In a testamentary proceeding where attesting witnesses are deceased and the executed Will is unavailable, the court framed new issues regarding the authenticity of a carbon copy transcript of an alleged Will and directed parties to file evidence affidavits for trial.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
902-S1865-80.DOC
Arun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 1865 OF 1980
…Plaintiffs
Bro Philip Pinto & Ors…Plaintiffs
Versus
Nilkanth Shrikhande & Ors…Defendants
WITH
NOTICE OF MOTION NO. 931 OF 2014
IN
SUIT NO. 1865 OF 1980
WITH
NOTICE OF MOTION NO. 134 OF 2017
IN
SUIT NO. 1865 OF 1980
WITH
NOTICE OF MOTION NO. 1448 OF 2018
IN
SUIT NO. 1865 OF 1980
WITH
NOTICE OF MOTION NO. 1435 OF 2018
IN
SUIT NO. 1865 OF 1980
WITH
TESTAMENTARY AND INTESTATE JURISDICTION
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TESTAMENTARY SUIT NO. 5 OF 2004
IN
TESTAMENTARY PETITION NO. 46 OF 2002
Irene Pontes…Plaintiff
Versus
Rita C Pinto & Ors…Defendants
WITH
CAVEAT NO. 164 OF 2018
IN
TESTAMENTARY SUIT NO. 5 OF 2004
WITH
CAVEAT NO. 165 OF 2018 IN
TESTAMENTARY SUIT NO. 5 OF 2004
WITH
CAVEAT NO. 166 OF 2018
IN
TESTAMENTARY SUIT NO. 5 OF 2004
WITH
CAVEAT NO. 167 OF 2018
IN
TESTAMENTARY SUIT NO. 5 OF 2004
WITH
NOTICE OF MOTION NO. 931 OF 2014
IN
SUIT NO. 1865 OF 1980
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WITH
NOTICE OF MOTION NO. 134 OF 2017
IN
SUIT NO. 1865 OF 1980
Mr Malcolm Siganporia,with Mrs Nandini Joshi, i/b Harish Joshi
& Company, for the Plaintiff in Testamentary Suit No. 5 of 2004
and Defendants Nos. 1A & 2 in Suit No. 1865 of 1980.
Mr Zal Andhyarujina, with Mr Kunal Dwarkadas & Vidya
Chaudhari, i/b Chambers of Javed Gaya, for the Plaintiffs in
Suit No. 1865 of 1980 and for Defendants Nos. 1 to 4 in
Testamentary Suit No. 5 of 2004.
Mr Nimay Dave, with Ms Dipti Das, Ms Dimple Majithia & Mr
Anagh Pradhan, i/b Divya Shah Associates, for Defendants Nos.
5A to 5D & 6, in Suit No. 1865 of 1980 and Defendants Nos. 5,
9, 10, 11 and 12 in Testamentary Suit No. 5 of 2004.
CORAM:G.S. PATEL, J
DATED:1st November 2018
PC:-
TESTAMENTARY SUIT NO. 5 OF 2004 IN
TESTAMENTARY PETITION NO. 46 OF 2002
1.This is a contested testamentary proceeding in respect of a
Will dated 12th February 1963 said to have been made by one
Cosmos Damain T Pinto. It was once decreed on 15th September
2008. That order was set aside by a Division Bench on 21st
September 2011, by consent of parties. Clause 1 of the Appellate
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Order remitted the Suit to the learned Single Judge for “de novo
trial and decision in accordance with law”. Thereafter, it was said
that the Trial Court could permit the parties to lead additional
evidence if necessary.
2.In the time that has passed, the two attesting witnesses to the
Will have both died. Even at that time, neither of attesting witnesses
had led evidence. In any case, neither is available now. Even the
Executors of the Will have passed away and this is therefore a
Petition for Letters of Administration with, and I cannot now
described this as a Will, some testamentary writing annexed. I will
turn to that shortly.
3.On instructions of the Plaintiff, Mr Siganporia states that the
Plaintiff will lead her own evidence to prove the document in
question i.e. an alleged Will dated 12th February 1963 as being the
last Will of the deceased.
