Allowed

Thomas Anthony Fernandes v. Mr. Menino Francisco Gregory Fernandes

Bombay HC24 Apr 2013TS/67/2010

Case brief

AI extract

What is this about?

In testamentary suits for probate of two conflicting wills, the Court held it lacked territorial jurisdiction to probate the later Goa-will. It found the earlier Mumbai-will validly executed and granted probate, noting the brother failed to prosecute related caveats effectively.

What did the court decide?

Probate granted on the will dated 12th July, 1996; will dated 20th August, 1996 not probated due to lack of territorial jurisdiction.

Thomas Anthony Fernandes Vs Mr. Menino Francisco… — Succession and Inheritance | Bombay HC (2013)

¶1

¶2

TS No.67_2010_TS No.11_2009

¶3

jsn

¶4

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

¶5

TESTAMENTARY SUIT NO.67 OF 2010

¶6

¶7

TESTAMENTARY PETITION NO.492 OF 2010

¶8

Mr. Roquestinho Fernandes	–	Deceased
Thomas Anthony Fernandes	–	Petitioner
V/s.
Menino Francisco Gregory Fernandes	–	Caveator /
		Defendant

¶9

TESTAMENTARY SUIT NO.11 OF 2009

¶10

¶11

TESTAMENTARY PETITION NO.976 OF 2008

¶12

Mr. Menino Francisco Gregory Fernandes – Petitioner V/s. Mr. Thomas Anthony Fernandes & 2 Ors. – Defendants

¶13

Mr. Bomi Patel, Adv. i/b. Munir Merchant, Adv. for the Petitioner. Mr. S.K. Shetty, Adv. i/b. Shetty & Associates for the Defendant No.1.

¶14

CORAM : MRS. ROSHAN DALVI, J. Date of reserving the Judgment : 9^th April, 2013 Date of pronouncing the Judgment : 24^th April, 2013

¶15

J U D G M E N T

¶16

Both these suits are for the grant of probate of the wills of

¶17

¶18

TS No.67_2010_TS No.11_2009

¶19

jsn

¶20

the deceased Roquestinho Fernandes, who expired on 23^rd January, 1999. The Petitioner in Testamentary Suit No.11 of 2009 is his son Menino. He has applied for probate of the photocopy of the will of the deceased dated 12^th July, 1996 under the provisions of Section 237 of the Indian Succession Act. His brother Thomas and his two sisters have filed caveat thereto. The sisters have not prosecuted their caveat. The third sister had not filed caveat at all. The brother is the only contesting caveator. The brother has not challenged the execution of the Will of the deceased. He has claimed in his caveat that the deceased has left a later will dated 12^th July, 1996. The Petitioner has suppressed that will despite knowledge and, therefore, the Petitioner is not entitled to probate the photocopy of the will of the deceased dated 12^th July, 1996. He has also set out in his affidavit in support of the caveat that the premises mentioned in schedule 1 in the plaint is the tenanted premises which could not be transferred to Menino as claimed by him under the will. He has claimed that the estate is undervalued.

¶21

The caveator Thomas has himself filed the second Petition which is converted into the Testamentary Suit No.67 of 2010 to probate the later will of the deceased dated 20^th August, 1996. That will has been executed in Goa.

¶22

The first will sought to be probated by Menino seeks to bequeath the properties of the deceased in Mumbai as well as Goa. The second will of the deceased seeks to bequeath only his properties in Goa. Menino has filed the caveat to that petition along with the same two sisters. Those sisters have not prosecuted their caveat. 4. Menino has sought to probate the first will of the deceased in this Court, the deceased having died in Mumbai and having left behind his properties in Mumbai as well as Goa. The second will

¶23

3 TS No.67_2010_TS No.11_2009

¶24

jsn

¶25

bequeaths the same property in Goa similarly, after about one month. Menino has not filed a probate petition for probating that will in Mumbai, the Court have no territorial jurisdiction with regard to that will. He has sought probate from this Court of the will executed in Mumbai disposing off same property similarly in which he has disposed off the Mumbai property also.

