Bangalore District Court
Mr. Mario Sequeira vs Mr. Malcom Sequeira on 7 June, 2022
KABC0A0006172018
IN THE COURT OF XIII ADDL. CITY CIVIL & SESSIONS JUDGE,
MAYOHALL UNIT, BENGALURU (CCH-22)
Present: Sri S. Sudindranath, LL.M., M.B.L.,
XIII ADDL. CITY CIVIL & SESSIONS JUDGE
BENGALURU.
OS No.25250/2018
Dated this 07th day of June 2022
Plaintiff:- Mr. Mario Sequeira,
Aged about 53 years,
S/o Late B.E.S Sequeira,
Presently residing at
#102, Orchids Apartments,
28, Cline Road,
Cooke Town,
Bangalore-560 084.
(Rep by Sri R.J., Advocate)
V/S
Defendant:- Mr. Malcom Sequeira,
Aged about 48 years,
Son of Late B.E.S Sequeira,
Presently residing at
#229, Saint Andrews Drive,
Bolinebrook, IL 60440,
United States of America,
Presently represented by his
General Power of Attorney Holder,
2 OS.No.25250/2018
Judgment
KABC0A0006172018
Mr. Charles Rodgers,
Aged about 50 years,
S/o Late E.P. Rogers,
Presently residing at
Flast No.G-2, Sagar Apartments,
No.1/1, Charles Campbell Road,
Cox Town, Bangalore-560 005.
(Rep by Sri K.M.A., Advocate)
Date of Institution of the suit 02/06/2012
Nature of the (Suit or pro-note, suit For Grant of Probate
for declaration and possession, suit
for injunction, etc.)
Date of the commencement of 27/09/2018
recording of the Evidence.
Date on which the Judgment was 07/06/2022
pronounced.
Year/s Month/s Day/s
Total duration 10 00 05
XIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
MAYOHALL UNIT: BENGALURU.
:JUDGMENT:
This suit has its genesis in P & SC 25023/2012 filed under section 276 of Indian Succession act seeking probate of Will 3 OS.No.25250/2018 Judgment KABC0A0006172018 dated 02/02/2006 said to be executed by one Mrs. Philomena Apoline Sequeira and later on, the said P&SC Petition was converted into original suit under section 295 of Indian Succession Act in view of respondent having appeared and filed objections contesting the will.
2. The plaint averments in brief are that, the petitioner/Plaintiff is the son of the aforestated Mrs. Philomena Apoline Sequeira [hereinafter referred to as the testator] and she had one more son (respondent/defendant herein) and one daughter and when she was in sound state of mind, she has executed her last Will and Testament dated 02/02/2006 and under the same certain bequests are made to the plaintiff, defendant and others and the plaintiff is appointed as one of the executors of the said will and testator died on 19/04/2006 and with these averments, the present petition was filed seeking probate of the said will dated 02/02/2006. 4 OS.No.25250/2018
Judgment KABC0A0006172018
3. After impleadment of the respondent, written statement is filed denying the genuineness of the will in respect of which probate is sought and contending that, as on the date of the alleged Will, i.e. 02/02/2006, the testator was hospitalised and was not in sound state of mind and therefore, there was no question of the testator executing the said will and in any event, the testator had earlier executed will dated 23/03/2001 which is neither expressly or impliedly revoked and therefore, denying the genuineness of the Will under probate and instead setting up another will, the defendant prayed for dismissal of the suit and instead to grant probate in respect of the Will set up by him.
4. On the basis of above pleadings, this court framed the following;
:ISSUES:
1) Whether the plaintiff proves the last will and 5 OS.No.25250/2018 Judgment KABC0A0006172018 testament dated 02/02/2006 of deceased Philomena Apolina Sequeira?
2) Whether the plaintiff proves that he is entitled for grant of Probate of Will dated 02/02/2006 as prayed?
3) Whether the suit of the plaintiff is bad for non-
joinder of proper and necessary parties?
4) Whether the defendant proves that the Late Mrs. Philomena Apolina Sequeira executed registered Will dated 23/03/2001 as her last will and testament and he is the beneficiary under said Will?
5) What order or decree?
