Karnataka High Court
Smt Mary D Souza vs Late Alex Goveas on 2 March, 2023
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
-1-
RFA No. 1348 of 2006
C/W RFA No. 408 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
REGULAR FIRST APPEAL NO. 1348 OF 2006 (RES)
C/W
REGULAR FIRST APPEAL NO. 408 OF 2023 (DEC/INJ)
IN RFA NO.1348/2006:
BETWEEN:
SMT ALICE NARONHA,
W/O ANTHONY FERNANDES
R/O MUDUGUNI (CK HOUSE),
N.R.PURA TALUK,
BALEHONNUR POST - 577101,
SINCE DEAD BY LRS
1. MR.FREDERIC RUJARIO FERNANDIS @
PEDDYFERNANDIS,
S/O LATE ANTHONY FERNANDIS,
Digitally
signed by AGED ABOUT 53 YEARS,
PANKAJA S
Location:
HIGH 2. MR JOSEPH FERNANDIS,
COURT OF
KARNATAKA S/O LATE ANTHONY FERNANDIS,
AGED ABOUT 48 YEARS,
3. MR FELIX FERNANDIS,
S/O LATE ANTHONY FERNANDIS,
AGED ABOUT 42 YEARS,
LRS 1-3 ARE RESIDENTS OF MUDUGUNI VILLAGE,
SEEKE HOUSE, BALEHONUUR HOBLI,
N.R.PURA TALUK - 577101.
-2-
RFA No. 1348 of 2006
C/W RFA No. 408 of 2023
4. MRS BENDICTA FERNANDIS,
D/O LATE ANTHONY FERNANDIS,
W/O LATE LEO PINTO,
AGED ABOUT 44 YEARS,
NEAR BHARATH RICE MILL,
NETHAJI NAGAR,
KOPPA - 577126.
5. MR CLOTILDA FERNANDIS,
D/O LATE ANTHONY FERNANDIS,
W/O JOSEPH R D'SOUZA,
AGED ABOUT 39 YEARS,
5TH CROSS, HOSAMANE,
SHIMOGA - 577201.
6. MRS EVELINE FERNANDIS,
D/O LATE ANTHONY FERNANDIS,
W/O GILBERT PERERA,
AGED ABOUT 37 YEARS,
R/O.MARUTHINAGAR,
NELLUR GATE,
CHICKMAGALUR - 577101.
...APPELLANTS
(BY SRI VINUDEEP R, ADVOCATE FOR
SRI S SHIVANANDA, ADVOCATE)
AND:
1. HILARY PINTO,
S/O JOHN PINTO,
AGED MAJOR,
MUDUGUNI VILLAGE,
N.R.PURA TALUK - 577101,
SINCE DECEASED BY HIS LRS
(AMENDED AS PER ORDER DT: 13.09.2010)
-3-
RFA No. 1348 of 2006
C/W RFA No. 408 of 2023
2. MARY D'SOUZA,
W/O HILARY PINTO,
AGED MAJOR,
MUDUGUNI VILLAGE,
N.R.PURA TALUK - 577101.
3. LEENA D'SOUZA @ LEENA MISQUITH,
AGED ABOUT 48 YEARS,
R/O GUBBIGA VILLAGE,
KOPPA TALUK - 577126.
...RESPONDENTS
(BY SRI A RAVISHANKAR, ADVOCATE FOR
SRI GIRISH B BALADARE, ADVOCATE FOR R2,
R1 IS DEAD AND R2 IS THE LR OF DECEASED R1,
R3 IS SERVED AND UNREPRESENTED)
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE
DT.27.02.2006 PASSED IN O.S.NO.2/1991 ON THE FILE OF
THE PRL. DISTRICT JUDGE, CHIKMAGALUR, DISMISSING THE
SUIT FOR GRANT OF LETTER OF ADMINISTRATION.
IN RFA NO.408/2023:
BETWEEN:
1. SMT.MARY D'SOUZA,
W/O MR.HILARY PINTO,
AGED ABOUT 40 YEARS.
