Bombay High Court
Trevor Fernandes vs Tyrone Peter Fernandes on 11 March, 2025
2025:BHC-OS:3966
1 Judgement-TS 67-13.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
TESTAMENTARY AND INTESTATE JURISDICTION
TESTAMENTARY SUIT NO.67 OF 2013
IN
TESTAMENTARY PETITION NO.1550 OF 2012
Mrs. Severina Peter Fernandes ... Deceased
Mr. Trevor Fernandes
Age : 56 years, Of Mumbai, Indian Christian
Inhabitant, Occupation Business, being the
Sole Executor Named under the Last Will &
Testament of the Deceased, residing at Flat
Nos.101/102, 'A' Wing, Utsahi Apartment,
Utsahi Martha Mandal Co-op. Hos. Soc. Ltd.,
Rebello Road, Bandra (West), Mumbai 400 050. ... Plaintiff
V/s.
Tyrone Peter Fernandes
2, Dagmar Crescent Blacktown, NSW 2148, Australia ... Defendant
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Ms. Geeta Sonawane Rahate i/by Denzil D'Mello for the Plaintiff.
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Digitally
signed by
MUGDHA
MUGDHA
MANOJ
PARANJAPE
CORAM : ARIF S. DOCTOR, J.
MANOJ
PARANJAPE Date:
2025.03.11
17:50:40
+0530
RESERVED ON : 05TH MARCH 2025
PRONOUNCED ON : 11TH MARCH 2025
JUDGEMENT :
1. Ms. Geeta Sonawne, Learned Counsel appearing on behalf of the Plaintiff at the outset pointed out that the Advocate for the Defendant had Mugdha 1 of 13 ::: Uploaded on - 11/03/2025 ::: Downloaded on - 11/03/2025 22:43:59 ::: 2 Judgement-TS 67-13.doc sought a discharge in the matter. She invited my attention to the Order dated 5 th March 2024, which inter alia recorded that the Defendant had vide a letter dated 7th February 2024, informed the Advocates for the Defendant that given his advanced age, the Defendant did not wish to proceed with the present Suit. This was communicated by Advocate for the Defendant to the Advocate for the Plaintiff vide an email dated 9 th February 2024 by which a copy of the Defendant's letter dated 7th February 2024 was also sent. She submitted that on 26th February 2025 when the Suit was listed for final hearing, none appeared on behalf of the Defendant and it was thus that this Court directed that the Suit would be listed for final hearing and directed that written submissions be filed.
2. Ms. Sonawane, today, tendered the written note of submissions and pointed out that the captioned Testamentary Suit has been filed for Probate of the Last Will and Testament of one Severina Peter Fernandes ('the deceased') who passed away on 9th October 2009 and leaving behind a Will dated 3 rd April 2009 ('the said Will'), which the Plaintiff was propounding as being the Last Will and Testament of the deceased. She then pointed out that the Plaintiff is one of the sons of the deceased as also the executor and named in the said Will in which capacity the Plaintiff had filed the captioned Testamentary Petition. She submitted that since the Defendant filed a caveat opposing the Testamentary Petition the same was converted into the captioned Suit.
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3. Ms. Sonawane, then pointed out that this Court had, after considering the contentions taken in the Affidavit in Support of the caveat, vide an Order dated 25th June 2016, framed the following issues:
ISSUES
1. Whether the Plaintiff proves that the writing dated 3rd April 2009 was duly and validly executed and attested in accordance with law as the last Will and Testament of the deceased, Severina Peter Fernandes?
2. Whether the Plaintiff proves that at the time of the said alleged Will, the deceased was of sound and disposing state of mind, memory and understanding?
3. Whether the Defendant proves that the alleged Will was procured by force, coercion and undue influence?
4. Whether the Defendant proves that the alleged Will is unnatural?
5. What reliefs and what orders?
4. She then pointed out that the Plaintiff had led the evidence of two witnesses, namely Maria Colaco (PW-1) who was one of the attesting witnesses and his own evidence i.e. Trevor Fernandes (PW-2). The Defendant did not lead any evidence.
5. Ms. Sonawane submitted that she would jointly deal with Issue Nos.1 and 2. She pointed out that as per Section 63(c)1 of the Indian Succession Act, 1925 ('the Succession Act') a valid Will is required to be attested by a 1 63(c). The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
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minimum of two witnesses in the manner, more particularly set out in Section 63 (c) of the Succession Act. She then pointed out that in the present case that the said Will had been duly attested by two attesting witnesses, namely Maria Colaco (PW-1) and one Jerome Andrade.