5. In the trial, the plaintiff examined himself as PW 1 and got marked Ex. P1 to P 23 amongst which Ex. P 23 is the original Will dated 02/02/2006. The plaintiff also examined the scribe (advocate who drafted the Will) who is also the attesting witness of the will as PW 2. In the cross-examination of PW 2, Ex. D1 6 OS.No.25250/2018 Judgment KABC0A0006172018 and D2 were got marked by confronting to him. Apart from this, on behalf of the plaintiff, the public citation of the petition and photographs are marked as Ex. P 24 to P 30.
6. On behalf of the defendant, the power of attorney holder of the defendant was examined as DW 1. He got marked Ex. D3.
7. Thereafter, I have heard the arguments of Learned counsel for plaintiff. In spite of grant of sufficient opportunity, the Learned counsel for defendant has not advanced arguments and therefore, defendant's arguments is taken as nil.
8. I have perused the records of the case.
9. My answer to the above issues are as follows;
Issue No. 1: In The Affirmative Issue No. 2: In The Affirmative Issue No. 3: In The Negative 7 OS.No.25250/2018 Judgment KABC0A0006172018 Issue No. 4: In The Negative Issue No. 5: As Per Final Order For The Following;
:: REASONS ::
Issue No. 1 and 4:
10. These issues are interrelated, since, they deal with the respective proof of the Wills set up by the plaintiff and defendant respectively and therefore, to avoid repetition of facts, these issues are discussed together.
11. At the outset, certain admitted position of facts and law, may be adverted to.
12. It is undisputed that the testator - Philomena Apoline Sequeira is the mother of the plaintiff and defendant and she also left behind the movable and immovable assets stated in the petition/plaint. Anyhow, the law is settled that, in probate 8 OS.No.25250/2018 Judgment KABC0A0006172018 proceedings, even after conversion into original suit, the question of title of the testator and the capacity of the testator to bequeath the properties and even question as to existence of the bequeathed Properties, is irrelevant and the only question to be decided in probate proceedings is regarding the due execution of the will and whether the testator was in a sound state of mind. This position of law is laid down by Hon'ble Apex Court in the case of Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon, (2007) 11 SCC 357 at page 361, as follows;
12. In Chiranjilal Shrilal Goenka v. Jasjit Singh [(1993) 2 SCC 507] this Court while upholding the above views and following the earlier decisions of this Court as well as of other High Courts in India observed in para 15 at SCC p. 515 which runs as under:
2. "15. In Ishwardeo Narain Singh v. Kamta Devi [AIR 1954 SC 280] this Court held that the court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the Probate Court. Therefore, the only issue in a probate proceedings relates to the genuineness and due execution of the will and the court itself is under duty to determine 9 OS.No.25250/2018 Judgment KABC0A0006172018 it and preserve the original will in its custody. The Succession Act is a self-contained code insofar as the question of making an application for probate, grant or refusal of probate or an appeal carried against the decision of the Probate Court. This is clearly manifested in the fascicule of the provisions of the Act. The probate proceedings shall be conducted by the Probate Court in the manner prescribed in the Act and in no other ways. The grant of probate with a copy of the will annexed establishes conclusively as to the appointment of the executor and the valid execution of the will. Thus it does no more than establish the factum of the will and the legal character of the executor. Probate Court does not decide any question of title or of the existence of the property itself."
(Emphasis Supplied)
13. In this background, the crucial question to be decided by this court is whether it is the Will set up by the plaintiff dated 02/02/2006 or the Will set up by the defendant dated 23/03/2001 which is the last Will and testament of the testator - Philomena Apoline Sequeira.
14. At the outset, it is to be noted that, the Will set up by the defendant is earlier to the will set up by the plaintiff. Therefore, even for the sake of argument, if it is conceded that, the said will set up by the defendant dated 23/03/2001 stands proved, even 10 OS.No.25250/2018 Judgment KABC0A0006172018 then, if plaintiff can prove the due execution of the will dated 02/02/2006, then, it follows that, the earlier Will set up by the defendant is impliedly revoked in view of section 70 of the Indian Succession Act, which lays down as follows;
70. Revocation of unprivileged will or codicil.--No unprivileged will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged will is hereinbefore required to be executed, or by the burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.