2. MR HILARY PINTO,
S/O MR. JOHN PINTO,
AGED ABOUT 52 YEARS,
SINCE DECEASED RECENTLY
SERVIVED LR APPELLANT NO.1
(AMENDED ON 10.01.2007 AS PER ORDER)
...APPELLANTS
-4-
RFA No. 1348 of 2006
C/W RFA No. 408 of 2023
(BY SRI A RAVISHANKAR ALONGWITH
SRI GIRISH B BALADARE, ADVOCATE FOR
SRI T.M.KRISHNA MURTHY, ADVOCATE)
AND:
1. LATE ALEX GOVEAS
SINCE DECEASED BY LEGAL REPRESENTATIVE
SMT. ALIXE NARONHA,
W/O MR. ANTHONY FERNANDIS,
AGED ABOUT 61 YEARS,
AGRICULTURIST, R/O SEEKE IN MADHUGUNI
VILLAGE, BALEHONNUR HOBLI,
NARASIMHARAJAPURA TALUK.
1(a). MR FREDERICK RUJARIO FERNANDIS @ FEDDY
FERNANDIS,
AGED ABOUT 53 YEARS,
1(b). MR JOSEPH FERNANDIS,
S/O LATE ANTHONY FERNANDEIS,
AGED ABOUT 48 YEARS,
1(c) MR FELIX FERNANDIS,
S/O LATE ANTHONY FERNANDIS,
AGED ABOUT 42 YEARS,
1(a) to 1(c) ARE RESIDENTS OF MADHUGUNI
VILLAGE, SEEKE HOUSE, BALEHONNUR HOBLI,
NARASIMHARAJAPUARA TALUK.
1(d) MRS BENEDICTA FERNANDIS,
D/O LATE ANTHONY FERNANDIS,
W/O LATE LEO PINTO,
AGED ABOUT 44 YEARS,
NEAR BHARATHI RICE MILL,
-5-
RFA No. 1348 of 2006
C/W RFA No. 408 of 2023
NETHAJI NAGAR, KOPPA.
1(e) MRS CLOTILDA FERNANDIS,
D/O LATE ANTHONY FERNANDIS,
W/O JOSPEH R D' SOUZA,
AGED ABOUT 39 YEARS,
5TH CROSS, HOSAMANE,
SHIMOGA.
1(f) MRS EVELINE FERNANDIS,
D/O LATE ANTHONY FERNANDES,
W/O GILBERT PERERA,
AGED ABOUT 37 YEARS,
RESIDENT OF MARUTHINGARA,
NELLUR GATE, CHIKMAGALUR-577101.
(AMENDED ON 05.08.2004
AS PER ORDER OF THE COURT THIS DATE)
...RESPONDENTS
(BY SRI VINUDEEP R, ADVOCATE FOR
SMT.S.H.SHASHIKALA, ADVOCATE )
THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41
RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED
12.09.2022 PASSED IN OS NO.25/1983 ON THE FILE OF THE
CIVIL JUDGE (SENIOR DIVISION), TARIKERE. DECREEING THE
SUIT FOR RELIEF OF DECLARATION PERMANENT INJUNCTION
AND POSSESSION.
THESE APPEALS COMING ON FOR DICTATING JUDGMENT
THIS DAY THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The following facts are not in dispute:
-6-RFA No. 1348 of 2006 C/W RFA No. 408 of 2023
Alex Goveas had an elder brother called Paul Goveas and a sister called Macdalia Goveas.
On 29.03.1973 Alex Goveas gifted the suit property in favour of Hillary Pinto and Mary D'Souza, who were the son-in-
law and daughter of his elder brother Paul Goveas.
Two years after the execution of the gift deed i.e. on 16.09.1975 Alex Goveas filed a suit seeking for declaration that the gift deed dated 29.03.1973 purported to have been executed by him was void, inoperative and did not affect his right, title or interest and the gift deed was liable to be annulled. A consequential decree for injunction was also sought for.