6. Ms. Sonawane then pointed out that while a valid Will is required to be attested by a minimum of two attesting witnesses, due execution of the same was required to be proved as per the provisions of Section 68 2 of the Indian Evidence Act, 1872 ('the Evidence Act'). From Section 68 of the Evidence Act, she pointed out that due execution of the said Will could be proved by leading the evidence of any one of the attesting witnesses and it was not necessary to lead the evidence of both or all the attesting witnesses. She then pointed out that the Plaintiff had, in order to prove due execution of the said Will, led the evidence of PW-1. She then from the Affidavit of Evidence filed by PW-1 pointed out that PW-1 had deposed to the fact that the deceased was (i) in a sound state of mind (ii) had signed the said Will in her presence (iii) that each of the attesting witnesses had also signed the said Will in the presence of 2 68. Proof of execution of document required by law to be attested.--If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied Mugdha 4 of 13 ::: Uploaded on - 11/03/2025 ::: Downloaded on - 11/03/2025 22:43:59 ::: 5 Judgement-TS 67-13.doc the deceased and (iv) that both the attesting witnesses had also signed the said Will in the presence of each other. Ms. Sonawane therefore submitted that PW-
1 had in her evidence, clearly proved that the said Will had been duly executed in accordance with the provisions of Section 63 of the Succession Act.
7. Ms. Sonawane then invited my attention to the following answers given by PW-1 in cross-examination :
Q.6. In your routine life how often did you meet testatrix? Ans. I usually meet her often. Since my aunt was paralysed for almost 8 years.
Further the testatrix had also played a role also during my marriage to find my life partner.
Q. 9. Was the testatrix a very social person? Ans. Yes.
Q.11. With whom was the testatrix residing/staying in her flat? Ans. The testatrix stayed with her son Trevor, his wife Sharon and his daughter Rhea. There was also maid (Reshma) who stayed with her in the flat.
Q.15. Did you remember how many days she was hospitalized at that time? Ans. I do not remember.
Q.16. Did you visit in the hospital?
Ans. I visited her once.
Q.17. After being discharged from the hospital, was she taking medicines for her recovery?
Ans. Yes. She was taking medicines.
Q.18. Did you meet her once she was discharged and brought home? Ans. Yes.
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Q.19. After coming home, did she meet you as frequently as before? Ans. Yes. However, I used to meet her on the first floor in her flat.
Q.39. Did Trevor Fernandes approach you for the purpose of attesting the Will and when?
Ans. No. He did not approach me.
Q.44. Apart from you and Trevor Fernandes who else were present in the flat of the testatrix when you reached there for the purpose of attestation of her Will?
Ans. When I reached her flat, at that time, Dr. Panjwani, Jerome Andrade, Severene Peter Fernandes were present.
Q.46. Are you aware whether Dr. Panjwani was the family doctor of the testatrix?
Ans. Yes. He stayed in the next building.
Q.48. After reading paragraph No.5 can you tell the Court whether you knew whether Dr. Panjwani was informed about any previous medical history of the testatrix?
Ans. Yes. He used to give visit to her."
From the above answers Ms. Sonawane pointed out that, it was clear that not only had the deceased executed the said Will in accordance with Section 63(c) of the Succession Act, but had done so entirely on her own volition. She pointed out that the answers given by PW-1 further established that the Plaintiff (Propounder) did not have any role to play in making of the said Will and/or influencing the deceased in any manner. She pointed out that PW-1 had deposed to the fact that Dr. Panjwani, who was the family doctor of Mugdha 6 of 13 ::: Uploaded on - 11/03/2025 ::: Downloaded on - 11/03/2025 22:43:59 ::: 7 Judgement-TS 67-13.doc the deceased, was also present at the time of execution of the said Will and had examined the deceased before she executed the said Will.
8. Insofar as the evidence of the Plaintiff (PW-2) was concerned, Ms. Sonawane pointed out that the Defendant had abruptly abandoned the cross-
examination of PW-2. She submitted that PW-2 was cross-examined on 12th October 2023, after which the Defendant's Advocates addressed an email dated 19th October 2023 to the Court Commissioner and the Plaintiff's Advocate by which they recorded that they did not wish to conduct any further cross- examination of PW-2 and requested the Court Commissioner to close the evidence of PW-2 and to file his report.
9. Ms. Sonawane then invited my attention to the said Will and pointed out that the same was a speaking Will which explained the bequest made as also the reason from the same. She then from the said Will pointed out the following :
"5. My said son Travor namely the executor of this Will is taking good care of me together with the help of his wife and meeting all my day to day expenses including medical expenses. He is the only person who is looking after me and he is always by my side under all circumstances as my other son Tyron Fernandes is out of India with his family members.
6. I give bequeath and devise absolutely to my said son Trevor Fernandes my 1/3rd shares in the aforesaid properties referred to above including the rent and other payments which he is collecting from the said tenants/statutory tenants on the said property. He is also paying the monthly outgoings of the Mugdha 7 of 13 ::: Uploaded on - 11/03/2025 ::: Downloaded on - 11/03/2025 22:43:59 ::: 8 Judgement-TS 67-13.doc said flats and also the Municipal Taxes, N.A. Taxes of the said Mary Pereira Stables referred to above and he is maintaining the said Stables. Therefore I am not giving any part of my share in the aforesaid properties to Tyrone Fernandes. "
Basis the above, Ms. Sonawane submitted that the deceased had specifically explained as to why (i) the bequest had been made in favour of the Plaintiff and (ii) the reason as to why the Defendant had been excluded. She then submitted that given the material on record and the fact that the Plaintiff had proved due execution of the said Will coupled with the fact that the Defendant had not led any evidence whatsoever in the matter, the Plaintiff had duly discharged the burden of proving Issue Nos.1 and 2.