Illustrations
(i) A has made an unprivileged will. Afterwards, A makes another unprivileged will which purports to revoke the first. This is a revocation.
(ii) A has made an unprivileged will. Afterwards, A, being entitled to make a privileged will, makes a privileged will, which purports to revoke his unprivileged will. This is a revocation. (Emphasis Supplied)
15. In this regard, reference may also be made to law laid down by Hon'ble Apex Court in case of Mahesh Kumar v. Vinod Kumar, (2012) 4 SCC 387 : (2012) 2 SCC (Civ) 526 : 2012 SCC OnLine SC 253 at page 406, as follows;
11 OS.No.25250/2018
Judgment KABC0A0006172018
47. The mere fact that Kailash Chand lives at a distance of about four furlong from the house of Bal Kishan (father-in-law of the appellant) has no bearing on the issue relating to the validity of the will nor the non-examination of the persons belonging to the same community has got any relevance. The absence of a categorical recital in the will dated 10-2-1992 that the earlier will was cancelled is also not relevant because once the execution of the second will is held as duly proved, the earlier will automatically becomes redundant because the second will represents the last wish of the testator.
(Emphasis Supplied)
16. In the case on hand the Will set up by the defendant dated 23/03/2001 whose certified copy is produced and marked as Ex. P 16 discloses that, it was executed at the point of time before the immovable property of the testator was subject matter of joint development agreement and subsequent to the execution of the said will at Ex. P 16, an apartment complex has been constructed in the said immovable property and as per the Will propounded by the plaintiff dated 02/02/2006 marked as Ex. P 23, the subsequent development of the property into apartment complex has been taken into account and one apartment has been bequeathed to plaintiff and other apartment has been bequeathed 12 OS.No.25250/2018 Judgment KABC0A0006172018 to the defendant. Therefore, if the will propounded by the plaintiff at Ex. P 23 is duly proved, by implication, it amounts revocation of the earlier appeal, even if the earlier Will is held to be duly proved, for the sake of argument. It is for this reason that, I have held earlier that, the due execution of the will at Ex. P 23 if proved amounts to revocation and renders redundant the will propounded by the defendant at Ex. P 16 and therefore, the emphasis while answering these issues is on whether the plaintiff has proved due execution of the will dated 02/02/2006 at Ex. P
23.
17. Having appreciated the entire oral and documentary evidence on record, I hold that, the plaintiff has proved due execution of the will at Ex. P 23 by the testator while she was in a sound state of mind for the following reasons. 13 OS.No.25250/2018
Judgment KABC0A0006172018
18. Firstly, the plaintiff has examined the scribe who is also the attesting witness of the will at Ex. P 23 and therefore, there is compliance of the requirement of section 68 of the Evidence Act which requires that at least 1 attesting witness should be examined in support of the will.
19. It is to be noted that PW 2 is an advocate who has drafted the Will and he has deposed that, on the instructions of the testator, he drafted the Will and thereafter, he has also attested the will is one of the attesting witnesses. It is to be noted that, there is no embargo for the scribe himself to act as the attesting witness and it is always a question of fact as to whether the intention of the witness was to attest the Will or whether the intention was only to sign as the scribe. This position of law is laid down by Hon'ble High Court of Karnataka in the case of Vasant H. Jayawant Bhasme v. Shankararao Bhimrao Bhasme, 2017 SCC OnLine 14 OS.No.25250/2018 Judgment KABC0A0006172018 Kar 4493 : ILR 2017 Kar 5433 : (2017) 4 Kant LJ 633 : (2017) 4 ICC 371 : (2018) 2 AIR Kant R 67 at page 5448, as follows;
18. What needs to be stated on reading the above observation of the Supreme Court is that, unless there is animo attestandi, a person cannot be called an attestor. What is important is intention to attest. In another decision of the Division Bench of the Madras High Court in Kamakshiammal v. Rajalakshmi [AIR 1995 Madras 415] it is very clearly held that even a scribe can be treated as an attesting witness, provided the scribe has an intention to attest. The intention can be gathered from the document or even can be inferred from circumstances regarding which evidence must be available.