2. On 16.10.1975, i.e., about a month thereafter, Alex Goveas proceeded to execute a will which was also registered bequeathing the suit property in favour of Alice Naronha. Alice Naronha was Alex Goveas's sister's daughter-in-law.
3. On 02.12.1975 Alex Goveas passed away and as a result on the basis of the will, Alice Naronha the legatee came on record as his legal representative and continued the suit that -7- RFA No. 1348 of 2006 C/W RFA No. 408 of 2023 he had instituted in which he had sought for annulling of the gift deed (O.S.25/83).
During the pendency of this suit, on 15.04.1985 Alice Naronha filed a petition seeking for grant of probate in P & SC No.1/85. In this petition, she arrayed Hillary Pinto, Mary D'Souza and Leena D'Souza, the son-in-law and children of Paul Goveas respectively as respondents.
Since the probate was contested, the trial Court registered it as a suit in O.S. No.2/1991. After trial, the said suit seeking probate was dismissed on 27.02.2006. As against the dismissal of O.S.2/1991, RFA 1348/2006 has been preferred.
4. The suit filed by Alex Goveas seeking for annulling of the gift deed that he had executed and which was continued by Alice Naronha - the legatee, was decreed on 24.09.2002 and the Trial Court declared that the gift deed dated 29.03.1973 purported to have been executed by Alex Goveas was void, inoperative and did not affect his right. The Trial Court also held that Alice Naronha - legatee was entitled to possession of -8- RFA No. 1348 of 2006 C/W RFA No. 408 of 2023 the suit property. However, the Trial Court postponed the drawing of the decree till O.S.2/91 was disposed of.
It may be pertinent to state here that as on the date O.S.25/83 was decreed, the suit filed by Alice Naronha seeking for probate in O.S.2/91 was pending consideration.
5. As against the decree passed in the suit in favour of Alex Goveas in O.S.25/93, the beneficiaries of the gift i.e. Hillary Pinto and Mary D'Souza preferred an appeal in R.A.34/02.
6. The Appellate Court which was seized of the appeal proceeded to pass an order on 20.07.2007 stating that the further proceeding in the appeal was being adjourned sine die and the appellants were reserved the right to seek for revocation of the appeal or to revive the appeal, if necessary, after drawing up of the decree by the lower court which was again dependent on the order that may be passed in RFA No.1348/06.
7. RFA No.1348/06 which arises out of the probate proceedings were taken up for hearing and it was thereafter noticed that it would be appropriate that the appeal preferred -9- RFA No. 1348 of 2006 C/W RFA No. 408 of 2023 by Hillary Pinto and Mary D'Souza challenging that decree which declared the gift as void would have to be considered first and accordingly, the appeal which was adjourned sine die by the lower appellate court was ordered to be withdrawn to this Court so as to be heard along with RFA No.1348/06.
8. Accordingly, both the appeals were clubbed together and were taken up for hearing.
9. As narrated above, it would be appropriate to consider the appeal arising out of the suit filed by Alex Goveas and then take up the other appeal for consideration because if it is held that the gift executed by Alex Goveas was valid and was not liable to be annulled, as a consequence, the will executed by him in favour of Alice Naronha would be rendered superfluous.
10. Alex Goveas had instituted the suit contending that he was leading a solitary life for over 50 years and that he had lost his wife soon after his marriage and he had no children. He stated that this life was a desolate life and thus had a telling effect on his mind and body. He also stated that he had been affected for about 15 years from Asthma and Blood Pressure
- 10 -
RFA No. 1348 of 2006C/W RFA No. 408 of 2023 and he had consequently suffered from debilitation to his mind and body. He stated that various ailments suffered by him had a serious effect over his power of discernment and he was virtually incapacitated from taking any decision in his own life.
