Mr. Eugene Pinto & Anr vs Rita Cynthia Pinto & Anr. ...Responden T ... on 15 September, 2008

[Cites 33, Cited by 0]

Bombay High Court

Mr. Eugene Pinto & Anr vs Rita Cynthia Pinto & Anr. ...Responden T ... on 15 September, 2008

1. The Petitioners / Pl ai ntiffs are the sons and daughters of Professor Cosmas Damian T. Pinto (the deceased). The deceased left five sons and three daughter s, Francis , Anthony , Cyril , Lawrence , Eugen e - the sons and Marie , Agnes and Irene - the daughter s.

2. The Petition /Test a me n t a ry Suit seeks to propou n d the ::: Downloaded on - 09/06/2013 13:51:24 ::: 2 holograph Will of the deceased dated 12 th February, 1963.

Only Cyril has filed the Caveat.

3. The original Will has not been traced. The two attesting witnesses to the Will (1) Ernest Vaz and (2) Piedade Vaz have both expired. They have not filed their affidavits as attesting witnesses in this Petition.

4. It is the case of the Petitioners that one Roger Correa (Roger), the husba n d of Marie, one of the daughter s of the deceased, made a verbatim handwritten copy of the Will and sent it along with his covering letter dated 24 th September, 1966 to Mr. Jayaka r, Solicitors of M/s. M.V. Jayaka r & Co. during the life time of the deceased. He kept the carbon copy of the Will and the said covering letter in a file with other docume n t s. This entire file containing inter alia the Will of the deceased was handed over by Marie to the 1st Petitioner (Eugene) soon after the death of the deceased in 1975. The Will marked Exhibit- A-1 in this Petition as having been filed in the Record and Proceedings of the Testament a ry Petition on 22 nd Jan u a ry, 2002 under Will No.17 of 2002 is a carbon copy of the original handwritten copy of the Will on a lined full- scape sheet of paper. Similarly the carbon copy of the covering letter under which the Will was sent and which is kept in the file given to ::: Downloaded on - 09/06/2013 13:51:24 ::: 3 Eugene by Marie is on an identical lined full- scape sheet of paper and marked Exhibit- B .

5. It is the Petitioners' case that the original Will, though not destroyed or cancelled by the Testator, has not been traced. The deceased had handed over his original Will to his daughter Marie during his life time on or about 24 th September, 1966. Her husba n d had made a verbatim copy of the original Will in his handwriting and sent it to Solicitors M/s. M.V. Jayaka r & Co., along with his covering letter dated 24 th September, 1966. The said Solicitors had acknowledged the receipt of the copy of the Will of the deceased in his letter dated 27 th September, 1966. The Petitioners further contend that a carbon copy of the Will and the carbon copy of the covering letter of Roger and the original letter of M/s. M.V. Jayak ar & Co., Solicitors were kept amongst other documen t s in a file maintained by the said Roger. The Petitioners further contend that after the death of the deceased in 1975 Marie gave Eugene the said file containing the aforesaid docume nt s, amongst others.

6. The Petitioners further contend that there has been further corresponde nce by and between Roger and M/s. M.V. Jayakar and Compa ny, Solicitors as a Gift Deed was required to be executed by the said Solicitors in consona n ce ::: Downloaded on - 09/06/2013 13:51:24 ::: 4 with the directions in the Will. Such a Gift Deed did not come to be executed as several of the Donees, who were also the beneficiaries under the Will were not present for its execution.

7. The Petitioners further contend that three of the Donees, who are three of the beneficiaries, were available for execution and a Gift Deed in consona n ce with the directions of the Will with regard to a part of the estate of the deceased came to be executed by the deceased himself with those three Donees who are three of the beneficiaries mentioned in paragrap h 8 of the Petition. The Petitioners have sought to rely upon all the docume nt s in the file including the aforesaid unexecuted Deed of Gift, the executed Deed of Gift, the correspon dence with regard thereto made by and between Roger and M/s. M.V. Jayaka r and Co., Solicitors.

8. The Petitioners have sought to produce the aforesaid docume nt s upon the identification of the handwriting and signat u re s of Roger in the handwritten copy of the Will, the carbon copy of the covering letter, the Deed of Gift and certain other notes showing certain calculations made by him in his handwriting. The Petitioners have sought to produce the letters written by M/s. M.V. Jayakar & Co to Roger or the deceased himself as docume nt s which are more ::: Downloaded on - 09/06/2013 13:51:24 ::: 5 than 30 years old requiring the presu m ption as to their handwriting and signat ure s to be drawn under Section 90 of the Indian Evidence Act. The Petitioners have sought to rely upon these letters upon having them proved through the present Solicitor in M/s. M.V. Jayaka r & Company who is the son of Mr. M.V. Jayaka r, Solicitor, as having been signed by the said Solicitors and dispatched under reference number s in the ordinary course of business of the said firm.

The Petitioners have sought to produce the unexecuted Deed of Gift along with the plan annexed thereto by secondary evidence. The executed Deed of Gift is a registered and admitted documen t. It has been identified by Marie, who has testified on behalf of the Caveator. The docume nt s have been marked in evidence upon considering their admissibility and subject to the proof of the trut h of their content s.

9. The Petitioners have accordingly sought Letters of Administration with the handwritten carbon copy of the last Will of the deceased annexed thereto (which, for the sake of brevity and clarity, will be referred as " Probate " ).

10. The Petitioners have accordingly applied for probating the said Will under Section 237 of the Indian Succession Act. The Petitioners contend that the original Will of the Testator ::: Downloaded on - 09/06/2013 13:51:25 ::: 6 has been lost or mislaid / misplaced since his death or may even have been destroyed by some of the beneficiaries and have sought Probate on the basis of the carbon copy of the handwritten copy of the Testator's Will, limited until the original Will is produced.

11. One of the sons of the deceased, and accordingly one of the beneficiaries, Cyril has filed the Caveat. The only ground for not probating the Will made out in the Caveat is that the deceased had not left any Will.

12. Based upon the aforesaid pleadings, Justice S.K. Shah (as he then was) framed the following issues which are answered as follows:

ISSUES FINDINGS

1. Do the Plaintiffs prove that the deceased Cosmas Damian T. Pinto had validly and legally executed his last Will dated 12.2.1963? Yes

2. Do the Plaintiffs prove that the said Will is not available and is lost ? Yes ::: Downloaded on - 09/06/2013 13:51:25 ::: 7

3. Do the Plaintiffs prove that Exhibit A-1 is the copy of the said Will ? Yes

4. Are the Plaintiffs entitled to grant of Letters of Administration with the handwritten copy of the Will Exhibit- A-1 ? Yes

5. What order ? As per final order

13. The deceased died on 29 th Ju ne, 1975. There appears to have been several disputes between the children of the deceased who are the beneficiaries under the Will. The original Will of the deceased has not been found or produced by any of the beneficiaries. An Administr ation Suit came to be filed by some of the beneficiaries - Anthony, Francis, Cyril, Marie and Agnes against the Petitioners and the widow of Lawrence being Suit No.1865 of 1980 on 21 st November, 1980. Prior to that suit certain corresponde nce took place between the beneficiaries and their Advocates which has been annexed thereto and it is relied upon in this Petition also. That corresponde nce has been marked by consent of the parties as Exhibit- I in evidence. The Administration Suit shows nine (9) properties left by the deceased, who is stated to have died intestate, in the particular s of claim, ::: Downloaded on - 09/06/2013 13:51:25 ::: 8 Exhibit- C thereto.

14. The Petitioner No.1, Eugene filed his written statemen t on 31 st March, 1981 in the said Suit. To the said written stateme nt he has annexed a copy of the Will, sought to be probated in the above Petition.

15. Certain interim orders have been passed in the Administration Suit. Court Receiver has been appointed. Rents of certain premises stated to be forming a part of the estate of the deceased are collected by the Court Receiver.

Two Bank Account s of Petitioner No.1 which were held by him jointly with the deceased have been freezed. The amou nt s standing to the credit of these account s have been transferred by the Bank to the Court Receiver. A part of the estate has been sealed.

16. Since the defence in the Administration Suit showed that the deceased had left behind the Will, the estate of the deceased would be required to be administered as per the Will, if probated. Hence, that Will was required to be probated. Conseque ntly the Probate Petition has been filed. The parties to both these proceedings being the same, as also the subject matter of the dispute, the evidence, which would also be the same, both the Administration Suit and ::: Downloaded on - 09/06/2013 13:51:25 ::: 9 Testament a ry Suit have been directed to be heard together, one after the other by the same Judge. The parties have led evidence accordingly. The Petitioners have examined Eugene and the Solicitor from the office of M/s. M.V. Jayakar and Company. The Caveator (the 3 rd Plaintiff in the Administration Suit) has expired. His widow has been examined on behalf of the Caveator. The Caveator has further got examined Marie, the other sister and beneficiary who is the 4 th Plaintiff in the Administration Suit.

17. Upon consideration of the Will of the deceased dated 12 th February, 1963 sought to be propoun ded by the Petitioners in the above Petition, the Administration of the estate of the deceased would be required to proceed. If the Petition is probated, the administr ation of the estate would be as per directions contained in the Will. If the Petition is not probated and the deceased is held to have died intestate, the entire estate shown in Exhibit- C to the plaint in the Administration Suit No.1865 of 2008 would be required to be equally distributed between the aforesaid 8 children of the deceased and / o r their heirs or legal represent atives upon their death. Counsel on behalf of both the parties concede that the preliminary decree be passed in the Administration Suit based upon whether or not the aforesaid Will is probated considering the evidence led by the parties.

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18. The seminal aspect to be adjudicated by the Court is whether the Petitioners in the above Testamen t a ry Petition (who are the Plaintiffs in Testament a ry Suit No.5 of 2004) have proved that the Testator left behind his last Will and Testament dated 12 th Februa ry, 1963. To that end the evidence, both oral and docume nt a ry, produced by Eugene through himself and the Solicitor Mr. R.M. Jayakar of M/s.

M.V. Jayaka r & Compa ny as well as the evidence of the other beneficiaries, Marie and the widow of Cyril (Rita) would have to be considered.

19. Issue Nos.1, 2 & 3. :

Certain admitted facts with regard to the deceased himself, the parties to this litigation and the properties left by the deceased are required to be initially noted:

i) The deceased was lawyer by education and a Professor of English Literat ure and served in various institutions as Professor of English.

ii) The deceased owned immovable property in Bombay consisting of open land in three separate plots, one of which had a struct u re being a bungalow Marie Ville consisting of ground plus one upper storey.

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iii) The deceased lived on the first floor of Marie Ville throughout his life. Eugene also lived on the first floor of Marie Ville througho ut his life.

iv) Eugene resided at Marie Ville, from his birth in 1939 up to the death of the deceased and thereafter. He lived with the deceased contin uo u sly for 36 years. He lived alone with the deceased for the last 11 years of the life of the deceased.

v) Eugene and Lawrence were bachelors at the time of the execution of the Will.

vi) In 1963 Marie Ville was the sole house / b u n g alow of the family of the deceased. The deceased lived there with his two bachelor sons Eugene and Lawrence, one married son Cyril with his family all on the first floor.

Marie lived with her husba n d Roger on the ground floor of Marie Ville, between about 1960 till 1970.

vii) Piedade Vaz and Ernest Vaz were distant relatives of the deceased. They were brought in and allowed by the deceased to reside in the outhou se of his bungalow Marie Ville.

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viii) Marie was a Professor at Khalsa College, where the deceased also served as Professor for a few years.

ix) Marie lived at Matunga / W a d al a after her marriage.

She came to live on the ground floor of Marie Ville in about 1960 with her husba n d Roger.

x) Cyril lived with his family on a part of the first floor of Marie Ville until 1963 or 1964, when he shifted to his Company Apartment ig at Malabar Hill with his family.

xi) The ground floor of Marie Ville was tenan ted to Easter n Watch Company since about 1968 during the life time of the deceased.

xii) During the life time of the deceased two buildings were constr ucted by the side of Marie Ville. These buildings are COSMOS and DAMIANO consisting of ground plus two upper storeys.

xiii) Francis, Agnes and Marie together got constr ucted the building Cosmos using their own finances and have two flats on each floor of the said building used ::: Downloaded on - 09/06/2013 13:51:25 ::: 13 by them personally or tenanted by them to outsiders.

This building is not shown as a part of the estate of the deceased in the Administration Suit.

xiv) Roger took an active part in the constr uction of the building Cosmos.

xv) A Gift Deed prepared by M/s. Jayakar & Co., Solicitors came to be executed by the deceased as the donor and Francis, his wife Laura, Marie for herself and on behalf of Agnes as her Constituted Attorney and by her husba n d Roger as donees.

xvi) Marie herself started living in two flats in Cosmos as soon as the Constr uction was completed. The two other children have leased their flats to third parties.

xvii) The deceased himself took an active part in the constr uction of Damiano. The deceased used his own finance for constr uction. He let out two flats on the first floor of Damiano to a third party. Court Receiver is appointed in respect of the said flats in the Administration Suit and rents are being collected by the Court Receiver.

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xviii) Two other flats on the ground floor of Damiano are also let out to a third party. Court Receiver is appointed in respect of these flats also.

xix) Irene paid for the constr uction of two flats on the second floor of the building Damiano. The deceased allotted two flats on the second floor of Damiano to Irene which she has let out to a third party. Therefore these two flats have been released from the Court Receiver's possession in the Administration Suit.

xx) Lawrence was to be Ordained a Priest. He chose not to be. He married and settled in Australia. He has expired leaving his wife Rena( Defenda nt No.3 in the Administration Suit) who has re- married in Australia and lives in Como, Western Australia.

20. It is upon this base that the oral evidence of the parties with regard to the disputed facts shall have to be mars h alled and appreciated.

21. The examination- in- chief of Eugene shows how he lived with the deceased throughout his life since his birth and until the death of the deceased as he was a bachelor. He had developed a very close relations hip with the deceased. After ::: Downloaded on - 09/06/2013 13:51:25 ::: 15 Marie and Cyril left Marie Ville, Eugene alone lived with the deceased. He continued to live on the first floor of the Marie Ville even after the death of the deceased.

22. Eugene has deposed about how he learnt about the execution of the Will of his father on 12 th Febru ary, 1963, the date of the execution itself. The Will is stated to have been made in the handwriting of the deceased. It was attested by two witnesses Piedade and Ernest Vaz, residing in the outho use of the Marie Ville. Eugene was informed about this fact by Piedade when he returne d home late that evening. He found and read that Will and after reading it kept it exactly where he had found it. He has described the Will, which has since not been produced, thus:

"The Will was writ t e n in Englis h in the dece a s e d's char a c t e r i s t i c firm, clear, bold and legible right- incline d hand w r i t i n g , using his Parker pen and blue- blac k ink, on both sides of a single foolsc a p sheet of sligh t l y thic k i s h off-whi te paper exact l like the blan k pape r shee t s the Universi t y of Bomba y regul a r l y used to send the dece a s e d , as Senior Paper- Set t e r and Exami ne r of the Universi t y , for set t i n g and writ in g the ques t ion s for the Universi t y exam i n a t i o n s in Englis h and ::: Downloaded on - 09/06/2013 13:51:25 ::: 16 Latin. The Will was also neat l y folde d into a sma ll rect a n g l e by two fold s. The dece a s e d's Will was a uniquel y spiri t u a l Will and was uniquel writ t e n in form of a Chris t i a n pray e r, exac t l y like the form of recit a t i o n of the Holy Rosar y, namel y, beginni ng wit h "In the name of the Father and of the Son and of the Holy Ghost" and ending with "Amen"."