(Emphasis Supplied)
20. In the case on hand if the will at Ex. P 23 is looked into it is crystal clear that, PW 2 has signed the will in the capacity as attesting witness and in token of attestation of the will. Therefore, his evidence is relevant and requires to be looked into and if so looked into, it is seen that, he has deposed in detail that, in his presence the testator executed the will and thereafter himself and the other attesting witness signed the will in token of attestation in the presence of the testator.
15 OS.No.25250/2018
Judgment KABC0A0006172018
21. The only fact helpful to the defendant brought out in his cross-examination is that, he admits that, the said execution took place in the hospital. No doubt, the certificate of the doctor could have been obtained to show that, the testator was in a sound state of mind and the same has not been done. However, this by itself is not fatal to the plaintiff's case and will not prove the case of the defendant that the testator was in a feeble state of mind and unable to understand the contents of the will.
22. Apart from the above, nothing else having been brought out in the cross-examination of PW 2 who is an advocate of the bar and who has deposed categorically about the due execution of the Will by the testator, I hold that, the evidence of the attesting witness - PW 2 goes a long way in proving due execution of the will at Ex. P 23 by the testator when she was in a sound state of mind.
16 OS.No.25250/2018
Judgment KABC0A0006172018
23. It is to be noted that, although it is admitted by PW 2 that testator was admitted in the hospital as on the date of execution of the Will on 02/02/2006, no material is brought on record to show that, she was in enfeebled state of mind. If the defendant wanted to show the contrary and demonstrate that, testator was not in a sound state of mind as on said date, the defendant could have taken steps to summon the medical records of the hospital regarding her hospitalisation and the same having not been done, I accept the evidence of PW 2 that testator signed the will being aware and understanding its contents and in fact PW 2 who is the advocate has gone so far as to say that, it was on the instructions of the testator that he drafted the Will which also indicates the testator was in a sound state of mind so as to give instructions to the advocate to draft the will.
17 OS.No.25250/2018
Judgment KABC0A0006172018
24. Apart from the above evidence of PW 2, there are 2 vital admissions made by the defendant through his power of attorney holder, which goes a long way in proving the will at Ex. P 23.
25. Firstly, the plaintiff has produced and got marked a registered document at Ex. P4. Ex. P4 is confirmation deed to the joint development agreement at Ex. P3. As already noted supra, the testator owned and possessed an immovable property bearing No. 28, Cline Road, Cooke town, Bangalore which she had inherited under the will of her husband. As already noted supra, as on the date of the earlier Will set up by the defendant at Ex. P 16, the said property had not yet been developed into apartments and as per the joint development agreement at Ex. P3 dated 20/12/20004, the testator entered into joint development agreement with the developer to construct multistoried apartment complex on the said property. As on the date of the Will set up by 18 OS.No.25250/2018 Judgment KABC0A0006172018 the plaintiff at Ex. P 23 although the said apartment complex had not been completed, the development had taken shape and therefore, the testator, under the will at Ex. P 23, bequeathed one 2 bedroom apartment to the defendant and one three-bedroom apartment to the plaintiff. In this background, after the death of the testator, the children of the testator have executed Ex. P4 which is the confirmation to the earlier joint development agreement at Ex. P3. This confirmation deed is crucial because it is executed by the plaintiff himself and by one Charles Rogers who is the power of attorney holder of the defendant and also the power of attorney holder of the daughter of the testator. It is to be noted that, admittedly the defendant and his sister are both permanent residents of USA and therefore, it is their power of attorney holder who has executed Ex. P4 on their behalf. It is crucial to note that, the said Charles Rogers is the self-same attorney holder who is examined as DW 1 on behalf of the 19 OS.No.25250/2018 Judgment KABC0A0006172018 defendant, in present suit. In his cross-examination DW 1 has admitted the due execution of Ex. P4 by himself acting as the power of attorney holder of the defendant and his sister. Therefore Ex. P4 is an admitted and undisputed document. In Ex. P4 at page 4 there is a crucial admission that the testator being the absolute owner of the schedule property (property which is developed into multistoried apartment complex) died testate leaving behind her a Will dated 02/02/2006 bequeathing 2 flats in the apartment known as Orchids which fell to her 40% share under the joint development agreement in favour of her sons namely the plaintiff and defendant herein. Thereby, in the said confirmation deed, which is a registered document and which is executed by the power of attorney holder of the defendant, whose due execution is admitted by DW 1, there is categorical admission regarding the due execution of the will at Ex. P 23. Therefore, this amounts to admission by the defendant of the due 20 OS.No.25250/2018 Judgment KABC0A0006172018 execution of the said will set up by the plaintiff and goes a long way in proving due execution of the said will.