11. He stated that in the year 1958, mother of Mary D'Souza and mother-in-law of Hillary Pinto who were destitute came to live with him with a fervent request to give them shelter since they had no shelter. He stated that he accordingly accepted their plea and allowed them to reside in a portion of his house and Mary D'Souza and her mother used to cook food for him and were attending to his medical needs. He stated that Hillary Pinto who lived in Chickmagalur used to visit them on and off and Hillary Pinto probably used to come and visit him since he intended to marry Mary D'Souza and as a result of his visits, he too developed intimacy with Alex Goveas. He stated that their behavior towards him was pretentious and was to gain his confidence. Alex Goveas stated that he came under their over powering influence and since he was feeble in mind and he had to yield to their influence and they practically assumed management of his property.
- 11 -
RFA No. 1348 of 2006C/W RFA No. 408 of 2023
12. Alex Goveas also stated that he had filed a suit against Anthony Fernandes i.e. his sister Macdalia Goveas's son for evicting him from a portion of his house in O.S.17/1972. He stated that he was entirely dependent on Mary D'Souza and Hillary Pinto for the conduct of the case and they gained a full sway over his mind. It was stated that Hillary Pinto engineered Alex Goveas and he had reposed complete faith and confidence in them and never suspected that deep seated fraud in them.
13. He also stated that when the suit against Anthony Fernandes was pending, Mary D'Souza and Hillary Pinto prevailed upon Alex Goveas to execute a document to enable them to conduct the case on his behalf and for management of his properties and made him believe that such a document would in no way affect his rights over his properties and Alex Goveas stated that since he was illiterate and ignorant and being under their influence headed by them he agreed.
14. He stated that he was brought to N.R.Pura Town and this thumb mark was taken to a document making him believe that it was an innocuous document and would in no way affect his rights over his properties. He stated that Alex Goveas was not
- 12 -
RFA No. 1348 of 2006C/W RFA No. 408 of 2023 even allowed to consult his lawyer and that the suit instituted against Anthony Fernandes went on for a year and throughout the pendency of the suit, Mary D'Souza and Hillary Pinto were actively pursuing the said suit, which ultimately ended in a compromise when Alex Goveas agreed to pay Rs.6,000/- to Anthony Fernandes. He stated that he was oblivious of the document that was purported to have been executed in favour of Mary D'Souza and Hillary Pinto and till recently, they were allowed to manage the family affairs as he was virtually weathering away due to his old age and sufferings.
15. Alex Goveas contended that the suit properties belonged to him and apart from the suit properties, he owned no other properties. He also stated that he was indebted to others in Rs.14000/- and in order to dispose of some of his properties and liquidate the debts, he expressed his desire to dispose of the properties and to this desire of his, Mary D'Souza and Hillary Pinto remained lukewarm and showed no inclination to abide by his desire.
16. He stated that in fact when he started negotiating for sale through a third person, they started opposing the proposal for
- 13 -
RFA No. 1348 of 2006C/W RFA No. 408 of 2023 sale and proceeded to assert their right over the property. He submitted that this conduct surprised him and in the 3rd week of August, 1975 the document to which his thumb impression was taken fraudulently was to be read as deed of gift of all the schedule properties in favour of Mary D'Souza and Hillary Pinto. He stated that he neither consciously made a gift of his properties to Mary D'Souza and Hillary Pinto nor he never entertained such an idea. He stated that both of them had taken advantage of his feeble mind, body and ignorance and had dominated his will.
17. He stated that they had completely conquered his mind and disabled him from exercising an independent will. He stated that by exerting undue influence and by playing fraud, they had obtained the gift deed by keeping him in darkness as to its contents and impact. He stated that the transaction was highly unconscionable and unrighteous and it was not a spontaneous act made from the free will. He therefore stated that it should be set at naught. He also stated that if the document was allowed to stand, he would be stripped of all his properties leaving him in the lurch. He contended that the document was void ab-initio and did not confer any right, title
- 14 -
RFA No. 1348 of 2006C/W RFA No. 408 of 2023 or interest on the defendants. He stated that they were interfering with his possession and cultivation of the suit properties on the strength of the said fraudulent deed and hence, he was constrained to file the suit. He stated that by way of the gift deed they had taken forcible possession of the suit properties during the pendency of the suit and he was therefore, entitled for possession of the suit properties.