23. The Will is in the format deposed by the Petitioner. The two executors mentioned in the Will, who have since expired, are one Mr.Anthony Creado, Solicitors and Mr. Charles Lobo, Asstt. Sales Tax Commissioner.

24. The deceased has bequeat hed his house Marie Ville with all equipment s and belongings in it together with the land (ground under ne a t h the bungalow) and the outho use and garages to his two sons Lawrence and Eugene. Both these sons were bachelors then. Lawrence was to be ordained Priest. He is stated to have disclaimed the order in about 1963 itself, the year in which the Will was earlier executed.

The Will recites that if Lawrence remained Priest then after his death Marie Ville should go to Eugene. The Will further directs Eugene to be hospitable to his brothers and sisters in such ancestral home.

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25. The other immovable properties which the deceased had were two plots of open land by the side of Marie Ville.

26. The Will shows the bequest of one of those plots to three of the children, Anthony, Irene and Cyril. These children were married and had families. The direction in the Will is for them to build a house with ground floor and two upper floors. It may be mentioned that such a house is indeed built and exists since the life-time of the Testator. Further directions in the Will is that if any of them would not want to join in building the house, then that person's share should be given to any one of the other children who would need it most at a reasona ble price to be settled in consultation with the executors. That is the bequest for the property now known as building Damiano.

27. The other plot near Marie Ville on the other side of the road was bequeat he d to the remaining three children of the deceased Francis, Marie and Agnes. Those children were also married and had families. The direction in the Will was for them to build a house with ground floor and two storeys. Interestingly the direction with regard to the building to be constr ucted by Francis, Marie and Agnes did not have the clause of what should happen if any one of them would not ::: Downloaded on - 09/06/2013 13:51:25 ::: 18 want to join in building on such plot. In fact a building has been constr ucted and flats have been taken by Francis, Marie and Agnes therein. That is the bequest for the property now known as building Cosmos.

28. Soon after the execution of the Will, Marie took it from the deceased to put into effect the aforesaid clause of the Will relating to the bequest made to her, Francis and Agnes.

(i) For that purpose, a verbatim handwritten copy of the Will of the deceased is stated to have been made by Roger, the carbon copy of which was left in a file. The original copy was sent to the Solicitors to prepare the Deed of Gift along with the covering letter of Roger.

(ii) This evidence is backed by the very effectuation of the said bequest during the life time of the deceased himself by the execution of a Deed of Gift to these children.

29. The deceased expressed his wish that all his children should live as close as possible like members of a joint family, helping one another and bearing one another's burden.

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30. The next mand ate in the Will was that if any child wanted to dispose off his or her share, the right of pre- emption should be given to the child who would need that share the most.

31. Furt her the deceased has bequeat he d his two houses at Aldona and Salegaon in Goa for the use of his four sons, but under manageme nt of any one of them.

32. The deceased has ig directed Francis and Eugene to perform Requiem Masses ann u ally for his father, mother and himself out of the income of a paddy field in Goa belonging to him, the balance of which would be utilised for the upkeep of the two houses of Goa.

33. He directed Marie and Lawrence to offer Requiem Masses ann u ally for his two deceased wives, their parent s, his deceased son Joseph and himself. He separately earmar ked money for conducting those Masses.

34. The deceased has bequeat hed all his children a gold Rosary as the best Legacy that he received from his parent s.

35. Such is the Will sought to be propou n ded by Eugene and Irene and which is opposed by Cyril, the other children ::: Downloaded on - 09/06/2013 13:51:25 ::: 20 having not opposed the Will at all.

36. None of the witnesses has seen the deceased execute his Will. The Attesting witnesses have expired. The execution of the Will has to to be proved like any other document. The Petitioners have essentially sought to prove the Will by the very nature of it being the most natur al Will, bequeat hing the properties of the deceased to all of his children, as per their particular need and tempera me n t. The Petitioners have sought to prove the execution of the Will by proving the carbon copy of the handwritten copy of the Will corroborated by the actual effectuation of at least a part of the estate of the deceased by the admitted execution of the aforesaid Deed of Gift by the deceased himself during his life time.

37. Eugene's evidence further shows that all the family members knew about the Will. It was a topic of discus sion.

38. The deceased had essentially dealt with his three immovable properties in Mumbai whilst making the bequest s to his children.

39. It can be seen that Marie Ville, the house which was already constr ucted has been bequeat hed to the two bachelor sons. Six other children, who were married, ::: Downloaded on - 09/06/2013 13:51:25 ::: 21 remained. The deceased bequeat hed to three each of them in a group the two open plots. He directed them to build a house thereon at their own cost consisting of ground and two upper storeys. Though the two clauses relating to the bequest s of two open plots of the land with the direction to constr uct are similar, there is an intrinsic distinction in the direction relating to the constr uction of only one of the two buildings which would come up on the two open plots of land. This distinction deserves a specific note.

40. Whereas the plot bequeat hed to Anthony, Irene and Cyril on which building Damiano has been constr ucted bears a clear direction of what was to be done if any one of them did not want to join in the building, there is no such direction in respect of the plot bequeat hed to Francis, Marie and Agnes on which the building Cosmos came to be constr ucted. This distinction is required to be specifically noted. The building Cosmos was constr ucted rather speedily.

It was admittedly constr ucted mainly through the efforts of Marie's husba n d, Roger. All the three children, Francis, Marie and Agnes have contributed to the constr uction cost.

There has been no dispute with regard to that. Marie has shifted her residence from the ground floor of Marie Ville to her flat in Cosmos (as per her evidence in about 1970), soon after the constr uction was complete. It appears that the ::: Downloaded on - 09/06/2013 13:51:26 ::: 22 deceased, on the date of the Will, knew that none of these children Francis, Marie and Agnes would object to joining in the constr uction of the building.

41. The distinction with regard to the constr uction on the other plot is in fact that if any of the three legatees of that plot Anthony, Irene or Cyril do not desire to build a house, their share would be given to any other of the children of the deceased as directed in that clause.

ig Hence, the bequest of the plot was to be effected only if a third of the constr uction cost of the building was borne by each of those children. It is a conditional bequest, setting out a condition precedent, as there would be no gift if the condition of constr uction is not fulfilled. Further the condition is onerous. Such onerous bequest s fall within the mischief of Section 122 of Chapter IX of the Indian Succession Act. Section 122 runs thus:-

"122. Onerous beque s t s . - Where a beques t impos e s an oblig a t i o n on the lega t e e , he can ta k e nothi ng by it unles s he acce p t s it fully."

Hence, the children could take the bequest with the condition of constr uction, or none at all. The accepta nce or rejection of the bequest would be seen from the legatee ::: Downloaded on - 09/06/2013 13:51:26 ::: 23 incurring the constr uction cost.

42. Cyril, who had shifted from the first floor of Marie Ville in either 1963 or 1964 did not join in the constr uction. Anthony, who resided out of Mumbai, also did not join in the constr uction. Only Irene contributed to the cost of constr uction and obtained her two flats bequeat hed to her as her 1/ 3 rd share in the building which was constr ucted on that plot of land, being Damiano. The deceased allotted two flats to her on the second floor of Damiano which she has let out. She has been collecting the rents of those flats since.

Even after the appointme n t of Court Receiver in the Administration Suit No.1865 of 1980, these two flats have been released.

43. It is indeed a wise father who knows so well his own children. It is a wiser father who makes provision for each of his children upon such in- depth knowledge of them.

44. This knowledge is shown to have been derived by the deceased based upon the conduct of the children which prompted him to make such uniquely distinct bequest s to his two groups of children. It would be such conduct which would be required to be ascertained from the evidence of the parties on record, which shall be considered presently.

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45. Indeed the last wish of the deceased expressed after making the three bequest s of the three immovable properties to the three groups of his 8 children as aforesaid never came to be fulfilled. The children, though mandated to live as close as possible like member s of a joint family, have not so lived. Accordingly three of them are before the Court propou ndi ng or opposing the Will of their father. At least one other has joined in.

46. The deceased next made bequests of his immovable properties in Goa. These were two houses at two places in Salegaon and Aldona in Goa. The four sons were given the right to use the houses. Neither of the houses is directed to be disposed of or bequeat hed to any one of the Sons. The evidence with regard to property at Salegaon, both oral and docume nt a ry, would be required to be considered. Whatever the property that may be left in Goa would be only for the user of the four sons; which has not been bequeat hed to any one of them singly. (The administr ation suit requires administration of only "property at Goa" as the last item in Exhibit- C to the plaint in Suit No.1865 of 1998. There is no evidence with regard to the property at Aldona in Goa ).

47. The other property dealt with under the Will is a paddy ::: Downloaded on - 09/06/2013 13:51:26 ::: 25 field in Goa. The deceased appeared to be deriving some income therefrom. The expenses for the Requiem Masses are directed to be incurred out of the income of the paddy field with the balance for the upkeep of the houses in Goa. The deceased has made a provision for the expenses to be incurred for the directions to be carried out by his legatees for his religious and spiritual desires also, so as not to leave a burde n upon any of the children specifically to carry out those directions.

48. The Rosary left by the deceased, which was inherited by him from his parents, has been left to all his children. The evidence would show how the children have partaken in the Rosary.

49. The specific Caveat of Cyril that the deceased had not left any Will would be required to be considered against the backdrop of such a Will - a Will left by a father of eight children giving three of his immovable properties in Mumbai to them in three defined groups based upon a sound and reasona ble criterion with directions as would be expected from them and two other immovable properties in Goa to all of them together.

50. It will have to be considered upon appreciating the oral ::: Downloaded on - 09/06/2013 13:51:26 ::: 26 evidence led by three of his children whether such a Will could have been executed as deposed by Eugene or whether such a Will could never have been executed as contended by and on behalf of Cyril.

51. It is the evidence of Eugene in paragrap h 9 of his cross examination that he found the Will on the date of its execution as soon as he retur ned home in a book kept by his father, as usual, on a table in the Varand a h of the house. He was told about it by Piedade. She was the poor cousin of the family. She lived in the outho use along with her husb a n d, Ernest. It is not known, as it has been not brought on record, whether Piedade similarly informed Marie, Cyril and Lawrence also, who then lived in the family house at Marie Ville along with the deceased.

52. The evidence of Eugene shows that the Will was known to all of his children. It was no secret. Paragrap h 7 of his examination- in- chief shows that the deceased had informed all his family members including Cyril about the execution of his Will and that it has been admitted by the family members time and again. The information to all the family members about the execution of the Will would require further probe. The corresponde nce annexed to the Administration Suit marked Exhibit- A (colly), to the plaint in ::: Downloaded on - 09/06/2013 13:51:26 ::: 27 Suit No.1865 of 1980 and marked Exhibit- I (colly) in evidence between the parties in this Suit shows the allegations of Cyril against Eugene, through his Advocate R.C. Dalal, that Cyril remembers that the Will has been left by his father in which he is also one of the beneficiaries along with other co- heirs and calls upon Eugene, to whom the letter is addressed, to render detailed account of the estate and challenges certain declarations made by Eugene to the Income Tax Authorities. Of course, though he knew about the Will, and saw the two buildings Damiano and Cosmos being constr ucted, he never partook in the expenses as did his siblings along with the deceased. He only knew about the bequest; not the condition ! This evidence corroborates the fact that the deceased had taken no effort to conceal the Will from anyone.

53. The Will was not executed in any Attorney's office. The Will is not stated to have been given to either of the executors. These two aspects corroborate the fact that it could have been left as has been testified by Eugene.

54. It is the case of the Petitioners that Marie desired to accelerate the bequest made to her under the Will and proposed to her father to commence constr uction on the open plot of land to constr uct the building Cosmos, in which ::: Downloaded on - 09/06/2013 13:51:26 ::: 28 she ultimately came to have two flats during the life time of the deceased himself.

55. Paras 9 to 11 of Eugene's examination- in- chief shows that the deceased had handed over the Will to Marie to commence constr uction, as she wanted to effectuate the legacy in her favour almost immediately. She being the eldest daughter, who then lived on the ground floor of Marie Ville and had also served in Khalsa College with the deceased for some years, was very close to the deceased.

Paragrap h s 3 and 4 of examination- in- chief of Marie herself show that after marriage in 1955 she lived in Matunga in a rented accommod ation. The deceased having retired from St. Xavier's College used to teach English Literat ure at Khalsa College in Matunga. The deceased visited Marie often in her flat. Her evidence in paragrap h No.5 of the examination- in- chief shows that she shifted to Marie Ville in 1960 upon Easter n Watch Company having vacated that flat.

She moved to Cosmos in 1970 as per her evidence in paragrap h No.6 of the examination- in- chief. That she was very close to the deceased is admitted by her in paragrap h 7 of her examination- in- chief. Her evidence in paragrap h 8 further shows that the deceased occasionally gave her husb a n d certain docume nt s to carry.

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56. In paragrap h 10 of her examination- in- chief Marie has explained the need for Francis, Agnes and herself to have a perma ne n t accommodation. She has admitted that they all had financial means to constr uct the accommod ation on their father's vacant plot. Francis lived in Kenya. Agnes lived in a Company flat allotted to her husb a n d in Kolkatta and she herself lived as a "Defacto tenant" of her father. She accordingly justified the gift made by her father to these three children including herself provided they expended their own resources to constr uct the building.

57. In paragrap h 14 of her examination- in- chief she has deposed that her husba n d Roger was "closely involved in appointing the Architect". She has admitted that Roger and she played an importa nt role in the constr uction of the property Cosmos. Paragrap h 29 of her cross examination shows that the constr uction took two years to complete. Her husb a n d looked after the constr uction of the building and kept her informed of the development s. This is in conson a nce with the evidence of Eugene in paragrap h 10 of his examination- in- chief, where he has deposed that Roger took the responsibility of getting necessary docume nt s done through the Solicitors M/s. M.V. Jayakar and Company.

58. In view of this evidence the case of Eugene that Marie ::: Downloaded on - 09/06/2013 13:51:26 ::: 30 took the original Will from the deceased himself in 1966 is fortified. Having taken the said Will she is expected to act upon it. Of course she could not act upon the Will itself as it would speak from the date of the death of the deceased. She could have effectuated the legacies earlier by an inter vivos transfer. The transfer is in the Gift Deed Exhibit- H, actually, admittedly executed and Registered. Marie has proved the Deed of Gift by direct evidence in paragrap h s 31 and 32 of her cross examination. She has identified each of the signat u re s on the Gift Deed including her own signat ure s, for herself as well as the Constit uted Attorney of two others as also the signat ure of her husba n d Roger thereon.