¶26

Consequently, the two suits of the two brothers Menino and Thomas with regard to the estate of their deceased father are to be considered. Both the suits are required to be tried together upon the same issues. Common issues have been framed as follows and I answered as follows:

¶27

I S S U E S

¶28

1 Whether this Court has territorial jurisdiction to try No this suit. (TS No.67 of 2010)

¶29

2 Whether the last Will and Testament of the deceased Not Roquesinho Fernandes dated 20^th August, 1996 was answered for validly executed. lack of territorial jurisdiction

¶30

3 Whether the said Will was obtained on duress and Not required undue influence. to be answered.

¶31

4 Whether Will of the Testator dated 12^th July, 1996 Yes was validly executed.

¶32

5 Whether the said Will was executed under undue No influence and duress.

¶33

6 What relief, if any, the Plaintiff entitled to? As per final order.

¶34

Thomas has been examined as the Petitioner since he has propounded the second later will of the deceased. He has examined an attesting witnesses to the second will dated 20^th August, 1996. Menino has been examined as the Defendant. He has propounded the

¶35

¶36

jsn

¶37

TS No.67_2010_TS No.11_2009

¶38

first will of the deceased dated 12^th July, 1996. Though this will would otherwise would not require to be proved, it is sought to be probated because the Mumbai property has been bequeathed thereunder along with Goa properties of the deceased. (In the second will only the Goa properties bequeathed similarly.)

¶39

ISSUE NO.1.

¶40

The will dated 12^th July, 1996 was executed in Mumbai. It bequeaths properties in Mumbai and Goa. This Court would have territorial jurisdiction to grant probate of that will. There is no dispute between the parties with regard to the territorial jurisdiction of the Court in Menino's suit.

¶41

The will dated 20^th August, 1996 was executed in Goa. It bequeaths only Goa properties thereunder. (They are bequeathed similarly as in the Mumbai will of the deceased prepared about the month earlier). This Court would have no territorial jurisdiction to grant probate in respect of a will of the deceased executed in Goa with regard to properties only in Goa.

¶42

Such a will is required to be executed before the notary and five competent witnesses under the Civil Code of 1867 applicable in Goa. Further at least three witnesses are required to sign in full as attesting witnesses under article 1915 of the Civil Code. The provisions of sub division relating to public will contained in articles 1911 to 1919 of the Civil Code of 1867 applicable in Goa would apply. This Court cannot apply those provisions. Hence this Court does not have territorial jurisdiction to determine the issues with regard to the validity of the will dated 20^th August, 1996. Consequently, the issue No.1 is answered in the negative with regard to the suit of Thomas being Testamentary Suit No.67 of 2010 filed in

¶43

¶44

TS No.67_2010_TS No.11_2009

¶45

jsn

¶46

Testamentary Petition No.492 of 2010.

¶47

ISSUE NO.2

¶48

Thomas has led evidence of one of the attesting witness to the Will. The parties admit execution of the will dated 20^th August, 1996. Hence there is no dispute with regard to the validity of the will. The issue is not answered in view of the lack of territorial jurisdiction of this Court.

¶49

ISSUE NO.3.

¶50

There is no evidence with regard to any duress or undue influence practised upon the deceased. In any event the execution of the will is admitted. The parties have also acted upon the will. The respective shares of both the brothers, Thomas and Menino, to whom the Goa property has been equally bequeathed have been transferred in the names of the Thomas and Menino. Hence the issue is not required to be answered.

¶51

ISSUE NO.4.

¶52

The validity of the will of the deceased executed in Mumbai with regard to the properties in Mumbai as well as Goa dated 12^th July, 1996 has not been challenged. It is only contended by Thomas that the will need not be probated in view of the later will of the deceased. However, the later will of the deceased is only in respect of the property of the deceased in Goa. That has been executed precisely as per the bequest granted under the will dated 12^th July, 1996. This itself lends credence to the execution of the earlier will of the deceased dated 12^th July, 1996 whilst he was in Mumbai.