10. Ms. Sonawane then, insofar as Issue Nos. 3 and 4 were concerned, pointed out that the onus of proving the same lay squarely upon the Defendant. She submitted that given the fact that the Defendant had not led any evidence in support of either of the said Issues, or for that matter, any evidence whatsoever in support of the contentions taken in the Affidavit in Support of the caveat, an adverse inference must necessarily be drawn against the Defendant in terms of Section 114(g) 3 of The Evidence Act, 1872 ('Evidence Act') and Issue Nos. 3 and 4 must necessarily be answered in the negative. 3 114. Court may presume existence of certain facts. The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
The Court may presume:
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11. Ms. Sonawane then also highlighted the conduct of the Defendant.
She submitted that the Defendant had filed the caveat to merely stall the grant of the probate in favour of the Plaintiff without having any genuine grounds to oppose the said grant. She also pointed out that after filing the caveat and half way through the cross examination of PW-2, the Defendant had abandoned the Suit. It was thus she submitted that the Plaintiff has made out a case for the grant of probate in respect of the said Will and that Issue Nos. 1 and 2 were required to be answered in the affirmative, whereas Issue Nos. 3 and 4 were required to be answered in the negative.
12. Having heard Learned Counsel for the Plaintiff and having considered the submissions made, I find that the Plaintiff has made out a case for the grant of Probate for the following reasons:
A. The said Will has as per Section 63(c) of the Succession Act, been attested by two attesting witnesses. The Plaintiff has led the evidence of PW-1 to prove that the said Will was duly executed by the deceased. I have gone through the evidence of PW-1 and find that the same adequately proves that the Deceased had executed the said Will as per the provisions of Section 63 of the Succession Act. The Defendant has not appeared and nothing has been placed Mugdha 9 of 13 ::: Uploaded on - 11/03/2025 ::: Downloaded on - 11/03/2025 22:43:59 ::: 10 Judgement-TS 67-13.doc before me to show how the said Will was not duly executed in terms of Section 63(c) of the Succession Act. I therefore find that the Plaintiff has duly discharged the initial burden cast upon a propounder to prove due execution of the said Will. Hence, in my view Issue Nos. 1 and 2 would have to be answered in the affirmative and are accordingly so answered.
B. Insofar as Issue Nos. 3 and 4 are concerned, the burden lies squarely upon the Defendant. The Defendant has neither led any evidence nor proved his case through the cross-examinations of PW-1 and PW-2 and thus, in my view, the judgement in the case of Vidyadhar vs Manikrao & Anr 4 would squarely apply to the facts of the present case. The Hon'ble Supreme Court in the said case held as follows:
"17. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97. The Madhya Pradesh High Court in Gulla Kharagjit 4 AIR 1999 SC 1441 Mugdha 10 of 13 ::: Uploaded on - 11/03/2025 ::: Downloaded on - 11/03/2025 22:43:59 ::: 11 Judgement-TS 67-13.doc Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and Ors. , drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box."
In view of the above, an adverse inference under Section 114(g) of the Evidence Act would have to be drawn against the Defendant. Thus, Issue Nos. 3 and 4 would have to be answered in the negative and are accordingly so answered.
C. On conduct, I must note that the Defendant, after taking various contentions in the Affidavit in Support of the caveat, did not lead any evidence in the matter. The Defendant has also not appeared in the matter after the cross-examination of the Plaintiff. The Defendant, even at the stage of final hearing, did not withdraw his caveat but simply failed to appear before this Court. Thus, in my view, the conduct of the Defendant clearly establishes that the Defendant had filed the Caveat simply to stall the grant of Probate in favour of the Plaintiff and nothing more. Such conduct in my view, amounts to an abuse of the process of law and would thus entitle the Plaintiff to an Mugdha 11 of 13 ::: Uploaded on - 11/03/2025 ::: Downloaded on - 11/03/2025 22:43:59 ::: 12 Judgement-TS 67-13.doc order of costs under Section 35 of the Code of Civil Procedure, 1908 as held by the Hon'ble Supreme Court in the case of Charu Kishore Mehta vs. Prakash Patel5.
13. Hence, I pass the following order:
i. Testament Suit No.67 of 2013 is therefore decreed.
ii. The grant of Probate as prayed for is expedited, subject to all necessary compliances as per the Rules.
iii. The Defendant shall pay the cost of Rs. 5,00,000 (Rupees Five Lakhs Only) to the Plaintiff within 12 weeks from the date on which this Order is uploaded.
iv. In case the cost awarded is not paid by the Defendant to the Plaintiff, the Plaintiff shall be at liberty (a) to recover the same by executing this order as per the provisions available in law as also (b) by seeking to recover the said costs as arrears of land revenue.
5 2022 SCC Online 1962
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14. Testamentary Suit is accordingly disposed of. Interim
Application/Notice of Motions if any shall stand disposed of accordingly.
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