59. Marie's evidence in paragrap h s 33 and 34 shows that the Gift Deed was executed in Mr.Jayaka r's office.

"We had gone to Mr. Jay a k a r' s office. We all signe d there"

60. Upon being shown the execution clause at page 16 Marie has identified her father's signat ure as the Donor. She has also identified Mr. Jayakar's signat u re s thereat. This supports Eugene's evidence in paragrap h 10 of his examination- in- chief that the Solicitors was personally known to Marie.

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61. This entire evidence not only lends credence to the evidence of Eugene that Marie had wanted to accelerate the legacy, but in fact corroborates that fact.

62. Upon this groundwork, must be tested Eugene's case that Marie gave him the file containing the Will of the deceased along with other docume nt s some time in 1975 in Marie Ville. The said file contained not the original, but the carbon copy of the handwritten copy of the Will of the deceased copied verbatim from the original by Roger in his handwriting and sent to M/s. Jayakar and Company with instr uction s to prepare a Deed of Gift in consona nce with the bequest of the plot of land on which the building Cosmos was to come up. Marie would certainly require the Will from her father. Marie started living in Cosmos in 1970. The constr uction was, therefore, complete by that time. It took two years to complete. It required efforts to be underta ke n for commenceme n t of the constr uction. It inter alia required the appoint me nt of Architect. As per Marie's evidence that was taken care of by Roger. Before such effort could be undert a ke n it required the gift to be made of the plot of land to the three children of the deceased, who were to build thereupon. The gift deed was prepared under the instr uction s of Roger by M/s. M.V. Jayaka r and Company.

::: Downloaded on - 09/06/2013 13:51:26 ::: 32

It was executed in the office of M/s. M.V. Jayaka r & Company. The Deed of Gift was executed on 23 rd December, 1968. Instructions for its preparation would have been given before that date. Hence, it stands to reason that soon after the execution of the Will, since it was no secret in the household, Marie, who was so close to the deceased and who lived in Marie Ville itself took it from the deceased. M/s. M.V. Jayak ar and Company could not have been given the original Will. It had to be kept with the deceased or at least one of his close beneficiaries. It was handwritten by the deceased. That was the pre- xerox era. Hence, a verbatim copy of the Will was indeed required in this case to be made. Since Roger took up the cudgels on behalf of the three children to constr uct the flats to live therein, he would be the person to make the hand written copy of the Will.

63. Eugene has identified the handwriting of Roger in the carbon copy of the handwritten verbatim copy of the Will, as deposed in paragrap h 11 of his examination- in- chief. Eugene has been cross examined on the identification. In paragrap 43 of the cross examination Eugene has been asked whether he was familiar with the handwriting of Roger. He has replied that Marie gave him the file herself and told him that all the docume nt s were in Roger's handwriting and he could see Roger's signat ure. Otherwise he was not familiar with ::: Downloaded on - 09/06/2013 13:51:26 ::: 33 his signat u re. However, Eugene was given the file in 1975.

He has annexed the copy of the Will to his written stateme n t in the Administration Suit filed in 1981. He had thereafter filed this Petition propou ndi ng the Will. His identification of the handwriting of Roger made years after propoun di ng the Will is, therefore, acceptable.

64. However, his identification is not all. The copy of the Will made by Roger to be sent to M/s. M.V. Jayakar & Company under cover of Roger's letter dated 24 th September, 1966 has to be read along with that letter. That letter has been replied by M/s. M.V. Jayakar and Company. The reply is the letter on the original letter head of M/s. M.V. Jayaka r and Company dated 27 th September, 1966. The letter of Roger dated 24 th September, 1966 annexing the handwritten copy of the Will forms the chain of correspon de nce with the letter of M/s. M.V. Jayakar and Company dated 27 th September, 1966. The three docume nt s must be read together.

65. The letter of 27 th September, 1966 acknowledges receipt of the letter of 24 th September, 1966. It mentions about the copy of the Will of Prof. Pinto annexed to the covering letter. The contents of the copy of Roger's letter must, therefore, be considered. The said letter shows "a few point s in ::: Downloaded on - 09/06/2013 13:51:26 ::: 34 clarific a t i o n perti nen t to the proble m in han d" . It gives the details of the three plots of land as "our plot" . It calls for an urgent split of the plot on premise that the whole value would be assessed to the estate duty, if it was not so split (the Estate Duty Act and was in force at the relevant time.

Prof. Pinto was advanced in age and had executed the testame n t). It mentions about the building (new) which is to be built with "our (3 heirs) money" . But the plans for the constr uction would have to be made by C.D. Pinto (the deceased himself) (a legally correct statement).

ig The letter further considers that if the flats were to be rented to third parties the Lessee would require the land beneat h the building to be of the same ownership as that of the flats (freehold land), (Legally not a correct statemen t). The letter shows a streak of urgency as it envisages complications if the plot was not transferred immediately. Nevertheless it allows the Solicitors to make suggestions for discus sion -

"you writ e out or sugges t and we will discu s s now" . It request s the Solicitors to treat the letter as urgent. It further mentions that the witnesses of the Will are relatives and that author would be able to even manipulate the docume nt s -

"we can redr af t the Will using the same da t e" ! it is signed by Roger against the date 24 th September, 1966. It is in reply to this letter that the attorneys have signed the letter dated 27 th September, 1966 under Reference No.MVJ / 8 9 7 ::: Downloaded on - 09/06/2013 13:51:26 ::: 35 and for the subject: Deed of Gift - property at Santacr uz.

66. The Attorney's letter calls for some analysis. It mentions about the relevant part of the Will which makes a bequest to the three children - Francis, Agnes " and your wife" (Marie)". It deals with the liability of payment of wealth tax (with which were not concerned). It also considers the requireme nt of registration of documen t s upon obtaining the certificate under Section 230A of the Income Tax Act. It speaks about the Deed of Gift being engrossed and kept ready, but which would have to be executed after discus sion of the taxation aspect. These two letters read in conjunction and forming a chain of corresponde nce to show unmist ak a bly that the original Will of the deceased was copied and that copy of the Will was sent to the Attorneys. The original remained either with Roger or may perhaps have been returned to the deceased. In either case it was executed and acted upon.

67. Both the aut hor s of the aforesaid letters have referred to the Will. The specific reference to the relevant clause of the Will giving the bequest in favour of these three children has been set out in Roger's letter dated 24 th September, 1966. One wonders how much aut hority or power Roger would have had in manipulating the bequest s in view of the last sentence of his letter "We can redraft the Will using the ::: Downloaded on - 09/06/2013 13:51:26 ::: 36 same date". Mr. Jayakar has acknowledged the copy of the Will and advised some of the beneficiaries about its effect upon the gifts contemplated and the taxation aspect.

68. The attesting witnesses have expired. This corresponde nce reflects their attestation also, complete with the date of the Will. Roger's letter dated 24 th September, 1966 throws light upon the fact that Piedade and Ernest Vaz were indeed two attesting witnesses. They are the only other admitted relatives. The deceased had no relatives other than his eight children and their spouses and none of these could legitimately be made attesting witnesses as they would be direct or indirect beneficiaries. Besides, given the three separate bequests reflected in the Will to all of his children, the deceased would not be expected to choose one of the family member s of his beneficiaries to the exclusion of another to be his attesting witnesses also. Piedade and Ernest Vaz were admittedly his relatives living close by in the outhou se of his bungalow. These could be the only relatives who were available and could have safely attested the Will. The reference to the witness of the Will being relatives in Roger's letter dated 24 th September, 1966, is therefore, most striking. This reference itself lends credence to the attestation clause complete with the date of the Will, the insinu ations of Marie and Rita in paras 21 and 18 / 1 9 of ::: Downloaded on - 09/06/2013 13:51:26 ::: 37 their respective evidence, which shall be dealt with later, notwithst a n di ng.

69. In the case of Food Corporation of India vs. Assam State Co-operativ e Marketing, 200 4 (12) SCC 360 , the proof of letters forming a chain of corresponde nce has been considered. When there is a chain of corresponde nce which is tendered in evidence and the receipt of the letter is not disputed by a party, it is held that the documen t s will stand proved and they can be read in evidence.

ig It is observed in paragrap h 10 of that judgment that the letters read together form a part of the official record of the Plaintiffs and are pieces or links in the long chain of corresponde nce entered into between the parties. This statemen t would then form a part of a series of letters under Section 39 of the Indian Evidence Act. As part of the official record of the parties, the stateme nt s made in the chain of corresponde nce can be read as evidence.

70. In this case none has disputed or rebutted the fact that Mr.M.V. Jayaka r, Solicitors had written the letter dated 27 th September 1966 to Roger or that they had acted upon the letter resulting in the ultimate execution of the Deed of Gift. The chain of corresponde nce sought to be proved by Eugene is by virtue of an independe nt letter written by an outsider to ::: Downloaded on - 09/06/2013 13:51:26 ::: 38 Roger, the genuine nes s of which can be seen upon the parties acting upon the letter itself by the execution of the Deed of Gift. Such circum st a n ti al evidence proves the genuinenes s of the docume nt forming a chain of corresponde nce.

71. The Will is, therefore, unmist a k a bly annexed to the letter. The fact that it was verbatim copied out by Roger in his handwriting is, therefore, established. The only copy of a handwritten man u s cript ig in 1963 could be a verbatim reprod uction in the copier's handwriting.

72. There is no other Will shown. The Caveat shows that the deceased had not left any Will. Marie's evidence shows that the deceased left other Wills. No other Wills are produced. The evidence of the legal represent a tive of the Caveator himself, is his widow Rita who has been examined as D.W. 1.

Her evidence shows the execution of an earlier Will executed in 1960. Aside from the fact that the credibility of that evidence would have to be separately considered, that evidence, accepted as given itself, would show that that will stood revoked by the Will later executed in 1963. The Will annexed to the letter of Roger in his own handwriting is dated 12 th February, 1963. The Will is in conson a nce with ::: Downloaded on - 09/06/2013 13:51:26 ::: 39 the letter. The letter requires the wishes in the Will to be performed post- haste. The only inter- vivors transfer could be by way of a Gift. The attorneys' letter shows the prepar ation of an Deed of Gift. The Deed of Gift is actually executed. The two letters stand corroborated by the Gift Deed itself. The Gift Deed is completely in tune with the directions in the Will regarding the plot of land thereu n der. There is nothing whatsoever that can show or suggest even, remotely, that the carbon copy of the handwritten copy of the Will given to Eugene in the file by Marie was not the Will which formed a part of the trans action relating to the Gift and was the only Will of the deceased which was executed. It was that handwritten copy which was sent along with the handwritten letter by Roger to M/s. M.V. Jayak ar & Company. It was that letter which was replied by M/s. M.V. Jayakar and Company making a reference to the Will of Prof. Pinto with the subject matter shown to be the Deed of Gift.

73. The letter dated 24 th September, 1966 is signed by Roger. Roger has also signed the Deed of Gift. His signat u re s on the Deed of Gift are admitted at pages 17 and 18 thereof by Marie in her evidence. He has also signed at the time of the registration of the Deed of Gift. These admitted signat u re s can be essentially compared with Roger's signat ure on his letter dated 24 th September, 1966.

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The signat u re s are identical including to the two dots placed below his initials. The handwriting of the letter dated 24 th September, 1966 is in the same flow as that of the author's signat u re. This handwriting, when compared with carbon copy of the Will sought to be propoun ded by Eugene, shows the entire docume nt in the same handwriting. It would be too much to fabricate the documen t handwritten on an entire full- scape sheet and more.

74. This calls for a minute examination of the paper used for the execution of the carbon copies of the Will as well as the letter dated 24 th September, 1966. They are on identical full- scape sheets containing 31 blue horizontal lines below two red horizontal lines forming the header margin. The papers of both these documen t s are yellowed with age. Their texture is identical. Both the papers, the copy will Exhibit - A-1 and the copy letter Exhibit- B, bear punch marks showing that they were once filed. The aforesaid three docume nt s read as a whole unmist a ka bly show the handwriting of Roger in the carbon copy of the copy of the Will as well as in the carbon copy of his letter.

75. The Will in this case is certainly not proved by direct evidence of the attesting witnesses with regard to its ::: Downloaded on - 09/06/2013 13:51:26 ::: 41 execution. The Petitioners' case is based on proof by secondary evidence. Under Section 65(c) of the Evidence Act when an original document has been destroyed or lost and cannot be produced, secondary evidence of the contents of the docume n t becomes admissible. In such case evidence must be led about the copy of the docume nt produced to show how it was made from or compared with the original. There is abun d a n t evidence on this score. Even proof of search of the original and the fact of it not having been found is to be given. Eugene's evidence shows that he made limited search of the Will. That would be in his house, if the original was returne d to the deceased after Roger made its verbatim copy. The cross- examination of Eugene itself shows that he also visited the executors in 1980. That was during the correspondence that ensued between the parties prior to the Administration Suit being filed. Hence, Eugene did make a genuine effort to trace the original Will.

76. In paragrap h 19 of the judgment in K.P. Kirshnaku mar vs. Smt.Radhalaks h m i Amma, 200 4 (4) Karnataka Law Journal 39 1 relied upon by Mr.Andhyar ujina, a carbon copy of the original Will, which was stated to be lost, came to be considered. In that case, the son of the testator came to know about the Will only after the death of the testator upon being told by another person. He was not at all aware of his ::: Downloaded on - 09/06/2013 13:51:26 ::: 42 father having executed the Will. The Court considered that a matter of serious doubt. In this case the copy of the Will was produced in the Written Stateme nt filed by the Petitioners in the Administration Suit since 1981. The correspon dence annexed to the plaint in that Suit, which is Exhibit- I in evidence by consent, shows the contention of the Caveator Cyril as well as Marie that the Testator had left a Will and calls upon Eugene to produce and probate it. I do not see how that judgment would apply to this case in which all the family members knew, discus sed, ig deliberated and acted upon the Will not only after but during the life-time of the testator.

77. Mr.Andhyar ujin a relied upon a judgment in the case of Smt.Krishna Subala Bose & ors. vs. Dhanapati Dutta & ors., AIR 19 5 7 Calcutta 59 to argue that the copy of the Will would not constitute secondary evidence. It must be remembered that Eugene has sought to propoun d the carbon copy of the handwritten verbatim copy of the original Will made by Roger. The handwritten copy was sent to M/s. M.V. Jayak ar, Solicitors. The carbon copy of the Will was kept in the file along with the carbon copy of the covering letter. What is held in this judgment is that when a copy is prepared from another copy, it would not constit ute secondary evidence unless it is compared with the original.

::: Downloaded on - 09/06/2013 13:51:26 ::: 43

The copy contemplated is a copy prepared from another copy of the docume nt. In this case, the handwritten copy was verbatim copy of the original Will itself and not the copy of another Will. Hence, it is not a copy made from a copy of the Will. It is a carbon copy of a handwritten copy made from the original Will. The reasoning in that case, therefore, does not apply to this case.

78. Mr.Andhyar ujin a relied upon a judgment in Nityananda Roy vs. Rashbehari igRoy, AIR 195 3 Calcutta 456 to discoun t the carbon copy relied upon by the Petitioner. In that case, a signat u re on a carbon copy was sought to be relied upon. It appeared to be irregular and blotched. The observations in the judgment related to some such carbon copy. The carbon copy in this case is legible and readable and the strict provisions of the proof by the secondary evidence are complied with.