18. Mary D'Souza and Hillary Pinto entered appearance and contested the suit. They denied the assertion of Alex Goveas that they had obtained a gift deed by exerting undue influence. They stated that Aliza D'Souza - mother of Mary D'Souza was persuaded by Alex Goveas to reside with him so as to assist him and take care of him and to manage his properties and assured them that they would succeed to his estate. Mary D'Souza stated that she and her mother due to the relationship and condition of Alex Goveas agreed and came out of their house during the year 1958 and Alex Goveas out of his own free will and volition had executed a will in favour of Mary's mother in 1967 itself.
- 15 -
RFA No. 1348 of 2006C/W RFA No. 408 of 2023
19. It was stated that Alex Goveas had approached the brothers of Hillary Pinto and had offered Mary in marriage and to fulfil his desire, the marriage took place. It was stated that Hillary Pinto came out of the house of Alex Goveas only after his marriage and he had no acquaintance with them earlier and therefore, the allegations about his visits, intimacy with Alex Goveas prior to the marriage was incorrect. It was also stated that Alex Goveas had gifted away his entire properties in favour of Mary D'Souza and Hillary Pinto pursuant to the settlement of marriage and this execution of the gift deed was voluntary and with a free and fair mind. It was stated that they were in possession and enjoyment of the properties as exclusive owners thereof.
20. It was stated that Hillary Pinto came to know about the pendency of O.S.17/72 which had been instituted by Alex Goveas against Anthony Fernandes. It was stated that at the instance of Hillary Pinto, O.S.17/72 had been settled and in fact Rs.6,000/- was paid by them out of their pocket to Anthony Fernandez. It was stated that Anthony Fernandez thereafter vacated the premises and handed over vacant possession
- 16 -
RFA No. 1348 of 2006C/W RFA No. 408 of 2023 pursuant to the settlement and therefore the allegation that entire suit O.S.17/72 was engineered by them was improper.
21. The allegations that Alex Goveas was not even allowed to consult his advocate at the time of execution of gift deed was also denied. It was stated that Alice Naronha and her husband after failing in their attempts to knock off the suit properties and being jealous of the fortune of Mary D'Souza and Hillary Pinto, managed to get the suit filed by Alex Goveas and the said suit was an unrighteous one. It was stated that Alice Naronha and her husband had weaned away Alex Goveas and had gained control over him taking the absence of Mary D'Souza and Hillary Pinto in August 1975 in order to wreak their vengeance against them.
It was stated that they had reduced Alex Goveas into their tool to maintain the suit and that the suit was not a voluntary act of Alex Goveas. It was stated that they had learnt that Alice Naronha and her husband had managed to get the thumb impression on some papers with an ulterior motive. It was also stated that even otherwise Alice Naronha and her husband were not entitled to any of the properties as Mary's
- 17 -
RFA No. 1348 of 2006C/W RFA No. 408 of 2023 mother was the legal and preferential heir of the deceased. She was neither a heir to Alex Goveas nor had any locus standi to maintain the suit.
22. The Trial Court on consideration of the pleadings, framed five issues.
Alice Naronha examined herself as PW1 and also got 5 other witnesses examined in support of her case. She got 2 documents admitted in evidence and marked as exhibits.
23. Hillary Pinto examined himself as DW1 and also got one other witness examined on his behalf. He got 5 documents admitted in evidence and marked as exhibits.
24. The Trial Court on consideration of the pleadings and the evidence adduced before it, came to the conclusion that Alice Naronha had failed to establish her right over the suit properties under the will dated 16.10.1975 executed by Alex Goveas without obtaining a probate of the said will.
As a consequence of this, the Trial Court held that the question as to whether Alice Naronha had proved the gift deed dated 29.3.1973 which was obtained by Mary D'Souza and
- 18 -
RFA No. 1348 of 2006C/W RFA No. 408 of 2023 Hillary Pinto by fraud did not arise for consideration. The Trial Court also held that the question as to whether Alice Naronha had proved the execution of the will and as to whether she was entitled for a declaration and was entitled for possession of the suit properties also did not arise for consideration. The Trial court accordingly proceeded to dismiss the suit.
