1 CST.11.2011-TS.68.99-TP.612.99.sxw mnm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CHAMBER SUMMONS NO. 11 OF 2011 IN TESTAMENTARY SUIT NO. 68 OF 1999 IN TESTAMENTARY PETITION NO.612 OF 1999 Mr. Charles Mathews & Anr. ...Plaintiffs/Petitioners/Applicants Vs. Mrs. Sylia Gomes ...Defendant/Respondent/Caveatrix Mr. S. Shamim i/b. Komal Kandharkar for the Petitioners/Applicants Mr. Y.C. Naidu i/b. C.R. Naidu & Co., for the Caveatrix/Defendant CORAM : SMT. ROSHAN DALVI, J. DATED : 29TH JUNE, 2011 P.C. : 1. This Chamber Summons is taken out for filing further affidavit of examination-in-chief of one of the Petitioners and producing a document relied upon by him. 2. Two affidavits of examination-in-chief have already being filed of the same witness. The witness is yet not cross examined. Filing of the 3rd affidavit to bring on record an averment and a document which has inadvertently been left out must be allowed so that the entire truth comes out before the Court. The witness would be cross examined on all the three affidavits at one time. 3. Counsel on behalf of the Caveatrix states that even the attesting 2 CST.11.2011-TS.68.99-TP.612.99.sxw witness may have to be recalled to ask certain questions relating to this document. Prima facie the document deals only with the legal heirs who have signed receipt of a copy of the Will of the deceased. The attestation of the Will during the life time of the deceased is a completely different matter. The attesting witnesses would give evidence only about what transpired during the life time of the deceased at the time of the execution of the Will. They have nothing to do with the copy of the Will being given to the heirs. 4. However, if after the cross examination of the Plaintiff who has produced the document is complete and any relevant questions are required to be put to this witness regarding this document, the Caveatrix would be entitled to make an application for recalling the attesting witness. 5. Further additional examination-in-chief of Plaintiff No.2 has already been filed with the Commissioner who is recording the cross examination of the parties. The affidavit shall be accepted by the Commissioner under the provisions of Order 18 Rule 4 of the C.P.C at the next hearing of the commission. 6. Upon the evidence of the Deponent in paragraph 2 of the aforesaid affidavit affirmed on 9th December 2010 the receipt of the copy of the Will sought to be produced of the deceased dated 11th December 1986 signed by 5 heirs whose signatures are identified by the Deponent of the affidavit is marked Exhibit-B 7. The learned Commissioner is present in Court. The Commission is in 3 CST.11.2011-TS.68.99-TP.612.99.sxw progress. The Caveatrix has applied for the extension of the commission. The learned Commissioner states that he is prepared to record evidence preferably day-to-day as directed by the Court. Both parties agree to record evidence accordingly. 8. Parties to place the suit on board after the evidence is complete as directed at appropriate time. 9. The Chamber Summons is disposed off accordingly. (SMT. ROSHAN DALVI, J.)