79. Mr.Andhyar ujin a has further relied upon a judgment in the case of Laxman Ganpati Khot & ors. vs. Anusuyabai & anr., AIR 197 6 Bombay 264 and sought to suggest that when the original docume nt is not proved, secondary evidence is not admissible. That is an incorrect submission. In that case, the Defenda nt having had the original sought to prove a copy as secondary evidence under Section 65(a) of ::: Downloaded on - 09/06/2013 13:51:26 ::: 44 the Evidence Act. In paragrap h 9 of that judgment it is observed about the production of a copy when the original is not shown to have been lost or misplaced. Conseque ntly, the copy was nat u r ally held inadmissible in evidence.

80. In the case of M/s.Parekh Brothers vs. Kartick Chandra Saha & ors., AIR 196 8 Calcutta 532 it is held that in the absence of diligent search of the lost documen t and the evidence that the original documen t was destroyed or lost, proof of secondary evidence was not allowed. In this case, Eugene has also deposed in his cross- examination how he made a search for the original Will. His main evidence is how he got the copy of the docume n t from the person who had taken the original docume nt from the executa n t of the docume nt himself.

81. Similarly Mr.Andhyar ujina has relied on the judgment in the case of Suganc ha nd & ors. vs. Balchand & anr., AIR 19 5 7 Rajasthan 89 in which it is held that copy of the copy can be proved only when a person who made the copy is produced. That would not apply in each case. The secondary evidence is admissible if it complies with the provision of Section 65(c) of the Evidence Act.

82. Even the reliance upon a judgment in the case of Raja ::: Downloaded on - 09/06/2013 13:51:26 ::: 45 Mahadeva Royal Y.B. vs. Raja Virabasava Chikka Royal & ors., AIR 19 4 8 Privy Council 114 is misplaced because it is held in that judgment that copies of docume nt s are admissible in evidence if originals are satisfactorily accounted for - and in this case, the original will is satisfactorily accou nted for.

83. The judgment in the case of Ramji Dayawala & Sons (P) Ltd. vs. Invest Import, AIR 198 1 SC 208 5 considers proof of handwriting of the docume nt.

ig Certainly as held in that judgment mere proof of the handwriting of the docume nt would not tanta mo u n t to prove all the contents or the facts stated in the docume nt. That would have to be proved by separate admissible evidence. In this case, Eugene has led evidence about how Marie gave him the file informing him that Roger had verbatim handwritten the Will. That evidence is corroborated by the copy letter of Roger followed by the letter in reply of M/s. M.V. Jayakar, Solicitors and further effectuated by the execution of the Deed of Gift. The fact of Roger having written the Will verbatim and acted upon the Will is proved by such oral evidence of Eugene corroborated by the docume nt a ry evidence. The handwriting of Roger is only accepted upon a comparison of the admitted signat u re with the signat u re on his copy covering letter which is in the same flow of handwriting as that of the entire Will. In this ::: Downloaded on - 09/06/2013 13:51:26 ::: 46 case, the two full scape sheets of paper being identical, further genuinenes s of the paper on which the docume nt is written is shown. Further, the punc h marks on the Will and the covering letter of Roger intrinsically point to the fact of them having been filed. The Will is so proved by secondary evidence. The Petitioners have accordingly proved the execution of the Will of the deceased dated 12 th Febru ary, 1963 by such credible, reliable secondary and circum st a n tial evidence.

84. Marie has, of course, refuted Eugene's case of handing him over the file itself as well as case that Roger had made a verbatim handwritten copy of the Will of the deceased. Aside from such denial she has done little else. Her evidence shows a feeble attempt at disowning the Will. In paragrap h 8 and 9 of her examination- in- chief she has denied the copying of the Will by Roger in his handwriting. Her evidence is that she cannot recollect this event or the purpose of the exercise.

Her reasoning in paragraph 9 as to why it would not be so is the fact that the Will was not a part of the recitals of the Gift Deed or was not attached thereto. That is contrary to law.

Her evidence in paragrap h 13 of her examination- in- chief is that the handwriting stated to be of Roger is crawling as against his real handwriting which was "well formed and neat , there are many differenc e s in the formation of ::: Downloaded on - 09/06/2013 13:51:26 ::: 47 letters" . Her evidence in paragrap h 36 of her cross examination runs thus:-

"here and there some word s may be like his, but overal l tha t is not the han d w r i t i n g of my husba n d".

85. This evidence itself calls for the Court to compare the two docume nt s, the letter dated 24 th September, 1966 which has not been refuted and the copy of the Will of the deceased as contemplated in Section 73 of the Evidence Act. Other than such comparison, Marie has left for the Court not much to consider. A comparison clearly shows the handwriting of one man in both these docume n t s. Her evidence shows that she has not seen her husb a n d's handwriting for the past 37 years. Her husba n d was a man of the world. He lived in an age which had no computers, printers or xerox machines. The production of docume nt s could be only handwritten or typewritten. He would have left behind some documen t s handwritten by him. She has not produced a single docume nt to show that his handwriting would have been so different that the Court must reject the copy of the Will sent with the letter dated 24 th September, 1966. In answer to Court in paragraph 36 of her cross examination she has deposed that she does not have any documen t written by her husb a n d in his handwriting.

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86. She has sought to conclude that becau se she never saw Roger writing the Will or Roger having told her about it, it could not have been written.

"my husb an d never ever ment io ne d to me any t h i n g about the Will, if he had ma d e copies of the Will, he woul d have told me" (para 36) That is not the only reason for the Court to conclude the non- existence of the Will otherwise proved.

87. The fact of she having handed over the file to Eugene is also simpliciter disputed. In paragrap h 15 of her examination- in- chief she has mentioned about her "negligible relations hip with Eugene" - she having hardly met or having acknowledged him. She has alleged that he did not condole her when Roger expired. In her cross examination she has sought to impress upon the Court that she lived down (on the ground floor) and giving the file to Eugene would mean that she would have gone up to the first floor ! That would entail the travel of one flight of stairs to reach the house of her brother in the same building.

88. Eugene has led evidence in paragrap h 17 of his examination- in- chief about how he received the file from Marie. There has been extensive cross examination ::: Downloaded on - 09/06/2013 13:51:26 ::: 49 thereupon. In paragrap h 14 of his cross examination he has clarified that when he had asked Marie about the Will she had stated that she could not trace it, but he volunteered to state that she had given him the entire file which had the copy of the Will with the other document s.

89. In paragrap h s 17 and 42 of the cross examination he has deposed that Marie handed over the file to him after coming to the first floor of Marie Ville. In fact he has deposed in paragrap h 43 that before he got that file he did not know that there was a verbatim copy of that Will made by anyone. He explained how he was familiar with Roger's handwriting, stating that when Marie gave him the file she herself told him that the docume nt s were in Roger's handwriting.

90. Upon appreciation of the evidence with regard to Roger's letter dated 24 th September, 1966 and the reply of the attorneys dated 27 th September, 1966, the oral evidence of Eugene that Marie gave him the entire file when he inquired about the original Will from her, stand s to reason. Marie's denials go directly against her own later conduct. Her evidence is not credible or reliable and must be rejected.

91. Such entire file has been produced by Eugene. The ::: Downloaded on - 09/06/2013 13:51:26 ::: 50 docume nt s in the file have to be separately considered with regard to their admissibility in the evidence. Upon Eugene's evidence that he has identified the signat ure and the handwriting of Roger, the aforesaid letter dated 24 th September, 1966 and other docume nt s of Roger in his handwriting came to be exhibited. Similarly several letters of M/s. M.V.Jayakar and Company have been admitted in evidence as docume nt s 30 years old carrying a presu m p tion as to the correctnes s of their signat u re s and handwritings under Section 90 of Indian Evidence Act, but subject to the proof of content s of those docume n t s.

92. Eugene's evidence about Marie having given him the entire file is required to be appreciated upon considering the docume nt s of the entire file. Aside from the aforesaid three docume nt s the file contains twelve letters of M/s. M.V. Jayakar and Company. P.W.2 is Mr. Rajan Jayak ar, the present proprietor of M/s. M.V. Jayaka r and Company. He is the son of the deceased Mr.M.V. Jayakar. He has identified the signat u re of Mr. Jayakar, on each of these letters. He, being the son of the sole proprietor of the firm, has also identified the letter- heads of M/s. M.V. Jayakar and Company. He has also deposed about the dispatch reference number s on the letters as having been put in the usu al course of the conduct of the busines s of the firm. Since the ::: Downloaded on - 09/06/2013 13:51:27 ::: 51 letters are more than 30 years old and do carry a presu m p tion of correctnes s of the handwriting and the signat u re s, they must be taken to have been correctly signed as shown therein and additionally as deposed by the present Proprietor of the same firm. Since other letter- heads are also identified, they show the letters having been dispatched from the Solicitors' Office. The reference / di s p a t c h num bers appear to be chronologically given datewise. This is a further fact which shows that they were indeed given in the normal course of the conduct of the firm. Though the trut of the content s of each of these letters would have to be separately proved, and has not been proved in Eugene's evidence, the first of such letters, which is in reply to Roger's letter dated 24 th September, 1966 and forms a chain of corresponde nce shows its reference to the Deed of Gift upon receiving the copy of the Will of the deceased. The other letters in the file show the proof of they having been sent under the reference num bers shown therein and signed by the then sole proprietor of the firm.

93. All of these letters, except three show the punch marks of filing. Three letters which are not punched must have been kept in the file. They are folded near the margin such as to have them placed within the file, though not punched. There is not the slightest attempt to fabricate such innate ::: Downloaded on - 09/06/2013 13:51:27 ::: 52 evidence produced by Eugene. All these letters are not even sought to be referred to by Eugene to prove the Will. They are produced merely as a part of the whole file. The twelve letters together show that they were indeed kept in a file and handed over to Eugene. Hence, though the Court may not concern itself with the content s of the letters, the oral evidence of Eugene that Marie gave him the entire file containing the document s indeed show that that stateme nt has been corroborated by the document a ry evidence.

94. In the case of Mubarak Ali Vs. State of Bombay, AIR 19 5 7 SC 857 . Bhagwati J, as he then was, considered a number of telegrams and letters as a whole for determining the proof of genuinene ss of all those letters. Some of the letters in that case were without signat ure s. A few of them were admitted. Upon proof or admission of some of these letters, signat ures on the disputed letters came to be identified. A chain of corresponde nce made of some of those letters and telegram s were taken as indicating the genuinenes s of the disputed letters. It came to be held by the Supreme Court that proof of genuinenes s of a documen t is proof of the aut hor s hip of the docume nt which is to be proved like any other fact. The evidence relating thereto may be direct or circum s t a n ti al. This would include the internal evidence afforded by the contents of the docume nt. It was ::: Downloaded on - 09/06/2013 13:51:27 ::: 53 held that this mode of proof of the content s may be of considerable value where the disputed docume nt purports to be a link in a chain of corresponde nce, some links in which are proved to the satisfaction of the Court. Conseque n tly, it is observed in the last part of paragrap h 11 of that judgment that in an appropriate case from the content s of the letter the Court may also be in a position to judge whether it constitutes a genuine link in the chain of corresponde nce and thus, can determine its authors hip by circum s t a n tial, if not direct, evidence.

ig Conseque n tly, the approac h of considering the disputed docume nt s vis- a- vis the admitted docume nt s in a chain of corresponde nce came to be accepted by the Supreme Court, the letters in the chain having been seen to be genuine. Based upon such reasoning the proof of these 2 letters forming a chain of corresponde nce and the fact that a num ber of letters were in the file which was given by Marie must stand established.

95. In the same file is also an unexecuted Deed of Gift which would have otherwise put into effect the bequest of both the plots of the deceased to be constr ucted. The docume nt remained executed. Several donees were out of Bombay and could not execute it. Cyril, though in Bombay, did not execute it. It need not be further considered. The executed Deed of Gift is enough evidence to show the conduct of the ::: Downloaded on - 09/06/2013 13:51:27 ::: 54 deceased as also some of the beneficiaries contempora neo u s with the legacies and the directions in the Will.

96. The loss of a Will, such as the one in this case, which is not a solitary docume nt required to be proved, but depends upon the execution of a mass of circumst a n ti al evidence with regard to its execution, has to be considered for probating it. Williams on Wills in 4 th Edition, 1974 in Chapter 12 at page 87 states about the loss of Will thus :-

"Lost Will : Where ig a tes t a m e n t a r y docu m e n t has been lost or dest ro y e d in such a way as not to effect a revoca t i o n, proba t e may be gran t e d of the conten t s thereof upon proof of such conten t s and due execut i on and att e s t a t i o n of the instru m e n t .

Where the person set t i ng up an allege d Will cannot produc e any copy or draf t or any writ t e n evidenc e of its conten t s , he mus t prove all these mat t e r s so as to remove all reason a bl e (but not all possible) doub t on these point s ."

The entire aforesaid circums t a n ti al docume nt a ry evidence proves the execution of the holograph Will by the deceased, which was acted upon by a set of beneficiaries during his life time itself.

97. Marie has discounted the Will on various other ground s ::: Downloaded on - 09/06/2013 13:51:27 ::: 55 which may be enumer ated and commented upon thus:

(a) Paragrap h 11 of her examination- in- chief shows how pragmatic the deceased was and that he was more concerned with his children's needs rather than ensuring mathe m a tical correctness in the inheritance. Rather than disproving the Will, this very characteristic is a pointer to its execution. The Will shows not an arith metically equal distribution. It makes a sound classification on the most reasonable criterion. It has classified his bachelor boys on the one hand and the family men and women on the other.

Whereas, the Will bequeat h s the old bungalow to the bachelor sons who would contin ue to remain with him for the remainder of his life and thereafter in the same place by the very fact of they being bachelors, he has given two plots of land for development to the family men, who would have resources to constr uct and the reason and need for such constr uction. Indeed ensuring mathe m a tical correctnes s was not the criterion for the deceased. Sitting in his armch air the Court would consider his criterion upon the exigencies of his children. It is sought to be contended that Eugene and Lawrence and if Lawrence were ordained Priest, only Eugene being entitled to the bungalow is most inequitable. It is not. The deceased has concerned himself more with the needs of Lawrence and Eugene. They would not, in the circum st a n ces in which ::: Downloaded on - 09/06/2013 13:51:27 ::: 56 they would live, require to constr uct a new flat with modern amenities. The old bungalow that they used would serve them well for the rest of their days. In 1963 Santa Cruz was an open, green land, a distant subu r b of Bombay not expensive to constr uct upon and having virtually no market for a built- up bungalow / h o u s e.

Besides in 1963 when the Will was executed, during the entire life time of the Testator, constr uction of new buildings where an old struct u re existed by exploiting its FSI, utilization of TDR, or by developing the plot by demolition of the old struct u re was not the order of the day. It could not have been even visualised by the deceased. The deceased would proceed under the premise that his bungalow would be used by him and his bachelor sons throughou t their lives. He, therefore, made provision to that end. Conseque n tly the argumen t on behalf of the Caveator that Eugene would be entitled to a gold- mine to their complete exclusion in terms of the capability of the plot of land need not detain the Court whilst considering the intent of the deceased in making that bequest. The movables and furniture in the bungalow, described the equipment and belongings in the Will would follow as a matter of corollary.