25. Learned counsel for the appellant Sri Vinudeep contended that the Trial Court had erred in dismissing the suit. He contended that Alice Goveas himself had pleaded that he was feeble in mind and also under the control of Mary D'Souza and Hillary Pinto, the Trial Court ought to have come to the conclusion that the execution of the gift deed was vitiated by the exertion of undue influence and fraud that had been played upon by Alex Goveas.
26. Learned counsel pointed out that it was the case of Alex Goveas that Mary and her mother were staying with him from 1958 itself and that he was desolate and isolated and this factor by itself proved that he was under the complete control of Mary and her mother.
- 19 -
RFA No. 1348 of 2006C/W RFA No. 408 of 2023 He submitted that the execution of the gift deed had not been proved since in law the gift requires the attesting by two witnesses. However, in the instant case, there was only one attesting witnesses and therefore, the execution of the gift deed itself was null and void.
27. Learned counsel also pointed out that Alex Goveas immediately after the filing of the suit had also proceeded to execute a registered Will in favour of Alice Naronha and this by itself proved that he was conscious of the fact that the gift deed had been obtained by fraud. It was also contended that the execution of the gift deed was not endorsed by the registered authority and burden of proof was on the recipients of the gift to prove the mental capacity of the donor to make the gift.
28. Learned counsel appearing for Mary D'Souza and Hilary Pinto, Sri. A. Ravishankar, on the other hand, contended that there was absolutely no evidence forthcoming to even remotely indicate that the gift had been obtained by exerting undue influence or by playing fraud. He, in fact, submitted that there was no evidence at all indicating that Alex Goveas was unable to take a rational decision and that he was under control of
- 20 -
RFA No. 1348 of 2006C/W RFA No. 408 of 2023 Hilary Pinto and Mary D'Souza. Learned counsel highlighted the fact that even according to the witnesses examined by Alice Naronha, the state of mind of Alex Goveas was perfect and in the light of this evidence that Alex Goveas was hale and healthy there was absolutely no ground to revoke the Will or to declare that the Will was void-ab-initio.
29. He submitted that when Alice Naronha herself contended that Alex Goveas had the testamentary capacity to execute a Will in her favour in the year 1975, it will have to be assumed that Alex Goveas was of sound mind and body in the year 1973. It is also argued that the relationship between Alex Goveas and Alice Naronha's husband was less than cordial inasmuch as it was admitted that Alex Goveas had filed a suit to evict Antony Fernandes and the suit was admittedly pursued by Hilary Pinto and his wife and it would therefore be inconceivable that Alex Goveas had a change of mind and had decided to bequeath the property in favour of Antony Fernandes. He submitted that since there was no proof of any kind indicating that gift had been obtained by exerting undue influence or by playing fraud, the dismissal of the suit was just and proper and did not call for any interference.
- 21 -
RFA No. 1348 of 2006C/W RFA No. 408 of 2023
30. From the arguments advanced, the point that arises for consideration in RFA No.773/2023 is as to whether Alice Naronha had been able to establish that the gift deed executed by Alex Goveas was obtained by exerting undue influence and by playing fraud on him.
31. Section 122 of Transfer of Property Act, 1882 (for short 'the TP Act') defines a gift as a transfer of certain existing movable or immovable property which is made voluntary and without consideration by one person to another and it is accepted by other person.
32. Section 123 of the TP Act stipulates that for purpose of making a gift of immovable property, the transfer must be effected by a registered endorsement signed by or on behalf of donor and attested by at least two witnesses.
33. In this case, execution of the gift deed was clearly admitted by Alex Goveas and therefore, there was no dispute as such regarding the execution of the gift deed. The fact that Alex Goveas himself sought for annulment of gift deed presupposes that he had accepted that he had executed a gift deed in accordance with law.