26. The other crucial admission made by DW 1 is found at page 14 of his cross-examination dated 16/03/2021 wherein he admitted that the defendant has one flat in Orchids apartment bearing No. GF 1 and there is a tenant by name Rao in the said apartment and it is DW 1 himself who has rented out the same to the said tenant on behalf of the defendant. This admission is crucial because it shows that the defendant has derived benefit under the Will set up by the plaintiff and acted upon the said will by taking the ground floor 2 bedroom apartment bequeathed to him under the said will and renting it out to a tenant. Having derived benefit under the Will and having acted upon the Will, the defendant cannot turn around at this point of time and deny the due execution of the said will and therefore I hold that this is 21 OS.No.25250/2018 Judgment KABC0A0006172018 another circumstance which clinchingly proves the due execution of the Will dated 02/02/2006 by the testator.
27. In the face of the above material, I hold that, the plaintiff has proved due execution of the will at Ex. P 23 dated 02/02/2006 by his mother - testator when she was in a sound state of mind.
28. Now let me briefly advert to the contentions raised by the defendant as the suspicious circumstances surrounding the Will and analyse whether the said suspicious circumstances raised by the defendant are sufficient to discard the will.
29. The 1st circumstance as already noted supra is that the Will was executed when the testator was hospitalised. I have already discussed this point supra and held that, the fact that Will was executed during the hospitalisation of testator is not by itself 22 OS.No.25250/2018 Judgment KABC0A0006172018 sufficient to discard the will, particularly in the light of the admissions of the defendant himself noted supra.
30. Apart from this, it is to be noted that, the bequest under the will is quite natural. Be it noted that, the testator had 3 children namely 2 sons that is plaintiff and defendant and one another daughter. Admittedly, the defendant and the daughter are residing in USA since long. Therefore, it is quite but natural that, the largest share is given to the plaintiff who remained in India and who appears to be financially not as well settled as his siblings. It is to be noted that, there is provision made for each and every one of the legal heirs of the testator in the will and therefore I hold that the bequest is quite natural and believable.
31. Another point to be noted is that, although the will is of the year 2006 and testator died in 2006, the fact that the present petition seeking probate is filed after 6 years in 2012 is not by 23 OS.No.25250/2018 Judgment KABC0A0006172018 itself a suspicious circumstance because, as already noted supra, the Will was not kept in the dark but has been declared in the registered document of the year 2006 at Ex. P4 to which the power of attorney holder of defendant is also a signatory. Therefore, the Will was brought to light very shortly after the death of the testator and therefore this is also not a suspicious circumstance.
32. The bulk of the cross-examination of PW 1 revolves around the fact that, originally a notarised copy of the will was produced along with the petition on the ground that the original is unable to be traced by the advocate - PW 2 and subsequently, during the pendency of the proceedings, the original Will itself was produced on the ground that, it has been traced by PW 2 and the original is marked as Ex. P 23. When the original itself has been produced albeit subsequently, the fact that, initially only the copy 24 OS.No.25250/2018 Judgment KABC0A0006172018 of the Will was produced becomes inconsequential and therefore the various contentions raised in the cross-examination of PW 1 regarding non-production of the original Will recedes to the background. So also the point raised in the cross-examination of PW 2 that, in the verification to the petition he has stated that the original has been shown to him becomes inconsequential in view of the subsequent fact of production of the original.
33. Another contention raised in the cross-examination of PW 1 is that the address of the testator is shown as the property bearing No. 28, Cline road, Cooke Town, Bangalore whereas it is brought out in the cross-examination of PW 1 that, as on the date of the will, the testator was in fact residing in a rented apartment since her own property was under construction for being developed into multistoried apartment complex. In my view, this is not a ground to discard the will because, obviously, in the Will the 25 OS.No.25250/2018 Judgment KABC0A0006172018 permanent address of the testator would be stated and not a temporary address to which she shifted temporarily because her own property was under construction. No doubt, unfortunately, even before the property could be developed into apartment complex, the testator died but this will not disprove the will because, after all, what is stated in the Will is the permanent address of the testator.