98. In 1963 only open plots were capable of constr uction. He ::: Downloaded on - 09/06/2013 13:51:27 ::: 57 allowed such constr uction. Upon the two plots he desired constr uction of three storeys each for his six children; he indeed was a pragmatic man who considered his children's needs. His children needed at best one floor each either to reside themselves or to lease it to a third party to make money therefrom.

99. Furt her as aforesaid he also considered correctly the anticipated conduct of these children in view of their character as only a father would best Judge. He grouped the two sets of children also correctly as per their needs. As stated by Marie herself Francis who as in Kenya, Agnes who was in Kolkatta and Marie who was on the ground floor of the Marie Ville were grouped together to constr uct the building which they were capable of constr ucting with their own finances and which they were allowed to constr uct during his life time to effectuate the legacy by acceleration. He grouped the other three children Anthony, Cyril and Irene in the other building, knowing that Cyril and Anthony may disclaim their bequest s. In the circum st a nces which shall be considered presently, he made a provision as to what would happen in such contingency. Irene is stated to have expended for her flats, on the second floor of the building Damiano. These were allotted by the deceased to her. Cyril and Anthony did not expend and got none. The deceased ::: Downloaded on - 09/06/2013 13:51:27 ::: 58 himself undertook the effort and the burden to constr uct at his own cost from the sale of certain shares standing in his name jointly with his wife Hilda as also Eugene (as deposed by him in para 16 of his examination- in- chief and paras 37 and 50 in his cross examination). He kept two flats on the first floor of building Damiano in his own name - he would derive income from the lease of these flats for his own livelihood. He allotted the other two flats to Eugene in his life-time. Eugene took possession of the flats during the life- time of the deceased and so did Irene. Eugene had let them out to third parties since the life time of the deceased in 1968 or 1969 as per his evidence in para 38 of his cross examination. Indeed this shows the accepta nce of the gifts by Eugene and Irene.

100. Williams on Wills 4 th Edition 1974 in Chapter 35 at page 254 shows the legal position with regard to acceptance of gifts thus:

"Acceptan c e Presu m ed - Acceptance, unless the will prescribes some act, election, or writing by which the donee is required to show his acepta nce, is generally inferred from the acts of the donee, usu ally acts amou n ti ng to ownership of the property given. Except where the will requires some definite act of accepta nce, the donee will be presu me d to have ::: Downloaded on - 09/06/2013 13:51:27 ::: 59 accepted the gift unless he disclaims it.... "

"Accepta n c e means Acceptan c e of Burdens, benefit s and Condition s - Acceptance, however, must be subject to all the burdens incident to the gift and with all the benefits attached to it. If the testator validly attaches a condition to a gift, the donee on accepting the gift must perform the condition. If the condition requires the donee to incur some expenses he must fulfil the condition, even though he incurs a loss thereby. "

Indeed in this case the gifts were made and materialised in the life-time of the deceased itself resulting, as it were, in the legacy being adeemed as contended by Mr.Andhyar ujin a.

In fact the property bequeat he d being the plot of land itself ceased to exist and underwent a metamorp hosis. Nothing remained to be bequeat hed to them as held in Chaman Lal Kapoor Vs. Kundan Lal Kapoor, A 197 9 Delbi, 240 .

101. The grievance of the Caveator and the other Plaintiffs in the Administration Suit is that Eugene appropriated the rents of the four flats of Damiano, due to which Court Receiver has been appointed in that Suit and the rents are collected by the Court Receiver thereafter. None can challenge the decision of the deceased. Indeed as a ::: Downloaded on - 09/06/2013 13:51:27 ::: 60 pragmatic man, he must be taken to have allotted those flats in Damiano to Eugene for a reason able price he wanted his Executors to put in such a contingency upon the bequest of the plot of land where Damiano was constr ucted. It is not for this Court to question the act of the deceased during his life time. The Court must accept Marie's enunciation of her father's character as a pragmatic man, which itself lends credence to his will.

102. The disclaimer of the onerous bequests by Anthony and Cyril is, therefore, established during the life time of the deceased. The deceased himself accepted the situation of renu nciation and acted upon it. It would be beneficial to consider the common law relating to Disclaimer of onerous gifts under Wills at this junct ure to appreciate the reason for the stiff defence to the Will Exhibit- A-1 . Theobald on Wills twelfth Edition, 19 6 3 in Chapter 15, paragraph 372 at page 116 sets out the effect of renu nciation of benefits under a Will thus :

"the lega t e e of a resid u e or of proper t given as one aggreg a t e thing canno t reject so much of the resi d u e or proper t y as is onerous. He mus t tak e all or none. Thus the lega t e e of a leaseh ol d house toget h e r wit h its conten t s cannot discl a i m the house and Ritain the ::: Downloaded on - 09/06/2013 13:51:27 ::: 61 conten t s ."

"Such an intent i on has been inferre d from the fact tha t the tes t a t o r kne w tha t a lease hol d house was underle t at a rent not sufficien t to produce the hea d rent, and accor d i n g l y the legat e e of the house was held bound to ta k e it, if he took the other benefit s given by the Will."

"If a legat e e renounce s a benefi t under a will he can retr ac t his renunci a t i o n at any time, provi d e d no one has alter e d his posi t io n in relian c e on the renunci a t i o n."

103. This rule governing bequests has even been illustrated in Ingpen on Execut ors and Administrators, 190 8 Edition, Chapter 33 at page 420 thus :

                      "If,      however,          onerous            proper t y          and
               benefici al     proper t y       are includ e d           in the sam e

gift, prim a facie the lega t e e canno t discl a i m the onerous and acce p t the benefici a l, he mus t tak e the whole gift or none".

"This pri m a facie rule may be rebut t e d if ::: Downloaded on - 09/06/2013 13:51:27 ::: 62 the Will manife s t s a sufficien t inten t io n of the tes t a t o r to the contr a r y ."

"Where a test a t o r gave all his real and person a l est a t e , wit ho u t reference to specific par t s, to trus t e e s upon trus t for a tena n t for life and rema i n d e r m a n , and one est a t e inclu de d in the gift wa s unincu m b e r e d and anot he r incumbe re d , it was held tha t the equit a b l e tenan t forig life could not acce p t the unincu m b er e d est a t e and refuse the other, and tha t for the purpo s e of the cons t r u c t i o n of the Will it mus t be trea t e d as one aggreg a t e proper t y given to her for her life, and the intere s t upon the charge s on any par t ought to be pai d out of the aggreg a t e incom e of the Whole"

Further, on Election of bequest s under the same instru m e n t at page 421 :

Sectio n 3 - Of Election:

"The found a t i o n of election is tha t no one shall clai m under and in opposi t i o n to the sam e instr u m e n t . The main princi p l e is tha t there is an obliga t i o n on him who ta k e s under a ::: Downloaded on - 09/06/2013 13:51:27 ::: 63 Will or other instr u m e n t to give full effect to tha t inst ru m e n t under whic h he ta k e s a benefit."

Accordingly under Section 122 of the Indian Successions Act, recited above, the choice falls upon the legatee - he takes nothing by it unless he accepts it fully. Cyril and Anthony, admittedly having not expended any cost of constr uction took nothing under the said bequest made by their pragmatic father and allowed the bequest to fail and be gifted to the other child chosen by the deceased to effectuate it. Irene undertook the obligation and took the gift during the life-time of the deceased from himself. Eugene allowed his joint shareholding to be sold, took possession of the 2 flats in Damiano from the deceased and leased them.

104. (b) In paragrap h 11 of her examination- in- chief she has painted her father's picture as of a stau nc h Catholic . He calls upon specified children to perform certain masses called Requiem Masses. A reading of the Will leaves the first impression that it is made by stau n c h Catholic, though she has deposed that if any one transgressed his principles he was unforgiving. That would have been the most uncat holic trait. In para 35 of her cross examination, she has accepted that her father was very kind and forgiving.

::: Downloaded on - 09/06/2013 13:51:27 ::: 64

105. The evidence of Eugene brings himself out as being an anthet he sis of Catholicism. His evidence shows that he never attended almost any family funeral or weddings. He never even saw the tombstone of his mother, nor performed any Requiem Masses. Eugene was a characteristic non-

believer. It leaves one to wonder why Eugene would seek to propou nd the Will in which he frankly denies having done anything that his father directed his children to do in the Will. If the Will propou n ded by Eugene was really not the Will of his father and if Eugene was to fabricate the Will, (much like Roger as mentioned in the last sentence of his letter dated 24 th September, 1966 extracted herinabove) he would be expected to have produced a Will without the clause relating to the Requiem Masses which he has been specifically called upon to perform and which he admittedly never did.

106. ( c ) In para 12 of her examination- in- chief Marie has deposed that she did not know " any Solicitor Jayakar ". This evidence is feigned on purpose. Paragrap h s 33 and 34 of Marie's cross examination show the execution of the Deed of Gift in Mr. Jayakar's office as a nat ur al accepta nce of that fact. A reading of that evidence shows that Marie knew, Mr. Jayak ar. She has deposed about ::: Downloaded on - 09/06/2013 13:51:27 ::: 65 the signat u re put by Mr.Jayaka r in the execution clause.

Had she not known Mr. Jayakar she could not have and would not have identified his signat u re as she did.

107. (d) She has stated in paragrap h 17 of her examination- in- chief that the Will has not been written in conventional form and hence could not have been her father's Will since her father was a trained Lawyer and executor of several other Wills. The requirement of form of Wills is laid down in Williams on Wills Chapter 8, ig Fourth Edition, 197 4 at page 64 runs thus:

"No Particul a r Form Essent i a l . A will may be in any form provi de d it is in writi ng, (ii) it is execu t e d in accor d a n c e wit h the sta t u t o r provision s and (iii) it is clear tha t the dece a s e d inten d e d tha t the docu m e n t shoul d opera t e after his dea t h . Such inten t i o n mus t be fixed and final and may be prove d by extrin s i c evidence."

108. The only stat utory requireme nt of a Will is that it is made with free Will by the deceased and attested by two witnesses. As a trained Lawyer her father would have known that the Will requires no other legal compulsions. Hence, though the Will, may "read from like a prayer" it is a valid ::: Downloaded on - 09/06/2013 13:51:27 ::: 66 Will in law.

109. (e) She has contended that there is no reference in the Will to her sister who was the first born daughter of the deceased one Mary Philomina , who died 25 days after she was born. There is absolutely no subst a n tiating evidence with regard to this fact. It is argued on her behalf that had the Will been genuine, the Requiem Masses which were to be held for the deceased brother Joseph would have also been directed to be held for Mary and that because Mary had expired many years ago, Eugene, who fabricated the Will, forgot to mention about the Requiem Masses for her. It may be mentioned that Cyril's Caveat does not make out the case of fabrication, though it does state that the deceased did not leave any Will. Paragrap h 38 of her cross examination shows that Requiem Masses are held so that the sins of those deceased persons are forgiven. A child of 25 days who could never have sinned would, therefore, never need requiem Masses. The absence of her name in the Will would, therefore, stand the deceased's reasoning. The strong Catholicism of the deceased is maintained upon directions to the four children specifically set out in the Will with regard to the two sets of Requiem Masses. The fact that Eugene did not know about any such child makes no difference. The deceased had married twice. Mary Philomena is stated to be ::: Downloaded on - 09/06/2013 13:51:27 ::: 67 his first born child. That would be by his first wife. There were many children thereafter. Eugene was the child of the second wife. He is not expected to remember the first born daughter who was not mentioned since her short life ended.

110. (f) In paragrap h 17 of her examination- in- chief Marie has further deposed that the paddy field in Goa was never owned by her father , but by his brother, who was allowed to live in the house in Aldona. In paragrap h 37 of her cross examination she has disowned the fact of ownership of the paddy field in Salegaon. She deposed that that was her mother's property. Upon such a case she was confronted with a letter dated 19 th March, 1974 addressed to the deceased showing that the paddy field was sold in 1974 for Rs.760 / - . She could not state anything about the letter after having read it. She, however, explained that she could not say whether it was the paddy filed at Salegaon, which was referred to in her father's Will or the paddy filed at Aldona.

The letter specifically shows that it was written from Salegaon and there is no reference to Aldona. Conseque ntly her evidence in paragrap h 17 of her examination- in- chief relating to the paddy filed in Aldona is of little significance. The bequest relating to the paddy field in Goa is seen to be in Salegaon. The letter shows the sale of the field having been effected during the life time of the deceased, about a ::: Downloaded on - 09/06/2013 13:51:27 ::: 68 year prior to his death. In fact, it was from the income of the paddy field that Eugene and Francis were to perform the Requiem Masses. The paddy field being sold, and the income having stopped, the direction with regard to such Requiem Mases would remain at that.

111. (g) In paragrap h 18 of her evidence Marie has berated the Will as having been gramm atically incorrect . Mr. Andhyar ujina has fairly gave up that point.

112. (h) The deposition in paragrap h 20 of her examination- in- chief shows how no bequest would have been made by the deceased in favour of Lawrence . She has stated that the deceased was disappointed in Lawrence becau se he failed to be ordained Priest. Conseque ntly he was shu n n e d for the rest of his life. Paragrap h 38 of her cross examination shows that when Lawrence came for the last time in India he stayed with her and after that he stayed with her father and Eugene. Conseque n tly Lawrence could not have been shu n n e d. She has taken exception to the fact that there would have been no need to bequeat h a property to a son who was to be ordained Priest as he would be cared for by the Churc h. However, the deceased, while knowing his children, appears to have considered the contingency that ::: Downloaded on - 09/06/2013 13:51:28 ::: 69 Lawrence may not be ordained Priest. In such an eventu ality he made provision for that son at par with the other son Eugene equally placed; he leaving both these bachelor children the constr ucted house at Marie Ville together with its belongings. None can fault such decision as unna t u r al.

113. (i) It is contended, though not on record in the evidence, that a sinister co- incidence is exhibited in the death of Lawrence which is the only death shown by premonition in the Will. That is not so. Lawrence died in 1978, after the death of the deceased, just as Cyril, Francis and Anthony died. The only reference to the death of Lawrence is that if he died after he was ordained Priest, then Eugene would inherit the entire Marie Ville. In fact, Eugene did not, because Lawrence backed out of Priesthood. Upon such a contingency (which had taken place only months after the execution of the Will), Lawrence rather than being shu n n e d was to inherit half the family house, Marie Ville. It would have served Eugene well not to show such a clause in the Will that would take away half his inherita nce. Can he be derided as having put up a fake Will upon such clause disinheriting him by half of his own share ?