- 22 -
RFA No. 1348 of 2006C/W RFA No. 408 of 2023
34. The only contention advanced by Alex Goveas was that he was not in a sound state of mind when he executed the gift deed. He stated that he was under the complete control of Mary D'Souza and Hilary Pinto when he executed the gift deed and therefore, the gift was vitiated.
26. Section 126 of the TP Act reads as follows:
"126.When gift may be suspended or revoked.--The donor and done may agree that on the happening of any specified event which does not depend on the will of the donor a it shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part at the mere will of the donor is void wholly or in part, as the case may be.
A gift also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.
Save as aforesaid, a gift cannot be revoked. Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice."
35. As could be seen from the said provision, a gift can be revoked on the happening of any specified event which did not depend on the will of the donor. In fact, a gift which is agreed
- 23 -
RFA No. 1348 of 2006C/W RFA No. 408 of 2023 to be revoked wholly or in part at mere will of the donor is considered to be a void gift.
36. Admittedly, in this case, it is not in dispute that there is no such condition which enabled the suspension or revocation of the Will. However, the second part of Section 126 of the TP Act which states that gift could also be revoked in the same manner as a contract can be rescinded is the basis of the entire suit claim. It was therefore, the principal contention of Alex Goveas that the gift was liable to be rescinded in the same manner as a contract could be rescinded under the provisions of the Indian Contract Act.
37. It cannot be in dispute that a contract would be void if the considerations and objections are unlawful in part as per Section 23 of TP Act. It cannot also be in dispute that an agreement without consideration would be void unless it is in writing and registered or is a promise to compensate for something done or is a promise to pay a debt barred by the law of limitation. A contract, in the eye of law, could be rescinded on the ground that it was obtained by undue influence or by playing fraud.
- 24 -
RFA No. 1348 of 2006C/W RFA No. 408 of 2023
38. Section 16 of the Indian Contract Act, 1872 defines undue influence and states that a contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the Will of other and uses that position to obtain an unfair advantage over the other.
39. Thus, in the instant case, Alex Goveas was required to prove that Mary D'Souza and Hilary Pinto were in a position to dominate his Will and used that position to obtain an unfair advantage over him. Obviously, the best evidence to establish this would have been the evidence of Alex Goveas by himself. Alex Goveas passed away within three months of filing of this suit and could not therefore adduce his own evidence.
40. However, Alice Naronha who came on record on the basis of the Will executed in her favour sought to continue the proceedings was required to establish that Mary D'Souza and Hilary Pinto exerted undue influence on Alex Goveas and had obtained the Gift Deed.
41. Alice Naronha examined herself as PW.1. Since she was admittedly not residing with Alex Goveas, she would have no
- 25 -
RFA No. 1348 of 2006C/W RFA No. 408 of 2023 personal knowledge about his state of mind. It must also be kept in mind that Alex Goveas was in fact litigating against Alice Naronha's husband and was trying to evict her husband and consequently her, from a portion of the house. In the proceedings which Alex Goveas had initiated, no such plea had been raised that Alex Goveas was under the control of Mary D'Souza and Hilary Pinto.
42. It is to be noticed here the suit was filed in the year 1972 against Alice Noronha's husband and the gift deed was executed in the year 1973 in favour of Mary D'sousa and Hillary Pinto. Even according to the plea of Alex Goveas, the suit was being conducted by Mary D'Souza and Hilary Pinto. This very plea of Alex Goveas indicates that he was aware of the fact Alice Naronha and her husband were acting against his interest and therefore wanted them to be evicted from a portion of his house. Viewed from this background, the averments by Alice Naronha that Alex Goveas was under the control of Mary D'Souza and Hilary Pinto, cannot really be accepted.
43. It may also be pertinent to state here that Alice Naronha examined the attesting witnesses, Ramegowda and
- 26 -
RFA No. 1348 of 2006C/W RFA No. 408 of 2023 Ramappagowda, to the Will executed by Alex Goveas in her favour as PWs.2 and 3. These witnesses who were examined on behalf of Alice Naronha themselves stated that at the time of execution of the Will i.e., on 16.10.1975, Alex Goveas was physically and mentally sound. It was also stated that at that time, the Will was read out to Alex Goveas and thereafter put his LTM on the Will. These statements given by the attesting witnesses would itself clearly go to show that Alex Goveas's state of mind and his sound health was good and was not in doubt at all.