¶53

6 TS No.67_2010_TS No.11_2009

¶54

jsn

¶55

The will dated 12^th July, 1996, therefore, shows the last desire of the deceased to bequeath his property in Mumbai. In fact, it is bequeathed equally to all his children. It would go as an intestacy. 14. Menino has examined himself as also one attesting witness to the will. No part of the evidence of the attesting witness with regard to the execution of the will has been successfully challenged in his cross examination. All the questions in cross examination are wholly divergent from the execution of the will. Consequently the will of the testator dated 12^th July, 1996 is seen to be validly executed and accordingly stands proved. Hence Issue No.4 is answered in the affirmative.

¶56

ISSUE NO.5.

¶57

There is no evidence whatsoever led about the undue influence and duress claimed by the defendants. In fact the affidavit in support of the caveat itself shows that no such case has been made out and only because of the execution of the later will the caveat is filed. It may be mentioned that there is no other will with regard to Mumbai property. Another will dated 20^th August, 1996 has been executed with regard to the Goa property. This is identical with the bequest made by the deceased in the will dated 12^th July, 1996. This itself lends credence to the bequests made under the will dated 12^th July, 1996. The execution of the second will dated 20^th August, 1996 about a month after the execution of the first will of the deceased which has been sought to be probated by Thomas itself shows no duress or undue influence practised upon the deceased. It is only because the Mumbai property has been bequeathed under the first will alone, for which this Court has territorial jurisdiction, that the Petition has been filed despite the knowledge of the second will.

¶58

¶59

TS No.67_2010_TS No.11_2009

¶60

jsn

¶61

The knowledge of the second will of the deceased is shown to be imputed upon the Menino upon his affidavit filed in which such fact is mentioned. However, only because the Mumbai property has been bequeathed under the will dated 12^th July, 1996 alone for which this Court has territorial jurisdiction that the probate petition has been filed by Menino.

¶62

It may be mentioned that the property of the deceased in Mumbai is a single room / flat. Menino has been in possession of the said room. Thomas was never in possession thereof. All the children have been given an equal share in the said room. In fact, bequest itself is an on intestacy of the deceased. Thomas is entitled only to his share in the said room. He would be entitled to claim such share only upon filing a suit in the civil court in that behalf.

¶63

Consequently, no undue influence or duress practised upon the deceased to execute this first will dated 12^th July, 1996 is seen. Hence Issue No.5 is answered in the negative.

¶64

ISSUE NO.6

¶65

O R D E R

¶66

The will dated 12th July, 1996 of the deceased Roquestinho Fernandes is executed in Mumbai is probated.

¶67

The will dated 20th August, 1996 of the deceased cannot be and is not probated for want of territorial jurisdiction of this Court.

¶68

The Prothonotary and Senior Master of this Court shall proceed with the Testamentary Petition No.976 of 2008 to issue the probate of the will of the deceased dated 12th July, 1996.

¶69

Drawn up decree is dispensed with in both the suits.

¶70

( ROSHAN DALVI, J.)

Thomas Anthony Fernandes v. Mr. Menino Francisco Gregory Fernandes

Case brief

What is this about?

What did the court decide?

Thomas Anthony Fernandes v. Mr. Menino Francisco Gregory Fernandes

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Theyamma Thadicaaren and Ors. Vs Sylvia Naresh Gill and Anr.

Sushma Vasant Mande Vs Vasant Baburao Mande

Manasi Walawalkar through Her Next Friend and Guardian Pranali Walawalkar Vs Sarojini Sridhar Walawalkar

Shankar Tukaram Shinde Vs ............................................

Neelam Gordhan Rathod Vs the State of Maharashtra and Ors.

Minakshi Maheshwari Vs the State of Maharashtra and Anr.