114. (j) In paragrap h 21 of her evidence she has deposed that ::: Downloaded on - 09/06/2013 13:51:28 ::: 70 Piedade and Ernest Vaz could never have been made attesting witnesses . They were the poor relatives of the deceased. They were treated as servant s. In para 27 of her evidence during her cross- examination, however, she has deposed that Piedade did not serve his father or cook for him. She has deposed that Piedade was illiterate in English (a term contrary to English gramma r) and becau se she was fluent in Konkani she was not knowing the language of the Will, she could not attest it. Section 67 of the Indian Succe s si o n Act deals with gift to attes ti n g witnes s thus:

"67. Effect of gift to att e s t i n g witne s s - A Will shall not be dee me d to be insuffici en t l y atte s t e d by reason of any benefi t thereby given either by way of beques t or by way of appoi n t m e n t to any person at t e s t i n g it, or to his or her wife or husba n d; but the beques t or appoi n t m e n t shal l be void so far as concern s the person so at t e s t i n g or the wife or husba n d of such person or any person clai m i n g under either of them."

Williams on Wills - Fourth Edition, 197 4 at page 83 deals with attesting witnesses thus:

"No person is, therefore, too inca p a b l e of credi t to prove its execut io n, but care shoul d be ta k e n in ::: Downloaded on - 09/06/2013 13:51:28 ::: 71 the selec t i on of witne s s e s to choose person s of good credi t and know n hones t y and, if possible, person s who could have no likelihoo d of being benefici a r i e s under the will or on an intes t a c y"

115. It may be remembered that notwithst a n di ng the superiority complex, the act of the deceased would be required to be seen for choosing his attesting witnesses. He cannot make any of his beneficiaries attesting witnesses. Being a "trained Lawyer" he must be taken to have known the basics. Each of his children were the beneficiaries under his Will. Hence, none of them could have attested his Will. The Attesting witnesses are required not to be fluent in the language or to underst a n d the nua nces of the Legacies.

They have to merely witness the factum of the execution of the Will. Such attesting requires no barriers in law. These were the only relatives of the deceased close by, who could be sum mo ned to attest. They would be more than willing to attest. They were known to the deceased. They require no further eligibility criteria to be met. Roger her husba n d , has referred to these witnesses as relatives in the penultimate made sentence of his letter dated 24 th September, 1966 sent to Mr. M.V. Jayak ar, Exhibit- B in evidence. Since their sur na m e s were different, Roger clarified that those witnesses were the relatives. The pointer is to none other than Piedade ::: Downloaded on - 09/06/2013 13:51:28 ::: 72 and Ernest Vaz.

116. (k) In para 16 of her evidence, she has suggested that her father had made another Will and that the Will has been untr acea ble. She has not sought to probate any such Will under Section 238 of the Indian Succession Act. This evidence is to digress from her initial admission of the Will, in her Advocate's letter dated 28 th August, 1980 to Cyril, Eugene and Irene, part of Exhibit- I in evidence, calling upon them to produce the Will.

117. (l) In the penultimate para of her examination- in- chief, she has sought to throw mud upon Eugene. For the first time she has alleged that a cupboar d was broken open and certain docume nt s were spirited away, a fact reported to her by Ernest Vaz as having been done by Eugene. This evidence is entirely inadmissible being hearsay. Besides, her cross examination has revealed in paragrap h 30 that she had not lodged any complaint with regard to the incident. She has played down the incident by deposing that the cupboard was not broken open but was open as she saw it. She admitted that she has not mentioned about that incident in the Administration Suit No.1865 of 1985 filed by her and mentioned about it for the first time in her examination- in- chief after 33 years. It may be mentioned that the incident is ::: Downloaded on - 09/06/2013 13:51:28 ::: 73 neither capable of remembra nce nor deserves to be remembered in view of the total non action upon it.

118. (m) Similarly an attempt to slander Eugene is made in his cross- examination. It is suggested that Eugene had labour disputes in his business which the deceased disapproved. Eugene's cross- examination has shown his business being closed because of labour disputes in about 1990, well after the death of his father and he having had nothing to do with Eugene's business during his life time.

119. These are the incidents enumera ted by her in a bid to show that the Will propou n de d by Eugene was not executed by the father and could never have been.

120. It can be seen that Marie has not kept a straight bat. None of the exceptions taken by Marie succeed in showing that the Will propou nded by Eugene could not have been executed by the deceased. Despite the most strenuo u s effort by Marie, who has not even filed the Caveat, absolutely no circumst a n ce which can even be remotely stated to be suspicious, is shown.

121. The Will such as that of the deceased in this case would raise a presu m p tion of its due execution, once the holograph ::: Downloaded on - 09/06/2013 13:51:28 ::: 74 copy is proved to have been made by Roger. Williams on Wills fourth Edition 197 4 in Chapter 11, 197 4 at page 85 deals with presu m p tion of Due Execution of Wills thus :

"The Presum p t i o n . If a Will, on the face of it, appe a r s to be duly execu t e d , the presu m p t i o n is in favour of due execu t i on, appl y i n g the princi pl e omni a prae s u m u n t u r rite esse act a .

The force of the presu m p t i o n varies wit h the circum s t a n c e s .

                                ig      If the will is entirel y regul ar in
               form,     it   is    very   strong,     but      if the        form        is
               irregul a r     and      unusu a l    the     maxi m         does       not
                              
               appl y with the sa me force.             If the wit ne s s e s are

entirel y ignor an t of the det a i l s of the execu ti o n the presu m p t i o n is the sam e."

Marie has not led any positive and reliable evidence to rebut the presu m p tion. Her conjectures cannot take the place of rebuttal.

122. Marie herself knew about the Will. She must be taken to have known about the nua nces and the intricacies of the Will. She acted upon the Will. She got the bequest to herself accelerated. She effectively performed the condition that was put upon Francis, Agnes and her to effectuate the bequest. It ::: Downloaded on - 09/06/2013 13:51:28 ::: 75 is impossible to conclude that she did not have the Will or did not act upon it. After Eugene's cross- examination was complete, he produced a handwritten letter dated 27.1.1981 on four sides of two papers with an envelope of the same date written by Marie to Rena, wife of Lawrence in Como, Western Australia. He deposed that Rena sent him the letter through courier. Eugene also produced a copy of the said letter notarized in Australia. He stated to Court that he also had the original notarized copy of the said letter notarized in Australia and sent to him by Rena. He deposed that he was initially sent the notarized letter. He was advised to have the original as the notarized letter could not be proved in evidence. He, therefore, called for and obtained the original letter by Post from Rena. He was directed to produce the envelope in which it was received by him. On the next day, he produced the original envelope sent to him from Australia and bearing a postal stamp in Australian dollars. He also produced the earlier envelope sent to him from Australia.

Similarly he received the original notarized copy. He identified the handwriting of Marie. - In fact, Marie has admitted writing the letter. - The letter having been proved by direct evidence is marked Exhibit- L in evidence. It must be read in evidence. Marie set out in that letter to Rena the family disputes that had arisen and how Rena's assista nce was required. The letter begins thus:-

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" My dearest Rena, This is an SOS. You have to sign where the `X' is, and ask a Notary Public to sign where the `O' is - as a witness that your signat ure is yours !! To write as briefly and as clearly as possible

- Papa's Will cannot be found - though we are all sure he made one ....."

123. She then set out the dispute and the receipt of the shares claimed by the beneficiaries. Further she has mentioned about her own share thus :-

"Francis, Agnes and I have received ours but the others haven't yet ....."

124. The letter is clear to the core. It shows three importa nt aspects. It shows the admission that the deceased did make a Will. It shows that the Will cannot be found and hence, a Petition for Letters of Administration with the copy of the Will annexed can be granted and it shows that part bequest has been made and satisfied so that at- least three of the beneficiaries have received their share under the Will. This letter goes contrary to the case in the caveat which Marie deposed to support. A case for judgment on Admission ::: Downloaded on - 09/06/2013 13:51:28 ::: 77 under the provision of Order XII Rule 6 of the C.P.C is itself made out on such a letter, but for the fact that Marie is not the Caveator, though she is one of the Plaintiffs in the Administration Suit. Be that what it may, the entire case on merits is considered.

125. Marie was shown the said letter showing the portion that the father's Will could not be found. She explained that because Rena had the threat of cancer and wanted money she told her that and because the Will was not there she could not say what was her share. This is yet another attempt at being duplicitous. A reading of the letter shows nothing of the kind. It is written by Marie without any earlier corresponde nce after the filing of the Suit to obtain a Vakalatn a m a of Rena who was Defenda nt No.3 in Administration Suit No.1865 of 1980 to show that she does not contest that Suit. In an attempt to show the represent ation of Rena, Marie has made the aforesaid three admissions which go to the root of the dispute in this case.

126. The evidence of Cyril's widow Rita as DW1, is also to support Cyril's Caveat. Her evidence requires to be similarly mars h alled. She served as a teacher. She married on 23 rd April 1960. She lived in Marie Ville up to 1963 or 1964 - as per Eugene's evidence she left along with Cyril and her ::: Downloaded on - 09/06/2013 13:51:28 ::: 78 family due to disputes and fights which erupted in the family in August 1963. According to her, she left on 12 th February 1964. She went to reside in the Company accommodation of her husba n d at Malabar Hill, Mumbai. Her evidence shows her eye on Marie Ville, the property of her father- in- law, since even prior to her marriage. Her evidence in paragrap 8 of her examination- in- chief shows that her husba n d Cyril stayed at Marie Ville becau se he was close to his father and because he was to inherit the first floor of Marie Ville while Anthony was to inherit the ground floor.

ig How she came to know about this inherita nce well before it ever came to be has been explained in paragrap h 10 of her examination- in- chief. She has narrated the incident well before her marriage. If her embroidery is to be believed, the incident shows the deceased, her father- in- law, having met her father in her father's house in Colaba to discus s the details of her marriage in February 1960 when he brought a typed and executed the Will with him and showed it to her father. What is made out to be a carrot, she saw while sitting on the divan by the side of her father. She has no legal knowledge, unlike her father- in- law, and hence, her tale lacks any legal backing. No Will or Testame nt requires to be shown as proof of title or prowess. It is necessarily revocable and speaks from the date of the death of the deceased. Even her evidence in paragrap h 24 during her cross- examination ::: Downloaded on - 09/06/2013 13:51:28 ::: 79 shows her longing for inheriting Marie Ville, of course, through her husba n d . When being cross- examined in reference to her floral incident mentioned in Para- 10 of her examination- in- chief, she answered that Cyril was aware of that Will and volunteered to state that his mother had told him about it becau se he was to go to Imperial College, London and she had "begged him not to go becaus e then his father would give him Marie Ville." She, however, stated that that was in 1956 when he had to go to London for further studies after completing the Engineering ig Course. This evidence is directly contrary to the pleading of Cyril. She was confronted with the Affidavit of Cyril in respect of the Caveat stating that the deceased has not "left" any Will. She sought to explain away that specific case by stating that Cyril had not stated that the deceased had not "made" any Will. No repartee or wit can take the place of trut h. In fact, she volunteered to state in that paragrap h that the deceased must have made a bequest but nothing could be found. She deposed that Cyril had not taken any steps to get that Will probated becau se he had not found the Will. That was the anti- climax of the initial romance with Marie Ville, the effect of which has lingered since. So much for the opposition by Cyril and his widow as well as Marie to the copy of the Will produced by the Petitioner and so much for their case of another Will that never was.

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127. The case of the parties is set out in the pleadings. Each party must adhere to that case. The evidence that is required to be led by the party is to prove the case made out in the pleadings. The only case of the Caveator Cyril is that the deceased had not left any Will. The evidence of Marie as well as Rita shows that the deceased had left a Will. That evidence is contrary to the Caveator's case on the pleadings.

Though the evidence led by these witnesses has been considered as aforesaid, the worth of the evidence can be judged from the fact that it is directly contrary to their own pleadings. Such evidence about any other Will left by the deceased cannot be considered - aside from the fact that the evidence of Rita speaks of an earlier Will which must be taken to be impliedly revoked by the execution of the later Will of the deceased.

128. Since the case of Siddik Mahomed Shah vs. Mt. Saran & ors,. A.I.R. 19 3 0 Privy Council 57 , it has been held that where a claim has never been made in the defence, no amou nt of evidence can be looked into upon such a plea.

Conseque n tly, in this case, the consideration of any other Will, hitherto not sought to be proved, is hardly required.

129. Upon such underpinni ng the opposition to the Will made ::: Downloaded on - 09/06/2013 13:51:28 ::: 81 by this witness has to be tested. The Will is shown to be dated 12 th Februa ry 1963 in the execution clause written in the handwriting of Roger as detailed above. Rita has deposed that the Will could have never been executed on that date. A strange co- incidence is of her daughter's birth, evidenced in her Baptism Certificate Exhibit- 1 in evidence, on 11.2.1961. Her 2 nd birth day was on 11.2.1963. Rita's evidence shows that that day was a festive day being the day of the Feast of Our Lady of Lourdes. Though Rita was blessed with having a child on such an auspicious day, she has justified that she could not celebrate her birthd ay on that date due to the culmination of the 9 th day mass and prayers that would take place in the Church. One would not know how a joyous occasion such as a child's birth date could not be best celebrated on such auspicious day. What must be seen is that since she was born on 11.2.1961, her first birthday also fell on the same auspicious day and it is common knowledge that people celebrate the first birthday of the child more extensively than the second. Nevertheless her testimony shows the second birthday having been etched in her memory. In paragrap h 17 of her evidence she has painted the picture of the birth day party which makes it out to be a common birthday party celebrated across all households. It is a birthday party for children at 4 p.m. with the usual festivities and menu. There is nothing which ::: Downloaded on - 09/06/2013 13:51:28 ::: 82 could be so uniquely different in the picture of the party that emerges from her evidence. It is her evidence that for that birthday she was busy making preparation during the day and for the party which had to start at 4 p.m. her father- in- law left home at 8 a.m. to avoid the din of the party. She has, therefore, concluded that he could not have executed his Will on that day. The numero us embellishme nt s that have been a part of her testimony for that otherwise commonplace event show the details of her birthday cake and the theme of the party. She has also stated about a family heirloom which was given by the deceased to her daughter as the 2nd birthday present in the morning at 8 a.m. when he left home though he promised that he would come home at the time of the cutting of the cake. Her evidence in Para- 17 shows that her father- in- law left home in this fashion on every such birth day -

"My fat her- in-law used to swee t l y tak e his leave from the chao s of the prep a r a t i o n of Kids' par t ie s ....."

130. She is shown to have three children Rena, Monisha and Maya. She lived in Marie Ville for four years. Her father- in-

law must have left the house in this fashion quite a few times. But she remember s with photograp hic memory how he left only on that day which was the day of the second birth day party - not the first- of one of her daughters.

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131. Her further evidence in paragrap h 18 that Piedade and Ernest Vaz who are the attesting witnesses of the Will were otherwise busy in arranging for her birthday party so that they could not have put their pen to paper in attesting the Will written by the deceased goes the same way. It may be mentioned that the Will could have been prepared on an earlier day and could have been executed on 12 th Febru ary.

It could have been executed well before the deceased left in the morning, if he really did leave the house then. The execution of the Will would need but a few minutes. The attesting witnesses do not require to know the content s of the Will or how it was executed. All that they are required to see is that the deceased signed the Will and they signed thereafter. Conseque n tly, even an uneducated or an ignorant attesting witness is as eligible to be one as a qualified professional. This basic requirement of law must have been present to the mind of the deceased since he was a " trained lawyer " . There is nothing to show or suggest that a Will could not have been executed by him on 12 th Febru ary 1963.

