3.Letters dated 27.9.1966, 21.6.1966, 23.6.1966, 30.11.1966, 13.12.1966, 20.2.1967, 6.3.1967, 17.3.1967, 17.8.1967, 11.10.1967, 18.10.1967 and 14.12.1968 are the letters written by the Attorney of the deceased' s daughter Marie. They are relied upon in paragraphs 12 and 13 of the affidavit of examination-in-chief of plaintiff No.1. These are the documents 30 years old. They carry a presumption as to their correctness under Section 90 of the Indian Evidence Act. They are accordingly marked Exhibit-C (collectively) in evidence subject to the proof of the contents of these documents. 4. The evidence relating to document No.5 being the handwritten Note dated 15.3.1967 has been added by way of an amendment to the affidavit re-affirmed by the deponent before the officer of this court. Pursuant to the evidence in paragraph 17 the handwritten Note dated 15.3.1967, is taken on record and marked Exhibit-D. The estimate and cost of Cosmos building in a similar handwriting identified by the witness in paragraph 17 of the evidence is taken on 3 record and marked Exhibit-E. Similarly the final estimate of Cosmos building in the same handwriting similarly identified by the witness is taken on record and marked Exhibit-F. 5.In paragraph 13 of the affidavit in examination-in-chief the deponent has explained about the execution of a Gift Deed which remained unexecuted. The said Gift Deed was to be executed pursuant to and as a part of the correspondence/letters of the Attorney M/s.Jayakar & Company. The unexecuted Gift Deed drawn by M/s.Jayakar & Company in triplicate and accompanied by a plan of the property showing three properties in green, blue and red is taken on record and marked Exhibit-G. 6.Paragraph 15 of the affidavit of examination-in-chief mentions about another Deed of Gift executed by the deceased on 23.12.1968. Certified copy of the said Deed of Gift certified by the Sub Registrar of Assurances as a certified copy of the public record registered with the Sub Registrar of Assurances is taken on record and marked Exhibit-H. 7. By consent, the correspondence between the Advocates of 4 the parties contained in the letters dated 28.8.1980, 30.8.1980 and 10.8.1981 are taken on record and marked Exhibit-I (collectively). 8.Certified copy of the affidavit of one Mr.Ernest A. Vaz and Mrs.Piedade Vaz in Notice of Motion No.1803 of 1998 in Suit No.1865 of 1998 filed in this court being a certified copy of the judicial proceeding along with the covering letter forwarding the affidavit by the Advocate of the defendants in that suit is taken on record and marked Exhibit-J (collectively). 9.By consent of the parties, Mr.Kamal Khata, Advocate, is appointed Commissioner to record the cross-examination of the parties in this suit in his office situate at Tamarind Court, Tamarind Street, Fort, Mumbai. Parties to pay costs of the Commissioner as fixed by the Commissioner. 10.Parties shall appear before the Commissioner on 4th June 2008 and then from day to day thereafter until the evidence is complete. 11.So soon as the cross-examination and the re-examination, if any of P.W.1 is over, the plaintiffs' Advocate shall furnish 5 an affidavit of examination-in-chief of further witnesses, if any. 12.In view of the aforesaid order, prayer (a) of the Notice of Motion is not pressed. 13.Suit adjourned to 19th June 2008. [SMT.ROSHAN DALVI, J.]