44. The fact that both the attesting witnesses stated that he was in a position to understand the Will that had been read over to him and the fact that he executed the Will by himself presupposes that there was nothing wrong with him as regards the aspect of taking care of his properties. If Alex Goveas, as per the evidence of attesting witnesses who were examined by Alice Naronha, was mentally sound, the question of him being subjected to undue influence or fraud being played upon him would not arise at all.
- 27 -
RFA No. 1348 of 2006C/W RFA No. 408 of 2023
45. It is also pertinent to state here that there is no other evidence adduced by Alice Naronha which would indicate that Alex Goveas was not mentally sound or that he was under the complete control of Mary D'Souza and Hillary Pinto when he executed the gift deed in the year 1973. If really Alex Goveas was under the complete control of Mary D'Souza and Hilary Pinto, the evidence of relatives who were common to both of them were required to be adduced. Admittedly, there is no evidence of any close family members who would have personal knowledge about Alex Goveas's state of mind. It will therefore have to be held that the contention that Alex Goveas had put forward in his plaint that the gift deed had been obtained by exerting undue influence and by playing fraud had not been established at all. The Trial Court, in my view, has correctly appreciated the evidence and proceeded to decree the suit.
46. Alice Naronha has not adduced any evidence indicating that the gift deed was vitiated so as to render it a nullity in the eye of law. The entire approach of Alice Naronha was basically to establish the execution of Will in her favour and no attempt has been made to establish the invalidity of the gift deed.
- 28 -
RFA No. 1348 of 2006C/W RFA No. 408 of 2023
47. The execution of gift deed was not denied by Alex Goveas and he in fact admitted the execution of the will. Since Alex Goveas admitted the execution of the Will, all the arguments advanced regarding the requirements of law regarding execution of Will would be of no consequence at all.
48. It is to be stated here that only if the validity of the gift was to be adjudicated in a proceeding in the absence of the presence of the donor, the question of manner in which gift was executed would be a relevant factor. However, in the instant case since the donor himself filed the suit seeking for revocation of the Will, the invalidity of the Will on the ground that it was not in executed in accordance with law would be an irrelevant factor.
49. It is also to be noticed here that the filing of the suit seeking for revocation by itself presupposes that there had been a transfer of donor's interest and because there was a transfer of the donor's interest, the suit had been filed. In the light of this particular fact, the arguments advanced by learned counsel Sri.Vinudeep R. on the invalidity of the Will would not be of any consequence.
- 29 -
RFA No. 1348 of 2006C/W RFA No. 408 of 2023 Consequently, the appeal filed by Alice Naronha challenging the dismissal of the suit filed by Alex Goveas is devoid of merits and the same is accordingly dismissed.
50. RFA 1348/2006 has been preferred by Alice Naronha challenging the dismissal of her petition seeking for probate of the registered Will dated 16.10.1975 executed by Alex Goveas in her favour. Since, in RFA No.408/2023, it has already been held that Alex Goveas had executed a gift in favour of Mary D'Souza and Hilary Pinto on 29.03.1973 and the said gift was a valid gift, the execution of the Will after the property had been transferred would be of absolutely no consequence.
51. It is to be reiterated here that as on the date of execution of the Will i.e. on 16.10.1975, Alex Goveas had lost all title over suit properties and therefore, execution of the Will would be a superfluous exercise and no rights would flow under the will to the legatees. Thus, the legatees would not be entitled for grant of probate in respect of her property which the testator did not possess as on the date of execution of the Will.
- 30 -
RFA No. 1348 of 2006C/W RFA No. 408 of 2023 Resultantly, both RFA No.1348/2006 and RFA No.408/2023 are dismissed.
Sd/-
JUDGE BRN/pgg List No.: 1 Sl No.: 13