34. In the cross-examination of PW 1 it has been elicited that, he has spent the deposit of one of the bank accounts for the purpose of his daughter's education and this is raised as a ground that the plaintiff/alleged executor has acted contrary to the will. In my view, since, the plaintiff will, in any event, be required to render accounts and inventory as a condition for granting of the probate, at the time of rendering accounts it is for the plaintiff to account for each and every one of the assets left by the testator and that, 26 OS.No.25250/2018 Judgment KABC0A0006172018 he has disposed off the same in accordance with the terms of the will and therefore this admission made by PW 1 is not a ground to refuse probate.
35. For all the above reasons, I hold that, none of the contentions raised by the defendant attacking the will is sufficient to overcome the crucial 2 admissions i.e. admission made in Ex. P4 and admission by DW 1 who admits that defendant has taken benefit under the Will. Accordingly, I hold that, the will at Ex. P 23 propounded by the plaintiff is adequately proved not only by the evidence of PW 2 - attesting witness but also by the above admissions made by the defendant and his attorney holder and none of the suspicious circumstances raised by the defendant are acceptable to discard the will and accordingly, I hold that the plaintiff has proved due execution of the will at Ex. P 23 dated 02/02/2006.
27 OS.No.25250/2018
Judgment KABC0A0006172018
36. Having held as above, as a corollary, it follows that, once the due execution of will at Ex. P 23 is proved, it amounts to the revocation of the earlier will at Ex. P 16 propounded by the defendant. Even otherwise, the defendant has not produced the original Will dated 23/03/2001 set up by him nor examined the attesting witness of the said will to prove the same. No doubt, DW 1 has stated in passing that he is the attesting witness to the will dated 23/03/2001 but in his Chief examination, the said will is not shown to him and the signatures of the testator and attesting witnesses are not got marked and in any event, the original Will itself is not produced and therefore, the said stray statement made by DW 1 that he is the attesting witness of the will dated 23/03/2001 is not sufficient to prove the said will. Therefore, I hold that, insofar as the Will set by the defendant, firstly, it is not proved by producing the original Will and by examining the attesting witness and secondly, even for the sake of argument, if it 28 OS.No.25250/2018 Judgment KABC0A0006172018 is held that, the said will was duly executed, due to execution of the subsequent will dated 02/02/2006, the testator has impliedly revoked the earlier will. For all above reasons, I answer issue No. 1 in the affirmative holding that plaintiff has proved due execution of the will dated 02/02/2006 at Ex. P 23 and also hold that defendant has failed to prove due execution of the Will set up by him at Ex. P 16 and accordingly I answer issue No. 4 in the negative.
Issue No. 2:
37. Having held the issue No. 1 in the affirmative, it follows that, the plaintiff having proved due execution of the will by the testator dated 02/02/2006 and since the plaintiff is appointed as one of the executors under the said will, there is no embargo for granting probate of the said will in favour of the plaintiff and accordingly I answer issue No. 2 in the affirmative.29 OS.No.25250/2018
Judgment KABC0A0006172018 Issue No. 3 :-
38. This issue is raised in view of the specific contention raised by the defendant that the suit is bad for non-joinder of proper and necessary parties. The reference is obviously to the sister of the parties who is the daughter of the testator who is not made party herein. In this regard, the Learned counsel for plaintiff has rightly pointed out when the clarifications were sought from him that, rule 5 [a] [iv] of the Rules Governing Probate And Succession Matters are inapplicable to probate proceedings and they apply only to proceeding seeking letters of administration with copy of the will annexed. Therefore, it follows that, there was no necessity for the plaintiff to implead his sister in the present suit.