132. 12 th February appears to be a Red Letter Day in her calendar. On 12 th Februa ry 1963, the deceased is stated to have made the Will bequeat hing, inter alia, Marie Ville which was her prize object. As per her evidence, 12 th February ::: Downloaded on - 09/06/2013 13:51:28 ::: 84 1963 was her daughter Rena's unforgettable second birthday. 12 th Febru ary 1964 has also been an eventful day though not so memorable. In paragrap h 11 of her examination- in- chief she has stated that she left Marie Ville on 12 th Febru ary 1964. Perhaps she did not celebrate her daughter's 3 rd birthd ay. She has not deposed that that birthday was celebrated whilst travelling. The deceased did not walk out of the house to escape the Birthday party as he "used to Sweetly" do - They prodigal son walked out instead. She has, of course, not given a pictorial image of how she moved out. She started living in the Company flat at Malabar Hill, Mumbai thereafter. Upon the credibility that she sought to inspire, based upon her vivid account of the otherwise mun da ne event, the factum of Cyril and she leaving Marie Ville, in which they previously resided and which they desired as their bequest, becomes importa nt to consider. Paragrap h 8 of the examination- in- chief of Eugene shows that there were disputes between Cyril and his father.

In August 1963, a major argume nt broke out. The deceased asked Cyril to leave Marie Ville. Cyril left Marie Ville in or about 1963. Paragrap h 19 of the examination- in- chief of Marie shows that it is true that subseq ue n tly Cyril and his family had to leave Marie Ville as he was transferred by reason of his employment. That transfer was in the other part of Mumbai itself and hence, there was no constrai nt to ::: Downloaded on - 09/06/2013 13:51:28 ::: 85 leave the family house if it was otherwise not required.

133. Even if one accepts, the date of leaving given by Rita, as Eugene may not be taken to remember the precise date of Cyril having left Marie Ville (in August 1963), the fact remains that though living in Mumbai and working in Mumbai, Cyril did leave Marie Ville to live in Malabar Hill at- least in 1964. No son would be asked to leave his father's ancestral house due to a single family fight or single major argume nt. It would be a culmination of certain events which would take place earlier. A reading of the Will demonst ra tes this aspect. Whereas the deceased has bequeat hed one open plot to his three children Marie, Francis and Agnes without the condition mentioned in the bequest of the other plot which is bequeat he d to his other three children Anthony, Cyril and Irene the deceased has made a conditional bequest to Anthony, Cyril and Irene. The condition is for them to build the house on the said plot and if any of them "do not want to join in the building", then his share is to be given to another child who would then need it most at a reasona ble price. This conditional bequest shows the streak of a certain doubt which the deceased may have had that one or all of his three children Cyril, Agnes and Irene may not join in the building of the house on the plot. Cyril indeed has not spent any amou nt for the constr uction of the building Damiano on ::: Downloaded on - 09/06/2013 13:51:28 ::: 86 that plot. This is despite the fact that he was in easy financial circum st a n ce s being, as per the testimony of his widow Rita, an Engineer by profession who worked in Burma h Shell and built the refineries and was in a senior corporate position to have been allotted a corporate apartme n t in one of the posh areas of Mumbai. This is also despite the fact, if Rita is to be believed, that they visited Marie Villa often. Why then did he not join in the constr uction of Damiano is anybody's guess. This climax with which we are left with regard to Cyril's exile from the family home reflects upon the credibility of the testimony of his widow that even prior to his marriage his father made and dangled a Will in which he bequeat he d the entire of the 1 st floor where he himself lived with other children to Cyril who was one of his eight children. The fact that no such Will came to be attempted to be produced or proved, is testimony to the fact that it indeed never existed. The test of reliability of Rita as a witness who deposed the truth on oath would be essentially in the acceptance or rejection of her evidence as a whole.

134. Her immediate further evidence is that her father- in- law bequeat hed the ground floor of Marie Ville to Anthony, who has not been heard of before as since in the family home. Since 1960 when Rita married, Marie was in Marie Ville. She ::: Downloaded on - 09/06/2013 13:51:29 ::: 87 lived there till about 1970 when she moved to her flats in Cosmos. Rita's evidence shows that she knew about the testame n t of the father- in- law before 1960. How she even knew Anthony then is not stated. He was admittedly living out of Mumbai. Neither Rita nor Marie have deposed about he living in Mumbai. Whyever will the deceased bequeat the ground- floor in Marie Ville to him is completely esoteric. Eugene's evidence shows the deceased being grossly disappointed in Anthony, amongst all his children, he having taken monies from the deceased to pay off his creditors. The conditional bequest to Anthony shows the streak of doubt in Anthony. Such evidence lends support to the specific kind of bequest to Anthony as seen in the Will rather than an inexplicable bequest in the family house which Anthony never made his home.

135. Her evidence with regard to the Requiem Masses as also the Rosary is much in the same light - an attempt at stating just anything that would suit her in complete disregard for trut h as also reason.

136. The Rosary has not been bequeat hed to anyone of the children in particular. The last remark in the Will relating to the Rosary is ! "This is the best legac y to the m. I bless them all" . Yet Rita has deposed that her daughter has the ::: Downloaded on - 09/06/2013 13:51:29 ::: 88 Rosary. The evidence is incompre he n sible. How could her daughter chance upon it or capture it ? Where was she to receive it ? Where were the others to be excluded from it ?

So what if she has it ? Even in this innocuou s aspect Eugene's evidence stands out for its trut hful nes s. Relating to the Rosary, he has testified that his father had not given the Rosary to anyone and he does not know where it is.

137. Similarly Marie and Lawrence were to perform the Requiem masses from the money separately earmarked for that purpose. Rita has deposed that her daughter performs them instead. Why would that be so ? Why did Marie not perform them ?

138. A reading of the evidence of Rita leaves an indelible impression of it being so embellished in an attempt to destroy the Will of her father- in- law that it destroys her credibility completely. Though one would hesitate to call a lady a liar, the overall impression in the Affidavit of Rita, which is directly contrary to the Caveat of her husba n d which she has sought to defend exhibits her guile and artifice.

139. The entire oral evidence of the two witnesses of the Petitioners and the two witnesses of the Caveator must, ::: Downloaded on - 09/06/2013 13:51:29 ::: 89 therefore, be collated to accept or reject one testimony to the exclusion of the other in determining whether the deceased indeed left the Will dated 12 th Februa ry 1963 as sought to be propou nded by the Petitioners and whether the Petitioners have proved such a Will by producing the carbon copy of the handwritten verbatim copy of the said Will which has since been lost or mislaid or perhaps even destroyed by wrong not being the act of the deceased.

140. Eugene's evidence shows a portrait of his father having a family of eight children whom he supported and cared for and to whom he was expected to bequeat h equitably. Such that "we are all benefiting from the Will" (para 47 of his cross- examination). It shows the preparation of the Will with its description and how it came to be resurrected in its copy.

It shows further how it came to be acted upon during the life-time of the deceased, at- least partly, so that the other part of the Will could evoke and inspire accepta nce. It also shows the disputes between the members of the large family which are bound to arise unless the Will of the deceased is for all to see and all abide by it. It shows how Eugene obtained the copy of the original Will. His evidence shows a unique insta nce of circum st a n ti al evidence of proof of a lost and mislaid Will. His cross- examination shows how he withstood the insinu a tions of having produced the Will, that ::: Downloaded on - 09/06/2013 13:51:29 ::: 90 was non- existent.

141. Eugene's Affidavit of evidence does show that he came to be aware of the Will only when Marie gave him the File containing the corresponde nce of M/s.M.V. Jayakar & Company. That part of the evidence indeed present s an anomaly. He had read the Will on the date of its execution and has vividly described that docume nt, memorably unique as it was. Eugene knew about the action on the Will as there was a flurry of activity initially in the constr uction of Cosmos building by Marie and Roger and later Damiano building by the deceased himself as per the Will itself. Eugene has been sought to be cross- examined upon his memory and recollection. Eugene has not recollected almost anything other than the Will. However, the Will, which has been the subject- matter of much dispute since the death of the deceased, was present to his memory very vividly by the time Eugene stood the test of cross- examination. Eugene recited the format of the Will which is unique in this case and there is no reason to disbelieve, merely becau se he did not remember or memorize any other such documen t s, that the Will, outsta n di ng as it is, could have been forgotten by Eugene.

142. In fact, even if Eugene's evidence with regard to how he ::: Downloaded on - 09/06/2013 13:51:29 ::: 91 came upon the Will in a book kept on a table in the verand a of Marie Ville is discounted or ignored, the very copy of the Will and the circum st a n ti al evidence of acting upon the Will proves the Will in this case.

143. Marie has, in fact, clarified the relations hip of her husb a n d Roger with the deceased so as to show how the contempor a neo u s docume nt s produced by Eugene were actually got prepared culminating into the final docume n t s admittedly executed by her and others showing acceleration of the bequest in terms of the Will. Her detailed account of how the Will could not have been executed by various reasons has resulted in nothing. Each of her illustrations has been proved otherwise. Conseque ntly, her seminal case of denial has been shown to be false.

144. Rita's evidence leaves a clear mark of incredibility thank s to her adorning various incidents. Her evidence shows an effort to prove the case contrary to the case of the Caveator and in which also she has met with no success. It leaves her, a teacher by profession, as an unreliable witness in Court.

145. The evidence of the independen t witness Mr.Jayakar, the present Solicitor of the Firm, which dealt with the Will and ::: Downloaded on - 09/06/2013 13:51:29 ::: 92 effectuated a part of the bequest s thereu n der shows the proof of importan t parts of the documen t a ry evidence which lends the greatest support to the oral evidence of Eugene.

146. It has to be seen whether the oral evidence of Eugene and the Solicitor, is sufficient to prove the Will. Under Secti o n 68 of the Indian Eviden c e Act , the Will being a docume nt in law required to be attested is required to be proved by the evidence of atleast one of the attesting witnesses, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence.

In this case, both Piedade and Ernest Vaz have expired and it has not been strongly contended on behalf of the Caveator that the Will cannot be proved for want of the evidence of the attesting witnesses. The usual practice, sound as it is, for the proof of Wills is evidenced by at- least one of the two attesting witnesses of the execution of the Will. However, when both the attesting witnesses have died such as in this case; the Will can be proved as any other docume nt. In the case of Balwant vs. Mainabai, AIR 199 1 M.P. 11 , it has been shown how a Will can be proved as any other document when all the attesting witnesses have died.

147. Williams on Wills at page 68 of the fourth Edition, 19 7 4 makes a reference to Roman Law under which ::: Downloaded on - 09/06/2013 13:51:29 ::: 93 unattested holograph Wills were valid, " the fact tha t the Will is in the han d w r i t i n g of the test a t o r ta k i n g the place of the neces s i t y for the form ali t i e s of atte s t a t i o n " .

The aut hor has referred to such Wills being accepted in Scotland and most parts of Canada, under the commonwealth Jurisdictions. The reasoning is plain to see.

Only a signat ur e on an otherwise typewritten or printed Will would have to be proved as that of the Testator by two attesting witnesses. The handwriting on an entire page could be proved even otherwise.

                              ig                 The proof of a holograph
    copy of holograph Will, therefore, goes further.                The proof of

such copy would, even otherwise, obviate the necessity of proof by the direct evidence of the attesting witnesses. In the case of Issac Moore (190 1) LR Probate Division 44 probate was granted of a holograph Will, the whole portion of which was earlier written on the first page with only the signatu re of the Testator witnessed and attested by the attesting witness on the reverse in the presence of the Testator even though the witness did not see the writing on the first page. Similarly in Harnett Vs. Elliot 195 8 (2) AER 1 a holograph Will on a single sheet of paper bequeat hi ng the entire estate to 2 cousins with 2 names written upside down on the reverse was also granted probate on a reasoning that those names, though their identity was not established, could have been there only for the purpose of attestation.

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148. One wonders why, if Eugene had to put up a will not executed by his father but the one forged by him, he would put up a Will such as this. One also wonders why Eugene would give evidence that he got the Will from the entire File that Marie gave him if it was not so. It would have been easier for Eugene to show the bequest s, albeit to all children, without the onerous part of the directions contained in the Will. Eugene lived with his father for his entire life; he lived alone with his father for 11 years.

ig He was in possession of the entire 1 st floor of Marie Ville at the time of death of the deceased. The document s contained in the File given by Marie, which have been backed by the independe n t professional witness, could have been simpliciter produced by Eugene from his house, if they were. It would have saved him the bother to ask for them from Marie. Ultimately from whichever custody the docume n t s came, they have to be read in evidence. They support Eugene's case and the deceased's Will to the T.

149. This is a case of the Letters of Administration with the copy of the lost Will under Section 237 of the Indian Evidence Act. Probate /Letter s of Administration of such a Will could be granted by the Court upon complete satisfaction of the proof that the Will was lost or mislaid or if ::: Downloaded on - 09/06/2013 13:51:29 ::: 95 it was destroyed by wrong, upon a carbon copy of the handwritten verbatim copy of the original Will. Since Marie got the Will in 1966 itself and since the verbatim handwritten copy remained with her Solicitors and was acted upon by both of them, it may have genuinely remained untr aced thereafter. The Will will not lose its efficacy because it was so mislaid. It would speak from the date of the death of the deceased. It was called upon to be produced from Eugene by his other siblings in the letters written by their Advocates annexed to the Administration Suit. It was then that the Will would be required to be found. The unique man ner in which it has been found in this case is borne out by the acts of the parties who dispute the finding itself.

150. Given that the bequest made to Marie was fulfilled during the life-time of the deceased and nothing else was bequeat hed to her, it stands to reason that Marie (of course similarly Agnes or Francis who have not disputed the Will) could have disputed it to claim the remainder of the estate on intestacy, which otherwise would not be bequeat hed to them. It, therefore, may even stand to reason that Marie destroyed it by wrong. Because of the fact that a handwritten verbatim copy of the Will is proved to have been made by her husba n d , Roger, the carbon copy of the said handwritten copy of the Will can be probated under Section ::: Downloaded on - 09/06/2013 13:51:29 ::: 96 237 of the Indian Evidence Act.

151. Furt her given that the conditional, onerous bequest was not effectuated in favour of Cyril and Anthony by virtue of their tacit disclaimer of the onerous condition resulting in failure of the legacy to them, under the manda te of Secti on 12 2 of the Indian Succe s s i o n Act , coupled with the accepta nce of the bequest by Irene and Eugene upon Irene joining in the constr uction and Eugene allowing his shares which stood jointly with the deceased being sold by the deceased (the act of sale by transfer of shares under Section 108 of the Companies Act, 1956 would necessitate both the joint holders signing the share transfer forms) and both of them having been allowed to collect rents from the lessees / licen sees of the flats during the life-time of the deceased himself, it stands to reason also that Rita would dispute the Will which gives her no benefits despite the equitable bequest s made thereu n de r as held in Chaman Lal Kapoor's case (supra).