4.The reason that it is difficult to describe what is produced
with the Petition as a Will is because it is nether the original nor a
photocopy of that alleged Will. It is a carbon copy of the
handwritten transcript of what was said to be the Will of Cosmos
Damain T Pinto. Whether this meets the requirements of a valid
testamentary disposition is a decision for another day.
5.At this stage I am required to frame issues but before I turn to
those, there is an apprehension expressed by Mr Dave, the Advocate
for some of the Defendants. His clients are in a particularly unusual
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position, in the sense that they were not cited or served with
citations in the earlier round at all. There were several others who
were similarly treated (or mistreated). They have all now been
served and all of them have filed Caveats and Affidavits in Support.
There is now no heir who can claim to have not been served with a
citation or to have waived service of that citation. The anxiety that
Mr Dave expresses is this. Since his clients were kept out of the
earlier round of litigation, the evidence then recorded in his clients’
absence should not be read necessarily against him or held against
him. I am not prepared to accept the submission that Clause 1 of the
Appellate Order requires that the entire evidence previously
recorded should be, so to speak, expunged or wiped from the record.
I do not think that is possible in law. It is certainly necessary,
however, to protect the interest of not only Mr Dave’s clients but all
those who were not served with citations in the earlier rounds. This
may be done by clarifying that the weightage to be attached to the
evidence previously recorded is a matter to be decided at the final
hearing of the Suit and that all contentions in that regard will be kept
open. Further, the mere fact that some evidence was recorded and
that some cross-examination took place on behalf of some other
Defendants (who had been served), is not under any circumstances
to be construed as necessarily binding on those Defendants who
have only now been cited and for the first time given an opportunity
to oppose the Petition. This will extend to both documentary and
oral evidence. All contentions are expressly kept open.
6.Parties are agreed that the issues originally framed on 7th
October 2004 will need to be recast. These are framed and
appended to this order.
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7.The Evidence Affidavit of the Plaintiff along with a
supplemental Affidavit of Documents and Compilation of
Documents, if any, are to be filed and served on or before 17th
December 2018. I will list the Suit for marking the Plaintiff’s
documents and for further directions as to trial on 11th January
2019.
8.There is an accompanying Administration Suit No. 1865 of
1980. One of the Defendants in the Testamentary Suit is the
Plaintiff in that Suit. It is clear that if the Testamentary Suit
succeeds the Administration Suit will automatically fail in regard at
least to those properties that are covered by the Will and the
Testamentary Suit. The request at this stage is to direct that the trial
in the Administration Suit be deferred after the decision in the
Testamentary Suit. I leave that question open for the Trial Court to
decided at the time when trial begins in the Testamentary Suit.
(G. S. PATEL, J)
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ISSUES FRAMED ON 1ST NOVEMBER 2018
TESTAMENTARY SUIT NO. 5 OF 2004
IN
TESTAMENTARY PETITION NO. 46 OF 2002
1. Whether the Plaintiff proves that on 12th February 1963 there was a document that was validly and lawfully executed and attested in accordance with law as the last Will and Testament of the deceased Cosmos Damain T Pinto?
2. Whether the Plaintiff proves that at the time of the said writing the deceased was of sound and disposing state of mind, memory and understanding?
3. Whether the Plaintiff proves that a handwritten transcript or copy of the alleged Will was made by one Roger Correa, the son-in-law of the deceased?
4. Whether the Plaintiff proves that the document lodged in the Registry and the copy of which is at Exhibit “A” to the Petition is a carbon copy of this handwritten transcript or handwritten copy of the alleged last Will and Testament of the deceased?
5. Whether the Plaintiff proves that the original alleged Will is unavailable being lost or not traceable?
6. Whether 6th Defendant proves that the alleged writing of 12th February 1963 is false and fabricated?
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7. What reliefs and what orders?
(G. S. PATEL, J.)
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3 issues framed by the court
Whether the document is the last Will of the deceased Cosmos Damain T Pinto.
Whether the deceased was of sound mind at the time of making the Will.
Whether the plaintiff proves the document lodged in registry is a carbon copy of the original.
Irene Pontes
Rita C Pinto
G.S. PATEL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court