Apart from this, be it noted that, as per Ex. P4 which is registered document, DW 1 is the attorney holder not only of the defendant but also of the daughter of the testator and therefore, it can be 30 OS.No.25250/2018 Judgment KABC0A0006172018 inferred that, the daughter of the testator was well aware of the present proceedings but in spite of the same, she has not chosen to appear and contest the present petition/suit and therefore, viewed from this angle also, she is not a proper or necessary party. Accordingly, I hold that, the defendant has failed to prove that suit is bad for non-joinder of necessary or proper parties and therefore I answer issue No. 3 in the negative. Issue No. 5:-
39. Having answered issue No. 1 to 4 as above, I proceed to pass the following;
:: ORDER ::
The suit is decreed by granting probate in favour of the Plaintiff in respect of the Will dated 02/02/2006 executed by Mrs. Philomena Sequeira, which is marked as Ex.P. 23.31 OS.No.25250/2018
Judgment KABC0A0006172018 Office to issue the probate after collecting the requisite Court fee at the rate specified in Article 6 of Schedule I of the Karnataka Court Fees and Suits Valuation Act.
The Original Will which is marked as Ex.P23 shall be preserved in Safe Custody, as required by Rule 18(iv) of the Rules governing Probate and Succession Matters, 1966.
The Plaintiff to file Inventory within 6 [six] months and Accounts within 1 [one] year.
Office to draw decree accordingly.
[Dictated using Dragon Professional Speech Recognition Software Version 15.3, transcript revised, corrected, signed and then pronounced by me in open court on this the 07th day of June, 2022] (Sri. S. Sudindranath) XIII ADDL.CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT; BANGALORE.32 OS.No.25250/2018
Judgment KABC0A0006172018 :ANNEXURE:
WITNESSES EXAMINED FOR PLAINTIFF:
P.W.1 : Mario Sequeira S/o Late B.E.S Sequeira P.W.2 : Carlos Da Costa S/o Late George Da Costa DOCUMENTS MARKED FOR PLAINTIFF:
Ex.P1 : Death Certificate of Philomena Sequeira
Ex.P2 : Death Certificate of Mrs. Sylvia Lobo
Ex.P3 : Certified copy of Joint Development Agreement
Ex.P4 : Certified copy of confirmation to the Joint JDA
Ex.P5 : Khatha Certificate
Ex.P6 : Khatha Extract
Ex.P7 : Tax paid receipt
Ex.P8 : Passbook of SBM
Ex.P9 : FD Receipt of Karnataka Bank Ltd.,
Ex.P10 : Bond certificate issued by Rural Electrification
Corporation
Ex.P11 : Statement of accounts of Canara Bank
Ex.P12 : Statement of accounts of Karnataka Bank Ltd.,
Ex.P13 : Letter issued by BATA India Ltd., to Mrs. Philomena
Sequeira regarding payment of interest. Ex.P14 : Letter issued by BATA India Ltd., to Mrs. Philomena Sequeira in respect of FD receipt.
33 OS.No.25250/2018 Judgment KABC0A0006172018 Ex.P15 : Encumbrance Certificate Ex.P16 : Certified copy of Will dated 23/03/2001 Ex.P17 : Passbook of Post Office standing in the name of Mrs. Philomena Sequeira Ex.P18 : Passbook of SBM standing in the name of Mrs. Philomena Sequeira. Ex.P19to22 : Notarized copies of 4 Senior Citizens savings scheme issued by SBM Ex.P. 23 : Original Will dated 02/02/2006 Ex.P.23(a) : Signature of P.W. 2 Ex.P.23(b) & (c) : Signatures of Philomena Sequeira Ex.P.24 : Public Notice Ex.P.25 to 30 : Photographs WITNESSES EXAMINED FOR DEFENDANTS: D.W-1 : Mr. Charles Rogers S/o Late E.P. Rogers DOCUMENTS MARKED FOR DEFENDANTS: Ex.D1 : Application U/o 1 R.10(2) of CPC in P&SC No.25023/2012 Ex.D1(a)to(f): Signatures of D.W-1 34 OS.No.25250/2018 Judgment KABC0A0006172018 Ex.D2 : Application U/s 151 of CPC in P&SC No.25023/2012 Ex.D2(a)&(b): Signatures of D.W-1 Ex.D3 : General Power of Attorney XIII ADDL.CITY CIVIL AND SESSIONS JUDGE MAYOHALL UNIT; BANGALORE.