152. The judgment s relied upon by Mr. Andhyar ujina showing proof of the Will by only parole evidence and suspicious circumst a n ce s need not be relied upon, being totally inapplicable to the present case.

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153. The evidence led in this case is sufficient to prove the carbon copy of the Will marked Exhibit- A-1 in the Testament a ry Petition propoun ded by Eugene and Irene.

Conseque n tly, Issue No.1,2, and 3 are answered in the affirmative.

154. Issue No.4 :- This issue follows from the above issues. Though not even pleaded, it is contended that the filing of this Petition is long delayed and even barred by limitation and hence, no Letters of Administration be issued.

155. The Petitioner expired on 29 th Ju ne 1975. Eugene obtained the Will from Marie in the File in 1975 itself. Corresponde nce between the parties prior to the filing of the Administration Suit shows that Eugene did not act upon the Will or produce it before the other siblings for five years until they sued him five years after the death of the Deceased. The evidence of Eugene shows that the Will was known to all. It was a matter of discus sion in the family. The actual acting upon the Will by the constr uction of two buildings Cosmos and Damiano shows that it was indeed the subject- matter of some activity. Nevertheless, the other clauses in the Will showing the other bequest s more specially the bequest of Marie Ville was required to be shown to all the heirs if Eugene were to claim Marie Ville as his bequest either singly ::: Downloaded on - 09/06/2013 13:51:29 ::: 98 or with Lawrence as per the condition in the Will.

156. However, after the filing of the Administration Suit in 1980, Eugene filed his Written Statemen t on 31.3.198 1. He produced the copy of the Will as Exhibit- 1 thereto. That Will has since been disputed. Hence, it was required to be probated. Until that time Eugene, as per his evidence, felt that there were really no disputes with regard to the Will for any beneficiary not to administer the estate in accorda nce with its terms since the Will was most equitable.

157. The fact remains that Eugene has filed the above Petition for Probate as late as on 15 th Jan u a ry 2002 and filed the Will marked Exhibit- A-1 to the Petition on 22 nd Jan u a ry 2002. This is indeed a period of much delay.

158. Certain income- tax matters (with which we are not concerned in this Petition) required the production of the Will, if any, it is contended on behalf of the Caveator that Eugene had stated in his income- tax retur ns that his father did not leave any Will. No such retur n s are produced and nothing turn s on that fact in this Petition. However, the Affidavit made by Eugene in reply to the Notice of Motion taken out by the Plaintiffs in Administration Suit No.1865 of 1980 makes a reference to the fact that Eugene had not ::: Downloaded on - 09/06/2013 13:51:29 ::: 99 remembered while filing the income- tax retur ns of the deceased that he had left a Will or not, though Eugene's evidence shows that his memory would not fail him in stating before any authority that his father had left the Will and the precise Will that he seeks to propou nd.

159. Eugene has stated in his evidence that he received the File from Marie in 1975 itself. Eugene has been cross-

examined on the steps that he may have taken to obtain the copy of the Will. He has sought to show how he made an effort to meet the executors in 1980 to obtain the copy of the Will albeit uns ucces sfully. His evidence in paragrap h 44 shows that he made limited search. He knew that the Will was with Marie. This evidence is with regard to the original Will. Hence, Eugene could not have searched in his house for the original Will. His evidence shows that the Court Receiver was appointed and his father's room came to be sealed. He did not make an effort to obtain any Will from Jayakar & Co. becau se be knew that Jayakar & Co. only had the verbatim handwritten copy of the Will made by Roger, carbon copy of which was given to him in the File by Marie.

He has explained the delay in filing the Petition. In paragrap h 47 of his cross- examination he has deposed that he did not take any particular steps to have the Will probated as soon as he had found the copy because he knew ::: Downloaded on - 09/06/2013 13:51:29 ::: 100 that all his siblings were going to honour the Will because they were all benefiting from the Will. He volunteered to state that between 1975 and 1980 none of his brothers and sisters asked him where the Will was and he did not tell them because they knew about it.

160. The fact remains that in this case a copy of the Will has been produced by Eugene in his Written Stateme nt filed in 1981. Inspection of that document could have been asked for and taken since 1981.

ig The Petition is indeed filed after more than two decades. However, this is not a case where a Petition is filed to propoun d the Will which was never earlier shown to the other heirs of the deceased who would be beneficiaries of his estate. It is the same Will produced two decades earlier that has been sought to be propoun ded later.

161. It has been argued by Mr.Andhyar ujina that the Petition is barred by the Law of Limitation.

162. It is contended that Article 137 of Sched ule- I of the Limitation Act would apply to a Probate Petition necessitating the Petition to be filed within 3 years of the death of the deceased. Parts I to X of the Schedule to the Limitation Act apply to Suits. This is contained in first division of the Schedule. The second division applies to ::: Downloaded on - 09/06/2013 13:51:29 ::: 101 Appeals. Parts I and II of the third division apply to applications. Under Section 2(l) of the Limitation Act, a Suit does not include an Appeal or an Application. Under Section 2(b), an Application includes a Petition. Conseque ntly, the Suit does not include a Petition also. The residuary Article 137 would not apply to a Petition.

163. Mr.Andhyar ujin a has drawn my attention to several judgment s considering the plea of limitation under Article 137 of the Limitation Act. In the case of The Kerala State Electrici t y Board vs. T.P. Kunhaliam m a, AIR 197 7 SC 28 2 , the question of limitation under any Petition or Application filed under the Telegraph Act came to be considered. Considering that a Petition was included in the term "Application" under Section 2(b) of the Limitation Act, it was held that the Petition filed under Section 10 of the Telegraph Act would be barred by limitation under Article

137. However, such a Petition is filed in a Civil Court.

Paragrap h 20 of the judgment refers to Section 10 of the Telegraph Act, under which the District Judge can determine the payment of compens ation. A Petition for Probate is not filed before a Civil Court. It is filed before the Testame nt a ry Court. That is the distinct jurisdiction of the High Court under Clause 34 of the Letters Patent which grants Testament a ry and Intestate Jurisdiction to the High Court of ::: Downloaded on - 09/06/2013 13:51:29 ::: 102 Judicat u re for the Presidency of Bombay. The Civil Suits filed in the High Court come under its original jurisdiction. This jurisdiction is under Clause 12 of the Letters Patent granting the civil jurisdiction of the High Court. Conseque n tly, a Petition filed under the Telegraph Act being a Petition filed in a Civil Court would be governed by Article

137. The same analogy cannot apply to a Testame nt a ry Petition.

164. In the case of Chiranjilal Shrilal Goenka vs. Jasjit Singh & ors., (199 3) 2 SCC 507 , it has been held that the Court of Probate has the exclusive jurisdiction for grant of probate and the Civil Court on its Original Side does not have such jurisdiction. In paragrap h 15 of that judgment drawing from the case of Iswardeo Narain Singh vs. Smt.Ka mta Devi, AIR 195 4 SC 280 , the extent of jurisdiction of the Court is considered. - The Court has to consider only whether the docume nt put forward as the last Will and Testament of the deceased was duly executed and whether the testator had sound and disposing mind. It has been held that the Probate Court does not decide the question of title or existence of the property itself.

165. It has been observed in paragrap h 16 of that judgment that the grant of a probate by the Court of competent ::: Downloaded on - 09/06/2013 13:51:29 ::: 103 jurisdiction is in the nature of a proceeding in rem. So long as the order remains in force it is conclusive as to the due execution and validity of the Will unless it is duly revoked as per law. The order of the Probate Court, therefore, binds not only the party before the Court but all other persons in all proceedings arising out of the Will or claims under or connected therewith. Consequen tly, even the revocation of the probate once granted can be applied for only from the Probate Court and not from the High Court in its original jurisdiction. Conseque ntly, it is held in paragrap h 20 ig of that judgment that the Probate Court is conferred exclusive jurisdiction to grant probate of the Will of the deceased or its refusal.

166. There is, therefore, reason to see that the Probate Petition is not included in the Schedule to the Limitation Act. Conseque n tly, distinction is drawn between Special Courts and Civil Courts in the case of Kalavagunta Sriramarao vs. Kalavagunta Suryanarayana m urthi & ors., AIR 195 4 Madras 34 0 . It is held that the Courts which decide disputed rights between the subjects or between a subject State would be Civil Courts as opposed to Criminal Courts. This would include Courts constituted under a special stat ute for deciding purely civil questions between persons seeking their civil rights. Conseque ntly, under paragrap h 12 ::: Downloaded on - 09/06/2013 13:51:29 ::: 104 of that judgment, the Courts constit uted under the Madras Co- operative Societies Act were considered as Civil Courts. The Court of the Registrar under that Act was considered Civil Court.

167. In the case of Vasudev Daulatram Sadarangani vs. Sajni Prem lalwani, AIR 198 3 Bombay 268 , which refers to the case of Kerala State Electricit y Board (supra) it has been held that the right to apply for Probate or Letters of Administration or Succession Certificate would accrue when it would become necessary to apply and that may not necess arily be within 3 years from the date of the death of the deceased, though delay beyond 3 years must be satisfactorily explained.

168. It is observed in paragrap h 13 of that judgment that right to apply is a continuo u s right which is capable of being exercised as long as the object of the trust exists or any part of the trust, if created, remains to be executed. Being a contin uo u s right, it can be exercised at any time after the death of the deceased as long as the right to do so exists. It may be after several years.

169. It is observed that the delay in making the Application may give cause for suspicion and the greater the delay, the ::: Downloaded on - 09/06/2013 13:51:29 ::: 105 stronger would be the suspicion. However, once the execution and attest ation of the Will are proved, the suspicion of delay in making the Application no longer operates. It is further observed that delay cannot be equated with the absolute bar of limitation.

170. In this case the life style of the beneficiaries themselves show the total lack of need to apply for probate: Eugene contin ued to live alone in Marie Ville. Cyril and Anthony had already disclaimed their bequests ig by not joining in the building of Damiano. Marie had constr ucted her building with Francis and Agnes. Irene had contributed her share in the expenses of constr uction of Damiano and obtained her legacy by allotment of two flats constituting her one- third share in Damiano. The deceased himself had constr ucted a part of Damiano. He kept one floor with him and allotted another to Eugene, in consideration of using the shares which stood in Eugene's name for the constr uction. The deceased had sold and disposed of the paddy field in Goa. The houses in Goa were to be enjoyed by all the sons. He bequeat hed the gold Rosary to all the children. The only estate of the deceased that remained to be administered was the two flats on the first floor of Damiano which would be distribut a ble to all the eight children in equal shares. What else was Eugene to administer ? And why was only Eugene ::: Downloaded on - 09/06/2013 13:51:30 ::: 106 called upon to administer ? Except rents of the flats which are stated to have been credited to the joint account of Eugene, Lawrence and the deceased, in which all the eight children called have partaken, none has shown any estate that Eugene suppressed or left neglected. Hence, no need had arisen till after the Administration Suit to probate the Will. Thereafter, Eugene was admittedly not in easy circumst a n ce s. The Court Receiver having been appointed since 1981, his income from the rent of his premises has been stopped. His earnings thereafter have been rather low.

Eugene has deposed upon being so cross- examined that his business has been closed since 1990. This was after a strike of the workers which was declared illegal. The suggestions put to Eugene in the cross- examination itself show that he had trouble with his workers since the life time of the deceased. Para 36 of his cross examination shows his livelihood only from dividend and interest income. He is contented to live frugally. Besides, he could have legitimately concluded that all who had to obtain the bequest s had obtained them or continued as before and hence probate was otherwise not required. These facts are required to be considered by the Court while accepting the case of such a party for delay in filing the Petition. The entire circum st a n ces considered as a whole require the Court to condone the delay in filing the Petition in the ::: Downloaded on - 09/06/2013 13:51:30 ::: 107 interest of justice. Eugene, therefore, had to file the Probate Petition ultimately on the copy of the Will which he had got from Marie. Eugene proved the Will by proof of its copy. The suspicion, of delay, therefore is dissolved as held in Vasudev's case (supra).

171. It can be seen that in this case Eugene has produced the copy of the Will immediately after the Administration Suit was filed and he filed his Written Statemen t therein. He has deposed that before the Administration Suit was filed all knew about the Will and none disputed it until Cyril "star t e d the whole thing." Filing of the Petition decades later for probating the same Will does not and cannot cause any suspicion to arise. A period of limitation has to be specified by law. It cannot be made out by precedent s.

Since a Probate Petition is not a Civil Suit, no period of limitation is advisedly prescribed.

172. Mr.Mans u k h a ni on behalf of Eugene, drew my attention to the case of E. Devarajan & ors. vs. E. Ramiah reported in AIR 19 9 1 Madras 214 in which the case of Vasudev (supra) has been followed and in which it has been held that Article 137 of the Limitation Act would not apply to proceedings filed for granting of Probate or Letters of Administration with or without the Will annexed. The ::: Downloaded on - 09/06/2013 13:51:30 ::: 108 reasoning given in that judgment is that no right is asserted or claimed by the Applicant. The Applicant seeks only recognition from the Court to perform a duty. No rights of the Applicant are settled or secured in a legal sense. There is no law which compels the Applicant to file the proceedings for probate or Letters of Administration. Such proceedings, therefore, do not constitute an action in law.

173. Conseque ntly, Rule 382 of the High Court (Original Side) Rules, 1980, makes a provision for explaining the delay of more than 3 years in filing the Probate Petition.

174. Conseque ntly, the judgment of the Single Judge in Bhanvarilal Sharma vs. Raj Kumar Sharma, AIR 200 3 Gauhati 90 that Article 137 of the Limitation Act would apply to a Probate Petition cannot have persu a sive value.

175. It is further sought to be contended by Mr. Andhyarijun a that the Petitions for Probate stand on different footing from Petitions for Letters of Administration for the purpose of Limitation Act. Though Probate Petitions cannot be barred by Limitation as the Executors have a continuo u s right to apply for Probate so long as the Trust exists, an administrator does not have any duty cast upon him nor is the Trust created in his favour. This is incorrect. This ::: Downloaded on - 09/06/2013 13:51:30 ::: 109 distinction is not one created by Legislation or Precedent.

Both probate as well as Letters of Administr ation are powers given by the Court to a Petitioner to administer the estate of the deceased.

176. The Probate Petition which became the Testame nt a ry Suit upon Caveat being filed, is, therefore, not barred by the Law of Limitation. The delay in filing it is explained. The delay can be condoned in the interest of justice. The Petition and the conseque nt Testame nt a ry Suit must, therefore, be disposed of on merits. Hence, Issue No.4 is also answered in the affirmative.

177. ISSUE NO.5 :- ORDER Letters of Administration with the carbon copy of the verbatim handwritten copy of the Last Will and Testame nt of Prof. Cosmas Damian T. Pinto dated 12 th February, 1963 annexed thereto is issued to the Petitioners / Pl ai ntiffs Eugene C. Pinto and Irene Pontes under Section 237 of the Indian Succession Act, limited until the original Will dated 12 th Februa ry, 1963 is produced.

(SMT.ROSHAN DALVI, J.) ::: Downloaded on - 09/06/2013 13:51:30 :::

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